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04/5/2013

Leading the Way in Scientific Misconduct

The Department of the Interior recently proclaimed in a blog that the agency is “Leading the Way in Scientific Integrity.”

“The Department of the Interior (DOI) has a unique role as one of the United States Government’s leading creators and consumers of scientific data and research. Ensuring the integrity of scientific research and data relied upon by the Department is critical. Policymakers rely on this science to inform policy decisions. The public counts on DOI for trustworthy scientific data, research, and analysis related to everything from earthquakes and endangered species to the environmental impacts of human activities.”

Despite the spin from the Deputy Secretary of the Interior David Hayes, the DOI’s record shows that it values politics more than scientific integrity.  In our report, “Keeping Entrepreneurship at Bay”, we explain how multiple offices within DOI “significantly lack oversight, accountability, and transparency, and as a result have gone unchecked in their manipulation of scientific data.”

The use of bad science informed the decision of former Secretary Salazar to shut down Drakes Bay Oyster Company, a small, family-run, environmentally sustainable farm located inside the Point Reyes National Seashore.

How has the DOI distorted science to fit their political agenda and try to shut down a sustainable small business? Let us count the ways:

Distort Data

  • In the draft environmental impact statement (DEIS), the National Parks Service (NPS) used data from a 1995 study on the sound impact of a 70 horsepower (HP) jet ski at the distance of two feet to make conclusions on the noise level of 20 and 40 HP oyster skiffs at fifty feet.
  • In the same DEIS, NPS used data from a 400 HP cement mixer truck that can be heard for 2.4 miles to misrepresent a ¼ HP oyster tumbler than can be heard for only 150 feet.
  • The DOI Office of Inspector General found no misconduct and declared that the data was “reasonable and justified based on mechanical similarities.”

Cover Up

  • DOI Field Solicitor Gavin Frost wrote a report that found NPS scientists violated the NPS Code of Scientific and Scholarly Conduct by “blurring the line between exploration and advocacy through research.”
  • Specifically the report found that NPS employees “mishandled” data and “refus[ed] . . . to modify their intuitive, but statistically and scientifically unproven, belief that DBOC mariculture activities” disturbed harbor seals in Drakes Estero.
  • The Frost Report concluded that NPS scientists showed “bias,” “advocacy,” a “troubling mind-set,” and a “willingness to allow subjective beliefs … to guide scientific conclusions.”
  • Frost excused the employees by labeling these actions as “administrative misconduct” instead of scientific misconduct.

Change: From “No Evidence” to “Directly Connected”

  • Even after independent analysis by Dr. Brent Stewart, an independent harbor seal behavior specialist at Hubbs SeaWorld Research Institute contracted by NPS, concluded there was “no evidence of disturbance” of harbor seals by the oyster skiffs in Drakes Bay, the U.S. Geological Survey issued a public report stating that the oyster skiffs could be directly connected, or at least associated with a flushing level of disturbance” in some seals, and the NPS in their Final EIS misrepresented Dr. Stewart’s report to conclude cause-and-effect.

Politics over Integrity

Despite the attempted victory lap by DOI on its website, the evidence shows that the only thing they are leading in is the Orwellian doublespeak they use to cover up their scientific misconduct.

 

As of May 24, 2013, Cause of Action no longer represents Drakes Bay Oyster Company, the Lunny family, or Dr. Corey Goodman and will be withdrawing as counsel from the litigation.

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04/3/2013

Senator Unveils “Victims of Government”

Senator Ron Johnson has released “Victims of Government”; a project dedicated to exposing the unintended consequences of federal regulations.

The Small Business Administration Office of Advocacy estimates that it costs Americans $1.75 trillion to comply with federal regulations each year.  To put $1.75 trillion into perspective, that amount is larger than all but eight economies in the world.  It also means that over 10% of the U.S. economy is spent on trying to satisfy rules issued by Washington bureaucrats. That doesn’t even include federal, state, and local taxes.

This heavy regulatory burden diverts resources from innovation to compliance, discourages business investment, and chills job creation. It is no accident that as Washington adds new regulations, more and more Americans are unemployed and underemployed.

Elected leaders need to carefully consider the costs and negative unintended consequences of unnecessary federal regulations.  They need to remember that real people must comply with these regulations and that making them overly burdensome stifles American growth.  This blog features just some of the victims of government.

