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Endangered Species Act Review




TESTIMONY OF GARY FRAZER, ASSISTANT DIRECTOR, ENDANGERED SPECIES, U.S. FISH AND WILDLIFE SERVICE,
DEPARTMENT OF THE INTERIOR, ON ESA: REVIEWING THE NEXUS OF SCIENCE AND POLICY

BEFORE THE HOUSE COMMITTEE ON SCIENCE,
SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT
October 13, 2011

Good morning Chairman Broun, Ranking Member Edwards, and Members of the Subcommittee. I am Gary Frazer, Assistant Director for the Endangered Species program within the U.S. Fish and Wildlife Service (Service).
Mr. Chairman, I appreciate this opportunity to discuss how the Service carries out its duties related to listing, delisting, consultation on, and recovery of species under the Endangered Species Act (ESA). Our procedures, some prescribed by statute and others by agency regulations or policies, are all focused upon ensuring that our decisions are objective, based on the best available science, and made in the open with peer review and public participation throughout.

The Service is committed to making the ESA work in the eyes of the public, the Congress, and the courts so as to accomplish its purpose of conserving threatened and endangered species and protecting the ecosystems upon which they depend.
This job has never been easy, and it grows more difficult every day. We are facing an extinction crisis. With the pace and extent of environmental change threatening the continued existence of more and more of our Nation's biological wealth, we must manage limited resources to carry out our mission. The nature of this work often results in strongly held views on all sides and frequent challenges to our decisions through the administrative, judicial, and political process. In the face of all that, we believe that, overall, the Service does an excellent job of making decisions that are scientifically sound, legally correct, transparent, and capable of withstanding challenge.

In this context, the following principles provide the foundation for the administration of our listing and delisting activities: decisions based on the best available science; independent peer review of decisions; public participation throughout the decision-making process; and understandable and transparent decisions.

Success in the Endangered Species Act
The ESA provides a critical safety net for America's native fish, wildlife, and plants. And we know it can deliver remarkable successes. Since Congress passed this landmark conservation law in 1973, the ESA has prevented the extinction of hundreds of imperiled species across the nation and has promoted the recovery of many others ¡V like the bald eagle, the very symbol of our Nation's strength. Well-known examples include the recovery of the American alligator and brown pelican. Likewise, in August of this year, the Service delisted the Tennessee purple coneflower, the culmination of another Service-facilitated alliance of multiple diverse partners coming together to achieve the unified goal of recovery for an endangered plant species.
Success under the ESA is not only defined by removal of species from the list of endangered and threatened species. The fact that relatively few observed extinctions have occurred in the United States during the last four decades represents a significant benchmark of success of the ESA. The ESA has been successful in stabilizing endangered and threatened species by promoting conservation programs that are designed for their recovery. For instance, the Service and Eglin Air Force Base have worked together to address threats to a small native streamfish on the base, the Okaloosa darter, and this year the Service was able to downlist the fish from endangered to threatened. Partnerships with the States, Tribes, and the agricultural community are supporting the spectacular ongoing recovery of the black-footed ferret, once believed to be extinct but re-discovered 30 years ago and now reestablished in 10 experimental populations. A less familiar but equally impressive example is that of the Kemp's ridley sea turtle, increasing from fewer than 300 females nesting in 1985 to more than 6,000 females nesting in recent years.
Our Nation's rich diversity of fish, wildlife, and plant resources symbolizes America's wealth and promise. The ESA represents a firm commitment to protect and preserve our natural heritage out of a deeply held understanding of the direct link between the health of our ecosystems, the services they provide and our own well-being.

Science, Peer Review, Public Participation and the 2011 Scientific Integrity Policy
Section 4(b)(1)(A) of the ESA directs that determinations as to whether any species is an endangered or threatened species must be made ¡§solely on the basis of the best scientific and commercial data available.¡¨ The term ¡§best scientific and commercial data available¡¨ means those data that are available at the time the Service makes a listing determination, and the provisions of section 4 of the ESA establish the schedule under which the Service must make determinations. The careful evaluation of scientific evidence is fundamental to the assessment of species for listing or delisting under the ESA. We do not have the luxury of waiting for all the information we might want; rather, we have to make timely decisions based on the information that is available, and our scientists and managers have done an exceptional job under those circumstances. Maintaining and increasing the capacities of our employees to access and analyze scientific information is, and will be, a key to our success.
Our joint Fish and Wildlife Service/National Marine Fisheries Service (NMFS) ¡§Policy on Information Standards Under the Endangered Species Act,¡¨ published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to our field biologists and managers regarding the use of scientific information in our decision-making process.

