Scientifically and Legally Defensible Data

1. Institute for Tribal Environmental Professionals Tribal Air Monitoring Support Center Melinda Ronca-Battista and Chris Lee Scientifically and Legally Defensible Data

2. Two broad categories of data: • Data gathered as part of a planned project with strict quality assurance (QA) planned ahead of time, and can include: • making measurements, or • using questionnaires • Data gathered by the community as part of their lives, without planning from outsiders, and over a period of time (TEK)

3. Traditional Ecological Knowledge (TEK): • TEK: ecological knowledge developed through an intimate reciprocal relationship between a group of people and a particular place over time. • TEK has a goal of usefulness and is holistic, rather than isolated knowledge of parts • TEK can be legally and scientifically defensible, if 5 principles are followed

4. TEK can be used with conventional science: • Palauan people of Micronesia understood there were (and this was confirmed) more than twice as many species of fish spawning on lunar cycles than had been documented by outside researchers

5. TEK can be used to understand complex ecologies: • James Bay Cree hunters simultaneously manage beavers of a 4-6 year scale, fish on a 5-10 year scale, and caribou on a 80-100 year scale

6. TEK can be used to dispute data gathered by outsiders: • Musk-oxen solitary males were hunted by outsiders as goal of improving overall population, but Inuit TEK showed that the theory of “surplus males” was incorrect and when such hunting was stopped the musk-oxen herds increased

7. TEK can provide information not available superficially: • Beaufort Sea bowhead whale population down to 800, said scientists, but local hunters understood that whales migrated hundreds of miles under offshore ice and therefore were invisible to the scientists. The Inuit estimate of 7000 whales was found to be correct after new counting included whales under the ice.

8. TEK can provide information not available quickly: • Scientists warned that caribou west of Hudson Bay were about to become extinct. Inuit countered that seasonal caribou distribution far west were not included, and when surveys were done using assumptions provided by Inuit there were found to be over 100,000 caribou, and not near extinction

9. TEK can be used in law: • Oral histories were used as key in defining Aboriginal common law, Canadian society now has the option of embracing the social and political processes which surround and embed oral histories, and give them their meaning and significance: "[f]or Native societies, the oral format is itself the embodiment of their history • Van der Peet/Delgamuukw tests: Consider: • Consider the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal people • ensure that the cultural claims are those of which have continuity with present and pre-sovereignty occupation • establish the nature of Aboriginal rights enjoyed at the relevant dates (1763 or coming of settlement)

10. What is data? In science. information that is: • Quantified: • Numbers, or • “more than” or “less than” • Repeatable: • Documented • Someone else asking the same questions or doing the same work would get the same answers

11. Both science and law use the term UTILITY: • Both science and law require that the usefulness of data cannot be separated from how it is used • Data and how it is used are evaluated as a system • Ex: some information can be legally and scientifically defensible when used for the purpose of focusing further research, but not defensible when used todetermine whether environmental standards were met

12. US EPA and other federal agencies require documentation of: • Soundness: the procedures are reasonable for how the information will be used • Utility: the extent to which the information is relevant for its intended use • Completeness and clarity: the data, assumptions, QA, groups involved are documented • Uncertainty: the quantitative and qualitative variability in the information is characterized • Review: the information and its use is peer reviewed

14. Legal requirements are all included in “Daubert” factors: • Frye Rule, used in more than 20 states; Frye v. United States [54 App. D.C. 46, 293 F. 1013, 1014 (Cir.1923)], • Federal Rules of Evidence, Law 93±595 • Daubert v. Merrell Dow Pharmaceuticals, 1993

15. Legal evidence (5 “Daubert” factors): • (1) Is the idea/method testable (repeatable)? • (2) Is there peer review of the way data was gathered? • (3) Are there procedures for how the data was gathered so that errors can be minimized or estimated? • (4) Are there estimates of uncertainty? • (5) Is the method or technique generally accepted in the scientific community?

16. Requirements for TEK (or any data): • method: interviews to document TEK: • Apply the 5 factors: • (1) Is the idea/method testable (repeatable)? • Document your methods before, during, and after gathering information, so that someone else could repeat your interviews

17. 5 factors, cont: • (2) Is there peer review of the way data was gathered? • Peers include all potential users of the data, such as local residents AND scientists, in a stakeholder type structure

18. (3) Are there procedures for how the data was gathered so that errors can be minimized or estimated? • Write SOPs for doing interviews, and ask for stakeholder review of the SOPs

19. (4) Are there estimates of uncertainty? • Numerical estimates are not necessary, but uncertainty must be addressed, at least in a qualitative description of potential sources of error (not reaching everyone recommended by stakeholders, different answers from different people)

20. (5) Is the method or technique generally accepted in the scientific community? YES if you follow recommended methods, such as: • AAAS Handbook for Traditional Knowledge and Intellectual Property (AAAS Science and Human Rights Program, 2003, ISBN 0-87168-690-2)

21. Tribal Air Monitoring Support Center, Northern Arizona University and US EPA • Christopher.Lee@nau.edu • Melinda.ronca-battista@nau.edu