COOPERATIVE INSTREAM FLOW SERVICE GROUP
INSTREAM
FLOW
INFORMATION
PAPER: NO. 1
FWS/OBS-77/19
July 1977
GUIDELINES FOR
PREPARING EXPERT TESTIMONY
IN WATER MANAGEMENT DECISIONS
RELATED TO INSTREAM FLOW ISSUES
COOPERATING AGENCIES:
Fish and Wildlife Service
Environmental Protection Agency
Bureau of Outdoor Recreation
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^£DSr^
COOPERATIVE
INSTREAM FLOW SERVICE
GROUP
The Cooperative Instream Flow Service
Group was formed in 1976 under the
sponsorship of the U.S. Fish and Wildlife
Service. Primary funding was provided by
the U.S. Environmental Protection
Agency. The group operates as a satellite
of the Western Energy and Land Use
Team. It Is a part of the Western Water Al-
location Project, Office of Biological
Services.
Cooperative Instream Flow
Service Group
333 West Drake Road
Fort Collins, Colorado 80521
(303)493-4275 FTS 323 5231
While the Fish and Wildlife Service is
providing the Initiative and leadership,
the IFG Is conceived as a multi-agency,
multi-disciplinary program which is to be-
come a "center of activity," providing a
focus for the Increasing importance of in-
stream flow assessments.
The multi-agency, multi-disciplinary
nature of the group is provided through
the Intergovernmental Personnel Act
transfer of state personnel, and details
from other Federal agencies.
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FWS/OBS—77/19
July, 1977
GUIDELINES FOR PREPARING EXPERT TESTIMONY
IN WATER MANAGEMENT DECISIONS
RELATED TO INSTREAM FLOW ISSUES
Edited by
Berton L. Lamb
Cooperative Instream Flow Service Group
333 West Drake Road
Fort Collins, Colorado 80521
This study was conducted
as part of the Federal
Interagency Energy/Environment
Research and Development Program
Office of Research and Development
U.S. Environmental Protection Agency
Cooperative Instream Flow Service Group
Western Energy and Land Use Team
Office of Biological Services
F1sh and Wildlife Service
U.S. Department of the Interior
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Library of Congress Catalog Card Number: 77-83281
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1. Introduction
This document is not a legal reference. The purpose is to give practical
guidance to field biologists and other professionals regarding what to
expect when they become directly involved in some form of litigation,
and are asked to present the results of their research or investigation.
The discussion is directed primarily toward administrative hearings and
court room proceedings related to the preservation of instream flows.
Considerable reference is made to water pollution control because many
practical lessons can be learned from this field. To avoid making this
presentation unduly long, many generalizations have been made and fine
points of evidentiary rules have been ignored. The intent is to point
out in a general way what one will be asked by the government attorney
during cross-examination so that laboratory or field investigation pro-
cedures may be tailored to avoid the tragedy of having valuable scientific
work rendered less useful for failure to follow a protocol. The specific
preparation of a witness for a particular hearing, of course, necessarily
must take place with the government trial counsel in the time immediately
before he is to testify and is shaped largely by the substance of his
testimony. The expert witness is a servant of the court.
Much of the report is based on a primer developed for scientists by the
EPA. Other information was gathered from persons who have served as
witnesses.
2. Types of Proceedings
a. TTials in Court
The traditional way in which environmental issues are litigated is
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in a courtroom, either federal or state. Cases involving instream
flows are growing in number. Moreover, there have been hundreds of
cases in which the state or federal government brought actions
against a polluter, either for violation of specific statutory or
regulatory requirements or for violation of some public nuisance
concept. The Reserve Mining case is an example of this: The federal
government based its claim for relief on the pre-1972 Federal Water
Pollution Control Act and the water quality standards promulgated
thereunder; the plaintiff states sued largely on the basis of public
nuisances ("unreasonable interference with the public's right to use
and enjoy the environment").
As more cases are decided and methods are standardized, there will
be fewer in which expert witnesses will be called upon to testify;
or, at least, the witnesses will be called upon to present less
sophisticated proof than before. This is because the country is
gradually moving to systems under which most contested facts will
be resolved before an agency instead of in a trial. Thus, the ade-
quacy of a particular flow will be addressed in hearings before an
agency's Administrative Law Judges or hearings officers. As instream
flow needs are recognized as beneficial, there will be interagency
agreements, agency reservations of flow, or appropriations for
instream values. When action is brought under these conditions, the
factual issue will be whether the agreement or rights have been
violated. This will significantly alter the burden of proof which
is placed on the biologist.
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Of course, even with these changes, there will be court actions and
the hasic rules of evidence of presentation of expert testimony will
come into play. These rules will be examined below in the section
dealing with adjudicatory administrative hearings.
b. Administrative Trial-Type Hearings
Increasingly state and federal agencies are holding administrative
trial-type hearings. The rules for presenting the expert testimony
in trials and adjudicatory type administrative proceedings differ
little. In each situation the expert witness is asked to testify
as to his knowledge on technical questions relevant to the issues
being tried. It may be helpful to remember that conclusions and
opinions generally are not permissible forms of testimony and that
an exception to this rule is made for expert testimony under the
theory that laymen would be unable to draw conclusions in difficult
technical areas without the assistance of experts. But it is only
when the person testifying is truly expert in the field that his
opinion testimony is permitted; i.e., he is drawing upon his exper-
tise in making a conclusion when the laymen (judge or jury), given
the same facts, could not render a conclusion.
On rare occasion the expert will be asked to render an opinion on
the ultimate question; for example, he will be allowed to give his
opinion that the permit for a power plant discharge should call for
a minimum discharge of 1,000 cfs. More often a biologist will be
allowed to say what the effect of a 1,000 cfs discharge on the
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aquatic habitat would be. The point is, the expert witness in his
proper role is providing a part of the technical base upon which
decisions are made. For him to render a judgment on questions in
which other disciplines come into play is to enter fields in which
he is not expert and in which he cannot render assistance to the
trier of fact.
