Protecting Scientists and Scientific Integrity - Fish Passage Center
Front row, l to r: Margaret Filardo, Michele DeHart, Thomas Berggren
Back Row: Henry Franzoni, David Benner, Jerome McCann
Fish Passage Center Fights Political Ouster
The Fish Passage Center was set up 24 years ago to provide a reliable and objective measure of the number of fish traveling around and over dams on the Snake and Columbia rivers. After the Center’s figures were cited by a federal judge in the summer of 2005 as a basis for ordering more water be released to aid fish survival, U.S. Senator Larry Craig (R-ID) retaliated by slipping a nasty little paragraph into the committee report accompanying an appropriation bill.
PEER has been defending scientists since our earliest days but, unlike our usual case where an individual scientist is targeted for reprisal, here we had an entire staff of scientists being “offed” through a backroom legislative maneuver. Michele DeHart, manager of the Fish Passage Center since 1984 called PEER.
On March 17, the very day the Fish Passage Center was scheduled to shut its doors forever, a petition filed by PEER and our allies in this fight found traction. At 5 pm, the U.S. Court of Appeals for the Ninth Circuit ordered the Bonneville Power Administration to continue its funding and support for the Fish Passage Center. While the stay order does not rule on the merits of the case, the court’s order keeps the Center in place until the case is resolved.
The reason the Fish Passage Center acquired enemies in high places is simple – its work was costing a powerful special interest some serious money. Craig moved to cut off the Center’s funding by slipping in report language that is not part of the bill itself but is a device by which Congress “earmarks” special projects. Claiming Craig’s language had the force of law, Bonneville Power gleefully made arrangements to outsource the Fish Passage Center functions to a contractor.
Is Science Protected by the 1st Amendment?
PEER is pursuing a two-pronged legal strategy—one to fight for the Center itself and the other to empower the scientists working at the Center to fight for themselves.
Days after Bonneville Power invited contract proposals (notifying Michele DeHart that she and her colleagues would not be eligible to apply for their own jobs), PEER joined the Northwest Environmental Defense Center and the Northwest Sportfishing Industry Association in filing a petition before the Ninth Circuit Court of Appeals asking it to declare illegal any attempts to replace the Fish Passage Center and that Craig’s committee report language does not carry the force of law. The last minute stay issued by the Ninth Circuit not only bought us valuable time but also, strongly signals that we are likely to prevail on the merits.
Representing Michele DeHart and her co-workers, PEER then filed a lawsuit in federal court claiming that Larry Craig’s attempt to eliminate the Fish Passage Center violates constitutional free speech and due process rights of the Center’s scientists. This complaint before the U.S. District Court in Portland, Oregon contends that Craig and Bonneville Power Administrator Stephen Wright unlawfully retaliated against Center experts because their data was relied upon by a federal district court judge in ordering greater water releases from dams this past summer to aid salmon migration.
The case is drawing national attention because it turns on whether Center Manager Michele DeHart and the other scientists can assert their constitutional rights to speak and publish their findings without fear of reprisal.
In addition to the freedom to report honest science, the public also has an interest in receiving accurate information, particularly about an environmental hotspot like the rivers of the Pacific Northwest. As Rod Sando, the former Executive Director of Columbia Basin Fish and Wildlife Authority, which oversees the Fish Passage Center, stated in a supporting affidavit filed with the suit:
“This is the first time a decision has been made to eliminate funding of a mitigation project that was performing its duties as assigned simply because the analysis results were inconvenient for some of the Region’s policy makers… This ‘flat earth’ approach to science does not bode well for the management of fish resources in the Columbia.”
Representing Michele and her colleagues is a distinct honor and we cannot imagine a better use of our time.