[3] Plaintiffs Want Docs From NOAA's 'Secret' Science Panel

The latest twist in the never-ending BiOp soap opera has plaintiffs in the ongoing litigation asking U.S. District Judge James Redden to order the federal government to turn over more information the Obama administration used in reaching its decision to support the 2008 salmon plan.

The plaintiffs said they need the documents to help with their response to the government's decision, originally due Oct. 2 in Redden's court. Redden later extended their deadline to Oct. 7 (see story 2).

The plaintiffs' request is focused on what was said by an independent panel of mostly non-agency scientists who advised NOAA Administrator Jane Lubchenco--especially during a two-day July workshop in Washington, D.C., when the panel discussed the salmon plan with agency personnel.

In its Sept. 30 response to the request, the government said it had already turned over plenty of information and that it wouldn't share anything else without a court order. They have released the names of the panel's members and the documents they looked at.

Plaintiffs said they need to know more about how the panel felt about the considerable "uncertainties" in the BiOp's analyses and predictions, and how the review affected the agency's decision to develop the biological "triggers" [severe drops in fish populations] that would initiate contingency plans, including studies of breaching lower Snake dams.

"The missing material also appears likely to be relevant to assessing whether federal defendants' actions have been based on the best scientific and commercial data available," said the plaintiffs' memo filed in support of their request.

In their Sept. 30 response, the feds told the judge that the panel review was only "one component of the multi-faceted five-month process," and allowing the request would "falsely elevate the importance of this workshop."

The feds said the plaintiffs hadn't shown how fulfilling their request is really necessary for filing their response to the administration's Sept. 15 decision.

"It is clear that plaintiffs' motion is more about probing the mental processes of Administration officials than about their ability to meaningfully respond," said the feds' memo.

The feds suggested if the judge approved the request, that he first review the documents in camera--privately, in chambers--to determine whether they satisfy exceptions to the federal records review rule.

Judge Redden later ordered the feds to turn over any pertinent documents to him by Oct. 16. He said he will review the documents and decide whether to allow plaintiffs to see them.

It was reported that the science panel's deliberations did not include official note-taking or creation of any written report, but some observers had taken notes, that were later shown to the panel. These notes have been given to the judge for review. Even if they do gain access to the panel's review, plaintiffs may find the discussions had little or nothing to do with additions to the BiOp that the Obama administration tacked on to please the judge. It was reported the panel found the science in the BiOp "standup" and the best available under the circumstances.

Some of the scientists who participated on the panel are very familiar with salmon issues. Two of them are currently serving on the Independent Scientific Review Board, which looks at different questions related to salmon recovery.

The scientists who took part in the July 7-8 workshop include Bob Bilby, current ISAB member and biologist with Weyerhaeuser Co.; Peter Bisson, ISAB member, USFS; Mary Power, biology professor at University of California, Berkeley; Joseph Travis, Dean of the College of Arts and Sciences, Florida State University; Dr. Mary Ruckelshaus, from Seattle's NOAA Science Center; Daniel Simberloff, biology professor, University of Tennessee; Peter Kareiva, chief scientist with The Nature Conservancy; and Nate Mantua, ad hoc ISAB member and associate research professor, Aquatic and Fishery Sciences, University of Washington.

Kareiva worked for NOAA Fisheries during development of the 2000 BiOp and was responsible for developing a matrix analysis that took a fresh look at salmon survival issues. He successfully countered the results of the contentious PATH process, which tried to evaluate competing passage models by regional scientists. PATH's majority opinion found breaching lower Snake dams a much better recovery strategy than current operations.

Kareiva's analysis reduced PATH's estimate of delayed mortality from barged fish and found breaching the dams was barely better than current operations for recovering the Snake River stocks. -B. R.

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