– Despite a 99% compliance rate by hunters, there has been no reduction in condor lead posioning during the 5 years that the lead ammunition ban has been in place within the condor corridor.
In 2008, California’s legislature passed Assembly Bill (AB) 821, a law that prohibits the use of lead-based ammunition for hunting in specific areas in California where endangered California condors (Condors) might be found. Now pending in Sacramento is another lead ammunition ban, AB 711. This bill, if enacted, will ban hunters from using traditional lead ammunition when hunting anywhere in California.
According to researchers working at or with the Donald Smith Laboratory, part of the University of California, Santa Cruz (UCSC), the purported justification for the passage of the 2008 lead ammunition ban, and for the proposed expanded ban (AB 711), is that lead poisoning is a major source of Condor mortalities. The claim is that Condors scavenge dead animals that were shot with lead-based ammunition by hunters. The theory is that the Condors ingest pieces of the lead bullets while eating the parts of the animal left behind by hunters.
But UCSC researchers now admit that “lead exposures continue” and Condor blood-levels have not dropped since the AB 821 ban went into effect in 2008 and has been ineffective in reducing exposure to lead. Despite a 99% compliance rate by hunters, the 5 year lead ammunition ban wirhin the condor corridor has failed to produce the measurable results that proponents of the bill claim would have resolved condor lead poisoning. Supporters of lead ammunition bans continue to ignore the many alternative sources of lead in the environment as the primary cause of lead poisoning in California condors, instead choosing to attack the use of traditional lead ammunition for hunting game. Despite these results, proponents of a lead ban have now put forth a pending state bill that would ban the use of lead ammunition throughout California.
A more detailed look at the history behind the scientific research concerning AB 711 reveals concerns regarding the process and degree of objectivity that went into the scientific data. The researchers seem to have a problematic history of: 1) excluding data from their research results, 2) refusing to provide information to the public regarding their data, and 3) putting subjective policy advocacy above objective scientific principles.
UCSC Researchers Excluded Data from Their 2006 Paper, and Refuse to Disclose Documents
The Condor-lead issue received broad exposure in 2006 when UCSC researchers published “Ammunition is the Principal Source of Lead Accumulated by California Condors Re-Introduced to the Wild” (the 2006 Paper). The 2006 Paper was a revised version of a student thesis submitted in 2005. The conclusion stated in the title of the 2006 Paper was based on a comparison of the isotopic composition of lead in condor blood with the isotopic composition of lead taken from two brands of ammunition sampled. The 2006 Paper, prepared in part at taxpayer expense, was used as the keystone of a campaign that resulted in California’s legislature passing the limited lead ammunition ban (AB 821) in 2008.
In early December, 2010, the California Rifle and Pistol Association Foundation (CRPAF) requested that UCSC produce all documents containing the raw data collected as part of the research leading up to the publication of the 2006 Paper. The request, made pursuant to the California Public Records Act (Act), was submitted in part to determine whether certain “original data” collected for the 2006 Paper had been excluded from the final publication. In particular, CRPAF wanted to know why at least one Federal® brand ammunition sample that was taken as part of the research leading up to the 2006 Paper was not addressed in the 2006 Paper, which does not analyze or discuss Federal® brand ammunition!1
The omission could have occurred for a legitimate reason – for example, a sample might be excluded from a published data set if the sample was obviously contaminated. But the fact that the 2006 Paper does not explain or even mention the omission is troubling. CRPAF was concerned that the Federal® brand ammunition data, and perhaps other data, had been left out of the 2006 Paper intentionally because such data did not support the researchers’ hypothesis or desired conclusion. That is, CRPAF was concerned that the researchers had manipulated the data they collected so that the data set actually published provided greater support for their hypothesis/conclusion (i.e., that ammunition is the principal source of lead accumulated by Condors re-introduced to the wild) than would have been the case if the entireoriginal data set been analyzed in the 2006 Paper.
UCSC refused to produce all of the relevant records sought by CRPAF. UCSC originally claimed that UCSC researcher Dr. Donald Smith’s (a co-author of the 2006 Paper, among others) practice was “to discard underlying data and analysis once the data is published in a scholarly journal.” UCSC later retracted that statement, calling it an “error.”2 So some relevant data still existed at the time this request was made.