This ¡§Policy on Information Standards¡¨ requires our biologists and managers to ensure that the information we use is reliable and credible, and represents the best data available; to impartially evaluate information that conflicts with existing positions or decisions of the Service; to document their evaluation of the available scientific and commercial data; to use primary and original sources of information as the basis for recommendations, where consistent with the ESA and our obligation to use the best information available; and to conduct management-level reviews of the documents developed by staff biologists to verify and assure the quality of the science used in the decision-making process.

To further ensure that sound science underlies our decisions, the Service and NMFS established a joint ¡§Policy for Peer Review in Endangered Species Act Activities,¡¨ published in the Federal Register on July 1, 1994 (59 FR 34270). This policy works to ensure that independent peer review is incorporated throughout our listing and recovery programs in a manner that complements, but does not circumvent or supersede, other established public participation processes.
In recognition of the unique capability of State fish and wildlife agencies to assist in implementing all aspects of the ESA, the Service and NMFS developed a joint ¡§Policy Regarding the Role of State Agencies in Endangered Species Act Activities,¡¨ also published in the Federal Register on July 1, 1994 (59 FR 34275). This policy recognizes that States possess broad trustee authorities over fish, wildlife, and plants and their habitats within their borders, as well as scientific data and valuable expertise on the status and distribution of such species and habitats. The policy requires the Services to solicit State agency expertise and participation in a broad range of activities, including determining which species should be included on the list of candidate species; conducting population status inventories and geographical distribution surveys; responding to listing petitions, preparing proposed and final listing and delisting rules; and designing and implementing recovery efforts.

The Executive Order 13175 of November 6, 2000, on government-to-government relations with Native American tribal governments also requires us to consult with Tribes on matters that affect them. Consistent with this and our Federal trust responsibilities, we consult to the extent possible with Indian Tribes having tribal trust resources, tribally owned fee lands, or tribal rights that might be affected by ESA activities. State and Tribal capacity supported through programs like the State and Tribal wildlife grants, is a key ingredient in longterm effectiveness.
In addition to our own policies, the Service follows the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) rulemaking process for listing actions. All the information we rely upon in making our listing decisions is available for public review and comment. Under section 553 of the APA, Federal agencies must publish proposed rules in the Federal Register; give interested parties an opportunity to participate in the rulemaking by allowing them to submit written data, views, or arguments, with or without opportunity for oral presentation; after considering all comments received, publish final rules in the Federal Register and include a concise general statement of their purpose; and allow at least 30 days following publication of a final rule before it becomes effective, except in certain cases.

In December 2000, Congress required Federal agencies to publish their own guidelines for ensuring and maximizing the quality, objectivity, utility, and integrity of information that they disseminate to the public (44 U.S.C. 3502). The statutory language containing this requirement is included in the Information Quality Act (IQA) (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; HR 5658)). The Office
of Management and Budget (OMB) published guidelines pursuant to the IQA in the Federal Register on February 22, 2002 (67 FR 8452), directing agencies to address the requirements of the law. In a May 24, 2002, Federal Register notice (67 FR 36642), the Department of the Interior issued Department-wide guidelines and instructed bureaus to prepare specific guidelines for implementing the IQA within the context of their individual missions. The Service issued its initial Information Quality Guidelines in October, 2002 and updated guidelines were put into effect in August 2007. The Service's Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. The Information Quality Guidelines establish Service policy and procedures for reviewing, substantiating, and correcting the quality of information it disseminates to the public.

