Jul 082014

Group wants to know why whistleblowing scientists haven't gotten redress

Public Employees for Environmental Responsibility is suing the Fish and Wildlife Service to obtain documents about a scientific misconduct case that has dragged on for years.

PEER wants to know why FWS Director Dan Ashe has not released documents that might explain why the two managers who violated scientific integrity standards were not disciplined, while the scientists who blew the whistle on them were suspended without pay. Those employees continue to work at the service but have not received their back pay or had their records cleared.

The PEER news release, issued today, notes that a paper on the range of the American burying beetle, which was withdrawn for use by FWS in Section 7 consultations, continued to be posted by an online journal until the journal was contacted by ESWR. [Update: The paper is still online, despite a commitment by the publisher to remove it. We have sent another email inquiry to M. Ilyas Khan, Managing Editor of Bentham OPEN.]

Here is a story from the latest issue of ESWR on the misconduct.

For Immediate Release:  Tuesday, July 8, 2014
Contact:  Kirsten Stade (202) 265-7337


Records Show Why Director Did Not Act After Investigations Proved Misconduct

Washington, DC — The U.S. Fish & Wildlife Service is wrongfully withholding documents detailing why top agency officials refused to act on findings of scientific integrity reviews confirming serious scientific misconduct by agency managers, according to a federal lawsuit filed today by Public Employees for Environmental Responsibility (PEER). This stalemate signals that the vaunted new scientific integrity program inside FWS has broken down completely, apparently at the instigation of its Director Dan Ashe.

In spring of 2013, two separate panels found two managers of the FWS Oklahoma Ecological Services field office guilty of scientific misconduct in two separate cases.  Months followed without any action by FWS leadership.  Approximately one year ago on July 11, 2013, Deputy Interior Inspector General Mary Kendall issued an extraordinary public rebuke in the form of a Management Advisory stating:

“The Office of Inspector General (OIG) requests that immediate action be taken to address an unreasonable and inappropriate response regarding the discipline of two Fish and Wildlife Service (FWS) supervisors who engaged in scientific misconduct and apparently retaliated against three FWS employees in 2012. The failure to take timely and appropriate management action by FWS senior leadership, including Director Dan Ashe, damages the credibility and integrity of the Department of Interior (DOI) and the FWS Science Program as well as senior leadership.”

Besides Ashe, the OIG named Regional Director Benjamin Tuggle and Deputy Director Rowan Gould.  Days later, FWS issued a statement that it “is pursuing all appropriate disciplinary actions to address the matters raised in the Inspector General's Management Advisory.”  Subsequent events, however, suggest that statement was untrue.  A year later, there is no sign of the “appropriate” actions promised by FWS:

  • The two guilty managers were not demoted or suspended.  Instead, they were kicked upstairs through prestigious details until they ultimately found other jobs.  One, Luke Bell, left to work for an oil company. Dixie Porter, the senior manager, eventually secured a high-level position with the U.S. Forest Service, although it is unclear if her new employer was apprised of the scientific integrity review findings about her deliberate misconduct;
  • The three whistleblowing scientists who suffered a series of unpaid suspensions and other punishments have yet to get FWS to agree to redress the career damage they suffered; and
  • FWS took no steps to withdraw a fraudulent paper cooked up by Porter and Bell to create a phony paper trail supporting their actions.  The journal moved to withdraw the paper only after being contacted by a journalist.

“The Service leadership is itself guilty of scientific misconduct in how it handled these findings,” stated PEER Executive Director Jeff Ruch. “Dissembling about its actions to ensure integrity speaks volumes.”

The scientific integrity report about the two cases came to light only after PEER pursued an appeal of their denial under the Freedom of Information Act.  Today these redacted reports can be seen only on the PEER website. The agency, however, continues to balk at turning over report exhibits and the communications from FWS leadership following those reports.  After it became clear that further appeals would not secure production, PEER filed suit in the U.S. District Court for the District of Columbia to force their release.

