Cow vs. Fish: Part 3 — The Science Behind The Law

For skies of couple-colour as a brinded cow;
For rose-moles all in stipple upon trout that swim;
Fresh-fire coal chestnut-falls; finches’ wings;
Landscape plotted and pieced – fold, fallow, and plough;
And all trades, their gear and tackle and trim.
— Gerard Manley Hopkins, 1877

This post is the third in a series, started by Sharon, regarding government resistance to paying what appears to be inflated legal costs to lawyers representing a coalition of environmental litigation specialists. The second posting, by me, provided links to the lawyers’ documented claims for nearly $1.4 million for their work:

These claims included about $60,000 for “Expert Testimony” regarding the litigants’ claims that illegal cattle grazing was killing (“taking”) steelhead on the upper John Day River in eastern Oregon. That was the part that interested me: a cursory search of the literature showed that Indian and recreational fisheries were killing thousands of fish in the river, but not a single documented incidence of cattle grazing resulting in fish mortality could be readily located – and there were no references to such claims in the legal documents, either.

For that reason, I asked if anyone had access to the Robert Beschta and Jonathan Rhodes reports, for which the $60,000 was being requested. Thanks to the efforts of Melissa Rexius of Budd-Falen Law Offices in Wyoming, with an assist by Scott Horngren, an attorney with American Forest Resource Council in Oregon, those documents are now online:

The Beschta files are based on his area of expertise, forest hydrology, and talk in terms of cattle grazing impacts on upland streams in regards to “fish habitat” – but says nothing about fish (especially “threatened” steelhead) mortality. Instead, it is inferred that new regulations – the basis for the suit – were not being followed. The assumption seemed to be, and is stated as such, that there is a direct correlation between “habitat” and “threatened” fish survival, otherwise there would be no need for the regulations. And apparently the habitat’s regulatory descriptions were not being met. Nothing about steelhead mortality being affected one way or the other by the existence of cattle in the immediate area for the past 100+ years.

The Rhodes files (same link) were more interesting, especially (renamed) file # 452_Memo_re-Rhodes_20100312.pdf, which regards his qualifications as an “expert.” Pages 2-3, for example, contain the claims:

“ . . . plaintiffs rely on the reports and testimony of Jonathan J. Rhodes (“Rhodes”) and Christopher L. Christie (“Christie”). See, e.g., Dkt. No. 403. Over the course of this litigation, the parties have undergone extensive discovery including production of Rhodes’ and Christie’s notes and draft reports and have taken the depositions of both Christie and Rhodes. As a result, Intervenors have determined that neither Rhodes nor Christie is qualified to render the opinions described in their reports. It is clear from discovery that Rhodes and Christie have formed their opinions based on insufficient facts and data, unreliable methods, inadequate training and faulty reasoning. It also appears that neither Rhodes nor Christie based their written reports on the facts of this litigation; instead each obtained their data and tailored their reports at the direction of plaintiffs’ attorneys.”

“. . . Nor is such testimony admissible as lay testimony. Much of this testimony is inadmissible because it is based on hearsay by unidentified persons not on personal knowledge, and on sheer speculation and conjuncture.”

Whoops. At least Beschta had the good sense to let the regulators do the speculating and conjecturing for him. The part of file #452 that may be of most interest to other posters on this blog is toward the end, when the government lawyers begin quoting directly from Christie’s (not the New Jersey Governor) own Baker, Oregon blog, to document his bias. Lucky for me I never had any desire to be an expert courtroom witness (on the other hand, maybe it would be a great way to get my postings thoroughly read and analyzed by someone charging hundreds of dollars an hour to do so). Sadly, the scientists’ hours and resulting charges seem just as inflated as the attorneys. Just not so many of them, or at such high prices.

The bottom line is that if the plaintiffs were actually as concerned with saving fish as they say they are (and only their own statements seem to support this contention), then why aren’t they going after fishermen instead of cattlemen? Or the wild horses or elk also grazing in the area?

The caption at the beginning of this post is in reference to farting cattle that have been fed fish oil supplements. Sometimes called the “smell test.”

26 thoughts on “Cow vs. Fish: Part 3 — The Science Behind The Law”

  1. The respect I might give the ranchers’ lawyers’ arguments was distained when they wrote “distain” instead of “disdain” in the “file #452 that may be of most interest to other posters.”

    • Having read this discussion after it was done I have a few thoughts.

