In early December the USF&WS finally filed the Administrative Record in the Markhor II suit. It is the record for the permit applications that were denied. Actually, it is just a pretense of the real Markhor II record.
The Administrative Record contains reams of reports favoring the Torghar program and expressing the importance of hunting to the recovery of the markhor, but few documents from the permit application processing. It contains a Division of Scientific Authority (DSA) opinion that the issuance of the permits would not be detrimental but also a contradictory Division of Management Authority (DMA) opinion that it would not enhance the survival of the species because it will probably be detrimental. That contradictory opinion is not on appropriate stationery, is not dated and is not signed! Apparently no one in the DMA would sign such an opinion!
Although the Administrative Record has a sworn certificate that it is the entire Administrative Record, it is not. For example, it does not contain the agency’s earlier DSA and DMA findings, the Section 7 Consultation described in the denial cover letter, any of the related published notices and comments to those notices, correspondence to and from the applicants and their attorneys, the usual drafts and signature chain for the negative DMA determination or even notes of privileged communications with the Interior lawyer.
The absence of an authentic DMA Advice really raises questions. Readers may remember that in the Wood Bison denials the final determination to deny the permits was based upon the intervention of a top Department of Interior lawyer in “privileged” meetings over the objection of the senior biologist that protested the lawyer’s substitute facts and findings and stated it was not a science-based determination. From the Administrative Record in the Wood Bison case, it appears that the responsible staffers were compelled to substitute falsified scientific findings. This is what happens when politicians intercede to protect their self-interest or political image instead of implementing the law. Permit applications for both wood bison and Suleiman markhor were not processed for a decade so as not to embarrass those who would take the political heat. The applications were never to be processed despite the goals and purpose of the ESA, the implementing regulations and the conservation needs of the species and benefits of the programs. When on the verge of being compelled by the court to complete the processing of the permits languishing for up to 10 years, the staff biologists apparently were prevented from making sound findings and coerced into substituting findings in both the wood bison and markhor applications that had little basis in fact or likelihood. The concern was not the enhancement or recovery of the wood bison or markhor, as the ESA directs. The first concern was the self-interest of the Administration to protect itself from political ridicule. Should that be a legitimate reason to falsify the scientific findings? Where is this charade going to end?
When suit was filed to compel the permit processing, the permits should have finally been granted. Instead, the scientific findings were politically overridden and changed over protest, i.e. falsified. The DMA finding was changed, and the Department of Interior lawyer thanked the biologists for the changes that they had protested.
The record produced for the markhor is more suspect because it is not signed or dated. We have never before seen one that was not signed and dated and gone through a signature chain. It is as if no one would sign it and it was supplied from above, particularly since it contradicts the findings of the Division of Scientific Authority and everything in the Administrative Record. It appears to be a falsified record as well as falsified scientific findings. It can’t really be called the true record, though it has a sworn certificate.
Enough is enough. As this is written, the plaintiffs are preparing a motion to suspend all proceedings in Markhor II and to take the depositions of the individuals who swore to the certificate that the records produced contained the entire Administrative Record, the senior biologist that should have made the finding and the Chief of DMA that did not sign or date the DMA determination that contradicted the findings of the DSA.
