Aluminum Co. of America v. National Marine Fisheries Service

• Citation: 92 F.3d 902
• Decision Date: 09 August 1996
• Docket Number: No. 95-35134,95-35134
• Parties: 96 Cal. Daily Op. Serv. 5952, 96 Daily Journal D.A.R. 9735 ALUMINUM COMPANY OF AMERICA; Columbia Aluminum Corporation; Elf Atochem North America, Inc.; Columbia Falls Aluminum Company; Intalco Aluminum Corporation; Kaiser Aluminum & Chemical Corporation; Northwest Aluminum Company; Reynolds Metals Company; Vanalco Inc., Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE; Richard H. Brown; in his official capacity as Secretary of Commerce; U.S. Fish & Wildlife; United States Department of Energy, Through Bonneville Power Administration; Randall W. Hardy, in his official capacity as Administrator of the Bonneville Power Administration, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 902

92 F.3d 902

96 Cal. Daily Op. Serv. 5952, 96 Daily Journal

D.A.R. 9735

ALUMINUM COMPANY OF AMERICA; Columbia Aluminum Corporation Elf Atochem North America, Inc.; Columbia Falls Aluminum Company; Intalco Aluminum Corporation; Kaiser Aluminum &amp Chemical Corporation; Northwest Aluminum Company; Reynolds Metals Company; Vanalco Inc., Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE; Richard H. Brown; in his official capacity as Secretary of Commerce; U.S. Fish &amp Wildlife; United States Department of Energy, Through Bonneville Power Administration; Randall W. Hardy, in his official capacity as Administrator of the Bonneville Power Administration, Defendants-Appellees.

No. 95-35134.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 5, 1996.

Decided Aug. 9, 1996.

Paul M. Murphy, James L. Buchal, Ball Janik & Novack, Portland, Oregon, for plaintiffs-appellants.

Michael S. Raab, Mark B. Stern, United States Department of Justice, Washington, D.C., Thomas C. Lee, Office of the United States Attorney, for defendant-appellee National Marine Fisheries Service.

Thomas C. Lee, Office of the United States Attorney, for defendant-appellee Richard H. Brown.

Mark B. Stern, United States Department of Justice, Washington, D.C., Thomas C. Lee, Office of the United States Attorney, for defendants-appellees United States Fish & Wildlife Service, United States Department of Energy, through Bonneville Power Administration, and Randall W. Hardy.

Alan G. Lance, Attorney General, Clive J. Strong, Chief, Natural Resources Division, William S. Whelan, Matthew J. McKeown, Deputy Attorneys General, for Amicus Idaho Dept. of Fish and Game.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, Stephanie L. Striffler, Assistant Attorney General, for Amicus State of Oregon.

Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-94-00698-MFM.

Before REINHARDT, KOZINSKI, and FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ; Dissent by Judge KOZINSKI.

FERNANDEZ, Circuit Judge:

Aluminum Company of America, et al. (DSIs) appeal the district court's grant of summary judgment in favor of the Department of Commerce's National Marine Fisheries Service, et al. (NMFS) in the DSIs' action pursuant to the Federal Advisory Committee Act (FACA), § 3(2), 86 Stat. 770 (1972) (codified as amended at 5 U.S.C. app. 2). ¹ The DSIs argue that they are entitled under FACA to participate in certain advisory committee meetings concerning the protection of endangered Snake River salmon. In addition, the DSIs argue the district court abused its discretion in refusing to grant the DSIs' discovery requests and in refusing to enjoin NMFS' reliance upon the advisory committee's work product. We affirm.

BACKGROUND

The DSIs are various producers of aluminum. They requested permission to participate in the post-judgment conferences conducted in the wake of the district court's judgment in related litigation, Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F.Supp. 886 (D.Or.1994) (IDFG I ), vacated as moot, 56 F.3d 1071 (9th Cir.1995). ² Those meetings were initially attended by "the relevant federal agencies, the Pacific Northwest states (including Alaska) and the Columbian Basin Indian tribes." The purpose of the meetings was to determine the manner in which NMFS could comply The DSIs originally requested that NMFS provide them with meeting summaries and documents. They then requested permission to attend and participate in the post-judgment conferences or to meet one-on-one with NMFS, but the requests were not responded to. However, between three and five of the initial eight meetings attended by the Principals were open to nonsovereign participants, including the DSIs. Moreover, the DSIs participated in an additional meeting attended only by them and the federal agencies, and were invited to three public workshops held "to inform and receive comments from, in particular, the non-sovereign court participants." Furthermore, the federal agencies did provide to the DSIs court-ordered summary outlines detailing the topics discussed in closed meetings. NMFS also solicited comments from "all IDFG v. NMFS participants" on the issues raised at various parts of the process and on the draft 1995 Federal Columbia River Power System (FCRPS) Biological Opinion, although it appears that the DSIs declined to comment upon the latter. Finally, the DSIs submitted their own technical data for consideration by the federal agencies.