      First, if it is a good idea for folks like Earthjustice to do pro bono work for the Great Old Broads (involving actual litigation), isn’t it an equally good idea for other legal entities to do pro bono work for our blog (perhaps called “Concerned Crones for Conservation” (sorry, Bob!))

      We could readily become a 501c3 and then, if lawyers would donate their time, become intervenors in lawsuits of interest. Perhaps we could then sit in settlement discussions and write about what happens, and post it on this blog. This would be a good project for CREATE (“Conflict Resolution Effectiveness, Accountability and Transparency Enhancement”.), introduced here.

      Matthew- groups use the court to promote their agendas. This is natural. I don’t think that the best public policy is made in courtrooms for many reasons, including lack of public involvement.

      So I think it’s important that we talk about how the court business works in some detail, so that we can understand it better. Also, it’s interesting how scientific information is used, or not… and how the issue is framed. Not “how to save the fish” but how to stop cows from grazing.

      But the most impressive thing about all this, when you are used to public meetings and dialogues, is how few people are involved in this and how, by putting it in the courtroom, all the complexity of possible solutions needs to be filtered through the brains and mental models of the legal experts and not people who know about, nor work with, cows or fish.

      • Thank you Sharon. Nice to see a voice of reason. Not that I disagree with any points brought up yet, but things seemed to be getting pretty polarized…

  2. Sharon, I gotta say I’m always mighty impressed with the “Salem Witch Trial” nature of these posts of yours about litigation. Seems like instead of these issues and cases being tried in a court of law, we get bits and pieces of the story here, complete with wild speculation as to what’s actually the ‘real’ motive for a lawsuit or what an enviro organization’s “true” motives are [ie gems like, “if the plaintiffs were actually as concerned with saving fish as they say….”].

    And, funny, isn’t it, how you question everything, it seems, in the court documents of environmental groups, yet in this post you have no problem with a “Salem Witch Trial” type character assignation of Rhodes based 100% entirely on the court documents of the ranchers’ lawyers.

    Congrats! You’re clearly getting good at this.

    • Matt: I posted this, not Sharon. And the principal purpose was to provide the legal documents that people were having trouble finding — which I have accomplished, with some effort, at personal time and expense. Maybe you ought to read the documents before jumping to conclusions. Or at least the name of the person making the posts.

  3. Bob, Thanks for correcting me about who wrote the post. I crossed out Sharon’s name above, but I still believe my comment stands on it’s own. For the record, I did read the #452 file. Also, for the record, here is some more information I found on-line about Rhodes. If this blog is going to engage in a character assignation of Rhodes, at the request of the ranching industry’s and timber industry’s lawyers, it would seem, the least we can do is also provide some background info about him. Thanks.

    Jonathan J. Rhodes, Hydrologist

    More than 25 years of professional experience, including work for almost every level of government (city, county, state, bi-state compacts, feds, and sovereign tribal governments) in much of the West, including AZ, NV, CA, MT, ID, OR, WA, and AK.

    Work has focused on how land use affects water quality and streams. Over the past 18 years, a primary focus has been on how land use affects on water quality, stream channels, native salmonids and their habitats.

    More than 14 years of experience providing technical support/expert witness work with wide variety of public interest law firms and conservation organizations in more than 20 important environmental litigation efforts since 1993. The issues involved in these cases included endangered salmonids, rivers, forests and watersheds on public lands, logging, grazing, roads, mining, and water withdrawals in five western states.

    Has evaluated stream conditions and the watershed impacts of roads, logging (green and postfire) activities, livestock grazing, and mining on more than 23 national forests in seven western states over the past 25 years.

    Selected publications:

    Rhodes, J.J. 2007. The Watershed Impacts of Forest Treatments to Reduce Fuels and Modify Fire Behavior. Pacific Rivers Council, Eugene, OR

    Beschta, R.L., J.J. Rhodes, J.B. Kauffman, R.E. Gresswell, G.W. Minshall, J.R. Karr, D.A. Perry, F.R. Haeur, and C.A. Frissell. 2004. Postfire Management on Forested Public Lands of the Western United States. Conservation Biology 18:957-967.

    Karr, J.R., J.J. Rhodes, G.W. Minshall, F.R. Hauer, R.L. Beschta, C.A. Frissell, D.A. Perry. 2004. The effects of post fire salvage logging on aquatic ecosystems in the American west. Bioscience 54(11) pp.1029-1033.