The relatively new Federal Rules of Evidence shed some light on those
things to which an expert can testify. Rule 704 provides that testi-
mony embracing the ultimate issue to be decided is not objectionable
if otherwise admissible. In a recently completed trial in Federal
Court, where four expert witnesses testified, the Judge, himself,
posed questions to the witnesses involving the ultimate issue to
be decided. In administrative proceedings, it is not unusual to ask
the expert a legal conclusion, viz the ultimate issue to be decided,
and to have the question allowed. Rule 703 provides that the facts
or data relied upon by the expert may be admissible in evidence so
long as they are the type reasonably relied upon by experts in the
field.
Rule 705 requires the underlying facts basing an opinion to be dis-
closed if asked for on cross-examination. Prior disclosure is
required only if the court so orders.
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Perhaps the major difference between expert testimony in the court trial
and in an adjudicatory administrative proceeding is the extent to which
hearsay is allowed. Hearsay evidence is
. . . testimony in court, or written evidence of a
statement made out of court, the statement being
offered as an assertion to show the truth of matters
asserted therein, and thus resting for its value on
the credibility of the out-of-court asserter."^
In short, hearsay relies on the assertions of someone who is not testi-
fying.
It is important to remember that the hearsay rule applies to both oral and
written statements by an out-of-court party. In a traditional suit, then,
a witness testifying on the proper analytical methods for establishing
flows, for example, could not refer to a paper by another scientist con-
firming the appropriateness of his methods if the purpose is to suggest
that the substance of that paper is true. Nor could a witness testify that
his results were confirmed by Dr. Jones, with whom he talked last week. He
can say that he used method "X" which was developed by Dr. Jones. Moreover,
it is not hearsay if the witness says that method "X" is widely used.
In administrative proceedings the hearsay rule is relaxed substantially.
In the proceedings held to date before EPA administrative law judges, hear-
say expert testimony has been allowed if there is a "nexus" (i.e., the
connecting link) between the witness's expertise and the subject of the
If McCormick on Evidence, 2nd Ed., 1972, p. 584
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paper — authored by another — to which he wishes to refer. The witness
in the hearing room must, however, be prepared to stand some cross-examina-
tion on the document. Thus, if he cannot say under what conditions the
analytical methods used by the other investigator were acceptable, he may
not be allowed to use the paper. This underscores a basic point: the wit-
ness must thoroughly understand the assumptions which underlie the metho-
dology he is using.
c. Adminis trative/Legislative Hearing
This refers to those administrative proceedings in which "generic" rules
are being considered. This may be in an agency rule-making hearing or in
federal or state legislative proceedings in which proposed statutes are
being debated. There is usually only informational questioning, not in
an adversary setting. Often scientists appear in panels and most of the
time the bulk of the testimony has been prepared in advance.
d- Presenting Direct Evidence
The direct testimony in a court trial is usually given orally, often with
reference to a written report and always with access to written factual
data upon which the expert is relying in rendering his conclusions. And
almost always, the direct testimony relates to the effects of flow at
specific points.
In administrative proceedings, quite often the direct testimony is in
written narrative form and only the cross-examination is done orally.
There are many advantages to this: the witness and his lawyer can be
sure that the important points are covered, and difficult concepts can be
presented with more precision than is usually possible in oral testimony.
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The opposition is usually given a week or two to study the document before
the witness appears. This allows them to narrow the areas of cross-
examination and to prepare for the often intricate questioning of the
scientific data. It allows the cross-examiner to have his own expert go
over the material with a fine-toothed comb. The end result is a more
organized hearing. It also allows the hearing to go forward without the
necessity of elaborate "discovery," since the tender of written direct
testimony well in advance of the hearing serves the basic purposes of
pre-trial discovery: avoidance of surprise.
Unfortunately, one of the by-products of the use of written direct
testimony which is entered into the record without reading is a feeling
by some witnesses that their testimony did not hold up well. This is
because the experienced cross-examining attorney chooses to question the
witness only on points on which he thinks the witness is not capable of
giving firm, well documented answers. Thus, witnesses have gone an
entire day without being asked to discuss their basic research. Never-
theless, that research will be used if it is adequately presented in the
written testimony.
A large problem encountered by trial lawyers is the natural resistance
on the part of scientists to write a complete narrative rather than a
short precis of their work. There may be an assumption that whatever
the rules at the hearing, they will get to elaborate orally on the
presentation. In several instances the opposition attorneys have not
cross-examined at all because otherwise dangerous witnesses did not
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present a statement worthy of the underlying research or investigations.
The rule to remember in writing direct testimony is to put on paper every-
thing you want to say. It is far easier for your lawyer to cut you back
if you said too much than it is for him to interpolate in a difficult
scientific area.
Collins gives this advice to the expert witness:
A great many people are interested and have evidence
to give. The job of the trail lawyer is to quickly
marshal these facts and present them in their most
pursuasive form. At the outset there should be a
survey of the basic relevant factual material
easily assimilated by lay persons and visually
displayed to the Court and jury, if possible.
Photographs are almost a necessity. A picture is
still worth a thousand words.
There must be identification of any particular
stream input or withdrawal, its nature, source and
amount. Lay witnesses may be sufficient to estab-
lish these facts, but most trial lawyers insist upon
a qualified person with appropriate scientific
training who tested and identified or otherwise
measured the amount of any particular matter,
including water, entering a stream or being with-
drawn from it.
Give some thought to reviewing with your lawyers
the testing and measuring procedures and the data
upon which your experts rely. If possible, walk
your lawyers through your laboratories. Let them
watch some similar testing being performed. Let
them ask lots of .... questions. Point out to them
the shortcomings of your work as wll as its strengths.
This will not only help prepare them for examination
of your experts, but also will anticipate cross-
examination. If you have employed mathematical or
computer or physical stream simulation models, you
should walk your lawyers through them from beginning
to end. Most lawyers cannot handle at the outset
the distinctions in these techniques.
