Brandon Middleton
Regarding the
independent panel report on the
delta smelt X2 testimony
controversy, reviews of the
report suggest that the two
federal scientists who provided
the testimony at issue
have
been
vindicated, and that Judge
Wanger’s Fall 2011 criticism of
the scientists can now be said
to be (as the Department of
Interior told the
Contra Costa Times)
“unfounded.”
I think these initial
assessments of the panel
report are inaccurate, and I
urge those interested to
compare the surprisingly
brief panel report to the
detailed findings made by
Judge Wanger in September,
as well as to Judge Wanger’s
summary of the events that
he gave during a
presentation to the
Association of California
Water Agencies 2011 Fall
Conference (beginning at
about
37:00 of his remarks).
For the scientists involved,
instead of vindication, the
report appears to offer a
mixed bag. While the report
states that “Mr. Feyrer and
Dr. Norris, for the most
part, made good faith
efforts to engage in a
cooperative scientific
endeavor,” it adds that “all
scientists have (through
their commitment to the
principles of integrity,
transparency, etc.) an
additional and higher
responsibility, to explain
their reasoning and their
use of evidence,” and that
“[i]n this regard, we feel
that neither Mr. Feyrer nor
Dr. Norris followed the
best possible
scientific practices in
documenting and explaining
his or her position, showing
how the conclusions were
reached.” (emphasis in
original report)
Likewise, rather than
suggest that Judge Wanger
was off-base in this
remarks, the panel report
states instead that “the
explanations provided, as to
how these two scientists
reached their conclusions,
could have been clearer and
more forth-coming,” and that
“this failure to provide
clear and convincing
explanation, more than any
other issue, may have led
Judge Wanger to reach his
conclusions alleging lack of
candor and integrity.” The
report also makes a general
observation that scientific
and statistical uncertainty
“from a legal perspective .
. . may appear as an attempt
to confuse or mislead the
court.
However explicit treatment
of uncertainties and
unknowns is not
unprofessional behavior — it
is good science.”
This observation is
noteworthy because it is
symbolic of the panel’s
charitable view of what
actually happened in this
case–wouldn’t it be nice if
we could chalk up the X2
saga to an irreconcilable
difference between
scientific and legal
processes?
Take, for example, the
panel’s brief analysis of
Dr. Norris and whether her
opinions (in the words of
the panel) “change[d] over
time”:
The declarations by
Dr. Jennifer Norris
appear to rely strongly,
if not exclusively, on
the 2008 BiOp, as
evidenced by her
frequent citations of
the BiOp. The
implication is that Dr.
Norris believes that the
2008 BiOp relies on the
best available science
for implementing the RPA.
Although Dr. Norris
acknowledges that key
agency biologists and
academic scientists did
participate in a Habitat
Study Group that was
charged with developing
a scientific plan of
study to support the
adaptive management of
the Fall Action, we have
seen no explanation of
how Dr. Norris has
evaluated the
information that has
become available since
the 2008 BiOp. Dr.
Norris was certainly
aware of the information
provided by plaintiffs
as evidenced by her
statement “Plaintiffs
did not propose any
specific management
alternative to the Fall
Action, but rather,
proposed studies and
data analysis activities
that, while potentially
informative, would not
provide any tangible
benefits to the delta
smelt during the Fall”
(Norris declaration
07/01/11 p. 4:22-25)
but, we do not see
evidence that she relied
upon this information.
In her 09/07/11
declaration, Norris
continues to cite the
2008 BiOp and
information sources
available prior to that
date. However, she does
cite Feyrer et al.
(2011), but without
explanation as to why
this is the only
additional information
source she relies upon.
In summary, we find
that Dr. Norris’s
opinions, and consequent
testimony, were
consistent over time.
This is compatible with
normal scientific
practice, if she is
unconvinced of the need
to change her opinions
in the light of any new
information.
I have emphasized that last
part because it highlights
the central problem behind
Dr. Norris’s testimony–it
was too consistent.
She dogmatically maintained
that the 2008 biological
opinion’s 74 km standard was
the only way to go, even
though the historical data
she used to justify her
position had already been
found to be unpersuasive,
and despite the federal
government’s later
recognition that the “use of
an 81 km target for falls
after above-normal years . .
. represents a reasonable
intermediate action to
restore late post-reservoir
period salinity conditions
in the fall.”
This found no support in the
record, and thus Judge
Wanger concluded that “Dr.
Norris is that unique
witness who no matter how
you change the facts
hypothetically and ask her a
question, she never varies
from her answer because she
is a true believer. And she
never — there is nothing
that will shake her belief.
There is nothing in that
will move her to answer
except that [which]
justifies the result and the
end that is sought to be
achieved.”
But by asking whether Dr.
Norris’s opinions “changed
over time,” the panel of
course made the wrong
inquiry, and its finding
that “[s]he does not offer
an obvious explanation as to
why she continues to rely
specifically on information
supporting the 2008 BiOp and
not consider more recent
information in forming her
conclusions” barely
scratches the surface of the
delta smelt proceedings.