    2002. Watershed Restoration in the Sierra Nevada. Pacific Rivers Council, Eugene, OR. (Contributor; Authors: ECONorthwest and Pacific Rivers Council)

    Rhodes, J.J., and M.D. Purser. 1998. Overwinter sedimentation of clean gravels in simulated redds in the upper Grande Ronde River and nearby streams in northeastern Oregon, USA: Implications for the survival of threatened spring chinook salmon, Forest-Fish Conference: Land Management Affecting Aquatic Ecosystems, Proc. Forest-Fish Conf., May 1-4, 1996, Calgary, Alberta, Canada. Nat. Resour. Can., Can. For. Serv. Nort. For. Cent., Edmonton, Alberta. Inf. Rep. NOR-X-356, pp: 403-412.

    Espinosa, F.A., J.J. Rhodes, and D.A. McCullough, D. A. 1997. The failure of existing plans to protect salmon habitat on the Clearwater National Forest in Idaho. J. Env. Management, 49: 205-230.

    Beschta, R.L., C.A. Frissell, R. Gresswell, R. Hauer, J.R. Karr, G.W. Minshall, D.A. Perry, and J.J. Rhodes. 1995. Wildfire and salvage logging: recommendations for ecologically sound post-fire salvage logging and other post-fire treatments on federal lands in the West. Unpublished report, 16 pp.

    Rhodes, J.J., McCullough, D.A., and Espinosa Jr., F.A., 1994. A Coarse Screening Process for Evaluation of the Effects of Land Management Activities on Salmon Spawning and Rearing Habitat in ESA Consultations. CRITFC Tech. Rept. 94-4, Portland, OR

    1993. A comprehensive approach to restoring habitat conditions needed to protect threatened salmon species in a severely degraded river–The Upper Grande Ronde River Anadromous Fish Habitat Protection, Restoration and Monitoring Plan. USFS Gen. Tech. Rept RM-226, pp. 175-179. (Co-authors: J.W. Anderson, R.L. Beschta, P. Boehne, D. Bryson, R.E. Gill, S. Howes, B. McIntosh, M.D. Purser and J. Zakel).

    Rhodes, J.J., R.L. Armstrong, and S.G. Warren. 1987. Mode of formation of “ablation hollows” controlled by dirt content of snow, J. Glaciology, 33: 135-139. (Interestingly, this has been cited in papers discussing some of the available topographic evidence for the existence of water/ice on Mars).

    • Matt: If you ever bother to read the documents themselves — the main reason I posted them — you will find that Rhodes’ work and accomplishments are already covered in great detail. By Rhodes, himself. I quoted the lawyers because I agreed with them, not because I am a character assassin. You might notice that I have been consistently critical of the lawyers “on both sides of the table” who get paid to do this kind of thing — whether loggers, sawmill workers, tree planters, ranchers, and whoever, are put out of work by their efforts, or not. Legal “delays” caused by these types of actions often directly result in job layoffs by affected workers. And I can document that, too.

      • PS And why in the hell would you ever think this was done at the “request” of lawyers? You must not have any idea at all as to who I am or what my ethics are. What a weird accusation. You might want to cross that nonsense out, too. And some unsolicited advice: read, then write. This isn’t the first time you’ve jumped the gun on this kind of thing.

      • Bob, enough with the “if you ever bother to read the documents” bit and your other fatherly advice. Fact is, your post has been up for about 40 minutes and I read the document you made sure to most highlight and responded accordingly, as I have great respect for the work Rhodes has conducted over the years….and I stick up for my friends. I’ll read the rest of the documents when I have time.

        Also, for the record, when you wrote, “Thanks to the efforts of Melissa Rexius of Budd-Falen Law Offices in Wyoming, with an assist by Scott Horngren, an attorney with American Forest Resource Council in Oregon, those documents are now online” it prompted my comment “at the request of the ranching industry’s and timber industry’s lawyers, it would seem….” I’d also love to see other concrete examples from you where I’ve supposedly “jumped the gun on this kind of thing.” Seriously Bob, pony up some real examples. Thanks.

        • Matt: I made the request for their help — not the other way around — when I was trying to locate the documents in the first place. There was no “request” at all on their part, and they had no idea how I would use the material. Not sure why you jumped to that conclusion. I don’t know Rhodes and am unfamiliar with his work, except for these documents — mostly written by him. Now read: 36_Rhodes_20080331-1.pdf

          How about that Gerard Manley Hopkins, eh?

      • Thanks for pointing that out “MD.” I just grabbed those “selected publications” off another website. Is there a particular link/document you are interested in viewing? If so, perhaps I can track it down. Otherwise, perhaps enter the title of the publication and see what google brings up.

