In the spring of 2000, biologist Dave Hillemeier was among those who discovered hundreds of thousands of young fish dying in the lower Klamath River. Biologists kayaked in or drove alongside the river, finding lethargic fish seeking refuge in cool pockets of water, and they counted the two- to six-inch-long fish that floated dead in downstream eddies. All told, up to 300,000 fingerlings and yearlings died en route to the sea from their birthplaces in the river’s tributaries.
The Klamath River, which drains almost 10 million acres of mountains, high desert and farmland in Oregon and California, consistently produces some of the largest salmon runs in the Pacific Northwest. These runs are a fraction of what they once were, however, when the Yurok people pulled hundreds of fat, spawning fish from the river each summer and fall with nets and weirs. One run, the coho salmon, is protected as threatened under the Endangered Species Act. Protection of that run has further complicated an already tricky situation on the Klamath: The U.S. Bureau of Reclamation must provide irrigation water to farmers, while also ensuring the survival of the coho.
The next year, 2001, things looked better for the fish. Hundreds of thousands of juveniles made it out to feeding grounds in the sea, and tens of thousands of adult fish returned, swimming upriver to spawn. In the midst of a withering drought, the Bureau had left water in the river to protect the endangered coho. But that meant denying irrigators about 30 percent of the water they would have received in a normal year, and chaos ensued as angry farmers formed “bucket brigades,” breaking down canal head gates and making headlines nationwide (HCN, 8/13/01: No refuge in the Klamath Basin). In 2002, the farmers jumped back to the front of the line for water. Juvenile fish again turned up dead in the spring, and as the summer progressed, Hillemeier and other biologists asked the Bureau to ramp up the river’s flows for the spawning season. “Tens of thousands of fall chinook were predicted to come (up the river to spawn),” says Hillemeier. “We were pleading with the Bureau.”
But despite the warnings from biologists, the Bureau slashed the river’s flow to 750 cubic-feet per second — about two-thirds of its 2001 level — and delivered the water to farmers. The fish didn’t smash any gates, but they left a rotting, stinking mess along a stretch of the lower Klamath: That September, thousands of spawning salmon and steelhead trout were marooned in the low, warm waters of the lower Klamath. More than 33,000 died.
According to environmentalists, fishermen, tribes and the California Department of Fish and Game — in fact, according to everyone but the federal government — low water flows in the river killed the fish. The salmon and steelhead were victims of “gill rot,” which spread among the fish trapped in the warm, shallow waters near the mouth of the river (HCN, 10/14/02: Dead fish clog the low-flowing Klamath). But the Bureau of Reclamation refuses to accept responsibility for the debacle, and officials say they used the “best available science” to determine river flows for the Klamath.
While the debate over the dead fish has raged over the past year, one government insider has dared to speak out. Michael Kelly, the biologist who oversaw flow recommendations for the Klamath, says the federal government neglected its responsibility to protect the fish. Far from being based on the “best available science,” Kelly claims the decision to lower river flows in 2002 was made on purely political grounds.
Kelly has received little support from his colleagues — at least publicly. He’s held on to his job, but he’s been cut out of the discussion of water management on the Klamath. He’s been turned away by government attorneys in the Office of Special Counsel, which, under federal law, is supposed to investigate whistleblower claims. And he’s received only lip service from members of Congress about shielding scientists from the whims of politics. Kelly’s story offers insight not only into the interagency deals that likely led to the demise of thousands of fish on the Klamath River, but also into the political pressure that is bearing down on scientists in many federal agencies.
Something goes awry
Michael Kelly earned his degree in marine biology from Humboldt State University, and landed a job with the U.S. Fish and Wildlife Service in 1995. In August 2000, he shifted to the Arcata, Calif., field office of the National Marine Fisheries Service. Just over a year after joining the Fisheries Service, Kelly was promoted to “technical lead” of the team that was recommending river flows for the Bureau of Reclamation’s Klamath Project, an intricate system of dams and canals that provides irrigation water to 1,400 farmers. The two agencies, which had previously consulted on a year-by-year basis, had decided to work together on a 10-year plan that would provide irrigation water for farmers and river flows for endangered fish.
It was a high-profile job. In spring 2000, the young fish died. The summer of 2001 saw the uprising of farmers. In spring 2002, while the team was still working, young fish again were dying, and the law firm Earthjustice, representing a coalition of fishermen’s groups, Northwestern tribes and environmental groups, sued the Bureau of Reclamation and the Fisheries Service. The coalition claimed that the agencies had violated the Endangered Species Act by not guaranteeing spring flows for juvenile salmon. Through its lawsuit, the coalition hoped to move the endangered fish back to the front of the water line.
