A decade ago, Naomi Oreskes and Erik Conway wrote the seminal book, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming. Oreskes and Conway documented how scientists paid by the tobacco industry sowed doubt about the links between smoking and lung cancer, and how the same strategy has been used with climate change, acid rain, the ozone hole, and asbestos.

Similar tactics have been used to sow doubt about the causes of the collapse of native fish populations in the Sacramento-San Joaquin Delta and its watersheds.

There was an example in recent litigation over the Trump administration’s Biological Opinions on the Long-Term Operations of the Central Valley Project. There was enormous political interference with federal agency biologists who worked on the Biological Opinions, and they were sidelined. The California Natural Resources Agency and the State of California sued, as well as Pacific Coast Federation of Fishermen’s Association et. al. The consolidated cases are now proceeding through the US Eastern District Court in Sacramento.

The California Attorney General’s office retained scientist Bruce Herbold in the case. Herbold is a former EPA scientist who worked on an interagency team researching causes of the collapse of fish populations in the Delta. The attorneys for the Sacramento River Settlement Contractors and the Tehama-Colusa Canal Authority retained Brad Cavallo of Cramer Fish Sciences. Both experts provided written declarations. A declaration by Herbold characterizes Cavallo’s testimony as follows:

The Cavallo Decl. attempts to sow scientific discord where none exists regarding the 56-degree temperature for cold-water releases, introduces “red herrings” such as the amount of dissolved oxygen, thiamine deficiency, and density dependence, misstates the number of winter-run Chinook salmon (henceforth ‘winter-run’) that experienced temperature effects, and relies on outdated extinction risk data and unpublished data unavailable for peer review or analysis.

The Cavallo Decl. attempts to cast aspersions on the Martin model to return state and federal agencies to an outdated model. The Martin model is the primary tool of the Interagency Ecological Program’s winter-run Chinook salmon Project Work Team that is charged with giving annual guidance to the National Marine Fisheries Service (NMFS).

Herbold explained,

The Martin Model, using only temperature data, predicted an ETF [egg to fry] survival of 5% but the actual value measured was 2.6% (compared to values as recently as 2017 as high as 49%). Thus, flow and water temperature explain almost all of the reduced egg survival in 2021. In future years, thiamine may rise as an important parameter to consider, but in 2021 almost all the eggs laid were going to die due to the high temperatures across most of the spawning grounds, irrespective of what their mothers had eaten in the ocean.

Judge Dayle Drozd’s decision on the Interim Operations Plan considered Brad Cavallo’s opinion that

incorporating all of the available information through 2021, winter-run remain at “moderate” risk of extinction due primarily to the “population decline” and “hatchery influence” factors (which present moderate risks) while the “population size” and “catastrophic decline” factors remain at low risk levels.

But Drozd’s ruling also considered the opinions of Dr. Herbold and Dr. Jonathan Rosenfield, the senior biologist for San Francisco Baykeeper:

According to Dr. Herbold, given that winter-run live for only three years and had poor survival in 2020 and 2021, it is critical to avoid a third year of poor survival, else “the species would likely suffer irrecoverable decline toward extinction.” (Herbold Second Decl., ¶ 33.) Dr. Rosenfield further explains:

Because maintaining populations in an imperiled state tends to increase the risk of extinction, bad environmental conditions and poor biological outcomes over the past two years make it even more urgent to restore environmental conditions that support and improve species’ viability, rather than foster conditions that undermine or simply maintain the long-term status quo. Furthermore, it is my professional opinion that all freshwater life stages of these severely imperiled species must be protected from impacts of the Projects in order to prevent irrevocable damage to, and foreclosure of opportunities to recover, these species. For example, protecting adult fish while allowing their eggs to be destroyed, or protecting the eggs of endangered fish but not the juveniles that emerge from them, is inconsistent with preventing extinction of these species.

The judge’s ruling concluded:

Overall, the record before the court supports Dr. Rosenfield’s and Dr. Herbold’s significant concern for winter-run viability in both the short- and long-term horizons.

This kind of dueling scientific testimony in litigation over implementation of the federal and state endangered species acts has been characterized as “combat science.”  In reality, it is a battle over whether water management decisions that could cause extinction of species will be based on science paid for by those who profit from water diversions.

Further reading:

California Natural Resources Agency et. al. 2022. Filing in California Natural Resources Agency et. al. v. Gina Raimondo, et. al., Supplemental Declaration of Bruce Herbold, January 24, 2022.

Glen-Colusa Irrigation District et. al. 2022. Filing in Pacific Coast Federation of Fishermen’s Associations, et. al., v. Gina Raimondo et. al., and California Natural Resources Agency et. al. Gina Raimondo, et. al., Declaration of Bradley Cavallo in Support of Intervenor Defendants’ Opposition to Motions for Interim Injunctive Relief and Motion for Remand Without Vacatur.  January 10, 2022.

Obegi, D. 2021. Killing Most Endangered Salmon Is How the Trump BiOps “Work.” NRDC expert blog, April 19, 2021.

Pacific Coast Federation of Fishermen’s Associations, et. al., v. Gina Raimondo et. al., and California Natural Resources Agency et. al. Gina Raimondo, et. al., Order Re Motions to Remand Without Vacatur; Stay; and Impose Interim Injunctive Relief, March 11, 2022.

Pacific Coast Federation of Fishermen’s Associations in Pacific Coast Federation of Fishermen’s Associations et. al., v. Gina Raimondo et. al., and California Natural Resources Agency et. al. Gina Raimondo, et. al., Declaration of Dr. Jonathan A. Rosenfield in Support of Plaintiffs’ Motion for Preliminary Injunction for 2022 and Plaintiffs’ Opposition to Federal Defendants’ Motion
for Voluntary Remand Without Vacatur. December 16, 2021.