  4. I marginalize a paper where the writer decides that a humanless ecosystem is the ultimate goal, like Rhodes seems to consistently do. I’d like to see Rhodes include inevitable and inescapable human impacts into his work. Leaving them out makes conclusions invalid.

  5. So the intervenors moved to strike the testimony of Dr. Beschta and Mr. Rhodes back in March of 2010 (Docket # 452). If the plaintiffs are seeking $60,000 for their expert testimony after substantially prevailing on the merits, it appears the court did not agree with the intervenors’ determination Beschta and Rhodes were unqualified and denied the intervenors’ motion. So is that the real “whoops”? New to posting, but I have followed this blog quite a while. I’ll use my full name to avoid any hassling for opting to be anonymous.

    • Thanks for posting, John — and for clearly identifying yourself! Only the testimony provided by Rhodes and Christie was challenged, so far as I know; not Beschta’s. Not sure how the court decided on that, one way or another — I just saw the documents myself for the first time earlier today, and have been mostly interested in the scientific basis for these claims, not the legal charges so much. The “whoops” had to do with my impression that Rhodes had been caught with his hand in the cookie jar, and because I strongly agreed with the criticisms of his work and claims; particularly the statements attributed to Kreuger. And maybe a little with their spelling of “disdain,” as Andy points out.

  6. Without looking up the case on PACER, I still think it’s pretty clear the court denied the intervenors’ motion to strike, otherwise the plaintiffs would not be seeking to recover fees for the testimony of Mr. Rhodes. We don’t have the opportunity here to see the plaintiffs’ response or the judge’s order on the motion, so I’d hesitate to draw any conclusions from quotes from the intervenors’ memo alone.

    • Thank you, John: As I said, I’m more interested in the science than the fees. And I strongly agreed with the response of other scientists (as referenced by the lawyers) to Rhodes and Christie’s methods and claims, no matter what the court decided or whether they were paid or not. The criticisms were not based entirely on legal precedence — other than the “expert witness” stuff — so much as on faulty methods, bad stats, and “sheer speculation and conjecture.” My reading and perspective, too, and I’m a scientist, not a lawyer. Also, please note that the government is challenging the charges as “excessive,” which is how this discussion got started in the first place. The quotes from Christie’s blog were also telling, and I’m not sure of his pay status, either.

  7. Bob Z is confused about so many things, in particular how the law works. He seems under the false impression that any lawsuit under the Endangered Species Act must involve dead bodies of the subject species. Bob Z says —

    “The assumption seemed to be, and is stated as such, that there is a direct correlation between “habitat” and “threatened” fish survival, otherwise there would be no need for the regulations. And apparently the habitat’s regulatory descriptions were not being met. Nothing about steelhead mortality being affected one way or the other by the existence of cattle in the immediate area for the past 100+ years.”

    As I understand the case, there were several successful legal claims that form the basis for the fee petition including “failure to consult” as required by Section 7 of the ESA, as well as violation of the prohibition on “taking” of listed species, under Section 9 of the ESA. “Take,” by the way, can include habitat degradation.

    Why is this conversation so fixated on legal processes which so few of the participants understand? Before critiquing the substance of the fee petitions and the expert reports, it would seem prudent to develop an understanding of the legal context within which these documents are being prepared and used.

    The court said “ONDA’s Motion to Supplement the Administrative Record is GRANTED” which means that the expert declarations were used by the court and fees can be sought.

    The court also said: (on consultation) “The Forest Service may not make empty promises, secure a no jeopardy BiOp, and then go forward with the proposed action –absent the monitoring and enforcement promised– simply because a no jeopardy BiOp has issued … The buck must stop somewhere. Here, the Forest Service acted arbitrarily and capriciously and failed to fulfill its duties under §7(a)(2) by issuing grazing authorizations in 2007 and 2008 on a BiOp it knew was based on inaccurate information. When authorizing grazing in 2007 and 2008, the Forest Service failed to independently insure that the grazing authorized would not result in jeopardy to MCR steelhead or in the adverse modification of their habitat … By failing to reinitate consultation following the exeedances of the ITS [incidental take statements] during the 2007 and 2008 seasons, the Forest Service violated the ESA… ”

    (on take) “‘Take’ includes actions that actually kill or injure steelhead, including “significant habitat modification or degradation … The inordinate exceedances of the bank alteration standards documented in 2007 on the Murderers Creek and Hamilton/King Allotments and in 2008 on the Fox Creek Allotment are particularly deplorable in light of the Forest Service’s appraisal of those allotments as containing moderate to high potential spawning habitat and as having a high risk potential for direct take of steelhead. RP 31202-03. This court has carefully reviewed the administrative record and the extra-record materials submitted by the parties, and concludes that it is possible that take occurred on numerous allotments in both 2007 and 2008 … due to significant habitat degradation.”

