Confrontation is needed in Endangered Species Act process


Dennis Kintigh

America’s citizens should be able to assume that Endangered Species Act (ESA) listings are based on “best science,” as determined by an altruistic scientist — an honest arbiter. Sadly, this ideal model isn’t how it works in real life.

My background is engineering and law enforcement. When the proposed ESA listing of the Sand Dune Lizard threatened my community’s well being, I got involved. It was my first in-depth involvement with the ESA process. It was interesting and enlightening. More importantly, it was disturbing.

Over the last several months I worked with a group of scientists to conduct a detailed review of the proposal to designate the Dunes Sagebrush Lizard as an “endangered species.” On Aug. 15 we presented a 20-page critique of this proposal to Congressman Pearce. The report can be found at the Artesia Chamber of Commerce website.

In the criminal justice system science is critical. Because of its importance, it is getting increased scrutiny. Likewise, the concept of the “wise man” scientist decision-maker, isolated from politics or outside influences, has to be questioned. This is what we did with the proposed listing for the Sand Dune Lizard.

The U.S. Supreme Court has set the standard for examining assertions and claims by scientists. In the case of Melendez-Diaz v. Massachusetts, the courts established the need for scientists to be subject to confrontation. The court concluded, “…Nor is it evident that… ‘neutral scientific testing’ is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation (emphasis added),” and “…there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology.”

This is not to imply that the researchers working on endangered species issues are not to be trusted. For, again, the court nailed the point when the put in a footnote that “… we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa… (this) refute(s) the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism (emphasis added.)”

Confrontation brings clarity, and confrontation is missing in the existing system.


How we truly get ‘best science’

Currently when there is a proposition to designate a species as “endangered” the case is presented in a “proposed rule” prepared by U.S. Fish and Wildlife Service (USFWS) staff. “Proposed rule” is an interesting term because it is in fact an advocacy document much like an affidavit. However, unlike an affidavit, no one stands in front of a judge, raises their hand and swears that everything is true. Nor is the author subject to confrontation to explain the basis for their claims and assertions.

In my law-enforcement days, I have written many affidavits for search warrants, arrest warrants, and wire taps. I knew I would probably be sitting in a chair answering all kinds of questions. I assure you it is not a pleasant experience, but one that ensured accuracy in my statements. We need something like this in the ESA process.

Furthermore, the confrontations must occur before a truly independent decision-maker. It makes no sense for the head of the organization that prepares the advocacy document (in this case the director of the USFWS) to be the evaluator of the criticisms of that position or its basic validity. The analogy would be, if while I was the Roswell chief of police, my detectives had written an affidavit for an arrest warrant and then I, as chief, conducted the preliminary hearing. The inherent conflict is glaring.

Confrontation before an independent decision-maker is at the heart of the American justice system. It is ominously missing from the ESA process, and that needs to be corrected, because that is how we truly get “best science.”

When decisions are being made that have potential grave consequences to communities and the industries that support them, as is the case of the Sand Dune Lizard listing, the science behind the proposal must be held to the highest possible standards. As our review of the Sand Dune Lizard proposed rule discovered, neither best science nor high standards have been met.

Kintigh, R-Roswell, represents District 57 in the N.M. House of Representatives.

11 thoughts on “Confrontation is needed in Endangered Species Act process

  1. One wonders why the shinnery oak is not also being considered for listing as endangered, since its reduced range is cited as the reason for the endangerment to the lizard. If the oak is not considered to be endangered, then why is the lizard?

    From what I can tell, the authors from NM State University that Mr. Kintigh worked with, raise important concerns regarding the validity of the assessment. That doesn’t necessarily lead to some of the broader conclusions raised by Mr. Kintigh, but he’s entitled to his opinion. If anything, his promotions of this issue (and the supporting report by the NM State researchers) have me convinced that the science is far from settled regarding this issue.

  2. The dunes sagebrush lizard, also known as the “sand dune lizard,” lives in unique, rare shinnery oak sand dune habitat in the Permian Basin in southeast New Mexico and West Texas. It has the second smallest range of any lizard in North America. The dunes sagebrush lizard is adversely affected by oil and gas development, livestock grazing, off-road vehicles, and herbicide use. The species’ range has declined by 40 percent. In Texas, dunes sagebrush lizards no longer occupy 86 percent of historically occupied sites. The U.S. Fish and Wildlife Service documented a 24 percent decline in populations between 1997-2008. Scientists warned in 1997 that the dunes sagebrush lizard may become extinct.

    The Fish and Wildlife Service has proposed to list the lizard as “endangered” under the Endangered Species Act. The proposal has been peer-reviewed by recognized experts and their reviews are posted on the agency’s website, State Representative Kintigh may not agree with the conclusions of experts and the agency that the dunes sagebrush lizard is imperiled, but that doesn’t make it any less true.

  3. I wish that Mr. Kintigh would apply the same argument to all “scientific” opinions offered by scientists who are paid by the oil and gas industry. Then there’s the hash that was made of global warming data by the Bush II appointee, I forget his name, whose previous job was lobbyist for that same OaGI…

  4. Mr. Kintigh,

    I believe that you would probably support reverese engineering any winning argument that supported your desired outcome… and that is precisely the problem with those who attack the scientific process.

    Such behavior has also been proven to have contributed the framing of thousands of innocent suspects prior to the introduction of the scientific process in the collection and identification of forensic evidence. But hey, we should probably question that “best science” too, just in case the officers involved still disagree with the outcome.

  5. This reads like it was written by someone who got a lot of campaign money from Oil and Gas. So I checked google. Bingo!

