UPDATE: Julie MacDonald, who gained a measure of notoriety for forcing scientists to rewrite studies to diminish protection for the marbled murrelet, the delta smelt, and other species, resigned her Interior Department position on April 30, 2007. Here’s a summary of her questionable activities concerning the smelt, along with smoking-gun background documents.
Julie A. MacDonald, an aide to Assistant Secretary of the Interior for Fish, Wildlife and Parks Craig Manson, has attempted to derail a status review on the California delta smelt because it did not support removing protections for the Sacramento/San Joaquin Delta fish. Removal of protections would allow the pumping of more water from the delta, a result favored by the administration and the California Farm Bureau.
After a status review produced by Fish and Wildlife Service scientists last April found the fish warranted continued federal protection, MacDonald telephoned an attorney for the Farm Bureau to share an email she had just sent the scientists, which scolded the scientists for finding the species still needed protection. The Farm Bureau immediately lodged the email with the court and asked the judge to reopen the case, citing disarray among the federal defendants.
MacDonald stepped in to undermine the status report ordered by a federal judge in a lawsuit brought the Farm Bureau in the fall of 2002. The bureau hoped that the status review would find that the smelt had recovered sufficiently to allow it to be removed from the endangered species list, which would allow greater volumes of water to be removed from the Sacramento-San Joaquin Delta for agriculture. The review, however, found that the smelt remains in jeopardy of extinction and recommended, "Based upon our review of the best available scientific data, we conclude that the delta smelt should retain threatened status....It is not justified at this time to recommend delisting of the delta smelt."
This case follows two similar situations in the Pacific Northwest, where timber interests sued the Fish and Wildlife Service to force status reviews of the northern spotted owl and the marbled murrelet, hoping that recent studies would indicate that both species had recovered to the point where logging could be increased. In both instances the science indicated otherwise -- both species continue to decline. So the government, which had readily acquiesced to the reviews (they are required by the Endangered Species Act to be conducted every five years), has refused to file the findings. The draft review of the status of the marbled murrelet is out; the draft review of the northern spotted owl is expected August 9.
The delta smelt was listed as threatened effective April 5, 1993. Critical habitat for the species was designated on December 19, 1994. The Farm Bureau filed its case in federal court in Washington, DC, on November 22, 2002, demanding that a status review be conducted, a review that should by law have been completed in 1998. The government settled the case on April 25, 2003, and agreed to produce a status review by March 1, 2004. The lawsuit was dismissed with the understanding that it could be revived if necessary.
(A second, nearly identical suit was filed in Fresno at about the same time.)
To support the call for delisting the smelt, the San Luis and Delta-Mendota Water Authority produced a white paper titled "The Delta Smelt and the State of the Science." This document reported that the smelt's numbers had risen sharply, that its habitat had improved, and that it should be delisted. A review panel, however, appointed by the U.S. Geological Survey to review the white paper, found it deeply flawed: "The paper lacks sufficient scope and scientific rigor to present a compelling argument that a designation of threatened status is no longer warranted for the smelt."
The review goes on, "The conclusions reached in the paper were not supported by either the data or the arguments presented....There was unanimity that the authors selected data specifically to support only certain points and that the overall effort was extremely weak scientifically." This peer panel was dismissed by MacDonald as "not independent."
The status review was released on March 31, 2004. It recommended that the 'threatened' listing for the smelt be continued, noting that the species population had been measured at its lowest levels in 2002 and 2003. The review said that a recovery team should come up with a new plan to restore smelt populations over the long run based on new science.
Next, it gets a little strange. On April 1, 2004, Julie MacDonald sent an email to three people in the Sacramento office of the Fish and Wildlife Service: Steve Thompson, Paul Henson, and Michael Fris. She says,
"I have copies of the letter and the press release....Each of these documents makes the statement that delta smelt populations have not recovered and are significantly below historic levels. We have spent the last two days agreeing that we cannot estimate delta smelt populations as we do not have the proper data to do so, and yet your letter and the press release categorically state we have this information."
Reading between the lines, it appears as if there were two dramatically different approaches at work here. The scientists appear to have taken the position that, in the face of incomplete data, there was no justification for removing the smelt from the protective umbrella of the Endangered Species Act. MacDonald, on the other hand, seems to be suggesting that, given meager data, there's no justification for keeping the species on the protected list. Her email continues,
"I did not insist on seeing any of the documents you and your staff were preparing because I understood the need for a speedy completion of the documents and I believed that we were in agreement. I see now that was a grave error in judgement on my part. I believe it is critical to present a fair characterization of our understanding of the smelt to date to the public and to our partners [does she mean the Farm Bureau?]. The documents I have before me do no such thing. They leave the impression there is no uncertainty, that we know populations have declined from historic levels due to climate change and project operations, without the qualification that we don't have any accurate population information nor do we have any understanding of the interactions between the various factors influencing delta hydrology. They leave the impression that an independent panel dismissed the San Luis and Delta Mendota Water Authority's white paper [as] insubstantial. The truth is that the panel was not independent and there were serious concerns with the process."