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You may wish to consider having certain members of
your organizations answer the increasingly frequent
calls for expert testimony. Such a procedure may
not only be more economical, it may also take advan-
tage of particular talents and experience which
exist in most large organizations. It also has the
advantage that personnel will become acquainted with
lawyers who frequently deal with them. In the
course of such acquaintances enormous amounts of
information are passed informally back and forth.
All of this makes for better courtroom presentations.
Preference is to also have several witnesses who can
present the kind of evidence that appeals to "every
man" — the color, touch and smell of bunker C crude
oil as it covers a particular shoreline. . . .
There are still advantages to having "the old timer"
who can give historical background of a locality and
remembers how this particular stream appeared before
the advent of a particular project which has been
the subject of litigation.
The subject of damages is worth special mention. To
the private practitioner it is often the source of
his fee. To the plaintiff seeking an injunction it
is the irreparable injury that money cannot measure
or compensate. In the federal courts some . . .
detect a trend toward requiring a plaintiff to
actually prove an "injury in fact" as a condition to
even opening the federal courthouse door.
Occasionally you will find a lawyer who would like
to "look at the ground." Take him there. Take a day
or two if need be. Have your field people and
experts along if possible. Take lots of pictures.
It is often on such trips while talking around some
dry stream bed that the shortcomings of your data,
and that of your adversary, come to light. These
trips provide a lawyer with the details of local
history and geography that enable him to later sound
in court like he may know what he's talking about.
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There is something more important trial lawyers can
do for you. They can help present your best judgments
as professional resource managers — quietly, effectively,
and free of political slogans and overblown cliches.
This will become more important to you personally and
your agents generally as out society asks for action
from our resource managers, which requires a higher
order of planning and projection than we know.
Perhaps it is true that to retain our hopes, while
recognizing our limits, requires a touch of greatness.
The views, the judgments that you hold were not
quite your father's nor will they be your children's.
They may indeed turn wrong, but if today they are
the very best among our work and hopes, then the2/
lawyer can help you say them, and say them well.—
Collin's discussion is presented in a light-hearted manner, but it illumi-
nates a very important point. It cannot be stressed enough that, assuming
the expert and the attorney are each reasonably competent^ the attitude of
each is of paramount importance. Each should display qualities of willing-
ness and cooperation. The witness should be willing to appreciate the prob-
lems of presenting sometimes very complex scientific or technical data and
to cooperate with the lawyer in presenting the testimony in terms under-
standable to lay persons, who will be reviewing the evidence and deciding
the case. An attitude of "stupid questions" or "this stupid lawyer" and
"this stupid judge or other witnesses" on the witness* part may be fatal
to a proper presentation. Correlatively, the attorney must use his talents
to the utmost to assist the witness in making the presentation as succinct
and manageable as possible and completely intelligible to the lay person.
A trial involving expert testimony is not a sparring match between the
witness and his attorney but should be looked upon as an educational exer-
cise — enlightening the trier of the facts to the scientific or technical
2/ Quoted from J. G. Collins "The Legal Process: What is Needed
in Court," in Orsborn & Allman eds, Instream Flow MeedsVol. I
(Bethesda, Md,: American Fisheries Society, 1976), pp 397-400.
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bases of the position to be presented. Humility on the part of both the
witness and the attorney is an indispensable asset in approaching this
difficult task.
It has often been said that the direct testimony of an expert witness con-
sists of four parts: (a) his qualifications (by education and/or
experience) as an expert; (b) the material from which he fashions his
opinion; (c) the process or reasoning by which he gets from the material
at hand to his conclusion or opinion; and (d) the conclusion or opinion
itself. Usually there is little dispute over an expert's personal back-
ground and that information comes in without question. In many cases the
presentation of raw data itself, or with a clear statistical explanation,
is enough for one to draw a conclusion, and logical step-by-step delinea-
tion of how the experiment was conducted or how the field samples were
analyzed is vital to showcase these data. Rather than belabor points (b)-
(d) in abstract terms, actual examples will be presented in the later
discussion of cross-examination to show what should and should not be
done.
3. Discovery
Discovery is a general term used to describe the process by which one
side in litigation finds out the factual basis for the other side's case.
Discovery can be used to help build a case against the government, par-
ticularly when data or documents relative to the issues are not otherwise
available. In federal or state court actions, there are several proce-
dures by which this can be accomplished. The most frequently used
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procedure is the taking of oral depositions. Under this procedure, the
potential witness is placed under oath before a court reporter and asked
a wide range of questions designed to prepare the opposing lawyer for his
testimony at the trial. The deposition is also an opportunity for the
opposition to ask about reports, memos, maps, lab books, pictures, etc.,
which the person giving the deposition knows of or may have in his
possession and which he does not intend to use in the trial, i.e., material
which the other side may wish to use. By use of a subpoena duces tecum
(very roughly "you are ordered to appear and bring all the following docu-
ments with you") the opposing party can force a scientist to collect all
material which might be applicable to the issue. The lawyer may precede
the "noticing" of a deposition by filing a motion to inspect all the docu-
ments related to the question. This helps prepare him to take the deposition.
Under modern practice and federal rules, the names of expert witnesses,
background resumes, and a brief statement of the nature of the experts'
testimony is exchanged by the parties' attorneys in advance of trial.
This also applies in administrative proceedings, where frequently the
parties will stipulate to abide by the Federal Rules of Civil Procedure.
A less often used procedure is the use of written questions served upon
the opposition and to be answered under oath (interrogatories). Sometimes
this is used to initiate discovery by asking "who are the scientists who
have any knowledge on this subject" or "where are your freshwater labora-
tories located," or "whom have you consulted in bringing this lawsuit?"