Both agencies fought the suit, citing a draft study by the National Research Council, a branch of the National Academy of Sciences. The study rebuked the Fish and Wildlife Service and the Fisheries Service for their 2001 “jeopardy” opinions, which had forced the Bureau to put fish before farmers. The Council’s report said the two agencies had no proof that higher water flows helped threatened and endangered fish.
Against this backdrop, Kelly and two other biologists reviewed existing data about coho salmon, and analyzed how the Klamath Project could affect the survival of the fish over the next 10 years. In the end, the team’s final recommendation, or “biological opinion,” was a disappointment to fish advocates. Released at the end of May, it said the agency’s 2001 recommendations for increased water flows were “weak,” and allowed the Bureau to reduce river flows for 2002.
So, that summer, with the Earthjustice lawsuit hung up in the courts, farmers got their full water allotments. Any water that was left over was sent downstream for the fish.
Then, in September, came the big die-off of 33,000 fish. About 95 percent of the fish were non-endangered fall-run chinook salmon; the rest were steelhead trout and hatchery coho salmon. Wild coho, which spawn later in the fall, were spared a similar fate when, at the urging of fishermen, tribes, the state of California and environmental groups, the Bureau released short-duration “pulse flows” from Upper Klamath Lake, doubling river levels.
Interior adamantly denied any responsibility for the fish kill. But a month afterward, Michael Kelly lodged a complaint with the U.S. Office of Special Counsel and sought protection under the Whistleblower Protection Act. The Office of Special Counsel serves as a “safe conduit” for state and federal employees who accuse their agencies of violating a law, mismanaging projects, wasting funds, abusing authority or endangering public health and safety.
While Kelly never argued that low water flows caused the fish kill, he did say that the agency’s biological opinion was “not developed according to the legal requirements of the (Endangered Species Act) and its implementing regulations, and the agencies were aware this was the case.” Kelly also wrote an 8-page statement to Congress, explaining his reasons for blowing the whistle on the National Marine Fisheries Service. “It is clear to me,” he concluded, “that someone at a higher level had ordered us to accept the (lower river flows) regardless of whether there were arguments that we could make to analyze this heretofore unanalyzed risk to the species.”
Kelly refused to speak with the press: When High Country News requested an interview last fall, he declined to comment, writing in an e-mail that he was worried that the issue would be misconstrued by the press and lead Congress or the public to the wrong conclusions.
“Mike did everything according to the statutes,” says Dan Meyer, Kelly’s attorney. Meyer works for the Washington, D.C.-based watchdog group, Public Employees for Environmental Responsibility, which represents state and federal public employees who speak out for the public interest. “He’s a model whistleblower.”
But the Office of Special Counsel decided not to hear Kelly’s case. In a March 5, 2003, letter to the biologist, Associate Special Counsel Leonard Dribinsky wrote that his office was unable to determine there was “substantial likelihood” that the Fisheries Service had violated the Endangered Species Act, and was also unable to conclude that the agency was complicit in the fish kill. He wrote that the district court would be a more appropriate forum for Kelly’s case, and closed the file.
What happened to the science?
The story might have ended there, but Magistrate Judge James Larson ordered Kelly to testify in the Earthjustice lawsuit against the Fisheries Service and the Bureau of Reclamation. The Department of Justice — which was defending the government from the suit — tried to prevent him from testifying, but was unsuccessful.
So, on the morning of March 7, 2003, in a federal courtroom in Oakland, Calif., an uneasy Michael Kelly was sworn in. For almost three hours, he described under oath how a scientific study was warped by a political power play.
He said that in the agency’s original draft biological opinion, dated April 1, 2002, the biologists recommended that the Bureau actually increase flows in the Klamath River, to create more habitat for coho. Because it was such a high-profile case, however, Justice Department attorneys reviewed the draft. The attorneys called it “indefensible” and ordered the biologists to rewrite it.
In their second draft, dated April 17, the biologists lowered their spring flow recommendations to accommodate the start of the 2002 irrigation season. According to Kelly, the draft was no longer based on the “best available science,” but he still believed the fish would survive. This draft met the Justice Department’s review requirements, and was sent to the Bureau of Reclamation.
At the Bureau, the biological opinion met a chilly reception. On the morning of April 29, a team of Fisheries Service biologists — Jim Lecky, the assistant southwest regional administrator, Irma Lagomarsino, the region’s division manager for protected resources, and Michael Kelly — met with eight Bureau employees for two days of meetings. On the walls of the meeting room, Bureau staffers had hung flip-charts detailing a “reasonable and prudent alternative” to the Fisheries Service’s biological opinion.