In February 2011, Interior Secretary Ken Salazar announced the establishment of a new policy to ensure and maintain the integrity of scientific and scholarly activities used in Departmental decision-making. This policy is based on the principles found in Secretarial Order 3305, which called for the development of the policy and was guided by the Office of Science and Technology Policy memo issued in December 2010, and was in response to the politicization of science during the last Administration. As part of the implementation of the new policy, Secretary Salazar appointed Dr. Ralph Morgenweck, the U.S. Fish and Wildlife Service's Senior Science Advisor, to serve as the Department's first Scientific Integrity Officer.

The ESA, the APA, and the policies and regulations governing our listing and delisting activities ensure that States, Tribes, other agencies, and the public have ample opportunity to participate in our listing and delisting actions. These established processes ensure that the public can participate fully in listing and delisting decisions. In addition, the requirement that the Service maintain and make available the administrative record in support of its decisions brings to bear an open and transparent decision-making process.

The Listing Process

Listing under the ESA becomes necessary when a species declines, or threats to it increase, to the point where it is in danger of extinction throughout all or a significant portion of its range (an ¡§endangered species¡¨) or it is likely to become endangered in the foreseeable future (a ¡§threatened species¡¨). The Secretary is required to list or reclassify a species if, after reviewing the species' status using the best scientific and commercial data available, it is found that the species is endangered or threatened because of any one or a combination of the following factors:
  • the present or threatened destruction, modification, or curtailment of its habitat or range;
  • verutilization for commercial, recreational, scientific, or educational purposes;
  • disease or predation;
  • the inadequacy of existing regulatory mechanisms; and
  • other natural or manmade factors affecting its continued existence.
There are two processes the Service follows to identify species in need of listing. The first is the candidate assessment process, which is initiated by the Service. The second is a petition process,
which is available to the public.

Part of the Service's Candidate Conservation program is the candidate assessment process, through which the Service identifies species of fish, wildlife, and plants that may be at risk and in need of protection under the ESA. To identify candidate species, we use our own biological surveys, including status surveys conducted for the purpose of candidate assessment. We also use information from State Natural Heritage Programs, other Federal and State agencies, knowledgeable scientists, and public and private natural resources organizations.

Each year, the Service publishes in the Federal Register the Candidate Notice of Review (CNOR). The CNOR identifies the species that we believe are candidates for listing under the ESA. The CNOR lists those species previously identified as candidates, species for which petitions have resulted in ¡§warranted but precluded¡¨ findings, as discussed below, during the prior year, and other species that appear to warrant listing under the ESA. When we identify a species as a candidate for listing, we have sufficient scientific information available to support a proposed rule to list the species as a threatened or endangered species. However, preparation of the proposed rule is precluded by higher-priority listing actions.

We publish the CNOR, make individual candidate assessment forms available to the public, and solicit additional information about the status of candidate species, the threats they face, and conservation actions that are being implemented that may benefit the species. We accept information from the public about candidate species at any time. We use the public's comments in the preparation of listing rules for the highest priority candidates, in determining the listing priority of candidate species, and in determining whether species continue to warrant candidate status. In addition, publication of the list of candidate species provides important information about potential listings that can be used by planners and developers.
The CNOR also serves to explain to the public our long-standing science-based priority system for adding species to the list, which was published in the Federal Register on September 1, 1983 (48 FR 43098-43105). Each candidate species is assigned a listing priority number (LPN), based on the immediacy and magnitude of the threats faced by the species and on its taxonomic distinctiveness. The candidate assessment forms, which are available to the public upon request, document our reasons for assigning a particular LPN to each candidate species. We use the LPN to prioritize listing actions. Species with lower LPNs are given a higher priority for action.

The second process for identifying species that may warrant listing is the petition process. Section 4 of the ESA allows any interested person to petition the Secretary of the Interior either to add a species to, or remove a species from, the lists of threatened and endangered species.
Upon receipt of a petition, the Service must respond, within 90 days when practicable, with a finding as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted. If the Service determines that the petition did not provide such substantial information, the 90-day finding concludes the petition review process. However, if the Service determines that the petition does provide substantial information, the Service initiates a status review and issues an additional finding within 12 months of the receipt of the petition.
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There are three possible outcomes of the ¡§12-month finding¡¨: 1) listing is not warranted, and no further action is taken; 2) listing is warranted, and a listing proposal is promptly prepared; or 3) listing is warranted, but immediate action is precluded by higher priority actions. A ¡§warranted but precluded¡¨ finding is made on the basis of the species' listing priority number and the listing workload. In such cases, preparation of a listing proposal is delayed until higher priority actions are completed, and the species is added to the list of candidate species and included in the next CNOR.

