Confrontation can be a good thing...especially in the Endangered Species Act

A version of this op-ed appeared in the Albuquerque Journal on Thursday Sep 29th


America’s citizens should be able to assume that Endangered Species Act (ESA) listings are based on “best science”, as determined by an altruistic scientist—an honest arbiter. Sadly, this ideal model isn’t how it works in real life.

My background is engineering and law enforcement. When the proposed ESA listing of the Sand Dune Lizard threatened my community’s well-being, I got involved. It was my first in depth involvement with the ESA process. It was interesting and enlightening. More importantly it was disturbing.

Over the last several months I worked with a group of scientists to conduct a detailed review of the proposal to designate the Dunes Sagebrush Lizard as an “endangered species.” On August 15th we presented a 20 page critique of this proposal to Congressman Pearce. The report can be found at the Artesia Chamber of Commerce website: www.artesiachamber.com.

In the criminal justice system science is critical. Because of its importance, it is getting increased scrutiny. Likewise, the concept of the “wise man” scientist decision-maker, isolated from politics or outside influences, has to be questioned. This is what we did with the proposed listing for the Sand Dune Lizard.

The US Supreme Court has set the standard for examining assertions and claims by scientists. In the case of Melendez-Diaz v Massachusetts the courts established the need for scientists to be subject to confrontation. The court concluded “…Nor is it evident that…’neutral scientific testing’ is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation [emphasis added]” and “…there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology.”

This is not to imply that the researchers working on endangered species issues are not to be trusted. For again the court nailed the point when they put in a footnote that “… we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa….[this] refute[s] the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism.[emphasis added]”.

Confrontation brings clarity, and confrontation is missing in the existing system.

Currently when there is a proposition to designate a species as “endangered” the case is presented in a “proposed rule” prepared by U.S. Fish and Wildlife Service (USFWS) staff. “Proposed rule” is an interesting term because it is in fact an advocacy document much like an affidavit. However, unlike an affidavit no one stands in front of a judge, raises their hand and swears that everything is true. Nor is the author subject to confrontation to explain the basis for their claims and assertions.

In my law enforcement days, I have written many affidavits for search warrants, arrest warrants, and wire taps. I knew I would probably be sitting in a chair answering all kinds of questions. I assure you it is not a pleasant experience but one which ensured accuracy in my statements. We need something like this in the ESA process.

Furthermore, the confrontations must occur before a truly independent decision-maker. It makes no sense for the head of the organization (in this case the Director of the USFWS) which prepares the advocacy document to be the evaluator of the criticisms of that position or its basic validity. The analogy would be, if while I was the Roswell Chief of Police, my detectives had written an affidavit for an arrest warrant and then I, as chief, conducted the preliminary hearing. The inherent conflict is glaring.

Confrontation before an independent decision-maker is at the heart of the American justice system. It is ominously missing from the ESA process and that needs to be corrected because that is how we truly get “best science.”

When decisions are being made that have potentialy grave consequences to communities and the industries that support them, as is the case of the Sand Dune Lizard listing, the science behind the proposal must be held to the highest possible standards. As our review of the Sand Dune Lizard proposed rule discovered, neither best science nor high standards have been met.