Right off the bat, the Bureau said it couldn’t operate the Klamath Project under the Fisheries Service’s recommendations, and instead would provide 57 percent of the flows the biologists said coho salmon needed. Even this amount, however, could not be provided until 2006. In the meantime, the fish would have to survive on whatever water came downstream past the farmers. As Kelly recalled, Bureau employees assured the biologists that the lower river flows wouldn’t be a problem, and Dave Sabo, manager of the Bureau’s Klamath Basin Area Office, reminded them that “fish survive droughts all the time.”
The Bureau did pledge to meet the Fisheries Service’s recommendations within 10 years, and it hoped that California and Oregon would give up some of the water they claim from the Klamath — an unlikely solution, given drought and growth in both states. But the plan mainly hinged on creating a water bank, buying water from sources the Bureau did not specify and storing it in Upper Klamath Lake for use during dry times.
That night, after the meeting, the biologists went out to dinner. Kelly later said in court that the idea of a water bank based on a partnership between the “federal agency and some other unidentified entity seemed novel to us.” The biologists came to no conclusions, he said; they simply wondered about this “unique” proposal and its implications for the salmon.
Early the next morning, Kelly said, Lecky received a phone call from someone in the Commerce Department (the Fisheries Service’s parent agency) who accused the three biologists of “stonewalling.” Moments after they walked into the second day of meetings, Lecky left the room with the Bureau’s Mid-Pacific regional director, Kirk Rogers, a 30-year veteran of the agency. When the men returned 45 minutes later, Lecky informed his peers that the 57 percent alternative would be forwarded to the Service’s attorneys for legal review. If the legal team approved the alternative, the Fisheries Service would accept it.
Driving home from the meeting, Kelly told Lagomarsino that he couldn’t support the Bureau’s proposal without first studying it. According to Kelly, that 57 percent represented an “arbitrary amount of water” and had “nothing to do with what fish would require to avoid jeopardy.” Under the Bureau’s alternative, he said, sufficient water to protect the coho “would not be achieved until the ninth year of a 10-year plan.” Kelly was also concerned with the gaps in the water bank proposal.
But a week later, the alternative passed legal muster with Justice Department attorneys, and Lecky said no more analysis would be done. According to Kelly, none of the scientists were allowed to study what might happen to adult coho salmon while they waited for the Bureau’s first “57 percent” water deliveries in 2006.
Shortly after that, Kelly asked to be removed as technical lead of the Klamath team. With Kelly out of the picture, Lecky and Lagomarsino wrote two more versions of the biological opinion. No additional scientific analysis was completed. The final spring flow recommendations — those written by the Bureau — were justified by the National Research Council’s draft report, which said more water in the river wasn’t necessarily better for the fish.
Less than five months after the final flow recommendations were released, 33,000 fish floated belly-up in the river, while the Fisheries Service defended its actions as based on the “best available science.”
Morale hits an all-time low
The buzz phrases “best available science” and “sound science” are part of a familiar mantra, often chanted by Interior officials with the Bush administration. Last year, the Luntz Research Companies prepared a report for Republican politicians. Straight Talk advised Republicans to use the terms “sound science” and “common sense” when challenging Democrats on environmental regulations: “People are willing to trust scientists, engineers and other leading research professionals, and less willing to trust politicians.”
Not everyone buys the “sound science” line, however. “ ‘Sound science’ is Orwellian doublespeak,” says David Wright, a former Fish and Wildlife Service biologist. “It’s almost as if, by repeating it, it will become the truth — or no one will question it.”
Wright worked in the Endangered Species Division of the Sacramento, Calif., Fish and Wildlife Service office from 1995 to 2002. As a staff biologist, he completed species listings and wrote critical habitat plans, and after a series of promotions, he oversaw endangered species consultation for the entire office. He says political pressure wasn’t unusual, even during the Clinton administration. While Wright’s office was working to protect the bay checker-spotted butterfly, biologists’ recommendations were slashed by officials in Washington, D.C., who objected to plans for protecting some of the butterfly’s critical habitat.
“Scientifically sound analyses and decisions can go up the chain and be rejected for reasons that have nothing to do with biology,” he says. “When a congressman or congressman’s aide calls, the Fish and Wildlife Service jumps.” Fed up with the agency, Wright left last fall, and now works as a private consultant.