Because some relevant data did exist, but was withheld from production in response to the records act request, CRPAF filed a lawsuit to force the release of the documents under the Act. In the lawsuit, the researchers took the surprising position that researchers at publically-funded institutions can discuss their research in public, can use it to advocate their position on the Condor-lead issue via conference appearances and meetings with governmental rule-makers, and can use it in press releases and video interviews, but as long as the researchers characterize their data as “preliminary,” the data does not have to be shared in response to a public record request.
The data, they claimed, only becomes accessible to the public when it is actually published in or reflected by a peer-reviewed article. But under this theory, if a publicly-funded researcher obtains data that the researcher does not “like,” the researcher can withhold the data from the publication for which the data was collected, without comment, and thereby shield the data from public inspection forever! This theory not only allows for the secret violation of scientific principle, it flies in the face of government transparency, a concept that is enshrined in the California Constitution.
Nonetheless, a Superior Court judge in Santa Cruz held that it was more important to allow university researchers to withhold documents from the public than it was to allow public access to data that was collected for, but omitted from, a publicly-funded publication (e.g., the 2006 Paper – the publication at the center of the hotly contested public debate on lead ammunition.)
After the Superior Court ruling was issued, a request was made that either Dr. Smith or Dr. Church (two of the co-authors of the 2006 Paper) provide a written statement under penalty of perjury explaining why discussion of Federal® brand ammunition appears to have been omitted from the 2006 paper. That request was denied – through UCSC’s attorney. That attorney did admit, however, that data had been withheld from the 2006 Paper, but he refused to explain why the data omission occurred. In fact, the UCSC attorney went so far as to threaten that CRPAF could get “into trouble” if it went public with its concern that the omission could have been an intentional act done to make the 2006 Paper’s published data set more homogeneous than the original data set.
What Is the Reason Behind the UCSC Refusal to Grant Access to Public Records?
Based on deposition statements made under penalty of perjury and other information obtained during CRPAF’s lawsuit, it’s clear that UCSC researchers have a policy of sharing documents with non-governmental “researcher partners” even if, as to others, UCSC considers the documents to be confidential and exempt from disclosure under the Act. So those who agree with a UCSC researcher on the Condor-lead issue can become a “research partner” and gain access to some information they are interested in. But anyone who is interested in critiquing a publically-funded researcher’s work will probably not get all of the information needed because, as to them, the information is confidential.
This is not UCSC’s only questionable document access practice. Recently a request was made to UCSC pursuant to the Act for the production of radiographs (i.e., x-rays) of a certain Condor that was determined to have a lead bullet in its stomach before it died. UCSC acknowledged that it did possess copies of the x-rays sought, but refused to produce them. UCSC’s refusal was based in part on the surprising position that the x-rays were being withheld because they were provided “to UCSC researchers with the clear expectation that they would be held in confidence.” That seems unlikely.
Once it was clear the L.A. Zoo created the relevant x-rays, a request was made to the L.A. Zoo – which promptly produced copies of the x-rays. Obviously, the L.A. Zoo does not consider the x-rays confidential.
Perhaps UCSC’s position, opposite of the L.A. Zoo’s, was a mistake. Or perhaps a UCSC researcher or a UCSC attorney decided to make the representation of confidentiality without actually contacting the L.A. Zoo, thus unfairly denying a member of the public access to public records.
Or maybe UCSC refused to turn over the x-rays because the request came from a law firm that has a history of representing pro-hunting organizations.
A “Preliminary Data” Artifice
The use of “preliminary data” allows scientists to advocate for a particular policy position or cause without being forced to show their work to justify that position. For example, Dr. Smith made a presentation to the California Fish & Game Commission (Commission) in 2007 using “preliminary data” supposedly linking two specific Condor deaths to the ingestion of lead fragments present in an animal dispatched with lead-based ammunition.3 As Dr. Smith has admitted, the data he discussed with the Commission was not finalized, and was, indeed, “very recently generated.” That means the data had not been scientifically vetted even though the researchers’ conclusions were being presented to law makers with the apparent intent to influence their regulatory decision-making process.
This is just one example of the problems created by allowing scientists to label their data as “preliminary data” and then letting them keep it from the public. There is an obvious logical failure here: by relying on data that is not final, a researcher can present results in a public presentation to a lawmaking or regulatory body with the sheen of scientific truth. In actuality though, the relevant data has not gone through the necessary verification process to be considered scientifically proven. By presenting unverified data, researchers can get the influence they want, potentially changing longstanding law, without actually completing the scientific process.