"I believe," she concludes, "that the facts represented by the Service provide an oversimplified and misleading characterization of what is happening and are certainly inconsistent with our discussions. I have asked that the press release be stopped until we have an opportunity to more accurately characterize the finding and its basis."
Evidently it was.
The status review, by the way, runs to 50 pages with charts and graphs and exhaustive citations. Oversimplified is an odd adjective to describe the document.
Immediately upon sending this email, MacDonald telephoned the Farm Bureau's chief counsel, Brenda Jahns Southwick and read the email to her (as Southwick later confirmed in a declaration with the court), a highly irregular action that seems to indicate bias toward industry interests. Southwick then phoned Joe Findaro, a Farm Bureau lobbyist in Washington and asked him to go to MacDonald's office and pick up a copy of the email, which he did, as he declared later. As a direct result of this communication, on May 19, 2004, the Farm Bureau asked the court to reopen the litigation and find fault with the status review. As of late July 2004, rumor had it that the Justice Department was in private conversation with the Farm Bureau and the Fish and Wildlife Service toward a settlement that might involve writing the ground rules for the Fish and Wildlife Service's creation of new recovery criteria for the delta smelt in a manner that aids the Farm Bureau's goal to delist the species as soon as possible.
Environmental intervenors in the case -- the Bay Institute, Save San Francisco Bay Association, and the Sacramento River Preservation Trust -- worried initially that a move to delist the smelt was imminent but, given MacDonald's concession "That the smelt would be listed again today if the Service were to be presented with a petition," that no longer seems likely. What does seem clear is that higher-ups in the Bush administration are willing to pull strong-arm tactics -- even against their own scientists -- to get the results they want.
There is at least one more twist to the story. The smelt's habitat lies within the congressional district of Resources Committee Chairman Richard Pombo (R), who is trying diligently to amend the Endangered Species Act in ways, he argues, will make it more reliant on "sound science."
Environmental groups say that the suggested changes would cripple the law. The Delta-Mendota Water Authority, author of the justification for delisting the smelt, lies in the distict of Rep. Dennis Cardoza (D), author of a bill now before the House that would likewise do damage to the Endangered Species Act.
Meanwhile, at the end of July the Fish and Wildlife Service quietly released a "biological opinion" concerning the Central Valley Project/State Water Project (the news release announcing the release wasn't issued until August 6). That BiOp contends that water withdrawals from the delta could be increased by a million acre-feet (approximately 13 percent) without jeopardizing the survival or recovery prospects of the smelt. We'll have more on this developing story shortly.
Status Review Timeline:
Northern spotted owl is listed under the Endangered Species Act.
Marbled murrelet is listed under the Endangered Species Act.
Delta smelt is listed under the Endangered Species Act.
Critical habitat for the delta smelt is designated.
Timber interests file suit to force completion of five-year status reviews for the northern spotted owl and marbled murrelet.
California Farm Bureau files suit to force completion of five-year status report on delta smelt.
Government settles suit and agrees to review the status of the northern spotted owl and the marbled murrelet.
Fish and Wildlife Service agrees to review the status of the northern spotted owl and the marbled murrelet.
Fish and Wildlife Service promises to finish the smelt status review by 3/1/04.
Marbled murrelet status report is published, released to the public in May 2004, indicating that the marbled murrelet is in decline throughout North America and particularly in the Pacific Northwest.
Defendants move to amend Settlement Agreement to extend the deadline for completion of the smelt status review by 30 days. The court granted the extension to 3/31/04.
Deadline for filing of smelt status review.
Email from Julie MacDonald complaining about the delta smelt status review and press release, immediately relayed to counsel for the Farm Bureau.
Farm Bureau moves to reopen smelt litigation based on the MacDonald email.
Fish and Wildlife Service releases a report indicating that spotted owl populations are still declining in the Pacific Northwest.
Fish and Wildlife Service announces it will delay a decision on whether the marbled murrelet deserves protection.
8/20 to 8/25/04:
Projected date for release of status review of northern spotted owl.