This pressure on agency scientists is not new. During the Clinton years, scientists with the Fish and Wildlife Service had to step carefully to avoid treading on the toes of big business, local politicians and other federal agencies. They were also wary of incurring the wrath of a Republican Congress that already itched to repeal the Endangered Species Act (HCN, 10/2/95: Is the ESA being gutted in order to save it?).
According to agency insiders, controversial decisions — especially those involving “jeopardy” decisions, where endangered species are at risk — have always been cleared, to some extent, by officials in high-er offices. But now, they say, almost all decisions are made by political appointees and administrators within the state, regional or Washington, D.C., offices. In other words, scientists can spend years studying a particular species, only to see their data wash down the river.
“It’s true: This process was politically sensitive before Bush 2,” says Peter Galvin, a conservation biologist who helped kick-start the Tucson-based Center for Conservation Biology. But it hasn’t been this bad since the days of James Watt, Interior secretary under President Ronald Reagan, he says. Watt was a controversial anti-environmentalist, who was forced to resign after he defended the diversity of his staff by saying he had on board “a woman, a black, two Jews and a cripple.” A protégée of Watt’s, current Interior Secretary Gale Norton is even more radical in her anti-environmental politics, Galvin says, but she’s often underestimated because she looks like a “soccer mom.”
Since January 2001, Secretary Norton has listed only 24 species for protection under the Endangered Species Act — and each of those listings has been the result of litigation by conservation groups. During a comparable amount of time, Clinton’s Interior secretary, Bruce Babbitt, listed 212 species, and Manuel Lujan, Interior secretary under the first President Bush, listed 84. Conservationists have accused Norton of orchestrating a budget crisis that has hamstrung efforts to protect habitat for species already on the endangered species list. PEER’s Dan Meyer says he realized how drastically the political climate in Washington, D.C., has changed after talking with a whistleblower who had been in his federal job for more than 25 years. “He was talking about a Washington that existed during the Carter administration,” he says. In the 1970s, civil servants were respected, federal courts made landmark pro-environmental decisions, and Congress passed bedrock environmental laws. But throughout the 1980s and 1990s, the situation deteriorated, says Meyer, and it has hit its nadir under President George W. Bush.
Meyer says Bush has a “visceral hatred for federal employees as an institution.” Unlike his father, who was a career civil servant, the younger President Bush didn’t enter public service until he was in his 40s. “Bush is a part of that crowd in Texas that viewed federal employees as a barrier to getting what they wanted from natural resources,” he says. Now that Bush is president, he’s helped the timber, oil, gas and auto industries to sidestep environmental regulations and exploit natural resources across the nation (HCN, 10/28/02: Bush undermines bedrock environmental law).
“This administration has a pro-industry agenda, and they make it clear to employees that they want decisions to reflect that,” says PEER’s California director, Karen Schambach. The Office of Special Counsel has more work than its staff can handle, and in the last two and a half years, a growing number of whistleblowers have turned to PEER. Since George W. Bush’s presidency began, the number of federal whistleblowers calling the group has more than doubled.
Most of Schambach’s calls come from employees close to retirement, she says, because young scientists have more to lose by speaking out. “What I see is young people bouncing from one agency to another, hoping it will be better in another agency.”
Other government scientists are sticking with their agencies, but are turning to environmental groups for support. “We’re getting calls from people who were never friends of the Center. Now, they need our help,” says Galvin. “They’re even sending us data about critical habitat (for endangered species) from proposed plans — not just from the draft to the final, which the public can track — but from proposed plans that are (internal at the Fish and Wildlife Service) before the draft.”
By suing the Interior Department to list species or designate critical habitat, environmental watchdog groups have become the “teeth” of the Endangered Species Act, says Rob Marshall, a former Fish and Wildlife employee who now works for The Nature Conservancy. “Their lawsuits just compel the agencies to do what they are supposed to do,” he says. Environmental lawsuits, he says, have a 60 to 70 percent success rate. “The environmental groups are tripping (the agencies) up in their own paperwork.”
But Hugh Vickery, spokesman for the Interior Department, says the lawsuits aren’t helping the agency or its scientists. Scientists are frustrated, he says, not because of political pressure from the Bush administration, but because of lawsuits from environmentalists. He likens the Endangered Species Act to an emergency room, and compares scientists to doctors who have to help patients with everything from hangnails to heart attacks. Court settlements restrict biologists from using their “professional experience and discretion,” he says; they’re like doctors forced to neglect dying patients while they patch up minor injuries.
Meanwhile, back on the Klamath
Since speaking out against the National Marine Fisheries Service’s policy on the Klamath River, Michael Kelly has stayed with the agency as a staff biologist. As he noted in his deposition, however, he is not a part of the Klamath discussions, nor is he invited to meetings involving the project.
