Sportfishing interests, more precisely the Salmon Spawning &
Recovery Alliance, Wild Fish Conservancy, the Native Fish Society, and
Clark-Skamania Flyfishers, recently lost a big one
when Judge Lasnik in
Back in 2001, NMFS invited a blue-ribbon panel of outside academics to review its harvest policies. Called the Recovery Science Review Panel, they issued a blistering report (.pdf, 2.3 Mb) concluding that “NMFS should develop a rational [harvest] policy that does not demean scientific common sense” (p. 13). Commercial harvest interests (more precisely, their state and tribal mouthpieces), demanded that NMFS repudiate the Panel report. NMFS bureaucrats scurried about like bugs after their rock was overturned, ultimately commissioning a thirty-eight page review of the Panel’s wide-ranging critiques from the elite science wing of NMFS at its Northwest Fishery Science Center facility (.pdf, 1.5 Mb (redacted version)).
NMFS bureaucrat Frank Lockhart testified that
Federal judges taught NMFS long ago that it need fear no discovery in litigation with mere citizens. When citizens complain about government decisions, federal judges declare that citizens don’t get to put on evidence. Only the federal agencies do. They go into their files, and bring out a set of documents and present them to the Court as the “administrative record” against which the decisions must be judged. Congress required the Courts to consider the “whole record” in the Administrative Procedure Act, including all documents considered by the agency, but most of the time, no one can ever tell if the agencies have presented the “whole record” or not.
You might think that citizens could make requests under the Freedom of Information Act to figure out whether the “whole record” is there or not. But the federal courts have shut that avenue down too. The Freedom of Information Act has “Exemption 5,” which says agencies don’t have to release documents if it could withhold them in a lawsuit with citizens. And the federal judges say this language means Congress empowered the federal courts to invent special “privileges” for the government.
And the broadest privilege is the privilege to hide federal decision making processes from the citizens. The federal courts claim that if citizens could see what federal employees were really thinking and saying in their e-mails and documents inside the agency, they might be “chilled” by the public reaction. This, the federal courts claim, will lead to lower quality decisions. The unspoken premise is that whatever the federal government is trying to accomplish is something that ordinary citizens can’t be expected to understand, that government can’t be troubled to explain to them, and/or is sufficiently rotten that we dare not expose it to public scrutiny.
So when I made a Freedom of Information Act
request to get the
NMFS responded by invoking its judicially‑manufactured
privilege, and filed Mr. Lockhart’s testimony admitting that the
As for Judge Pechman,
she echoed the allegation of inappropriate conduct in a footnote and wasn’t
about to order NMFS to release any documents.
According to her, the Science Center response to the Panel’s criticism
(“Document 14(b)”) “does not contain any purely factual material that requires
disclosure” and “when an author discusses factual material in the course of
offering recommendations of policy, the documents are properly withheld under
the deliberative process privilege”. (.pdf, 35 Kb) The unredacted headings of the
So we will never know whether or not NMFS’ own scientists think that the agency’s harvest policies “demean scientific common sense” or not. And sportsfishing interests have missed yet another opportunity to put some more fish in the river, by refusing even to attempt to require NMFS to listen to its own scientists. And citizens who may wonder why commercial interests can kill hundreds of thousands of salmon ostensibly protected under the Endangered Species Act will never know that the federal judges, in their zeal to protect federal agencies from accountability, are at the root of the problem.
© James Buchal, June 16, 2008
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