In other words, the use of “preliminary data” allows the proponent to make the first, and most effective, impression – without facing a rebuttal that might be made if the “preliminary data” was examined by others. By relying on “preliminary data[,]” the researchers believe they can rely on the courts to protect their data from being released in response to public records requests. When publicly-funded researchers publish research in peer-reviewed scientific journals, documents containing the data used in such journals are normally accessible to the public. But if the researchers have not made an “official” publication (i.e., the information provided to the public is based on “preliminary data”), some courts will allow researchers to keep data secret – even if those same researchers are using that same data to influence lawmakers to enact laws and to influence the public to support proposed laws.
Eventual production of “preliminary data,” potentially months or years after the data is relied upon to influence lawmakers and the public, is akin to shutting the door after the horse has left the barn. The process of obtaining documents from public institutions, especially those that are, or believe they are, underfunded is often slow and can take up to and over a year, which does not even account for the time required to scientifically evaluate the data and to verify if the researchers were actually correct in their public interpretations of preliminary data. Thus, one must wonder: when lead ammunition ban advocates state defiantly that their “science” is uncontested, isn’t that contention disingenuous and misleading if rebuttal requires access to data that the advocates and their “research partners” are keeping secret?
So the use of “preliminary data” in the public policy debate, and especially when presented to lawmakers, is like playing cards with a stacked deck. If the goal is to have a particular position adopted, then the “preliminary data” gambit can be very effective. But the goal of public debate and rulemaking is to reach a conclusion based on a robust, open, transparent, and unrestricted debate held on a level playing field. The use of “preliminary data” to advocate policy limits critical dissent and stifles opposition.
The Troublesome Intersection of Scientific Principles and Impassioned Advocacy
Dr. Smith and Dr. Myra Finkelstein are UCSC researchers that have built academic careers on issues related to toxicology, and the Condor-lead issue is a key aspect of their careers. Recently, however, these researchers have taken steps to implicitly and explicitly lobby against hunters’ use of lead-based ammunition. Drs. Smith and Finkelstein have appeared before multiple lawmaking bodies to speak on the Condor-lead issue, and Dr. Finkelstein has participated in documentary and “news” publications on the issue. Both have admitted to participating in the creation of press releases that were based on “preliminary data,” and both appear to have signed on as “scientific contacts” with the Center for Biological Diversity.
Interestingly, two documents freely available on the internet suggest that Dr. Smith is influencing students with advocacy that reaches beyond science. Documents available on the website for Cabrillo College,4 a community college near Santa Cruz, California, show that Dr. Smith gave multiple presentations to students related to the Condor-lead issue. The documents indicate that Dr. Smith presented students with his opinion on “the Role of Pro-Gun advocates” and “NRA’s position” as these topics relate to the Condor-lead issue.
The content of the documents, appearing to be PowerPoint presentations, suggest the kind of verbal comments that would have been included in Dr. Smith’s presentations. Under the heading “Politics, Politics, Politics…[,]” one of Dr. Smith’s slides states the National Rifle Association’s (NRA) position is “NOT ENOUGH EVIDENCE!!” (Emphasis in original). While it is unknown if Dr. Smith actually explained in person to students the flaws in the 2006 Paper that have been pointed out by the NRA and others, he apparently did not inform his captive audience about the data that has been left out of UCSC researchers’ work. Isn’t that omission more scientifically relevant than his condescension regarding the NRA’s position on the Condor-lead issue?
Additionally, Dr. Smith has twice joined, and probably created, “consensus statements” that purport to show the number of scientists (44 in 2007, 30 in 2013, a reduction of nearly one-third over the last six years) that support reducing the use of lead-based ammunition. These documents are not traditional scientific publications, but are more like tactical political statements, intended to persuade lawmakers to take action to ban the use of lead-based ammunition anywhere that a Condor might theoretically be located.
All of this extra-circular activity by UCSC researchers is not particularly surprising given that Dr. Finkelstein herself is a proponent of disintegrating the non-partisan role scientists, and especially state-taxpayer-funded university academics, are commonly thought to hold. Take, for example, this quote from an essay recently co-authored by Dr. Finkelstein:
if we are to more effectively contribute to a sustainable future for humans and biodiversity, we must become more effective leaders in integrating conservation science into policy, management, and society at large . . . .
