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May 20, 2002 8:46 PM

Snowy Plover Listing Based on False Information

This report addresses a serious concern with USFWS, both in the Sacramento and Portland offices.  The attachments that will accompany the report are only a small sampling of cited abuses.  The report is specific to the listing of the western snowy plover as a threatened species, but I suspect similar abuses with other listings as well.

1. USFWS cited "genetic isolation" as a reason to list the snowy plover knowing they had no genetic data in 1993 when this species was listed.

2. USFWS withheld a DNA report on plovers they had possession of in October 2001.

3. USFWS failed to revisit and review the listing per Section 4(c)(2)(A)* of the Endangered Species Act when new information provided in the DNA test proved a significant finding of new information.

4. USFWS withheld and omitted statistics from monitoring reports relating to interbreeding and intermixing among inland and coastal populations since 1999.  These statistics may also have led to a significant finding of new information.

5. USFWS have misrepresented distinct populations and preferred habitat; and have misapplied criteria specific to Services policy.

The plover listing in 1993 was questionable to begin with.  Clarification of listing criteria on Distinct Population Segments in 1996 made the plover listing even more questionable. DNA evidence and biological reports of inland and coastal snowy plover populations intermixing provided sound evidence that the western snowy plover was a candidate species for delisting; but FWS chose to conceal these reports and continued to pursue an effort towards implementing the Draft Recovery Plan and beach closures on the west coast. 

*Endangered Species Act, Section 4(c)
        (2) The secretary shall-
(A) Conduct, at least once every five years, a review of all species included in a list which is published pursuant to paragraph (1) and which is in effect at the time of such review; and
(B) Determine on the basis of such review whether any such species should
(i) Be removed from such list:

RE: A questionable listing of the Western Snowy Plover.

Federal Register # 12864, 50 CFR Part 17, January 19, 1993, Determination of Threatened Status for the Pacific Coast Population of the Western Snowy Plover;
Summary:  The USFWS determines threatened status for the Pacific coast population of the western snowy plover.  "The Pacific coast population of the western snowy plover is genetically isolated from the western snowy plovers breeding in the interior (Gary Page, Point Reyes Bird Observatory, pers. comm., 1990)." 

On January 29, 2002, I submitted a FOIA to USFWS requesting the genetic data used to determine Distinct Population Segment (DPS) of the coastal population.  A packet of information arrived on March 28, containing various studies, but genetic information specific to this listing was not included.

I followed up with a number of phone calls to Kathleen Christian, USFWS FOIA officer in Sacramento, again requesting genetic data collected and used to determine the 1993 listing.  Ms. Christian admitted by phone on May 9th that no genetic studies were conducted prior to this listing.  I have requested confirmation of this statement in writing, though Ms. Christian indicated that a written admission addressing the absence of the genetic information and failure to perform any genetic studies prior to the listing of the western snowy plover would not be likely.

In May, the USFWS sent a thesis on DNA sampling of all plover types in North and South America submitted by Leah Gorman in 2000.  As you will note in this report:

"The exact test provided no support for population differentiation in the western United States. "
". . . members of the western group were not significantly differentiated from one another."
"Our study provides no evidence of genetic differentiation between coastal and inland populations."

USFWS have determined that the coastal populations of the western snowy plover are a distinct population of the species.  Distinct Population Segment (DPS) criteria have not been adhered to with this claim.  I have enclosed a portion of a report on Distribution, Abundance and Movements of Snowy Plovers in southeast Oregon, 1990. The report clearly indicates movement and interbreeding among coastal and inland populations of the western snowy plover.  Other reports indicate that plovers have nested on coastal sites early in the breeding season and have been found nesting at inland sites during the same season. 

Carl Walton from the Surf-Ocean Beach Commission in California has been tracking on this same path of research regarding questions about purported genetic differences.  He noted in his report that statistics for non-native plovers observed on Vandenberg during the breeding season were omitted from monitoring reports after 1999.    This raises a question of great concern.  Did USFWS omit statistics for non-native plovers in other monitoring sites?  The field notes I have requested were not provided, possibly due to the use of contract biologists and The Nature Conservancy for these studies.  These biologists work through federal grant programs though no explanation was offered as to why this portion of my request was not included.

