Feds won't probe biologist's Klamath fish kill charges

March 23, 2003

Associated Press

Sacramento, California - The government won't investigate a federal biologist's complaint that his recommendations were illegally rejected before last year's massive Klamath River salmon kill, though a judge is allowing the testimony in a lawsuit.

National Marine Fisheries Service biologist Michael Kelly led the federal government's review last year before water was divided between farmers and fish in the Klamath Basin.

Kelly said in an October whistleblower complaint that his team's recommendations were twice rejected under "political pressure" as the U.S. Bureau of Reclamation imposed lower water levels than were scientifically justified as part of a 10-year water management plan.

California wildlife officials, environmentalists, fishermen and Indian tribes blame low water levels for the death of 33,000 salmon last fall -- nearly a quarter of the projected fall run in the river flowing from south central Oregon through northwest California.

But the U.S. Office of Special Counsel said it will not probe Kelly's allegations that the water allocation violated Endangered Species Act protections for the salmon.

The office can't substitute its judgment for that of the National Marine Fisheries Service, even if the service relied on conflicting science, Associate Special Counsel Leonard Dribinsky concluded this month.

He also rejected the cause-and-effect argument advanced by Kelly and other critics: Although the die-off followed the low water allocation, "we are unable to conclude ... NMFS must have engaged in gross mismanagement."

Karen Schambach of Public Employees for Environmental Responsibility said the office was "punting (on) a controversial case ... It's not a question of conflicting science. Any science you pick still shows jeopardy" to the salmon. PEER represents Kelly in his whistleblower complaint.

Dribinsky said a better forum for Kelly's allegations is the federal district court considering a suit by fishermen and environmental groups over appropriate water levels.

Kristen Boyles, the environmental attorney handling the lawsuit, called that decision "very strange. I've never had another agency say, 'Well, we'll defer to litigation.'"

Kelly provided sworn pretrial testimony in the lawsuit after U.S. Magistrate James Arson overruled the U.S. Justice Department's objections that Kelly was a disgruntled employee attempting "to paint a picture of a sinister back-room plot designed to circumvent the requirements of law."

Arson noted U.S. District Judge Saundra Brown Armstrong already ruled, in a related case, that the Bureau of Reclamation earlier violated the Endangered Species Act with its water allocation decisions.

"Kelly's accusations provide insider evidence from a scientist who was involved in the decision-making process that the opinions of (NMFS's) biologists may have been sidestepped and ignored," Arson ruled last month.

"Kelly ... offers evidence that improper political pressure led an agency to ignore its own scientists and implement a plan which jeopardizes a threatened species and violates federal law."

Kelly's 95-page deposition, released last week, expands on allegations first disclosed by The Associated Press in October.

Kelly's supervisor, Jim Lecky, told the AP that "there is interest all the way up to the White House ... but there wasn't pressure to do anything that wasn't supported by all the available science."