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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:
[email-masked]
(Law Finders has been contracted by WINREP,
a non-profit 501(c)(3) organization for the comparison of intent vs.
application of laws.)