I asked an independent research ecologist, Daniel Varoujean of MARZET Marine Estuarine and Research Co., to review the reports and data for confirmation of my findings.  He has confirmed that this information is correct and will write a letter indicating so upon request.

In determining if a vertebrate species population is a "distinct population segment" under the ESA, the agencies will follow these guideline principles:

1. Discreteness of the population segment to the rest of the species;
2. Significance of the population segment to the rest of the species; and,
3. Conservation Status in relation to the ESA standards for the listing.

Prior to 1996, the Services have used this authority relatively rarely:  Of over 300 native vertebrate species listed under the Act, only about 30 were given separate status as DPS's.

Federal Register, Vol. 61, No. 26, Wednesday, Feb. 7th, 1996 defines Evolutionary Significant Unit (ESU) criteria.  "Under this policy, a stock of Pacific salmon is considered as DPS if it represents an ESU of a biological species.  A stock must satisfy two criteria to be considered an ESU:
1. It must be substantially reproductively isolated from other conspecific population units; and,
2. It must represent an important component in the evolutionary legacy of the species.
The policy applies only to species of salmonids native to the Pacific.

The DPS criteria may be applied to ESU; but these two ESU criteria may not be applied back to DPS unless the species is a salmonid.  Available scientific information provides little specific enlightenment in interpreting the phrase "distinct population segment".  This term is not commonly used in scientific discourse, although "population" is an important term in a variety of contexts.  The USFWS have applied the ESU criteria to the western snowy plover as well as a number of other non-salmonid populations of vertebrates.  This is a misapplication of policy and an abuse of their authority far exceeding the original intent of the Endangered Species Act.

Through research of federal register policy documents on DPS criteria, an important statement was found.  Federal Register Vol. 56, No. 224, Wednesday, November 20, 1991: 
     "In 1979, Congress declined to enact a provision recommended by the General Accounting Office that would have removed the authority to list vertebrate populations.  The Senate Report to the 1979 amendments, however, stated that, 'the committee is aware of the great potential for abuse of this authority and expects the FWS to use the ability to list populations sparingly and only when biological evidence indicates that such action is warranted' -(S. Rep. No. 151, 96th Cong., 1979).

The ESA also requires that all listing determinations be made solely on the basis of the best scientific and commercial data available (ESA section 4(b)(1)).

Both the FWS and NMFS, which share jurisdiction under the ESA, have made listing determinations for populations of vertebrate species; but neither Service has established criteria for determining what qualifies as a "distinct population."

I have discovered that a portion of this statement (the committee is aware of the great potential for abuse of this authority) has been omitted from all references in Federal Register documents defining the authority of USFWS and NMFS since 1983.

Federal Register Vol. 61, No. 26, Wednesday, February 7, 1996 defines the policy regarding the recognition of Distinct Vertebrate Population Segments under the Endangered Species Act:  All previous listings of DPS were ordered into review to confirm that the listing status of threatened species conformed to these new criteria.  FWS failed to revisit the listing of the western snowy plover.

The greatest abuse of science in the listings of threatened and endangered species began to occur around 1988 and has since grown into an epidemic problem within USFWS.  Listing a distinct population as threatened in the Federal Register citing fraudulent information that suggest tests and studies were performed when in fact they were not, is at the very least, a violation of scientific protocol.  Perhaps it is time for Congress to revisit the recommendation made by the GAO in 1979 (S. Rep. No. 151, 96th Cong., 1979) and withdraw the authority to list vertebrate species from the USFWS.

All reports, surveys and tests and Federal Register documents used in this report are available and copies may be obtained by request.  Some fees may be applied.

Report submitted by:

Helen Franklin
Law Finders
PO Box 1237
North Bend, OR  97459
(541) 756-1480
Fax: (541) 751-0236
E-mail: lawfinders1@aol.com
(Law Finders has been contracted by WINREP, a non-profit 501(c)(3) organization for the comparison of intent vs. application of laws.)