  6. Rep. Kintigh, if I am reading you correctly, you are arguing that an independent group should review the science behind ESA decisions, not just USFWS staff. Who do you want to this independent group to be? Are they a federal governmental institution that reviews all cases, or are they are several state-wide institutions that only review some cases?

  7. Points very well taken Rep. Kintigh. Sadly, the physical and biological sciences have become “political” sciences these days. The purity of objective, non-aligned scientific observations and research has been corrupted by the ugly, polarized, and biased political world we live in. Some of this is not new, Galileo, Copernicus, Darwin, and even Newton had to deal with similar “PC” type situations. Even Einstein had problems, and still does, with his theories wrt the political world. However the new world of “political” science is a very wealthy one these days, grants and various finiancial support by special interests are huge for the “right” research conclusions to be reached, published and “peer” reviewed by like-minded “peers”, who also can be well rewarded for their “reviews”. The scientists can make much more money, gain notoriety, and get invited to the right political and cocktail crowds by their research, if it fits the politically correct world views of certain special interests. This sorry current situation demands diverse and aggressive questioning and analysis from mutiple sources, as we can no longer “trust” scientists to tell us the whole, unvarnished and objective story anymore.

  8. Dennis Kintigh your wrote:
    “In my law-enforcement days, I have written many affidavits for search warrants, arrest warrants, and wire taps. I knew I would probably be sitting in a chair answering all kinds of questions. I assure you it is not a pleasant experience, but one that ensured accuracy in my statements. We need something like this in the ESA process.

    Furthermore, the confrontations must occur before a truly independent decision-maker. It makes no sense for the head of the organization that prepares the advocacy document (in this case the director of the USFWS) to be the evaluator of the criticisms of that position or its basic validity.”

    Sir, in due respect—since I do not know of your personal experience—I will address your view point from my experience and witness of the law-enforcement industry as a whole. The newly applied science of DNA has demonstrated that many affidavits for search warrant and arrest warrants were not only were false but generally fabricated to be false. And I am sure that it is not a pleasant experience to be put on a stand and have to reinforce the false affidavits. On another hand the issue of a truly independent decision-maker is seldom found—but occasionally does exist. Do you think taking a prosecutor and appointing them a judge instantly changes the aggressor to win at any price to a neutral independent decision-maker. Further I know of law enforcement that had blank signed search warrants in their possession and affidavits filled out later. If you doubt me, just respond and I will forward to your office the actual documents.

    Mr. Kintigh, as a representative would you consider proposing legislation and funding for that legislation that would allow the wrongfully convicted human beings in New Mexico to have DNA post-conviction testing to proof their innocence? Nearly everyday someone in the United States is being released because of DNA testing. DNA testing that proved the law-enforcement affidavit wrong.

    Sadly New Mexico has not advanced to the DNA science for post-conviction testing.

    Your suggestion in this article is not well taken.

  9. Now in many things I respect Mr. Kintigh. Unfortunately, this article is not one of them. Perhaps the Honorable Mr. Kintigh’s solution to this dilema of the sand dune lizard in Roswell is to take out his service revolver and blow the little varmant away. I think Mr. Kintigh should stick to law enforcement and leave the US fish and wildlife service alone. If we follow his lead, we may end up with a very sterile environment with absolutely no animals left at all, but hey, the housing areas will be great for the real estate business down there in Roswell….I’m going to ere on the side of the lizard on this one. Mr. Kintigh, you are out of your league on this one….but hang in there, you’ll get it right eventually.

  10. Mr. Kintigh, science does have a mechanism for confrontation; it is called peer review. It has been in use in the English-speaking world since 1665. The first peer-reviewed medical journal was published in 1731. Indeed, the first recorded mention of peer review in science occurred in Syria in the 800’s. So this is not exactly new. Virtually all scientists would agree that peer review is how you get the best science.

    The process you are describing is NOT peer review; it is cross-examination. I contend that virtually all scientists would agree that cross-examination is not a particularly effective way to get the best science. This is why they have relied upon peer review, not cross examination, for the past few centuries. If you insist that “the science behind the proposal must be held to the highest possible standards,” you really ought to be advocating peer review.

    The legal process of direct examination and cross examination is more of a test of rhetorical skill, than it is a way of determining the truth. It is used in the courtroom because it is expeditious, not because it is any sort of gold standard for determining truth. Peer review, in practice, usually takes several months. (However, it is an open-ended process, with no predefined endpoint.) It simply is not practical to have such a process in court, for every single proposition that may be controversial.

    You may be correct that the process of reviewing science in the courtroom ought to be revised, but you have not proved that point in your essay. You imply that the process of deciding on administrative rules should be as rigorous as that used in the US Supreme Court. However, it is fairly obvious that it simply would not be practical to do so, given the time and expense that it would entail.

    By the way, readers who are interested in a balanced view of the Dunes Sagebrush Lizard controversy might want to read this article in the Wall Street Journal.

  11. I’d ask the writer if his hypocrisy is ever obvious to him or does it need to be pointed out? I’d be glad to point it out.

    On his website he makes the statement that he believes that life begins at conception. Would he be willing to submit that non-scientific assertion to a non-biased and secular assembly of scientists? Would he accept the findings of a board of biologists or chemists on whether the biological or chemical definition of human life begins at conception?

    Unless the writer is willing to accept the definition of life from scientists instead of theologians his call for the confrontation of scientists is wholly without merit and clearly an effort to stifle the work of those seeking to protect endangered species. How can he ignore science on the one hand (beginning of life) yet call for it to be the arbiter of fairness on the other hand? Logically it has no foundation. Either you believe in science or you don’t. You can’t cherry-pick the scientific method.

    The writer’s position is blatantly hypocritical and should be dismissed as such by those seeking a true picture of the issue.