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Biologists are virtually united in their horror of the all powerful dis-
covery procedures, drafted and enacted by lawyers, which can force them
to photo-duplicate massive amounts of material. Some lawyers have argued
that, unlike conspiring executives in an antitrust case, scientists
should not be put through the ordeal of having filing cabinets raided.
Actually, the Federal Rules of Civil Procedure, applicable in federal
courts but adopted intact by most states, provide for restricted discovery
of an expert's data. Rule 26(b)(1) of the Federal Rules of Civil Procedure
states the basic rule:
Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery or
to the claim or defense of any other party, including
the existence, description, nature, custody, condition
and location of any books, documents, or other tangible
things and the identity and location of persons having
knowledge of any discoverable matter. It is not ground
for objection that the information sought appears
reasonably calculated to lead to the discovery of
admissible evidence.
From this base, the Rules in section 26(b)(4) set forth an exception for
experts:
Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of
subdivision (b)(1) of this rule and acquired or
developed in anticipation of litigation or for
trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require
any other party to identify each person whom the other
party expects to call as an expert witness at trial,
to state the subject matter on which the expert
is expected to testify, and to state the substance of
the facts and opinions to which the expert is expected
to testify and a summary of the grounds for each
opinion, (ii) Upon motion, the court may order fur-
ther discovery by other means» subject to such
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restrictions as to scope and such provisions, pursuant
to subdivision (b)(4)(C) of this rule, concerning fees
and expenses as the court may deem appropriate."
(Emphasis supplied.)
What the Rules giveth (in the form of protection to scientists) the
trial judges usually taketh away, in response to motions to have full
discovery of expert witnesses and documents. The theory advanced by
most of these judges is that in large complex cases, in order not to
unduly drag out the trial, it is essential to have the parties do the
exploratory questioning prior to trial. It must be remembered that most
civil litigation in the United States is between two private parties and
may involve one or two experts at the most; the scientist is likely to
appear, if at all, in a major suit or hearing in which the government and
a large business are the parties and in which a dozen or more experts
will testify. In such situations it is unlikely that that discovery will
be restricted.
Are any materials privileged and not subject to disclosure? Increasingly
the answer is, virtually nothing. Memos between researchers in a labora-
tory, draft reports, memos of telephone calls, and letters have all been
held to be discoverable. Only three very limited categories of documents
are privileged. These are the "work product privilege," the "attorney-
client privilege," and the "interagency and intra-agency communications
privilege" which may come into play in regard to government documents.
The latter is a modified "executive privilege" rule and is a qualified,
not absolute, privilege. To fall within this privilege, the material in
question must consist of documents internal to or between governmental
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agencies reflecting "advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies
are formulated." Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D.
318, 324 (D.D.C. 1966), aff'd, 384 F.2d 979, cert, denied, 389 U.S. 952
(1967). The deliberations must be prior to a decision having been made.
Otherwise, the material is considered part of the public record.
Factual material, in contradistinction to advisory or deliberative matter,
is not privileged. E.P.A. v. Mink, 410 U.S. 73 (1973). Information coming
from outside the government, even if advisory, is not privileged. Boeing
Airplane Co. v. Coggeshall, 380 F.2d 654 (C.D.C. 1960). If the agency in
announcing its decision specifically refers to otherwise privileged memo-
randa as a basis for the decision, the memoranda lose their privileged
status.
This privilege is still applied although under increasing pressure to per-
mit broader discovery.
The attorney-client privilege Includes government attorneys. This is an
absolute privilege. The information in question must be confidential and
communicated by the client to his attorney out of strangers' presence for
the purpose of obtaining legal advice or legal assistance from the attor-
ney. U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass, 1950).
Ordinarily, the information in question must come from within the govern-
ment. U.S. v. Anderson, 34 F.R.D. 518 (D. Colo, 1963).
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The privilege extends to communications
a) from the agency to the agency attorney;
b) from the agency to attorneys in two separate agencies representing
the agency;
c) from an agency to another agency acting as attorney for the first
agency; Thill Securities Corp. v. N.Y. Stock Exchange, 57 F.R.D. 133
(1972); U.S. v. Gates, 35 F.R.D. 524 (1964); and
d) between attorneys representing a single client or from the attorney
to his client if the communication is based on the original confi-
dential information communicated by the client. Insur. Co. of N.A..
v. Union Carbide Corp., 35 F.R.D. 520 (D. Colo, 1964).
While the "work product" privilege applies only to material which is legal
in nature, prepared by an attorney, relating to specific litigation and
confidential (not communicated to or from outsiders), there is an excepted
area covered that involves expert witnesses. This is the so-called
"written memory" rule, a major exception covering the attorney's notes,
such as interviews with witnesses. This exception receives only a quali-
fied immunity. If substantial need under Rule 26(b) (3) F.R.C.P. can be
demonstrated, together with a showing of due hardship in obtaining the
material through other means, the court will permit discovery.
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No rigid distinction can be drawn in the above discussion between trials
in courts and administrative proceedings because increasingly lawyers
have used the Freedom of Information Act (FOIA) to obtain those documents
discoverable under court rules. Once having complied with the mechanical
requirements of 43 CFR Part 2, such as making a request in writing at the
right office, a party is entitled to review and copy materials subject to
some exceptions.
The regulations relating to the production of documents and the testimony
of government employees by subpoena are presently covered by 43 CFR §§ 2.80
and 2.82. The nine exemptions from disclosure provided by the Freedom of
Information Act (FOIA) are found in 43 CFR § 2.13. The general test of
what documents may be inspected and copied under the disclosure provisions
of the FOIA is: What would be discoverable in a civil action under the
federal rules?
Procedures regarding FOIA requests are covered by 43 CRF §§ 2.14-2.19.
Some very "fine line" questions can arise where provisions under both the
FOIA and the Privacy Act are involved. (See 43 CRF §§ 2.45 et seq.)