    Maybe there would be fewer big fee awards if the agencies followed the law.

    • Tree: Thank you for your concern regarding my capabilities. No, I do understand how the law “works” — it doesn’t. That’s why everyone is in court playing semantics while our forests burn and rot, our wildlife our killed or left homeless, and our rural families and communities are going bankrupt.

      Again, I think the key problem is general public and taxpayer ignorance. They think important “species” are being saved by the “eco-warriors” through these actions because that is what they are being told, over and over. That’s why I quoted the parts by the plaintiffs about the steelhead populations as their principal concerns — not “streambank stability” or browsed vegetation height. My personal thought is that if the public knew they were being charged $millions to “protect” habitat regulations — and that those regulations are often entirely independent of actual population numbers — they would be outraged. Maybe I’m wrong, but that is the impression I get from others, too.

      The reason the “conversation is so fixated on legal processes” rather than species populations is because you and others keep steering it back that way, because that is what you do. My concern — stated repeatedly — is that the legal processes are based on poor “science” and need to be revisited ASAP so we can get people back into the woods, where they belong. These existing regulations are doing — and have done for years — just the opposite.

      To quote you quoting someone else: “‘Take’ includes actions that actually kill or injure steelhead, including “significant habitat modification or degradation . . .” Hmmm. So “take” IS the killing of fish (as I keep pointing out), AND it is “habitat modification or degradation” as you guys keep taking to court (and apparently has nothing to do with actual fish numbers?). “Degradation” can be a scientific term, all right — particularly in disciplines such as cultural anthropology or religious studies — but in order to be degraded, something needs to be graded first. That is not what is happening here. Kreuger and many others have demonstrated that streambank conditions have been dramatically improved over the past century — that is, if anything, they have been significantly “upgraded” — not degraded — during that time.

      So what are these lawsuits really about, if it’s not saving fish? And why are people allowed to legally kill them by the thousands if their survival is so important in the first place?” Quote the “law” and “court decisions” all you want, but I am far more interested in the “science” that makes those regulations and decisions possible in the first place. And I think it needs to be fixed. The sooner the better. Whats so “confusing” about that?

  8. I’d like to give a big thanks to John Persell and TreeC123 for adding their comments and some very important legal context to this blog post. In particular, Tree has much more effectively and diplomatically expressed the questions and concerns I’ve often tried to bring up on this blog when we wade into the world of litigation with debate and accusations:

    “Why is this conversation so fixated on legal processes which so few of the participants understand? Before critiquing the substance of the fee petitions and the expert reports, it would seem prudent to develop an understanding of the legal context within which these documents are being prepared and used.”

    Again, I must point out what I feel are some serious contradictions in Bob’s approach here. I’ve already stated what I feel he’s doing to Rhodes.

    However, Bob’s statement in a subsequent comment that, “I’m more interested in the science than the fees” is sort of bizarre when you see in a comment right before that Bob offers this potentially slanderous statement alleging that Rhodes is outright stealing from the federal government:

    “The ‘whoops’ had to do with my impression that Rhodes had been caught with his hand in the cookie jar”

    Of course, John P. already pointed out above what the real “whoops” here might actually be.

    All in all, I do agree….”Eww, what smells like fish?”

    • Matt: Change your socks. And maybe check with a lawyer on the definition of slander. The title to this piece is “the science behind the law,” NOT Matt and Tree’s interpretation of the law. Nap time already?

  9. This has become the “Bob and Larry” show, with highlights on the virtues of intensive management, thinning and prescribed burning.
    Wilderness, roadless, primitive areas…?? Bah-humbug!!!
    No value, no need for these useless acres, I guess.

    • Sorry, Ed. I am only for site-specific solutions. More land is off-limits now than ever before. Coincidentally, much of those off-limits areas are full of dead forests. Again, you are assuming way too much, from my two tiny postings.

  10. Ed, to be fair the discussion started about cows and fish.. cows graze in some wilderness, roadless and primitive areas. But you raise a good question..I’ll start a separate post.


Leave a Comment