Endangered Science
More than species are endangered by the Fish and Wildlife Service.

By Jonathan H. Adler, assistant professor of law at Case Western Reserve University School of Law.
February 12, 2002 8:55 a.m.

ll most farmers near Klamath Falls, Oregon wanted was a little water. In most years, farmers in the area receive water to irrigate their crops from the Klamath Basin Project, but not last year. Drought conditions dropped water levels below normal. To make matters worse, in April federal officials shut off the flow of irrigation water from Upper Klamath Lake lest releasing water to farmers would imperil endangered fish. Last week, the farmers learned it was all for naught.

The Klamath Basin Project contains a series of lakes, dams, and rivers overseen by the federal Bureau of Reclamation. The area is home to some 1,400 farmers, many of whose families were first lured to the area by promises of water from the federal government between the turn of the last century and the end of World War II. The area is also home to several species of endangered fish. The shortnose sucker and Lost River sucker live in Upper Klamath Lake, and coho salmon spawn in the Klamath River. All three are protected under the Endangered Species Act (ESA).

On April 6, the Fish and Wildlife Service (FWS) issued a Biological Opinion declaring that there was too little water in Upper Klamath Lake to release anything to the farmers. Lowering the water levels, FWS biologists claimed, would threaten the suckers' survival. In addition, the FWS determined that any water that was released would need to go to coho salmon in Klamath River. This finding forced the Bureau of Reclamation to cut off the farmers' water because the ESA prohibits federal agencies from engaging in activities that could jeopardize the survival of endangered species. The Bush administration expressed concern for the farmers' plight. So long as the science suggested releasing water would imperil the fish, however, there was nothing else they could do.

Klamath farmers' livelihoods were destroyed to save fish from the brink of extinction — or so it seemed. Last week, the National Academy of Sciences (NAS) released a preliminary report suggesting the water restrictions were all for naught. The NAS report found no evidence that withholding water from the farmers helps protect the fish and concluded that "there is presently no sound scientific basis" for the water restrictions imposed by the FWS. Indeed, the NAS noted that some evidence suggests that the fish might be better off were the lake level lowered and less water diverted for Klamath River coho. Upon release of the study, House Resources Committee Chairman James Hansen (R., Utah) said her was "appalled" that the FWS "withheld desperately needed water from farmers . . . based on sloppy science and apparent guesswork."

The NAS report comes on the heels of allegations that government scientists falsified evidence that Canadian lynx occupied national forests. As initially reported by the Washington Times, several biologists submitted fur from captive lynx and a stuffed bobcat, claiming the samples were found in national forests. The biologists deny any wrongdoing, claiming that they were just testing the lab to see if it would catch the fake samples. Others are not so sure, noting that had the tampering gone undetected, the evidence of lynx habitation could have been used to limit logging, snowmobiling, and other activities on federal lands. Congressional hearings and an official investigation are to follow.

Poor endangered species science is nothing new. Of the first 27 species removed from the endangered species list, at least one-third were delisted due to scientific errors. Either the species was misidentified or miscounted. Some Western lawmakers fear that environmental activists and government scientists manipulate research findings regarding endangered species to trigger regulatory controls. Government officials have little choice but to impose regulatory controls once an endangered species is found. In this fashion, environmental activists have used the ESA to restrict resource development since the law's enactment in 1973.

Years of litigation under the National Environmental Policy Act couldn't prevent completion of the Tellico Dam in Tennessee, but discovery of a little fish called the snail darter could. In 1978, the Supreme Court held that the ESA barred federal officials from finishing the dam because federal scientists believed it would imperil the darter by destroying its only habitat. As it happens, the scientists were wrong. The darter had other habitat and the eventual completion of the dam (after Congress intervened) did not drive it to extinction.

For those who oppose development, the incentive to skew scientific findings is strong. Beginning in the 1980s, environmental groups sought to prevent logging in the Pacific Northwest by finding species that could be listed as endangered. The northern spotted owl was the first — and most prominent — such "surrogate," in the words of Andy Stahl of the Sierra Club Legal Defense Fund (now known as Earthjustice). After environmental groups successfully sued to get the owl listed, they could sue to shut down timber operations in national forests. For them to be successful, however, they needed science to support their desired result. As Stahl explained, "thank goodness the spotted owl evolved in the Northwest, for if it hadn't, we'd have to genetically engineer it." After the lynx episode, some fear federal scientists are doing the next best thing by "engineering" evidence that endangered species occupy coveted lands.

The ESA is supposed to ensure that conservation decisions are to be based upon neutral and sound scientific research. Once biologists conclude action is necessary, the ESA's regulations kick into gear. There is relatively little room for agency discretion in imposing restrictions. Control of the science brings control over regulatory decisions — and as the Klamath farmers found out, ESA regulations can be quite severe. As a result, the ESA places tremendous pressure on scientific research to reach politically determined conclusions. Yet when political manipulation of scientific research is uncovered, it undermines faith in the scientific process and erodes support for truly necessary conservation measures.

Interior Secretary Gale Norton told reporters she was "concerned by the weaknesses" in FWS science exposed by the NAS report. She has ordered FWS to reevaluate its Biological Opinion in light of the new study and submit new recommendations by the end of this week. According to an Interior Department spokesman, Norton seeks to ensure that "the people affected by these decisions and the public at large has confidence in that the department is using accurate and reliable science." This will require review of more than the Klamath decision. As things stand, the ESA itself may be endangering wildlife science.