4. Procedures of Laboratory Research and Field Investigations Which Are
Subject to Attack
A. Chain of Custody
The scientist or technician who fills water bottles in a stream just
below a potential defendant's outfall must take precautions to insure
that at trial the sample bottle he refers to can be shown to corre-
spond to a sample taken at a certain time and a certain place. The
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often elaborately stated rules of chain of custody are nothing
more than a means of guaranteeing the integrity of the identification
of field samples such as stream transects and photographs.
McCormick's Handbook of the Law of Evidence states simply that the
expert witness must be able to trace the chain of custody "with
sufficient completeness to render it improbable that the original
item has either been exchanged with another or been contaminated or
tampered with." This requirement must be met before the evidence
can be received at all; it does not simply affect the weight to
be given to the evidence.
One of the most useful things you can do in this regard is to
establish a procedure for a chain of custody (e.g., the tag and
receipt method) within your agency. It will often be necessary to
prove that, not only is the sample the expert tested or collected
the one that came from a particular stream, but also that it is
the one which has been produced in court and about which the expert
is testifying. Under many circumstances you may have to produce
every person who handled that sample from the day it came from the
stream until it appeared in court. As you can see, chains of
custody should be short, well established and samples retained.
Cross-examiners delight in breaking down a chain of custody, thereby
impairing the integrity of the sample and the testimony of the
expert about it.
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For example, color slides or photographs are sometimes taken of
streams, documenting time, flow, location, and any visible water
pollution in the vicinity. Written documentation on the back of
the photo should include the signature of the photographer, time,
date, and site location. Photographs of this nature, which may be
used as evidence, should be handled according to the established
chain of custody procedures.
b. Research Techniques
Volumes have been written on proper techniques, so there will be no
attempt here to indicate in even a general way what procedures should
be followed in examining a particular stream. The purpose of this
section is more to emphasize the role proper (or, arguably, impro-
per) sampling technique plays in a case. If a lawyer determines
that an expert witness can do harm to his client's case, and that the
substance of what the witness has to say is probably correct, or at
least difficult to attack, then he may attempt to cast doubt upon
the analytical methods employed by that scientist. It is imperative
that accepted techniques be followed to the letter and that if the
methods are not presented in depth in the research paper itself, at
least detailed records are kept so that questions going to those
methods can be answered. For example, care should be taken to assure
the transects or photographs are representative and not anomolous,
and that this can be shown by the testimony. The increasing number
of environmental disputes has generated a lawyer-specialist who
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(a) knows where to find consultants and (b) knows how to use their
expertise in ways which can seriously discredit researchers who are
not careful. Such care should be standard in all research, but
special care should be placed on understanding the concepts which
are employed in the research.
The statistical significance of test results is often taken for
granted, yet several witnesses who have appeared in recent EPA
hearings have had their published work seriously questioned by
skillful use of desk calculators and accepted statistical analyses.
Reference to statistical tests is now common in lengtly proceedings.
What follows is an excerpt from part of the Aldrin/Dieldrin pesticide
proceeding. In this case the witness was not totally trapped by improper
methods; it is a more typical case in which a "question" is raised in the
mind of the trier of fact:
Q. First of all, I would like to discuss the
methodology that you employed in this particular
experiment. In particular, I would like to discuss
the reliability and the weight which you give to
the levels of dieldrin and aldrin that you found
I would like to focus on the methodology.
In particular I want to ask you, Dr. ,
whether in the techniques that you employed for
analyzing the presence of aldrin and/or dieldrin,
you used any separation techniques, or so-called
clean-up techniques, in order to eliminate the
presence of DDE, or PCB, or any other artifacts
which could have caused interference on the GLC
columns, and, therefore, exaggerated or made too
large the results which you found for aldrin and/or
dieldrin?
20
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A. Really there are two components to the question.
One is the sampling and one is the in-house analysis
of the sample.
You are asking once the sample is in-house and in a
correctly identified manner, how it is analyzed?
Q. That is correct.
A. In this particular investigation, some of the
peculiarities of saltwater chemistry said it
really wasn't that necessary to go through elaborate
separation schemes with the type of gas chromatography,
the type of detector that was employed. We did use
different columns so we wouldn't catch any of these
places where one type of compound overlaps another,
or one reacts in a column and produces a spurious
peak of one sort or another.
In other types of work, sometimes medium clean-up,
extensive cleanup, might be needed, but not in this
case.
Q. Are you saying that because the samples were
taken from saltwater, in this case it was actual
seawater, wasn't it —
A. That is correct.
Q. — that there were no artifacts that could have
been present in the seawater?
A. Oh, there may have been many artifacts. But using
the particular column, the inlet design, the type of
detector, the sensitivity settings, the thermal settings,
flow rates, all of those parameters, there was no inter-
ference at this point. There were lots of other items
that could be seen on some of the chromatograms, but
they weren't of interest for this particular paper.
It must be emphasized that a judge cannot easily determine what is "harm-
less analytical error;" as a lawyer in a strange field, he must rely upon
certain procedures which others in the field have called the standard
methods for analysis. If the witness cannot tick off the requisite
procedures he should be prepared to explain why he used a different
method, and preferably be able to point to some published work which
sanctions the method he used. There is an aura of "peer acceptability"
21
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that surrounds published work which does not attach to unpublished research.
If at all possible, the extra time and effort should be made to publish
your work, preferably not just in an agency circular. Although probably
unjustified, the greater weight given by lawyers and judges to glossy
papered finished reports will no doubt continue.
5. What to Expect in Cross-Examination
When scientists think of trials or administrative proceedings in which
they are to appear, they may not think of the purpose of the hearing, or
even the purpose of their testimony. They may not think of the novel
scientific legal issues involved. Often, their main concern is how bad
cross-examination will be. To some scientists cross-examination is a
forceful wrenching from the world of the reasonable and polite to the
world in which word games prevail over accepted fact. In some trials,
unfortunately, this has been true, but a witness can control the cross-
examination to a remarkable extent by being adequately prepared. Most
of this preparation should be directed by his lawyer, but there are some
general points which apply to most situations. The following guidelines
have been used in preparing witnesses for the E.P.A. headquarters hearings
on pesticides and section 307(a) of the FWPCA:
1. You have no obligation to answer a question which you do not
feel qualified to answer. You are not a defendant in a criminal
trial required to answer. An "I am not qualified to answer that"
or "I do not have enough facts to answer that" is perfectly acceptable.