When Kelly presented Congress with an eight-page narrative statement last fall, his accusations created a swirl of media attention. Potential Democratic presidential candidate Sen. John Kerry, D-Mass., told The Associated Press that “the idea that politics would ride roughshod over sound science is insulting to every American.” By now, the hype has died down, and Congress has lost interest in his case. Except for Rep. Mike Thompson, D-Calif., who joined the Earthjustice lawsuit, no one in Congress seems interested. Some of Kelly’s colleagues have distanced themselves from him.
“He is an experienced fish biologist, who knows a lot about salmon,” says Jim Lecky, one of the two biologists who worked with Kelly on the Klamath. But Kelly was “inexperienced” in endangered species consultation and had never been involved in a complex, controversial biological opinion, Lecky says.
The Bureau of Reclamation’s Dave Sabo says that he “has no idea where (Kelly) came up with a lot of what he said (in court),” and dismisses Kelly’s concerns about the water bank. This year, the Bureau has already paid some farmers to fallow their fields, Sabo says, and so far, the agency has stored 50,000 acre-feet of water in Upper Klamath Lake. Thanks to heavy spring rains, river levels are higher than they were last year: In 2002, the river was classified as “dry,” while this year it is merely “below average.”
Those spring storms will help the coho and two species of endangered suckers that live in Upper Klamath Lake, says the Bureau’s Jeff McCracken. But until the judge rules in the Earthjustice suit, the Bureau will “sit tight,” and follow the flow recommendations the Fisheries Service outlined in its May 2002 biological opinion.
At the Fisheries Service, Lecky continues to defend the National Research Council’s report and his agency’s actions, saying his team did nothing outside the “scope of best available science.” “It’s still not clear what role the low flows played (in the fish kill),” says Lecky. “And it still isn’t clear if adding more hot water — which was all that was available at the time — would have helped at all.”
But the situation seems to be clear to the California Department of Fish and Game: In January, state biologists released a report that blamed the fish kill on “low flows (that) restricted fish passage and increased fish density.” They warn that there is “substantial risk” of future fish kills. Yurok Tribe biologist Dave Hillemeier notes that the Bureau’s plans for the river this year are very similar to those of June 2000, when hundreds of thousands of juvenile fish died. He worries that fish could die again this summer if the Bureau doesn’t plan for higher flows.
“The Bureau says it’s got a water bank for when the river gets low this year,” says Neil Manji, a senior fisheries biologist with the California Department of Fish and Game. “That’s great, but the best use of additional water is in the spring when the juveniles are heading out (to sea). The system just can’t maintain a chronic loss of juvenile salmon on a yearly basis.”
Meanwhile, the Earthjustice lawsuit drags on. The judge has twice delayed hearings, though a decision is expected as this story goes to press. In May, the Justice Department ordered Fisheries Service employees not to discuss the case with the press, and the National Research Council has delayed releasing its final report, which had been scheduled to be finished in March 2003. The U.S. Fish and Wildlife Service, which was supposed to study last September’s fish kill, has also delayed its report. When asked about the delays, Patricia Foulk, an agency spokeswoman, says there isn’t “sufficient staff” to finish the report. If 33,000 rotting fish didn’t get peoples’ attention, it’s hard to say what will. And if Kelly couldn’t merit the Office of Special Counsel’s attention, it’s hard to say who might. But for some, what has happened in the Klamath is pretty cut-and-dry: According to PEER’s Dan Meyer, “Science said one thing; politics said another. The Bureau went with politics, and fish died.”
Laura Paskus is a High Country News assistant editor.
The following sidebar articles accompany this feature story:
- Who needs critical habitat?
You can contact:
U.S. Office of Special Counsel Whistleblower Disclosure Hotline, 800-572-2249
Public Employees for Environmental Responsibility, publisher of The Art of Anonymous Activism: Serving the Public While Surviving Public Service, 202-265-7337, www.peer.org
Center for Biological Diversity 520-623-5252, www.sw-center.org/swcbd/ California Department of Fish and Game 916-445-0411; read the fish-kill report on-line www.dfg.ca.gov/html/krfishkill-rpt-err.pdf
U.S. Fish and Wildlife Service www.fws.gov
U.S. Department of the Interior, Hugh Vickery, spokesman, 202-501-4633
U.S. Bureau of Reclamation, Jeffrey McCracken, spokesman, 916-978-5100, www.usbr.gov/main
National Marine Fisheries Service www.nmfs.noaa.gov/.