Federal Courts Ensure Junk Science Governs Salmon Harvest Decisions
News from the Front #94:
By James Buchal, author The Great Salmon Hoax [here]
For every one that doeth evil hateth the light, and cometh not to the light, lest his works should be reproved. John 3:20.
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 Seattle rejected their challenge to National Marine Fisheries Service decisions sanctioning continuing overfishing on threatened Puget Sound chinook salmon. The Alliance sued under two federal statutes that require NMFS to use the best available science in decision making. It has been years since the Service did that, and it is increasingly clear that the Federal courts are the most powerful force making sure that NMFS can deem any particular science it wants as the best science—at least when it comes to harvest science.
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 the Science Center’s review “affected NMFS’ adoption of recovery plans and biological opinions pertaining to the listed salmonids” throughout the Northwest. Presumably these included the very decisions Judge Lasnik approved. But NMFS made sure Judge Lasnik never saw the thirty-eight page Science Center report, or the Panel’s “common sense” report that triggered Science Center’s involvement.
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.