2. Do not be lured into areas beyond your field.
22
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3. Ask for clarification of a question if you have any doubt what
is being asked.
4. When a hypothetical question is posed, make sure all elements
of the hypothesis needed for you to be able to answer are present.
5. Take your time in responding to questions.
6. Do not elaborate beyond what is necessary to give a complete
answer — on the other hand, do not allow yourself to fall into the
trap of giving an "out of contest" answer — an answer which, in and
of itself, is true but which has a misleading implication if further
comment is not given. If you cannot answer with a "yes" or "no,"
make it plain you need to qualify your answer.
7. You may be asked to comment on works of other scientists you do
not know or have not read recently— e.g., "I show you this list of
instream flow figures from Iowa — aren't they awfully high?" You
probably need to know how the research was conducted, the details
of the methods, before you can comment accurately.
8. Don't respond to a challenge by boasting.
9. Don't try to render categorical decisions ("all pesticides are
bad" or "corporations mislead the public").
10. You may be confronted with statements made by you at an earlier
date which are too broad. If those statements were your personal
opinions and not your professional scientific opinion, you should
23
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say so. Scientists are allowed personal opinions but are allowed
to testify in court in opinion and conclusion form only as to
matters within their scientific realm, upon which a layman would be
unqualified.
11. Don't get angry at the interrogator if he becomes arrogant or
insulting. This invariably is because he doesn't have any way to
crack your testimony scientifically and is trying to rattle you.
Allow your lawyer to attempt to put in him in his place.
12. The good lawyer will not ask a question in an opposing party's
witness' strongest ground. Do not feel upset if you are not
challenged on work you want to discuss.
13. Don't be drawn into an argument with opposing counsel. He
isn't being called to testify.
14. If you feel discomfort, ask the judge for a recess- Don't use
this as an excuse — your counsel will ask for a recess if he sees
you need a chance to collect your thoughts. Only for necessity
will the court interrupt a cross-examination.
15. Most important, remember you know more about what you are talking
about than anyone else in the courtroom. Your "home ground" is your
data — do not stray too far from it.
24
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There have been notable examples in each major administrative hearing
held by EPA or court trial in which EPA was a party, of witnesses who
have fallen into one or more of the traps mentioned above.
The ideal expert witness has facetiously been characterized by some as
a white haired gentleman with a pipe and elbow-patched tweed sport coat
who understates most answers he gives and never changes his mood of aca-
demic detachment. This picture is not altogether misleading, for the
best expert witnesses seem to be those who are never caught exaggerating,
never lower themselves to the rancor of the hearing room, and never
deviate from their area of expertise. Judge E. Barrett Prettyman gives
this advice to experts:
Don't argue. Don't fence. Don't guess. Don't
make wisecracks. Don't take sides. Don't get
irritated. Think first, then speak. If you do
know the answer to a question, say so. If you do
not know the answer but have an opinion or belief
on the subject based on information, say exactly
that and let the hearing officer decide whether you
shall or shall not give such information as you
have. If a "yes or "no" answer to a question
is demanded but you think that a qualification
should be made to any such answer, give the
"yes or no" and at once request permission
to explain your answer. Don't worry about the
25
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effect an answer may have. Don't worry about being
bulldozed or embarrassed; counsel will protect you.
If you know the answer to a question, state it as
precisely and succinctly as you can. The best pro-
tection against extensive cross-examination is to be
brief, absolutely accurate, and entirely calm.
The skillful witness also knows when to concede a point, even if it
reflects poorly on his work. To struggle with a lawyer on a line of
questioning, only to agree with him later, highlights the concession and
places the other answers of the witness in an unfavorable light. What
follows is the aftermath of a cross-examination on a point on which a
witness refused to yield until the last possible moment. The expert
then became argumentative and refused to answer questions clearly within
his area of expertise. The questions deal with possible sources of
dieldrin found along the Atlantic coast:
Q. Looking at Table 5, 1 notice that New York is the most
frequent reporter of residues of dieldrin in mollusks. Are
you able to account for that?
A. No; that is an interesting observation, but I am not able
to account for it.
Q. Why is it interesting?
A. It just interests me as a person.
Q. What does it suggest to you?
A. I have no further comment.
26
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Q. Refer to the New York section of the paper. This begins
at page 303.
A. Yes.
Q. You will notice the sites of the monitoring stations are
fringed around the island of Long Island, not notorious as one
of the world's great feed corn granaries. Does that suggest
anything to you?
A. I am not in position to comment on that.
Q. You are not even in position to comment on whether or not
these sites are adjacent to urban areas?
A. No comment.
Q. No comment?
A. No.
Q. Are you able to comment, for example, with respect to page
304 and let's say, for example, the Mamaron data which shows
residues, if you allow a subjective judgment, for example, in
1967, a fairly constant rate throughout the year and tell us
whether or not that indicates to you that these are agricultural
or nonagricultural sources?
A. No, I have no basis for comment.
27
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Q. Let's go back to page 243 and notice in the next column of
Table 5 that Georgia is the state reflecting the maximum value
in ppb. Are you able to comment about that?
A. No, I am not.
Q. If you will turn to the Georgia section and particularly
the Lazareth Creek data, Station Number 1, for example; are
you able to advise us as to the existence of one or more wool
treatment plants on this creek?