In addition, for a paper
authored by three
well-respected scientists,
the panel report’s review of
Mr. Feyrer’s testimony reads
more like a lawyerly defense
of the biologist than an
objective analysis.
Recall that the controversy
with Mr. Feyrer began at the
July 2011 delta smelt X2
hearing, when he was
seemingly okay with Fall X2
being located at 79 km east
of the Golden Gate Bridge,
having testified that when
X2 is located downstream of
the 80 km mark (the
confluence of the Sacramento
River and San Joaquin
River), “X2 and low salinity
zones are in those vast
large shallow base, those
shoals of Suisun Bay,
Grizzly Bay, Honker Bay, and
so there’s a lot of area
there. That’s why the
habitat index is bigger.”
But when Judge Wanger
decided in August to
enjoin the Fall X2 action
and ordered that “[n]o Fall
X2 action setting the X2
target west of 79 km shall
be implemented,” Mr. Feyrer
did an about-face and argued
in a September declaration
that “[m]y testimony in this
matter is not consistent
with a finding that
positioning X2 at 79 or 80
km would provide sufficient
habitat quality for delta
smelt during the fall
relative to . . .
positioning X2 at 74 km.”
The panel attempts to
explain this discrepancy
through its determination
that Mr. Feyrer’s comments
are contradictory only “on
the surface,” and only “if a
literal interpretation of
Feyrer’s July comment
related to ‘downstream of
the confluence’ is
interpreted as a physical
line drawn on a map
immediately downstream of
the confluence of these
rivers.”
The panel then offers a
caveat:
But Feyrer is a
biologist and the
committee feels that
Feyrer is interpreting
the position of X2 not
as a line on a map as
Judge Wanger appears to
do, but instead, as
Feyrer states in his
July declaration (page
7, about line 24) “By
definition, X2 describes
the position of the low
salinity zone in the
estuary” and then about
line 25 says “It is the
low salinity zone, not
specifically X2 that is
delta smelt habitat”. .
. .
The committee feels
that Mr. Feyrer does not
fully explain why he
adopts a more
precautionary approach .
. . in describing
whether or not X2 at 79
or 80 km will or will
not make Suisun Bay,
Grizzly Bay, Honker Bay
and other areas of
potential suitable
habitat available during
his September
declarations. In the
July declarations and
testimony Feyrer uses
more general language to
describe expansion of
suitable habitat when X2
is downstream of the
confluence of the
Sacramento and San
Joaquin rivers. The
committee feels that a
large amount of
confusion on this point
would have been avoided
if Feyrer had very
explicitly stated at
what river kilometer X2
would have to be located
to make these habitats
available or if this
knowledge isn’t
available (because of
uncertainty in how the
lower salinity areas are
distributed in these
bays due to wind, tide,
and other uncontrollable
factors), then this
uncertainty should have
been clearly
articulated. In reading
the statements of Judge
Wanger. and the
testimony and written
declarations of Feyrer
it does appear that at
times there are
different
interpretations of the
definition of X2, either
as a specific line on
the map (Judge Wanger)
or a more general broad
area of suitable habitat
(Feyrer).
There are two significant
problems with the panel’s
analysis here. First, it’s
absurd to suggest that
“there are different
interpretations of the
definition of X2.”
It has always been
understood to be a measure
of salinity (two parts per
thousand), not one of
location, and I fail to
understand how the panel
could suggest that Judge
Wanger defined X2 “as a
specific line on the map.”
Second, the panel implies
the Mr. Feyrer did not
clearly opine on possible
locations of X2 and how
those locations would affect
the delta smelt. Yet that is
precisely what he did. Judge
Wanger
pointed this out in
September:
Mr. Feyrer testified
— when the Court asked:
“What if you were to use
a less water intensive
application of this X2
model? For instance, at
79 kilometers, where you
would get areas that we
discussed yesterday
within the scope of the
ultimate objective, but
not require as much
water to do it, would
the same purposes be
accomplished?
Mr. Feyrer said:
“With the above normal
year standard 81, 81 is
pretty much near the
bottom of the ascending
limb of that curve. And
that’s the minimum point
where you get out of
that lower tier of
habitat conditions.”
He was then asked .
. . when Mr. Sims asked
the question, “So when
the — what the data
demonstrates then is
that when X2 is below
the confluence, that
opens up Suisun and
Grizzly, right?”
Mr. Feyrer said,
“Yes. As depicted in
those habitat maps.”
And he was asked “If
X2 was maintained at 79
kilometers, would
Grizzly and Suisun Bays
still be available
habitat?”
He answer[s] under
oath: “Yes.”
Next question: “If
X2 is above 80
kilometers, smelt still
use Suisun Bay; don’t
they?”
“Answer: Yes.”
The panel says confusion
“would have been avoided if
Feyrer had very explicitly
stated at what river
kilometer X2 would have to
be located to make” habitat
available. What, then, is
the above testimony if not
explicit statements on that
exact subject?
