DC judge confirms refusal to dismiss climatologist Mann's libel lawsuit

A District of Columbia judge said Friday that she would not dismiss a libel lawsuit filed by an acclaimed scientist in the aftermath of articles comparing him to a child molester and accusing him of committing fraud by publishing his research on climate change.

The order by Judge Natalia M. Combs-Greene means that Professor Michael E. Mann of The Pennsylvania State University is one step closer to a chance for a jury to decide whether the National Review, the Competitive Enterprise Institute, and two bloggers for those organizations will be liable for the statements published in 2012.

The National Review had published this blog entry by Mark Steyn on July 15, 2012:

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.

Earlier, Competitive Enterprise Institute had published on its OpenMarket.org blog this post by Rand Simberg:

Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.

Mann had earlier been exonerated by two universities and five government agencies of accusations that, in his work on the famous "hockey stick" graph that shows how atmospheric temperatures on Earth have changed over time, he committed scientific fraud.
 
Combs-Greene discussed both the Steyn and Simberg comments in her order.

"[T]here is a line between rhetorical hyperbole and defamation," Combs-Green wrote. "Accusations of fraud, especially where such accusations are made frequently through the continuous usage of words such as 'whitewashed,' 'intellectually bogus,' 'ringmaster of the tree-ring circus,' and 'cover-up' amount to more than rhetorical hyperbole."

Combs-Greene also held that the defendants' awareness that at least one investigation had verified that Mann's work had been done in a manner consistent with generally accepted scientific norms indicated that, when they published claims that implied falsification or exaggeration, they had acted with "actual malice."

Actual malice is a hard-to-prove mental state required by U.S. Supreme Court precedents that interpret the First Amendment of the U.S. Constitution.

"[I]t is is obvious that allegations of fraud could lead to the demise of his profession and tarnish his character and standing in the community," Combs-Greene explained.

The judge also agreed with an argument that a comparison of a scientist to a convicted child molester is not simply "caustic" or "colorful" language of the type that is protected by the First Amendment.

"To place plaintiff's name in the same sentence with Sandusky (a convicted pedophile) is clearly outrageous," Combs-Greene wrote, and is therefore subject to liability for the tort of intentional infliction of emotional distress.

 Combs-Greene had first decided not to dismiss Mann's lawsuit last month.

Mann is a member of the Intergovernmental Panel on Climate Change, a team of scientists that shared the Nobel Peace Prize in 2007. He is a fellow of the American Geophysical Union, a form of recognition granted by colleagues as a "special tribute for those who have made exceptional scientific contributions." 

San Diego Zoo, manager of Desert Tortoise Conservation Center, and U.S. wildlife agency dispute report that threatened desert tortoises will die because of lowered federal funding

Both the private agency that manages a Nevada facility dedicated to conservation of the threatened desert tortoise and the federal agency responsible for assuring the recovery of the species have denied an Associated Press report that hundreds of the animals that are housed there may be euthanized in coming months as a result of reduced financial support from the federal government.

According to the AP report, which was published Sunday, the Desert Tortoise Conservation Center will be closed and the individual desert tortoises in its care will be killed.

The San Diego Zoo, which is the principal manager of the DTCC, denies that either of those outcomes is in the cards.

"Although we understand that, at any point, it's possible to lose federal funds, we manage the center and we don't have plans to do those things," Christine Simmons, a zoo spokesperson, said. "We remain committed to working with the desert tortoise."

Simmons explained that some tortoises - for example, those who are suffering from such severe medical  problems that they cannot be rehabilitated or released back into the wild - may need to be euthanized.

"That's a small percentage of the overall population" served by DTCC, she said. 

A Monday press release from the U.S. Fish and Wildlife Service's Pacific Southwest Region also denied that any healthy tortoise now at the DTCC would be euthanized.

"Sometimes euthanasia of unhealthy pet tortoises is necessary, but only as last resort, and only after we evaluate other options," the statement said. "All healthy tortoises at the DTCC will be relocated to sites that will support the recovery of the species."

The italics are in the original text of FWS' press release.

Gopherus agassizii are native to the deserts of western Arizona, eastern California, southern Nevada, and southwestern Utah. The reptile, which can grow to more than a foot in length, was added to the federal list of threatened and endangered species in 1990.

The desert tortoise is a member of a family of animals that has survived since the time of the dinosaurs. However, its desert habitat has been increasingly lost to development, especially in the Las Vegas valley. According to a website maintained by Conservation Centers for Species Survival, 90 percent of individuals in the species have been lost in the last three decades.

Only about 150,000 individuals of the species remain in the wild, according to the San Diego Zoo.

The DTCC is partially financed by funds provided by the U.S. Bureau of Land Management, which manages a large proportion of the public land within the desert tortoise's range. 

BLM is allocating less money to the DTCC because it is receiving fewer dollars from habitat mitigation fees paid by developers under section 7 of the Endangered Species Act.

"The funds go up and down, depending on what’s happening with the economy," agency spokesperson Erica Haspiel-Szlosek said. She explained that housing development in the Las Vegas valley, a principal source of the money that flows into the habitat mitigation fund, has taken a hit during the recent recession.

BLM ordinarily spends about one million dollars per year to operate the DTCC, Haspiel-Szlosek said.

"It will be about 1.5 million this year because we are preparing to trans-locate all the tortoises that are healthy from the center," she said.

Tortoises are currently being relocated from the DTCC to an undisclosed location near Trout Canyon, Nev. and others will be moved in the future to a site near Coyote Springs, Nev., according to the FWS statement released Monday.

Haspiel-Szlosek explained that BLM wants to stop caring for "former pet tortoises" and would cease support for the DTCC when the available section 7 funds run out sometime in 2014.

"Although we’ve been in that position for awhile, we don’t feel that’s part of what we do," she said.

About one thousand individuals are brought to the Desert Tortoise Conservation Center each year, according to the CCSS website. About 98 percent of those had been kept as pets.

A Washington Post article based on Sunday's AP report is here.

Photo courtesy Wikimedia.

NOTE: This story also appears at Examiner.com. 

NOTE: This story was edited on Monday, Aug. 26 to reflect additional information obtained during an interview with a BLM spokesperson and a San Diego Zoo spokesperson and from a U.S. Fish and Wildlife Service press statement. 

CORRECTION: This post originally stated that the U.S. Fish and Wildlife Service's Southwest Region office issued a press release about the controversy over the DTCC on Monday. It was FWS' Pacific Southwest regional office that did so.