According to the study commissioned by the Small Business Administration Office of Advocacy, “had every U.S. household paid an equal share of the federal regulatory burden, each would have owed $15,586 in 2008.”

Cause of Action is well aware of how the federal government can clamp down on economic opportunity. We represent Drakes Bay Oyster Company; a small, family-run, sustainable oyster farm located in Point Reyes National Seashore in a lawsuit against the Department of the Interior (DOI). DOI is using bad science to make false claims about the oyster company’s impact on the environment. If Interior succeeds, 30 jobs would be destroyed, and 40 percent of California’s oyster market would disappear. Most recently, Drakes Bay Oyster Company has been granted an emergency Injunction pending appeal keeping the farm open until the 9th circuit rules on DBOC’s injunction appeal.

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03/19/2013

Ag Alert: Why the Drakes Bay Oyster case matters

The following is from the California Farm Bureau Federation:

Why the Drakes Bay Oyster case matters

By Paul Wenger, President, California Farm Bureau Federation

Last week, the California Farm Bureau Federation, the Marin County Farm Bureau and the Sonoma County Farm Bureau joined in a petition to a federal appeals court, urging the court to give the Drakes Bay Oyster Co. a new hearing—and a new chance to continue its sustainable aquaculture operation.

The company and its owners, Kevin and Nancy Lunny, carry on a decades-long tradition of mariculture in Drakes Estero. The oyster farming operation has been there since the 1930s—so long that few people remember the estero before the farm existed. It was there long before the Point Reyes National Seashore was established in 1960.

Despite a record as excellent stewards of the land and of the estero, the Lunnys and their farm face eviction.

The National Park Service determined that the oyster farm had to go and pulled out all the stops in its efforts to evict the farm, even though its presence adds to the overall character of the area. The Lunnys, Sen. Dianne Feinstein, Farm Bureau and other advocates have pointed out a long history of shoddy, slanted pseudo-science used by the Park Service in an effort to justify removing the oyster farm.

Despite protests from the West Marin community, Interior Secretary Ken Salazar decided last November that the farm would have to leave when its lease expired. Only a last-minute stay from a federal court last month allowed the Lunnys to remain in business, while the court considers their appeal.

If you’ve been following the case like I have, you know that Drakes Bay Oyster Co. is a prime example of the local, sustainable agriculture that many Bay Area residents prize. If you haven’t been following the case, you might be surprised by the range of individuals, groups and organizations that joined together in the petition last week on behalf of the Lunnys.

Along with CFBF and the two county Farm Bureaus, the petitioners included famed Berkeley chef Alice Waters; the Hayes Street Grill, a fish restaurant in San Francisco; the Tomales Bay Oyster Co.; the Marin County agricultural commissioner; Food Democracy Now; Marin Organic; and the Alliance for Local Sustainable Agriculture.

These folks may all come at this issue from different angles, but we end up at the same place: What’s happening to the Drakes Bay Oyster Co. is wrong.

The petition was written by Judith Teichman, a San Francisco attorney who assembled the coalition favoring the farm’s continued operation. It notes that closing down Drakes Estero as a source of fresh, sustainably raised shellfish would wreak havoc with the world-famous local, sustainable food and agriculture of the Bay Area. It would also disrupt shellfish cultivation on Tomales Bay. It would put 31 people out of work, some of whom have worked for the oyster farm for 30 years.

Closing the oyster company would also be a serious setback for modern environmental thinking, the petition says. Leading voices in the environmental movement have called for 21st century conservationists to embrace a more people-friendly ethic that supports working landscapes—just the sort of operation that Drakes Bay Oyster Co. represents.

 

Old-fashioned environmental activists want to force people off the land, to return it to some sort of pre-human condition. That thinking leads to confrontation instead of collaboration, and to situations where progressive, thoughtful farmers and ranchers like the Lunnys get pushed aside because of someone’s interpretation of the purity of nature.

For Farm Bureau, the case has implications beyond Drakes Estero.

Half of the land in California is owned by the federal or state government. Rural communities, where many Farm Bureau members live and work, depend on multiple use of these lands. National parks and wilderness areas operate under land-management rules that allow for human presence and use, even when the primary mandate is for preservation and environmental protection.

