Alabama-Tombigbee Rivers Coalition v. Department of Interior, ALABAMA-TOMBIGBEE

Citation26 F.3d 1103
Decision Date27 July 1994
Docket NumberALABAMA-TOMBIGBEE,No. 94-6089,94-6089
Parties24 Envtl. L. Rep. 21,333 RIVERS COALITION, Offa S. Nichols, Plaintiffs-Appellees, Edward Wilkinson Mudd, Jr., Intervenor, v. DEPARTMENT OF INTERIOR, The Fish & Wildlife Service of the United States, George T. Frampton, Assistant Secretary for Fish and Wildlife and Parks, Kenneth Smith, Deputy Director, U.S. Fish & Wildlife Service, James B. Steward, Bruce Babbitt, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Mark B. Stern, Patricia A. Millett, Dept. of Justice, Civ. Div., Appellate Staff, Washington, DC, for defendants-appellants.

Will Hill Tankersley, Jr., Marshall Timberlake, Balch & Bingham, Birmingham, AL, for plaintiffs-appellees.

Edward N. Mudd, Jr., Birmingham, AL, for intervenor.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH, Circuit Judge, FAY and HENDERSON, Senior Circuit Judges.

FAY, Senior Circuit Judge:

The Fish and Wildlife Service of the United States Department of the Interior ("FWS") appeals an order entered by the District Court for the Northern District of Alabama granting a permanent injunction against FWS' use of a scientific report prepared in violation of the Federal Advisory Committee Act ("FACA") 1. Because we agree with the District Court that the report was prepared in violation of FACA and that injunctive relief is appropriate, we affirm.

I. FACTS

On June 15, 1993, FWS published a proposed rule to list the Alabama Sturgeon 2 as an endangered species and to designate its critical habitat. Pursuant to the Endangered Species Act, the Secretary of the Interior has one year to promulgate a final rule that either lists the species as endangered or to withdraw the proposed rule.

Accordingly, Secretary Babbitt directed FWS to organize a scientific advisory panel in an effort to "consider the best available scientific information and assess the current status of the species." See May 25, 1993 Babbitt Letter to Senator Howell Heflin (R1-1 ex. A). In response to Babbitt's directive FWS organized an original panel of four scientists to conduct the necessary analysis. After the Alabama Congressional delegation raised concerns regarding the objectivity of the panel and the topics to be analyzed, FWS reconstituted the panel with nine members. Of the nine member panel, none were drawn from any of the six scientists that the Alabama Congressional delegation proposed. Furthermore, FWS retained, as panel members, three of the four original scientists to which the delegation had objected. Consequently the Plaintiff, Alabama-Tombigbee Rivers Coalition ("Coalition") 3, felt motivated to express its concern regarding the operation and conclusions of the advisory panel.

Acting on that concern, on October 12, 1993, the Coalition wrote a letter to John D. Leshy, Solicitor for the Department of the Interior, regarding FWS' compliance with FACA. In response, the Department of the Interior stated in writing that it would provide legal advice to the officials in order to "fully compl[y] with the requirements of the law, including the FACA...." See Leshy Letter to William Satterfield (R1-1 ex. B).

It appears from the record that the government originally intended for the scientists on the "panel" to conduct independent evaluations and file, individual reports. 4 However, shortly before the "panel" was to convene to relay their individual reports, FWS substantially changed the structure of the "panel." The modified structure was for the scientists to meet and compile a single collective report. 5

Three days before the planned release of the committee report, the Coalition gave notice of its intention to seek a temporary restraining order in an effort to stop the release of the report because of purported FACA violations. The same day that the Coalition filed its complaint seeking a TRO, preliminary and permanent injunction against the release, use of, and reliance upon the scientific committee report, FWS expeditiously announced in a press release that the scientists' summary findings supported the listing of the Alabama Sturgeon as an endangered species. 6

Subsequently, in an order dated December 22, 1993, as a result of FWS' FACA violations, the district court permanently enjoined the defendants from "publishing, employing and relying upon the Advisory Committee report which is the primary subject of the above entitled cause, for any purpose whatsoever, directly or indirectly, in the process of determining whether or not to list the Alabama sturgeon as an endangered species." (R2-62) FWS appeals from that finding and raises the following issue for our review: Whether the district court's injunction should be overturned because it frustrates the purposes of the Federal Advisory Committee Act, the Endangered Species Act, and the Administrative Procedure Act? 7

II. DISCUSSION
A. STANDARDS OF REVIEW

Given the nature of this case, we find it necessary to employ two different standards of review with respect to the two separate inquiries we must make. First, we must conduct a de novo review of the district court's authority to grant injunctive relief under FACA as this inquiry involves the interpretation of a statute. Centel Cable Television Co. v. Thomas J. White Dev. Corp., 902 F.2d 905, 908 (11th Cir.1990). FWS has not been able to point to any authority that clearly prohibits injunctive relief for a FACA violation. Furthermore, after our review of the Federal Advisory Committee Act, we do not think such a remedy is unavailable. 8

Second, having determined that the grant of injunctive relief for a violation of FACA is within the district court's authority, we turn to the standard of review applicable to the grant of such relief. We review the grant of injunctive relief under an abuse of discretion standard. Centel Cable, 902 F.2d at 910.

B. THE INJUNCTION

The Federal Advisory Committee Act requires, inter alia: (1) a written charter that explains the "mission" of the committee; (2) timely notice of committee meetings in the Federal Register; (3) fair and balanced composition of the committee; (4) government submission of a plan to the committee to ensure that the same is not "inappropriately influenced" by the appointing authority; (5) that the committee meetings be open to the public; (6) that the government prepare and provide detailed minutes of the committee meetings; (7) that the information upon which the committee relies in its determination be made available for public inspection. See 5 U.S.C.App. Sec. 5 et seq.

Through the passage of FACA, Congress sought to recognize the importance of having advisory committees to the Executive Branch be completely open to public observation and comment. See generally Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 459, 109 S.Ct. 2558, 2569, 105 L.Ed.2d 377 (1989) (principal purpose to enhance public accountability of advisory committees); Washington Legal Foundation v. United States Dept. of Justice, 691 F.Supp. 483, 490 (D.D.C.1988) (central purpose to open to public scrutiny the manner in which the government obtains advice from private individuals), aff'd sub nom. Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989).

Because FACA's dictates emphasize the importance of openness and debate, the timing of such observation and comment is crucial to compliance with the statute. Public observation and comment must be contemporaneous to the advisory committee process itself. Public Citizen v. National Economic Comm'n., 703 F.Supp. 113, 129 (D.D.C.1989). If public commentary is limited to retrospective scrutiny, the Act is rendered meaningless. Here, the government concedes that it did not follow FACA's requirements during the advisory committee process and the record clearly supports that concession. As the...

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