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.”