Kesterson Whistleblower Felix Smith's letter to the director of the U.S. Fish and Wildlife Service goes unanswered

Editor's Note: Felix Smith, who suffered political harassment from his superiors during his 34-year federal career, was the federal biologist who in 1983 leaked to the news media that deformities in birds nesting at the Kesterson National Refuge had been poisoned by selenium-tainted, toxic drainwater from the Westlands Water District.

    The U.S. Bureau of Reclamation, for several months, kept secret the Kesterson bird deformities until Smith leaked the story to Fresno Bee reporter Deborah Blum.  Smith took early retirement in 1990, tired of the harassment.

     Smith wrote the following letter to U.S. Fish and Wildlife Director Dan Ashe four months ago.  Ashe has not answered Smith.  USA Today environmental columnist Dan Vergano wrote an article on April 6, 2013, which indicated federal biologists continue to be intimidated by their superiors in speaking out about selenium pollution from phosphate and coal mines in several states. 

 

December 17, 2012 

Mr. Dan Ashe                                                                                                                                                                                                             

US Fish and Wildlife Service

1849  “C” Street  -Mail Stop 3238

Department of the Interior

Washington. D.C. 20240

E-mail<Dan_Ashe@fws.gov>

 

 Subject: Fish and Wildlife News – Fall 2012 - Rachel Carson 

 

     I read with interest your comments “From the Director” about the character and relevancy of Rachel Carson to the conservation movement.  The accolades for her and her work described in “Happy 50th Birthday Silent Spring” and “Silent Spring Changed How the Country Thought about Conservation” are well deserved.

     There is little doubt that in carrying out her duties as a biologist, ecologist and writer, Ms. Carson understood as well as felt the agency’s responsibility and its public trust duties to help protect the Nation’s fish and wildlife resources and their dependent habitats by educating the public.  Ms. Carson because of her education understood science and had the knowledge to understand what her readings and research findings were telling her about DDT.  Ms. Carson had the courage to stand up and speak out about her findings.  She had to stand up to criticism from the Federal establishment and from outside interests.   Doubters from the chemical industry were always present to pan her and her work. 

         The Service is justified telling her story to all Service employees and retirees.  Interestingly Ms. Carson resigned her editor and scientific writer position “Editor-in-Chief of all U.S. Fish and Wildlife Service” in 1952.  Her book “Silent Spring” was published in 1962.  In 1972 the EPA cancelled the use and manufacture of DDT in the United States.   I wonder if there are people like Ms. Carson in today’s Service who are speaking up and out about similar environmental issues?   I hope the Service is supporting them.

         I gained considerable knowledge while with the Service working Estuarine and Coastal Zone issue in the 1960s and early 70s.  I was well aware of the Public Trust Doctrine, its duties and responsibilities.  During the run-up to the National Audubon Society lawsuit (1981-83) regarding the controversy over Los Angeles Department of Water and Power (LADWP) diverting inflows away from Mono Lake, Service biologists could not speak out in favor of migratory birds, just one of many resource and use issues at Mono Lake.  The Regional Solicitor in the Sacramento Office of the Solicitor (OS) supported the position of Los Angeles Department of Water and Power.  Protecting the water rights of LADWP and of the Bureau of Reclamation was the important issue.  Protecting migratory birds, and many other uses and values of Mono lake, or supporting the Public Trust Doctrine was not a concern of the OS.   Sacramento OS staff attorneys stated the Public Trust Doctrine was a State responsibility / issue, not a Federal one.

          The California Court’s Audubon – Mono Lake decision came down Feb. 17, 1983.  With that decision, the Public Trust Doctrine came to the forefront in water resources law and management with a big bang.   Interestingly, in the Federal Register of March 18, 1983 (Vol. 48, No.54), Department of the Interior Fish and Wildlife Policy: (b) The Secretary of the Interior reaffirms that fish and wildlife must be maintained for their ecological, cultural, educational, historical, aesthetic, scientific, recreational, economic and social values to the people of the United States, and that these resources are held in public trust by the Federal and State governments for the benefit of present and future generations of Americans. 