A. No, I am not.
To some people, giving testimony as an expert witness is a challenging
experience which starts the adrenalin pumping and prompts an attempt to
answer all questions which are posed. A good lawyer will endeavor to
draw an expert away from his area of expertise to a topic on which the
witness knows enough to want to answer the questions but not enough to
avoid being trapped. The witness also can be led into this unfortunate
situation by a client and lawyer who wish to prove a point by forcing
the witness to "expand a little upon this expertise." The example which
follows is of a witness who rose to bait offered by the interrogator.
The witness, who was a chemist, had just presented data on the runoff of
pesticides from a cornfield during a heavy rain.
Q. Over the course of five years, Doctor, how many days
would you expect that kind of rainfall to occur of that
intensity? Did you have any way of making an estimate?
Iowa weather?
28
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A. Yes, I could make an estimate.
Q. Out of five years, what would your estimate be?
A. Well, I won't be numerical.
Q. Well, could you try — how many days?
A. With considerable frequency. It is not uncommon.
Several times a yar, at the appropriate seasons;
sometimes a couple of times a week it's happened.
***************
Q. Would you identify that for the record and tell me
what you see, whether you recognize that?
(indicating)
A. Yes, I recognize it. It is a publication, 1969, by
the Iowa Academy of Sciences, entitled "Water Resources
of Iowa."
Q. Now I direct your attention to figure 8, done in exactly
the same method. I understand this figure, Doctor, and I
ask you to correct me if I am incorrect, we can expect a
four-inch rainfall in a 24-hour period once in five years;
is that correct?
A. Yes sir.
Q. Thank you.
The second example of a witness leaving his area of knowledge was probably
the fault of his lawyers, who assisted in the drafting of an overly
broad written statement. The witness was attempting to rebut an EPA
position in the Aldrin/Dieldrin hearings that much if not most of the
residues of these pesticides come from agricultural runoff rather than
29
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point sources. The Shell Chemical Company was attempting to show that
sloppy handling by formulation and fertilizer blenders was the cause of
the pollution. (If this were so, the argument goes, EPA could reduce
pollution measurably by enforcement actions against certain plants and
would not need to ban the pesticide. Another more immediate purpose was
to throw doubt upon the EPA studies showing high residues in those
agricultural areas in which Aldrin is used.) A company chemist was put
in the uncomfortable position of carrying this torch:
Q. Are any of your publications related to the material you
talk about in your statement?
A. No.
Q. So to shorten this up you have never published in the
fields of — stop me if you have, I am just going to read a
list, aquatic toxicology, kinetics of aldrin-dieldrin degrada-
tion, the adsorption of aldrin-dieldrin to soil particles,
erosion problems, the fate and effect of aldrin-dieldrin in
fresh water moving stream environment, or the relationship
between turbidity and aldrin-dieldrin concentrations in a
moving fresh water stream. Have you ever published in those
areas?
A. No.
Q. Do you know how many tons of soil leave an average American
corn field according to the U.S. Department of Agriculture?
A. No.
30
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Q. Don't you think that would be a good figure to have in
mind when you are talking about the relative pollution of Iowa
corn streams?
*****************
A. I don't see the need to know that figure.
*****************
Q. Did you have any data on the distance an aldrin or dieldrin
molecule can be transported in various size streams?
A. No. But I would guess it could go from one end to the
other.
*************
Q. You have no data on that, do you?
A. No.
Q. You have no information on how far this molecule could
travel in a highly turbid drainage ditch or turbid Iowa stream
of 500 cfs, do you?
A. No.
*****************
Q. Doctor, do you have any example of a number in parts per
million or pounds per day for any formulating plant in the
Midwest at any time of the year?
A. No.
Q. Do you have any number for the pounds per day or parts per
million from any municipal outfall in the Midwest.
A. No.
31
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Q. Dr. , have you been in any of the eight major
Shell formulating plants in the United States?
A. No.
*****************
Q. Let me run to Figure C, the map of fertilizer blenders,
and so on. I take it you have no knowledge of whether the
formulators on that map ever discharged a drop of dieldrin
to the water, it that correct? I mean in normal operations.
A. I have no personal knowledge.
Q. And you have no knowledge of any type of numbers in
parts per millions or pounds per day from any of these plants?
A. No.
Q. So, you do not know if they are polluting the water in
Iowa or not, basically, do you? They could be all closed
systems for all you know, right?
A. Right.
There are, unfortunately, many examples of expert witnesses who have
violated one or more of the fundamental rules for presenting evidence.
The chances of doing so, however, are far less if the potential witness
has viewed at least a day or more of the proceedings prior to giving
testimony. This accomplishes several things: it gives the "tone" of
the hearing, it usually indicates what general type of questions to
expect, and most of all, it reassures the witness. If you are called
upon to testify you should make every effort to arrive enough before
your appearance to view the proceedings.
32
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Unfortunately, simple fatigue can undo the best of research. Experts
have likened giving testimony before good lawyers to a lengthy oral dis-
sertation defense without the usual opportunity to give complete answers.
By the end of a day of hard questioning, the witness' concentration and
the precision of the answers fall off markedly. Good lawyers may save
the most aggressive and most important questioning for after the mid-
afternoon break. It is also at this time that the skillfully phrased
leading question has its greatest effect. With certain practical exceptions,
lawyers are not allowed to "lead" their own witnesses, but may phrase
long rhetorical questions when facing witnesses for the opposition.
These often begin with "I take it we can agree that ..." or "I assume
you are aware that . . . " or some form of a lead-in which calls for a
yes or no answer to an often lengthy proposition. The prepared cross-
examiner will know where he wants to go, and roughly how many leading or
hypothetical questions it will take to get there. In most cases the
final answer will not be the conclusion the witness anticipated when he
conducted his research, i.e., it may be a consistent extrapolation from
his original work. Or it may be a conclusion not truly in line with the
data, but the inevitable result of the skillful questioning.
