Independent panel clears scientists of wrongdoing in Calif. water case

An independent panel has cleared two Interior Department scientists of scientific misconduct, more than three months after a federal judge lambasted their testimony on an endangered fish as "false" and "outrageous."

U.S. District Judge Oliver Wanger stopped short of accusing the employees of scientific misconduct in a September ruling, which dealt with the Fish and Wildlife Service's justification for water pumping cutbacks to the Sacramento-San Joaquin Delta. He instead called Jennifer Norris of the Fish and Wildlife Service a "zealot" and Frederick Feyrer of the Bureau of Reclamation "untrustworthy as a witness."

But an independent panel of scientists -- convened by Resolve, a nonpartisan "dispute resolutions" organization -- found that neither Norris nor Feyrer violated standard scientific practice. In a recent report obtained by Greenwire, the panel asserts that no further action is needed on the issue.

But they also criticize Norris and Feyrer for testimony that they said was sometimes unclear.

"We suspect 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," they wrote.


The report was commissioned by Interior, which launched the investigation soon after Wanger's comments. In an email, Interior spokesman Adam Fetcher said the agency strived to address the accusations "swiftly independently, and decisively" by initiating a review under its scientific integrity policy.

The resulting report, he said, "found that Judge Wanger's criticisms were without merit and not supported by the record." Scientific integrity officers from FWS and the Bureau of Reclamation also reviewed the findings and cleared the scientists of wrongdoing.

"Accordingly, we consider this matter closed," Fetcher said. "The accusations leveled at our scientists were unfounded, and these independent findings will clear their names and allow them to continue their important work without distraction."

But the findings won't end the controversy over Interior's plan to protect the endangered delta smelt. A 2008 biological opinion concluded that water flowing to irrigating districts and farms in the Central Valley has to be reduced to protect the tiny fish. Wanger ruled that the agency must redo those plans, and California Republicans demanded last month that Interior Secretary Ken Salazar remove Norris and Feyrer from working on the new opinion (E&E Daily, Dec. 6, 2011).

Wanger's comments added a new battle to the war over the delta's waters, becoming ammunition for groups criticizing the Endangered Species Act. Wanger, who retired shortly after the ruling, also came under fire for representing the Wetlands Water District in his new private-sector job at a Fresno, Calif., law firm. Last month, he withdrew from the case.

'Clearer and more forth-coming'

The independent panel doesn't completely let the two scientists off the hook, though the report emphasizes that its criticism "should be seen as exhortatory (not castigatory) in tone."

Feyrer's testimony, they say, changed on whether or not a large area of suitable delta smelt habitat would be available if the government pushed encroaching salt water a certain distance back toward San Francisco. But his opinion evolved because of new evidence -- which, the panel writes, is "consistent with good scientific practice."

Norris, on the other hand, stayed consistent throughout the court case, as she based her testimony on the 2008 biological opinion. That, too, is normal scientific practice, even if, unlike Feyrer, "she is unconvinced of the need to change her opinions in the light of any new information," according to the report.

Both could have been "clearer and more forth-coming," the panel found. But it also wrote that no deliberate falsehoods or professional misconduct occurred.

"We are of the opinion that, in a complex situation, with ongoing litigation and competing scientific opinion, Mr. Feyrer and Dr. Norris have been constrained in explaining their positions," the panel wrote. "There is no evidence that either scientist has failed to use 'best available science' appropriately. However it is not clear from the record exactly how the scientists reached the conclusions they did."

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