The essay, titled Leadership: a New Frontier in Conservation Science, certainly does not suggest or state that scientific protocols or ethics be disregarded. But after reviewing the essay, the reader certainly gets the impression that scientists at issue (“conservation scientists”) have, at best, competing interests. That is, conservation scientists have both an interest in supporting their personal beliefs (i.e., an interest in “more effectively contribut[ing] to a sustainable future for humans and biodiversity”) and, surely, they have an interest every scientist should have: an interest in strict and rigorous adherence to the ethical and procedural standards associated with the scientific process. Though we might hope that these two interests will always exist harmoniously, a person cannot serve two masters.
The way society can accept this inherent conflict is by having access to scientific data for replication, the bedrock of how we determine scientific “truth.” The conflict becomes intolerable, however, when researchers withhold data and information, thus precluding replication, while at the same time seeking to influence “policy, management, and society at large.”
Indeed, when it comes to the Condor-lead issue, the lead ban advocates’ party-line appears to be “Trust me. I’m a Doctor.” Dr. Finkelstein effectively said as much when she spoke in favor of AB 711 at a recent California Senate committee meeting. Dr. Finkelstein, who represented herself as one of the world’s “leading experts on lead and environmental health[,]” stated that one of her recent publications addressing the Condor-lead issue was an “unbiased assessment of the best scientific evidence.” But neither the publication at issue nor Dr. Finkelstein’s comments addressed the data that was intentionally left out of the 2006 Paper (and the published data from that paper was used in a similar paper published by Dr. Finkelstein in 2012), or the fact that UCSC has refused to produce certain data to those who endeavored to review UCSC’s scientific conclusions, or that there was a rebuttal to the 2006 Paper published that questioned the findings of that paper. And Dr. Finkelstein offered no explanation to the Senate committee as to why lead ban advocates like herself chose to seek legislative action after the Commission offered a scientific forum for addressing the Condor-lead issue. The legislature and the public may never know if the researchers’ assertions are scientifically true: that question will remain unresolved as long as UCSC continues its practice of hiding data needed for open and objective scientific scrutiny of the Condor-lead issue.
Last year, University of California President Mark Yudof stated that there is some truth about proselytizing by University of California professors, stating that “[p]rofessors are there to educate – not to rouse the troops for a cause.” It is clear that, although the Condor-lead issue should be rooted in scientific analysis, it is also a political issue that may affect millions of hunters, meaning the Condor-lead issue is certainly within the scope of President Yudof’s comments. At the least, the advocacy of UCSC researchers stretches the normal bounds of what is expected of objective scientists working at public institutions.
If AB 711 is Passed Into Law, it Becomes Another Example Of Political Will Over Scientific Principle
Accordingly, the more researchers like Dr. Smith and Dr. Finkelstein act as advocates and lobbyists in the highly contentious public debate about the Condor-lead issue, the more they should be legitimately open to criticism, and not held out as completely objective scientists. Indeed, until the UCSC researchers release all of the data they collected related to the Condor-lead issue, they are using academic freedom, somewhat ironically, as a shield against the public interest, instead of in its proper context, to encourage fully-informed, open, transparent and robust debate on the merits.
1 Investigation is ongoing as to other Condor-related data that may have been collected for, but omitted from, the 2006 Paper.
2 UCSC’s public records request coordinator addressed the “error” in a declaration she signed under penalty of perjury. She stated in her declaration that the statement about discarding data, which she made, occurred because she had misunderstood Dr. Smith when he (allegedly) told her that he does not “actively manage” data after publication. UCSC has never offered a logical explanation for how these two very different concepts were confused for one another.
3 Strangely, Dr. Smith stated that he does not “recall what lead up to [him] actually making that presentation[,]” while at the same time he claims that he “wasn’t trying to provide background information on the policy that they were considering about lead emission.” If he wasn’t trying to provide information on a decision before the Commission regarding “lead emission[,]” then why was he there?
4 Dr. Smith and UCSC refused to produce these documents, and others related to his presentations at Cabrillo College, when they were requested under California Public Records law. UCSC claims that the documents “are the intellectual property of Dr. Smith” and thus not subject to disclosure. Even if Dr. Smith did not use any public resources to create the documents, which seems unlikely, the response is more evidence that the UCSC researchers selectively “play favorites” when it comes to granting access to information they control.
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