Our listing and delisting actions are rule-makings, published in proposed and final rule form in the Federal Register, and leading to revisions to Title 50, Part 17 of the Code of Federal Regulations. Once a proposal is published, the Service must allow for a public comment period on the proposal; provide actual notice of the proposed regulation to appropriate State, tribal, and local government agencies; publish a summary of the proposal in a newspaper of general circulation in areas where the species occurs; and hold a public hearing, if requested (see 16 U.S.C. ¡± 1533(b)(5)). The Service's implementing regulations require that the public comment period on a listing proposal be at least 60 days long (see 50 C.F.R. ¡± 424.16(c)(2)). Since public participation is so important to effective conservation efforts, the Service will often hold multiple public hearings and extend the comment period beyond the minimum required by the law and regulation.

We always solicit independent peer review of our listing proposals, and incorporate comments and recommendations that we receive. We have found such peer review to be a valuable element of the decision-making process.
The Service reviews petitions, adds species to the list, reclassifies species from threatened to endangered, and designates critical habitat using funds appropriated specifically to our Listing Program for these purposes. (Delisting and reclassification from endangered to threatened are part of the recovery process and are funded through the Recovery program.) The workload associated with these listing activities has for many years exceeded the resources available to the Service for listing actions. Therefore, a substantial backlog of listing actions has accumulated.

Multi-District Litigation Settlements for the Listing Program
The Service recently developed a 6-year work plan for the Listing Program through mediated settlement agreements with two of the Service's most frequent plaintiffs, and we now expect to be able to address the backlog of species awaiting final determinations for protection under the Act. For the first time in years, the wildlife professionals at the Service will have the opportunity to use our objective listing priority system to extend the safety net to those species most in need of protection, rather than having our work priorities driven by the courts.

The Service will systematically, over a period of 6 years, review and address the needs of more than 250 species now on the list of candidates for protection under the ESA, to determine if they should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. All of these species were previously determined by the Service to warrant being proposed for listing, but action was deferred because of the need to allocate resources for other work. The Service will
 make listing determinations for each species, carefully reviewing scientific information and public comments before deciding whether listing is still warranted and, if so, whether to designate the species as threatened or endangered. Each and every listing proposal will be subject to public review and comment.

The listing work plan will also provide predictability and certainty to landowners and State and local governments, providing time for States and landowners to engage in conservation programs and for agencies to develop management plans. The Service has developed a variety of tools and programs to encourage conservation efforts for listed and candidate species that are compatible with the objectives and needs of landowners with listed and candidate species on their lands. These tools include Habitat Conservation Plans, Safe Harbor Agreements, and Candidate Conservation Agreements that provide regulatory assurance; technical assistance; and a grants program that funds conservation projects by private landowners, states, and territories.

Science Information Standards for Consultation and Recovery
The best available scientific information is also the foundation of our consultation and recovery activities under the Act.

One of the most important and effective tools available to recover endangered and threatened species is the consultation process prescribed by section 7 of the ESA. We engage in consultation with other federal agencies to assist them in meeting their obligation to avoid taking any action that would be likely to jeopardize the continued existence of a listed species or that would destroy or adversely modify designated critical habitat for a listed species. Similar to section 4, section 7 requires that the best scientific data available be employed in conducting consultations. This requirement was reinforced, made more specific, and extended to cover preparation and implementation of recovery plans in the joint policy issued on July 1, 1994 (59 FR 34271). The requirement is extremely important in these contexts because consultations and recovery plans often determine how action agencies will contribute to recovery and avoid unacceptable risk to listed species.

