News from the Front #73:  A Ray of Hope for the Klamath Farmers

        There are a thousand hacking at the branches of evil to one who is hacking at the root.  

                                                                            Henry David Thoreau

Sept. 5, 2003. Nearly two years ago, six residents of the Klamath Basin, Walt Moden, Merle Carpenter, Charles Whitlatch, John Bair, Tiffany Baldock and Dale Cross filed a petition to remove two species of sucker fish from the endangered species list.  The Service had listed the suckers back in 1988, when there was very little information available about the suckers.  One of the biologists recommending listing frankly acknowledged that a principal purpose of listing the suckers as endangered was to pry loose more Federal money to study them.  (The Justice Department would later fight to exclude this document from evidence.)  The biologists claimed that one species of sucker was virtually nonexistent and none of the other species could even be found.

The centerpiece of the petitions for delisting was testimony before Congress by David Vogel, a 14-year U.S. Fish & Wildlife Service veteran.  Vogel had prepared the following chart, showing the available evidence concerning the abundance of suckers: 

Vogel testified that the 1988 listings were based on a “selective” and “distorted” review of the available data, and that

"It is now evident that either:  (1) the estimates of the sucker populations in the 1980s were in error and did not, in fact, demonstrate a precipitous decline (i.e., the populations were much larger than assumed), or (2) the estimates of the sucker populations in the 1980s and the suckers have demonstrated an enormous boom since the listing and no longer exhibit 'endangered' status." 

Congress did nothing in response to Vogel's testimony, just as it has done nothing in response to years of other testimony about federal fish and wildlife agency use of junk science in administration of the Endangered Species Act.  I reviewed the Service's response to the delisting petition and Vogel's testimony at length in News from the Front #66; briefly, the Service declared that the new estimates of large sucker populations meant nothing because the two methodologies for estimating sucker populations were different.

On September 4, 2003, Judge Robert E. Jones of the United States District Court for the District of Oregon released an opinion (22 pages, 598 Kb, Adobe Acrobat format) overturning the U.S. Fish and Wildlife Service denial of the petition for delisting.  Judge Jones acknowledged the obvious:  "On the basis of the substantially higher population estimates set forth in the petition, a reasonable person could conclude that the sucker populations have increased and may warrant delisting."

As for the Service's argument that the newer population estimates could not be compared to the estimates made at the time of listing, the Judge again exhibited common sense:  "Because the estimates made in the 1980s and those made in the 1990s both attempted to measure sucker populations, extreme differences in methodology without evidence of erroneous data does not render a comparison per se uninformative."   The Judge reviewed the Service's inconsistent treatment of the population estimates, characterizing them as “unexplained conclusions not supported by the administrative record”.

Thus the Judge ordered the Service either to reconsider its rejection of the delisting petition, or proceed to a full status review, the next procedural hurdle prior to delisting.  In case the Service determined again to reject the delisting petition, the Judge told the Service it must "more fully explain the differences in methodology that render comparisons between current estimates and estimates prior to listing uninformative.  Further, the Service must extrapolate on the data [sic] supporting its conclusion that estimates 'show no overall trend for increasing populations within the last decade', particularly in light of the 2001 status report's conclusion that 'trends are apparent'."

While one should not look a gift horse in the mouth, the Judge's opinion is disappointing.  The reason it makes no sense for the suckers to be on the endangered species list is that there is no appreciable risk that they are going to go extinct:  Upper Klamath Lake and nearly every other body of water in the Klamath Basin is full of them.  In Upper Klamath Lake, they appear to have filled the Lake to its carrying capacity. It is thus utterly irrational to look for a further "trend" of increasing populations to support delisting.  The Lake won't hold any more suckers.

At this point, the Bush Administration has three choices:  (1) appeal the ruling; (2) offer more junk science to reject the delisting petition again; or (3) proceed to a formal status review.  Under option (3), the Administration will have approximately nine months to make a final decision on whether to delist the suckers or not. 

Just a few months before the delisting petition was filed, the Service got  black eye when a blue-ribbon panel from the National Research Council declared that the measures it was taking to protect the suckers were precisely contrary to all available scientific evidence.  The Service was insisting that lake levels be kept high to avoid sucker kills in late summer from algae blooms, when in fact the kills had occurred at high lake levels, not low lake levels.

Now once again the Service has come under adult supervision, and a federal judge has declared that the Service has acted contrary to the scientific evidence.  The Judge's finding is particularly significant because of the enormous deference Federal biologists get from Federal judges; their opinions will not be set aside unless they are not merely wrong, but "arbitrary and capricious", which in practice means they must be totally indefensible.  

One can only wonder how many times the Service biologists will have to be outed as pushers of junk science before responsible adults do something about it.  The Bush Adminstration could exhibit some leadership by instituting a formal status review, and hiring somebody like Mr. Vogel to do it. 

© James Buchal, September 5, 2003

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