“How can official efforts to guarantee scientific integrity have any credibility if they are exercised only in secret?” Ruch asked, noting that the FWS never even made the reports available to the scientists who brought the complaints.  “Progress in protecting science from political interference requires that the courageous scientists who exposed this corruption are fully vindicated.”




Mar 152012
Judge Ezra did not abuse discretion, court finds

In addition to weighing in on the constitutionality of Congress's wolf delisting rider, the Ninth Circuit yesterday opined on (and approved of) a consent decree designed to reduce the impact of Hawaii's longline fishery on loggerhead sea turtles (Turtle Island Restoration Network v. U.S. Dep't of Commerce,11-15783).

Loggerhead turtle (Caretta caretta)Photo: Marco Giuliano/ Fondazione Cetacea

Here are a few excerpts:

[I]f the Longliners’ position is carried to its logical conclusion, then any attempt by federal agencies to settle litigation involving a regulation would entail a return to the same rulemaking process by which the regulation was created—a proposition that contradicts the Supreme Court’s policy determination in another context. See Local No. 93, 478 U.S. at 524 n.13 (recognizing that a limit on the government’s ability to enter a consent decree would make it substantially more difficult to settle Title VII litigation).

The Longliners contend that the district court used the Consent Decree impermissibly to modify substantive regulatory rules. See Mt. St. Helens Mining & Recovery Ltd. P’ship v. United States, 384 F.3d 721, 728 (9th Cir. 2004) (“[T]he APA does not empower the district court to . . . order the agency to reach a particular result.”). This argument fails for the same reasons discussed above. Specifically, the Consent Decree vacates only a portion of the Final Rule and the supporting 2008 Biological Opinion and incidental take statements, thus restoring the 2004 regulations during the remand and reconsideration process. The Consent Decree leaves NMFS free on remand to fashion a new rule based on the new biological opinion without imposing any substantive requirements on its terms.

The fact that the Federal Agencies complied with the Magnuson Act’s rulemaking requirements when they issued both the 2009 Final Rule and the 2004 Regulations, see 74 Fed. Reg. 65460, 65462 (Dec. 10, 2009); 69 Fed. Reg. 40734, 40734 (July 6, 2004), and that any subsequent regulations incorporating the new biological opinion’s findings will be subject to the Magnuson Act’s rulemaking procedures further supports upholding the validity of the Consent Decree.

Notably, on September 16, 2011, while this appeal was pending, NMFS uplisted the North Pacific Ocean Distinct Population Segment of loggerhead turtles (the population segment at issue here) as endangered. On January 30, 2012, NMFS issued the biological opinion contemplated in the Consent Decree.

The longliners also had argued that the judge's finding that a return to 2004 incidental take limits would be "more protective" of turtles was clearly erroneous. In part, they contended that any increased take would be “statistically and biologically insignificant” to the loggerhead turtle populations as a whole.

But the appeals court disagreed. There is "no clear error regarding the 'more protective' finding because a reduction in the actual number of incidental take, even if statistically insignificant, is still a logical basis for the finding that turtles would be more protected."

More links

Hawaii longline fishing regs (fact sheet)

Opinion from the Ninth Circuit's site

Some recent Earthjustice press releases

Grand Canyon Uranium Mining Ban Defended by Havasupai Tribe, Conservation Coalition  (3/13/2012)

Conservation Groups Support Swinomish Tribe Battle to Protect Skagit River and Salmon  (3/7/2012)

NAS: EPA Underestimated Number of Polluted Florida Streams, Lakes, Rivers and Springs in Florida  (3/6/2012)

Links for latest issue

 Posted by on April 1, 2011
Apr 012011
Links for latest issue

Recent news: A federal judge in Washington, D.C., ruled Thursday, March 31, that DOI Secy. Ken Salazar couldn’t just unilaterally withdraw the Bush Administration’s Western Oregon Plan revisions, under which BLM was to allow increased logging. Salazar said the revisions were illegal because there had been no ESA Section 7 consultation. But U.S. District Judge […]