Endangered Species Law & Policy

In September 2011, we reported that a federal district court made a rare finding of agency bad faith in litigation challenging a biological opinion and reasonable and prudent alternative (RPA) issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt.  The finding came on the heels of a decision by the court granting injunctive relief to the State of California and public water agencies and agricultural interests, enjoining implementation of a component of the RPA previously determined to be arbitrary and capricious, which is referred to as the Fall X2 Action.  Following the bad faith finding, the House of Representatives held an oversight hearing, and a number of Representatives expressed their concern about the conduct of the federal agency personnel.

Rather than launch an Inspector General's investigation, the Service decided to hire an engineering and designing consulting firm, Atkins, to oversee a review of the finding of bad faith.  At the same time, the Service vehemently defended the conduct of its personnel, going so far as to give a merit award to one of the two personnel charged with bad faith less than a month after the court's decision and well before the outside review was completed.  The decision to contract directly with an outside organization to conduct the review allowed the Service to control the scope of the review including the questions posed to the reviewers, determine what materials the reviewers would be provided, and limit the panel to communicating only with the Department of the Interior during the course of the review.

The reviewers recently issued a report (pdf) with their findings.  News outlets provided considerable coverage of the report, including on their editorial pages.  Almost without exception, they concluded that the review vindicated the agency scientists.  For example, Mike Taugher of the Contra Costa Times, wrote "[t]wo government biologists who were excoriated last fall by a federal judge accusing them of arguing dishonestly for tougher environmental regulations in the Delta did nothing wrong, according to an independent panel of experts."

The reviewers did ultimately conclude that "Mr. Fred Feyrer and Dr. Jennifer Norris may have demonstrated minor inconsistencies (Feyrer) or minor inadequacies in explanation (Norris) in the materials presented in written declarations and verbal testimonies, but these mistakes do not represent violations of scientific professional standards."  At the same time, the reviewers were critical of both Mr. Feyrer and Dr. Norris.  For example, the reviewers stated "the record before us does not fully document their reasoning and it is difficult to understand the basis for some of their evaluations and statements."  They also stated "we feel that neither Mr. Feyrer nor Dr. Norris followed best possible scientific practices in documenting and explaining his or her position, showing how the conclusions were reached."

Particularly troubling to the court were a number of statements made by Dr. Norris in her final declaration (pdf), who suggested, among other things, that "implementation of the Fall X2 Action may represent the last opportunity to prevent extinction of a species unique to California" and "failure to provide relief from [the court's injunction] will irreparably harm the species and preclude recovery."  Upon reviewing these statements, the reviewers pointed out that "we do not see analysis of other information more recent than the 2008 BiOp that she has brought forward to support her conclusions."  Thus, it is unclear whether Dr. Norris gave any consideration whatsoever to the 2011 delta smelt summer townet index available at the time she filed her declaration, which measures abundance and showed an increase of seven-fold from 2009 to 2011 and almost three-fold from 2010 to 2011.  With hindsight, it is apprarent that Dr. Norris' emphatic statements regarding the precarious state of the species were misguided: the delta smelt fall midwater trawl survey data, which measures delta smelt abundance during the fall months when the injunction was in place, showed a more than ten-fold increased from 2010 to 2011.