To ban an operation such as Drakes Bay Oyster Co. on the ideological belief that it should not exist in a national park or wilderness area—despite evidence that the farm provides important economic, cultural and social benefits—sets an awful precedent for everyone who believes that humans and nature can and must co-exist sustainably.

That’s why Farm Bureau supports the Lunnys and Drakes Bay Oyster Co. If the bureaucrats and the kick-the-humans-out branch of environmentalism can run the Lunnys out, you can bet they’ll keep trying to throttle more wise uses of taxpayer-owned lands.

That narrow, preservationist vision never worked and doesn’t now. The appeals court will hear the oyster farm’s case in May, and we hope it will restore common sense to the management of the Point Reyes National Seashore.

 

As of May 24, 2013, Cause of Action no longer represents Drakes Bay Oyster Company, the Lunny family, or Dr. Corey Goodman and will be withdrawing as counsel from the litigation.

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03/9/2013

CoA Joins Coalition of Government Accountability Advocates in Asking FDA to Revise FOIA Policy

Earlier this week, Cause of Action was proud to join a number of other transparency organizations in sending a letter to the FDA concerning their FOIA deletions policy. Read more below from Open the Government and follow this link to see the letter.

OpenTheGovernment.org

 

Groups to FDA: Make FOIA Process More Accountable

“On Tuesday, March 8 OpenTheGovernment.org and 16 other organizations dedicated to openness and accountability filed a comment on a public petition urging the Food and Drug Administration (FDA) to you revoke the its Freedom of Information Act (FOIA) “deletions policy.” Public Citizen originally filed the petition in September 2012.

Under the FDA’s current FOIA policy, the agency redacts portions, referred to by them as “minor deletions,” of documents released without giving requesters an immediate right to appeal within the agency. The agency instead requires requesters to make a second request for “reconsideration” of any deletions before being allowed to appeal. If a requester does not do so, the FDA administratively closes the FOIA request without ever making a final determination. The agency does not define “minor deletions,” but in practice it relies on the policy to delete substantial portions – sometimes full pages – of documents.

As described in the comment, we strongly believe the policy violates both the letter and spirit of FOIA and casts serious doubt on the accuracy of FOIA performance data that FDA provides to Congress and the public. Public Citizen’s citizen petition on this matter has been pending for more than five months and alleges a serious violation of the law; it is high time for the agency to respond to it.

Find out more about the petition, and submit your own comment, here.”

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02/19/2013

Most Transparent Administration in History?

While taking questions during a Google hangout last week, President Obama stated that his administration was the “most transparent administration in history,” and that he could “document that this is the case.” He pointed to the fact that the White House now documents every visitor, and “just about every law that we pass and rule that we implement we put online for everyone to see.”

Interesting words for a President whose administration saw a 28% rise in FOIA lawsuits. Agency FOIA regulations are so outdated that the National Security Archive is saying that they “undermine freedom of Information.”  Bloomberg News found that more than half of the cabinet members’ offices ignored FOIA requests from the international news agency, and had yet to respond 6 months after the initial request.

To the President, publishing ‘just about every law or rule’ may seem transparent enough, but it isn’t good enough for the public—the people affected by those laws and rules that don’t fall into the “just about” category. Just ask the Heating, Air-conditioning, and Refrigeration Distributors (HARDI), who stood to suffer tremendously from a DOE regulation that skipped several important steps in transparency and instead became a rogue Direct Final Rule.

The President also neglected to mention that while all visitors to the White House become part of the record, White House staff members occasionally meet lobbyists at a Caribou Coffee across the street from their office to avoid being recorded.

Since we last outlined this administration’s failures on transparency, a new list of failures has emerged:

  • The National Archives and Records Administration denied our FOIA request and appeal for documents related to the Financial Crisis Inquiry Commission. Our request was made to uncover the causes of the 2008 financial crisis and the lack of openness in government has forced us to file suit for records that should be public.
  • On February 4, the two ranking members on the House Oversight Committee sent a letter to the Department of Justice’s Office of Information Policy regarding “outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services.” The committee is concerned with the fact that “62 of 92 government agencies have not updated their FOIA regulations” and “31 agencies have regulations more than a decade old.”
  • The White House press corps has become fed up with the lack of access to the President.

According to the Project Vote Smart’s database, prior to last week’s claim, President Obama had not mentioned federal government transparency since August of 2012 when he said, “The Administration’s efforts to continuously add more transparency, accountability, and certainty into the permitting and review process will enable project developers and private investors to more efficiently modernize our nation’s infrastructure.”