The conduct of consultation under section 7 of the ESA is prescribed in regulations (50 CFR part 402) and further guided by a Consultation Handbook developed in partnership with the National Marine Fisheries Service. The Service is a field-based organization, and most local consultations are conducted by field offices with geographic responsibility for the area in which an action is to occur. However, the field offices operate under the oversight of our regional offices, and the authority to issue draft or final biological opinions that find that an action is likely to jeopardize the continued existence of a listed species or destroy or adversely modify its designated critical habitat is delegated no lower than the Regional Directors, our senior career managers in the field. In addition, our established procedures require that the Director be notified in advance of issuance of a jeopardy or adverse modification opinion.

Recovery of threatened and endangered species is the process by which their decline is reversed, and the threats to their survival are removed, so that their long-term survival in the wild can be ensured. The goal of the recovery process is to restore listed species to a point where they are secure, self-sustaining components of their ecosystems, no longer require the protections of the ESA, and can be delisted.
For almost all species, a recovery plan is essential as a road map for the recovery process. A first step in the process is to identify the participants of a recovery team that will work to craft the recovery plan for a listed species. To guide our actions during the recovery process, the Service uses our May 1990 ¡§Policy and Guidelines for Planning and Coordinating Recovery of Endangered and Threatened Species¡¨ and the following 1994 joint FWS/NMFS policies:
  • Policy for Peer Review of ESA Activities - incorporates independent peer review into recovery actions, including the writing of recovery plans;
  • Policy on Information Standards - directs that the best available scientific and commercial information be used when determining what actions are needed to recover species; and
  • Policy on Recovery Plan Participation and Implementation (published in the Federal Register on July 1, 1994 (59 FR 34272) - directs the Service to solicit the participation of State, Tribal, and Federal agencies, academic institutions, private individuals, and economic interests when determining the recovery actions needed to recover species.

The last policy directs the Service to diversify the areas of expertise represented on a recovery team, develop multiple species plans when possible, minimize the social and economic impacts of implementing recovery actions, and involve representatives of affected groups and provide stakeholders the opportunity to participate in recovery plan development.

Because the Service bases our recovery decisions on the best available scientific information, we seek to involve experts in these decisions and include them on recovery teams. Therefore, when we initiate the recovery planning process for a listed species, we endeavor to identify experts on the species and its habitat, as well as the most knowledgeable individuals on land use and land management within the range of the species.
Once a draft recovery plan is prepared, a notice of availability is published and comments are solicited from the public. Today, it is not unusual for the Service to receive hundreds, sometimes thousands, of comments on a single plan. These comments come from a wide range of interests: from advocates for the environment to private citizens who are worried about what effects the recovery of the species may have on their livelihoods.
The Service uses the recovery team to consider each comment on a recovery plan, and, where needed, incorporate the comments into the final recovery plan. A record of how comments on a recovery plan are considered is kept and made available for public review. When a final recovery plan has been completed and approved by the Service's appropriate Regional Director, it is made available to all interested parties. A Notice of Availability is published in the Federal Register and the Service ensures that all of the identified concerned public is aware of the completion of the plan. In addition, notices are often placed in newspapers throughout the range of the species.

The Delisting Process
The process of delisting species uses the same scientific rigor and full public participation process as the process for listing species. The Service regularly assesses the criteria listed in the recovery plan that are used as a target to estimate when a species may have sufficiently recovered to be reclassified as either a threatened species (recovered from being endangered) or as a fully recovered species and removed from the list of species protected by the ESA. Likewise, the most recent scientific and commercial data, after undergoing peer review, are used to assess the current status of the species. Often, the factors used to determine whether a species has recovered include the species' population size, recruitment, stability of habitat in terms of habitat quality and quantity, the degree to which habitat areas are connected to one another, and the control or elimination of the threats that led to the need to list the species.

As already mentioned during the previous review of the listing process, the public has the opportunity to petition the Service to delist a species at any time. Likewise, as already discussed, the petition will trigger a process where the petition is first reviewed for presenting substantial information, and, if it passes that test, within 12 months the action requested in the petition will be assessed, using the best available scientific and commercial data. If it is judged that the petitioned action is warranted, the Service will move to propose delisting the species, unless that rulemaking is precluded by other higher priority actions.

