Wednesday, May 09, 2007

is altering a DOI scientific finding fraud?

Several news outlets, including NPR, the San Diego Union-Tribune, and the Houston Chronicle are carrying articles on activities by Julie MacDonald, former deputy assistant secretary at the Department of Interior. The reports allege she altered scientific reports:
Rep. George Miller, D-Calif., said MacDonald's resignation was “no gift to the country. She wandered around the department for three years changing documents and ... making determinations based on her beliefs.”
(from the Union-Trib, emphasis added). That got me thinking: would willfully altering scientific reports for endangered species determination constitute fraud?

Here's the federal definition of fraud, or at least one of them, 18 U.S.C. § 1001:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years . . .
So you'd need to (1) be in the context of a "matter" that is within the jurisdiction of the executive branch, and (2) knowingly or willfully, (3) falsify a material fact or make a materially false representation. I'm not entirely sure what a "matter" is, and don't have time to research it right now, but let's assume it's at least something fairly serious.

Here's a portion of the Endangered Species Act, 16 U.S.C. § 1533(b):
(b) Basis for determinations
(A) The Secretary shall make determinations [of whether a species is endagered] solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction; or on the high seas.
. . .
(2) The Secretary shall designate critical habitat, and make revisions thereto, . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.
(emphasis added). It looks to me like this law requires that the secretary have "the best scientific data available" when making decisions under the endangered species act. The secretary doesn't have to follow the scientific data--economic impact can come into play--but the scientific data must be the best available. Which, in turn, suggests it's "material" to the decision, as the fraud statute requires.

And that makes me wonder: if someone "willfully" or "knowingly" alters that scientific data, something a jury would have to decide, has that person run afoul of § 1001? Note that I'm not saying Ms. MacDonald has. In fact, the news reports are vague enough that I can't even tell exactly what she was altering. But it does raise an interesting question.

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