Isn’t it time that the President made a commitment to transparency with his actions, instead of just his words?

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02/19/2013

CoA signs letters to President Obama, Oversight Committee re: FOIA

Today Cause of Action joined OpenTheGovernment.org and a coalition of watchdog/accountability groups in signing a letter addressed to President Obama to urge him to bring renewed attention to the Freedom of Information Act (FOIA).

We strongly agree with your statements in the January 21, 2009 Memorandum that the FOIA “encourages accountability through transparency,” and “is the most prominent expression of a profound national commitment to ensuring an open Government.” However, as we have discussed with you and your staff, delays and other barriers in FOIA practice at the agency level continue to prevent the public from timely access to information about the federal government’s activities.

Read the full text of the letter to President Obama here.

 

Cause of Action also signed a letter sent to Chairman Darrell Issa and Ranking Member Elijah Cummings of the House Oversight and Government Reform Committee to thank them for their work to hold agencies accountable for implementing FOIA.

As you point out in your letter, FOIA is an important option the public has for accessing information about the government’s activities. This tool is much less meaningful, however, if the public cannot use it to get timely access to the information to which they are entitled. Your letter is an excellent step towards identifying where a lack of oversight and attention on the part of OIP is contributing to these problems. We hope you will share your responses from OIP with the public, and look forward to future oversight hearings.

Read the full text of the letter to the Oversight Committee here.

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02/15/2013

Innovative Investigations — How a Watchdog Group Uses the FOIA Process to Push the Limits of Transparency

NOTE: This post, written by our own Mary Beth Hutchins, was first published on Sunlight Foundation’s Blog. We look forward to working with them again.

 

The need for government transparency has never been greater than it is right now and at Cause of Action, we’re working to make sure it happens.

As a nonprofit government accountability organization, Cause of Action works to expose cronyism, waste, fraud and mismanagement in the federal government through a combination of investigations, education and litigation.

With our staff of investigators, lawyers and communications professionals committed to government transparency, Cause of Action frequently uses Freedom of Information Act (FOIA) requests to shed light on otherwise opaque facets of the Federal Government.

By law, Americans have the right to access a broad array of information from the federal government through FOIA requests. However, roadblocks do arise when federal agencies put up obstacles and this is where Cause of Action’s combination of litigation with investigation can really sink teeth into the transparency debate.

One of our recent investigations took us through one such roadblock put up by the National Archives and Records Administration (NARA). NARA is in possession of the documents that contributed to the Financial Crisis Inquiry Commission’s (FCIC) report on the 2008 financial crisis and therefore, we argue, is subject to FOIA. In October 2011, Cause of Action submitted a FOIA request to NARA for “all documents, including email communications, memoranda, draft reports and other relevant information and/or data contained in the records transfer of Financial Crisis Inquiry Commission documents stored at NARA.”

NARA denied our request one month later on the grounds that FCIC records are not “agency records.” Their claim is that since the FCIC was a commission created by Congress, FCIC records are congressional records, which are not subject to FOIA. However, Congress and the FCIC turned over these records to NARA and for Congress to access them, they themselves must consult NARA. It raises a question of control: Does NARA’s control of these documents subject them to FOIA? We believe it does and we believe the law will back us up. So, after our appeal was denied, Cause of Action made the decision to pursue legal action and subsequently filed a lawsuit against NARA for the release of FCIC documents. It is our firm belief that American taxpayers deserve to know what information contributed to the FCIC’s findings on the financial crisis.

While on the surface this lawsuit may look fairly simple (we want records and NARA is refusing to give them), if we dig a bit deeper into the issues at hand, the real implications are astounding. If NARA wins, an avenue for obfuscation and withholding of documents emerges. One needn’t look further than a 2009 memo from President Obama that states, “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA and to usher in a new era of open Government,” to see guidance that is going ignored, in this case by NARA.

Though the NARA case highlights some of the opacity within the federal government, it is only the tip of the iceberg. Luckily, Cause of Action, just like the Sunlight Foundation, remains committed to bringing transparency and accountability to all aspects of the federal government.

To learn more about Cause of Action, visit us on the web at www.causeofaction.org, or connect with us on Facebook and Twitter.

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