Outside of the petition process, as recovery of a species progresses, the recovery team is often requested to assess the evidence that the species may no longer meet the definition of an endangered species or threatened species, including consideration of evidence that it has reached the goals identified for its recovery. Again, the best available scientific and commercial data are used, along with the opinions of experts on the species, its habitat, and land management practices. If the species no longer meets the definition of a threatened species or an endangered species, then a proposal to downlist or delist the species will be prepared.

As is the case for the process of listing a species, a proposal to delist or reclassify a species is published in the Federal Register and announced in selected newspapers throughout the range of the species. The Service schedules public meetings during the comment period so that all of the concerned public will have the opportunity to provide comments on the proposed action. All comments are carefully considered and a record, available to the public, is kept on the decisions made with respect to the comments.
If, after this process, it is determined that a species has recovered sufficiently to merit delisting or reclassification, then a final decision is made and published. A determination that a species has fully recovered will result in the species being removed from the list of species protected by the ESA.

Independent Scientific Review of Service Decisions
Service decisions under the Endangered Species Act are sometimes controversial, and there have been several cases in the recent past where the scientific underpinning of the Service's decisions has been subject to independent scientific review.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Services listed wild Atlantic salmon in eight Maine rivers under the ESA as endangered in November 2000. Critics of the decision argued that a distinct "wild" genetic identity for salmon no longer existed because of artificial stocking and the resultant interbreeding. The controversy in Maine that accompanied the ESA listing led Congress to request the National Research Council's (Council) advice on the science relevant to understanding and reversing the declines in Maine salmon populations. The charge to Council's Committee on Atlantic salmon in Maine included an interim report that focused on the genetic makeup of Maine Atlantic salmon populations, which was published in January 2002. The report validated the science behind the Services' listing action in Maine and the need for recovery, stating strong evidence of genetic distinctiveness. The charge for the final report, published in December 2003, included a broader look at factors that have caused Maine's salmon populations to decline and the options for helping them to recover. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service are actively working with partners to alleviate threats to salmon recovery in Maine.
In 2001, the Departments of the Interior and Commerce enlisted the National Research Council for evaluation of the scientific analysis leading to the jeopardy biological opinions written by the Service and the National Marine Fisheries Service on operations of the Klamath Water Project. The Council found strong scientific support for all components of the Service's biological opinion, except for one measure relating water quality to water levels in Klamath Lake, which was based on professional judgment. The Council recognized that agencies charged with ESA responsibilities must sometimes use expert professional judgment when the scientific information needed to inform a decision is lacking or inconclusive.

In 2008, the Service issued a jeopardy biological opinion to the Bureau of Reclamation regarding the Continued Long-Term Operation of the Central Valley Project and State Water Project (CVP/SWP opinion) and included a reasonable and prudent alternative that required what is called a ¡§fall action¡¨ to protect delta smelt and their habitat. The scientific information that the Service used in the 2008 CVP/SWP opinion has now been reviewed by five separate independent peer review processes, including a 2010 review by a National Research Council panel. While these reviews identified elements of the opinion that might have been handled differently or justified more thoroughly, they all largely affirmed that the Service used the best available scientific information and applied that information in a conceptually sound and scientifically justified manner within the biological opinion.

Litigation Challenging the Service's Central Valley Project and State Water Project Biological Opinion
The science underlying the Service's CVP/SWP opinion is also the subject of ongoing litigation. With regard to recent comments made by former U.S. District Judge Oliver Wanger, we firmly believe that wise decisions about the future of the Bay Delta must be guided by the best available science. The Department stands behind the consistent and thorough work that our scientists, in this case from the Service and Bureau of Reclamation, have done on the Bay Delta over many years. Their expertise and professionalism remain vital to the success of our efforts to meet the co-equal goals of improving water reliability and restoring the health of the Bay Delta.

We also believe that, when questions arise regarding the integrity of scientific work, it is important to resolve them swiftly, independently, and decisively. We disagree with Judge Wanger's comments last month, and we recognize and appreciate his effort to clarify those comments before his retirement. Still, we believe it is important that we follow the Department's standard procedures for reviewing questions of scientific integrity, so that we can resolve them definitively. Therefore, the Department has instructed the scientific integrity officers of the Service and the Bureau of Reclamation to retain independent experts to evaluate the allegations made by Judge Wanger.