           On June 7, 1983, I held the first selenium deformed American coot chick found at Kesterson NWR.  This event changed my life.  The Service had some of its best and most knowledgeable biologists on the agricultural drainage study.  A former Assistant Director of the Service’s Patuxent Wildlife Research Center, Dr. Harry Ohlendorf, was study leader.  The biologists on the team were all strong in moral and ethical character.  They were well acquainted with the Public Trust Doctrine.  During that summer and fall months of 1983, hundreds of migratory birds were found dead or their young deformed.  These mortalities were diagnosed as selenium toxicosis by the Service’s Madison Health laboratory.  When I told Dr. Joel Hedgpeth (a mentor) about our findings, he quickly stated; “Selenium could poison the Valley.”   The inconvenient truth that selenium contaminated drainage could poison Valley wetlands and associated fish and wildlife weighed heavily on our minds.  Service findings made local and national news with photographs of deformed birds appearing on nightly TV.  Waterfowl hunters and lay people were aware that migratory birds were resources held as a public trust.  The selenium drainage - deformed bird issue occurred less than 4 months after the California Court’s Audubon – Mono Lake decision.  Reclamation managers realized they had an explosive issue in their hands, were beside themselves.  They wanted to control all the research at Kesterson NWF and control the release of any related information.  

          This selenium deformed – agriculture drainage issue occurred during the Reagan Administration.  That Administration was not supportive of research and science, and with that, quality science went to hell in a hand basket.  The Service’s Central Office managers following their political sense also were not supportive of the field biologists or their inconvenient truths / findings about selenium.  Reclamation managers’ bashed Service biologists and their data as they carried out their respective duties under the Service’s trustee responsibilities and approved study plans.   Chemists and geologists from the US Geological Survey soon got involved reviewing Reclamation data and collecting their own field data.  Geological Survey findings supported Service findings and pinpointed Reclamation’s laboratory / analysis failures.  With the release of the US Geological Survey data, a lot of pressure came off Service biologists.  However, there was coziness between selected individuals in Reclamation and the Service.  This frequently resulted in Service staff having to pass data and related information through Reclamation’s managers and staff attorneys in the Sacramento OS before it was sent to the Service’s Portland Regional Office or to the DOI’s Field Representative in San Francisco.   

          Adding to the problem, the Service’s upper management followed the Administration’s lead was not supportive of the field science and biological findings.  In fact a visiting member of the Central Office told several of us that it (the Central Office) could not support field biologists and their findings if the Congress got involved, and if there was a lawsuit we were on our own.  In March 1985, Congress got involved.  A Congressional Hearing on Agricultural Drainage was held in Los Banos, CA.  Farmers, elected officials, scientists, a former FWS Area Manager, and others told their stories.  However, it was the Bureau of Reclamation, its scientific credibility, its water exports and related drainage activities that were spotlighted and were on trial.  The Service’s field biologists were on the top of the ethics and morality list in the eyes of the greater public and the State Water Resources Control Board.

          I retired in 1990 well before I had planned.  I was fed up with listening to politically motivated Service managers tell Service biologists how they are supposed to think and act to meet the Administration’s needs.  If you want to get ahead compromise is the way to go.  Meeting the needs of Administration or its friends was the goal.  Protecting the Public Trust, or how many resources you protect, or how one carries out the Service’s many authorities to conserve and protect fish and wildlife and their associated habitats was a second tier issue to the Administration’s desires.  The agricultural drainage project’s lead research biologist, Dr. Harry Ohlendorf, a top quality researcher and person, soon resigned his position.  He went to a challenging position as an environmental consultant “to make a difference” and do so without harassment from Service managers. 

          I have remained involved with water, fish and wildlife issues since I retired.  I have had conversations with Service biologists and administrators, and they all say things are different now.  During discussions several retired and presently working biologists stated they believe that the demise of Service’s science capability, lack of support for field biologists or respect for their findings can be traced to the politicizing of the Service by Reagan Administration managers and toadies.   Many of these same Service biologists tell me to keep speaking out because we cannot say what we would like to say.  You frequently are speaking for us.

          From the outside looking in, it appears that Service biologists are bending to the wishes and desires of the Bureau of Reclamation managers and staff attorneys of the OS.  Apparently Service managers will do their best to give Reclamation managers what they want.  Meeting the needs of Reclamation is what is politically desired.   When meeting such desires, the Service’s Public Trust duties and responsibilities as well as under its many legal mandates can go out the window.  However if Service biologists knowing that they may be called or even subpoenaed to testify under oath in a court of law, may bring some honesty to the effort.

          In light of the tribute to Rachel Carson, I wonder if upper Service management would allow or encourage like scientists to speak up and out about issues that could be critical to the future of fish and wildlife on a local, regional, or national level.  From my contacts and conversations with Service biologists, people have their doubts. 

           I send this letter as a retired biologist and field supervisor, with 34 years professional service with the US Fish and Wildlife Service.  As a young biologist I met Stewart Udall.  He spoke to several DOI biologists and stated: “You provide us with the best biological information you can obtain and send it forward.  Let us in Washington do the job of making policy decisions.  Don’t second guess us.”  That is still the best advice one can receive.  

          I wish you well in your efforts to keep the Service’s moral integrity high and respect for resources held as a public trust. 

        

Sincerely,

Felix E. Smith

Carmichael, CA