The latter result, most frustrating to good scientists, can happen when
the leading or hypothetical questions are 95% accurate and the respondent
is either too tired or too timid to demand the correction of the 5%. As
any scientist knows a 5% error compounded several times leads to substan-
tial deviation: this simply is what happens when a witness is not care-
ful with leading questions. He should demand that all elements of a
33
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hypothetical question he needs in order to reply are indeed included in the
question or that all elements of a leading question do indeed reflect the
state of facts. This training best comes from actual experience, but
intensive mock cross-examination by his own lawyer can give a fair idea
of what to expect.
It is often a good idea at the end of a day of hearing or trial for
attorney and witness to review the past testimony in addition to pre-
paring for likely cross-examination to come the next day. Witnesses and
their lawyers often disagree as to what was said, or how it was inter-
preted, or whether that was really what the witness wanted to say. If
there has been testimony that could be misinterpreted or was simply mis-
spoken, the government attorney should try to correct the misimpression
by well phrased "re-direct" questions. These are traditionally questions
which deal with issues raised in the cross-examination, not with "new
matters." It is helpful to trial counsel if the witness keeps a mental
note of areas of cross-examination in which he feels he needs to say
more, and if the witness can suggest appropriate questions to his lawyer.
In some of the bigger trials and trial-type administrative hearings in
which EPA has been a party, a daily transcript is made and is usually
available to the parties four or five hours after the close of the day's
hearings. Reference to the actual recorded answers, of course, greatly
facilitate the correction of misimpressions and the protection of a
precise record.
34
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BIBLIOGRAPHIC DATA
SHEET
1. Report No.
FWS/OBS-77/19
2.
3. Recipients Accession No.
PB 268 597
4. Title and Subtitle
Guidelines for Preparing Expert Testimony 1n Water Management
Decisions Related to Instream Flow Issues
5. Report Date
June 1977
6.
7. Author(s)
Berton Lee Lamb, editor
8. Performing Organization Rept.
No.
9, Performing Organization Name and Address
Cooperative Instream Flow Service Group
10. Project/Task/Worlc Unit No.
11. Contract/Grant No.
12. Sponsoring Organization Name and Address
Cooperative Instream Flow Service Group, Western Energy and
Land Use Team, U.S. Fish and Wildlife Service, 301 S. Howes St
Room 206, Federal Building, Fort Collins, Colorado 80521
13. Type of Report & Period
Covered
14.
15. Supplementary Notes
16. Abstracts
The guidelines provide instructions and background information to biologists who
believe their work may become part of a formal adjudication or administrative hearing,
Topics covered include types of hearings, discovery procedures, rules of evidence,
and samples of testimony.
17. Key Words and Document Analysis.
Instream flows
legal arrangements
expert witness
judicial proceedings
expert testimony
water law
17a. Descriptors
17b. Identifiers/Open-Ended Terms
United States
legal and institutional affairs
17c. COSATI Field/Group
18. Availability Statement
release unlimited
19. Security Class (This
Report)
Page
UNCLASSIFIED
21. No. of Paiges
37
22. Price
PC:A03 ;MF:AO1
kobm NTIS-SB (R«v. IO-7JI ENDORSED BY ANSI AND UNESCO. THIS FORM MAY BE REPRODUCED uscomm-dc »j»»-P74
9U.S< Gu v &*«.»•*• &n I i nin IIN« wrriCC: i v / 8*0*7 7/- w <4-3 2 J
-------
The Biological Services Program was established within the U.S.
Fish and Wildlife Service to supply scientific information and methodologies
on key environmental issues which have an impact fish and wildlife
resources and their supporting ecosystems. The mission of the Program
is as follows:
1. To strengthen the Fish and Wildlife Service in its role as
a primary source of information on national fish and wildlife
resources, particularly with respect to environmental impact
assessment.
2. To gather, analyze, and present information that will aid
decisionmakers in the identification and resolution of
problems associated with major land and water use changes.
3. To provide better ecological information and evaluation for
Department of the Interior development programs, such as those
relating to energy development.
Information developed by the Biological Services Program is intended
for use in the planning and decisionmaking process, to prevent or minimize
the impact of development on fish and wildlife. Biological Services
research activities and technical assistance services are based on an
analysis of the issues, the decisionmakers involved and their information
needs, and an evaluation of the state-of-the-art to identify information
gaps and determine priorities. This 1s a strategy to assure that the
products produced and disseminated will be timely and useful.
Biological Services projects have been Initiated 1n the following
areas:
Coal extraction and conversion
Power plants
Geothermal, mineral, and oil shale development
Water resource analysis, Including stream alterations and
western water allocation
Coastal ecosystems and Outer Continental Shelf development.
Systems and Inventory, Including National Wetlands Inventory,
habitat classification and analysis, and information transfer
The Program consists of the Office of Biological Services 1n Washington,
D.C., which is responsible for overall planning and management; National
Teams which provide the Program's central, scientific and technical
expertise, and which arrange for contracting of Biological Services
studies with States, universities, consulting firms, and others; Regional
staff who provide a link to problems at the operating level; and staff
at certain F1sh and Wildlife Service research facilities who conduct 1n-
house research studies.
-------
As the Nation's principal conservation
agency, the Department of the Interior has re-
sponsibility tor most of our nationally owned pub-
lic lands and natural resources. This includes
fostering the wisest use of our land and water re-
sources, protecting our fish and wildlife, preserv-
ing the environmental and cultural valuer of our
national parks and historical places, and provid-
ing for the enjoyment of life through outdoor rec-
reation. The Department assesses our energy
and mineral resources and works to assure that
their development is in the best interests of all
our people. The Department also has a major re-
sponsibility for American Indian reservation
communities and for people who live in island
territories under U.S. administration.
UNITEDSTATHS
DEPARTMENT OF THKlNTbRlOK
Fish and Wildlife Service
Biological Services Program
Washington, D.C. 2(124(1
PuslaiiC itiHf Hfcs Pdid
U.S. Department of live Interior
INT 423
Official Busine^
Penally for Privalc Use J.100
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