with the court's judgment, and to then actually comply by receiving information to aid in the drafting of an acceptable 1994-1998 biological opinion. The working groups were created for the purpose of aiding the Principals in their attempts to meet the district court's directions. Those were the Biological Requirements Work Group (BRWG) and the Actions Work Group (AWG). ³

The DSIs then filed this action against the federal agencies, and alleged that the IDFG v. NMFS parties had formed de facto advisory committees and thus must comply with FACA. The district court denied the DSIs' motion for a temporary restraining order (TRO) and their motion for reconsideration. The court also denied the DSIs' motions to expedite discovery and to compel discovery. The DSIs petitioned the Ninth Circuit for a writ of mandamus, but we denied the petition. NMFS then filed a motion for summary judgment and the DSIs filed a cross-motion for summary judgment. The district court granted NMFS' motion for summary judgment and the DSIs appealed.

JURISDICTION and STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

A grant of summary judgment is reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). The inquiry is "whether the evidence, viewed in the light most favorable to the nonmoving party, presents any genuine issues of material fact and whether the district court correctly applied the law." Id. Initially, the burden is upon the moving party to inform the court of the basis of its motion and to identify portions of the record which show that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The motion may be supported with affidavits or other materials negating the nonmoving party's claim. See id. The nonmoving party then must "make a showing sufficient to establish that the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552.

The district court's ruling on the DSIs' discovery motion is reviewed for abuse of discretion. See Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995).

DISCUSSION

A. Compliance with FACA

The DSIs argue that two of the working groups formed during the post-judgment conference process, the BRWG and the AWG, were "advisory committees" The Supreme Court has cautioned against literal adherence to a dictionary reading of FACA's extremely broad definition of "advisory committee": FACA simply was not "intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice." Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 452 n. 8, 453, 109 S.Ct. 2558, 2566 n. 8, 2566, 105 L.Ed.2d 377 (1989). As the Court said,

                within the meaning of FACA, that is, they were "established and utilized" by the federal government. 4  See 5 U.S.C. app.  2 § 3(2)(C).  The BRWG's task was to compile technical data and "recommend a range of analytical methods for determining requirements for survival and recovery of listed Snake River salmon" to the Principals.  The suggested methods would then be evaluated by NMFS "for use in determining whether federal actions, such as operation of the [FCRPS], are likely to jeopardize the continued existence of listed salmon stocks."   The AWG's task was to provide to the Principals "[a] detailed list of all possible FCRPS actions, and a general list grouping those actions in broader categories."   In addition, it was to employ tables illustrating the impact and effectiveness of actions and provide "[a] range of FCRPS action scenarios aimed at achieving different goals."
                

[A]n entity formed privately, rather than at the Federal Government's prompting ... an entity in receipt of no federal funds and not amenable to the strict management by agency officials ... cannot easily be said to have been "utilized by a department or agency in the same manner as a Government-formed advisory committee."

Id. at 457-58, 109 S.Ct. at 2568. The Court also suggested that the fact that the Executive Branch did not consider the group in question-the American Bar Association's Standing Committee on Federal Judiciary-an advisory committee militated against a finding that it was one. Id. The District of Columbia Circuit underscored that consideration when it determined that "the government has a good deal of control over whether a group constitutes a FACA advisory committee .... it is a rare case when a court holds that a particular group is a FACA advisory committee over the objection of the executive branch." Association of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 914 (D.C.Cir.1993). These considerations lead to a conclusion that the committees were not covered by FACA. Before going on, however, we must make a short detour to make an observation.

The Supreme Court was not technically dealing with the question of whether the ABA Committee was established by the President when it decided Public Citizen--all agreed that the Committee was not. See Public Citizen, 491 U.S. at 452, 109 S.Ct. at 2565. Still, the elements it...