Portland Audubon Soc. v. Endangered Species Committee
| Decision Date | 01 April 1993 |
| Docket Number | No. 92-70436,92-70436 |
| Citation | 984 F.2d 1534 |
| Parties | , 61 USLW 2489, 23 Envtl. L. Rep. 20,560 PORTLAND AUDUBON SOCIETY, et al., Petitioners, v. The ENDANGERED SPECIES COMMITTEE, Respondent, OREGON LANDS COALITION, Respondent-Intervenor, Northwest Forest Resource Council, et al., Respondents-Intervenors, Association of O & C Counties, et al., Respondents-Intervenors. . Motion |
| Court | U.S. Court of Appeals — Ninth Circuit |
Victorr M. Sher and Todd D. True, Sierra Club Legal Defense Fund, Inc., Seattle, WA, for petitioners.
Vicki A. O'Meara, Myles E. Flynt, Peter R. Steenland, Jr., and Albert M. Ferlo, Jr., U.S. Dept. of Justice, Washington DC, for respondent.
William Perry Pendley, Todd S. Welch, and Paul M. Seby, Mountain States Legal Foundation, Denver, CO, for intervenors.
Petition to Review a Decision of the Endangered Species Committee.
Before GOODWIN, D.W. NELSON, and REINHARDT, Circuit Judges.
We consider here a motion filed in a most important and controversial case. The motion itself raises a significant issue of first impression. In the underlying proceeding, petitioners Portland Audubon Society et al. (collectively "the environmental groups") challenge the decision of the statutorily-created Endangered Species Committee ("the Committee"), known popularly as "The God Squad", to grant an exemption from the requirements of the Endangered Species Act to the Bureau of Land Management for thirteen timber sales in western Oregon. The environmental groups complain of numerous procedural and substantive flaws in the Committee's decision.
In the motion before us the environmental groups seek: 1) leave to conduct discovery into allegedly improper ex parte communications between the White House and individual Committee members; and, 2) the appointment of a special master to conduct the discovery process. The Committee opposes the motion on the ground that our review must be limited to the record before the agency and that supplementation of that record on appeal would be inappropriate. The Committee argues further that ex parte communications between the White House and its members are permissible under applicable law, and therefore, there is no legal justification for any inquiry into whether the alleged communications occurred.
We agree with the environmental groups that ex parte communications between the White House and the God Squad are contrary to law. We further hold that a record that does not include all matters on which the Committee relied does not constitute the "whole record" required for judicial review and that the failure to include all materials in the record violates the Administrative Procedure Act ("APA"). However, we conclude that the special circumstances that would warrant discovery while a matter is pending before us are not present in this case and accordingly deny the specific relief sought by the environmental groups. Instead, we remand the matter to the Committee for an evidentiary hearing before an administrative law judge ("ALJ") (and for such other procedures as the ALJ may find necessary) on the questions whether any improper communications with the White House occurred during the Committee's decision-making process, and, if so, what remedy is required. The ALJ shall make such findings and recommendations as he or she deems necessary or appropriate in order to aid the Committee and this court in our further handling of the underlying proceeding.
The Endangered Species Act requires that "[e]ach Federal agency shall ... insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species ... or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536(a)(2) (1988). However, if the Secretary of the Interior ("Secretary") finds that a proposed agency action would violate § 1536(a)(2), an agency may apply to the Committee for an exemption from the Endangered Species Act. §§ 1536(a)(2), (g)(1)-(2). The Committee was created by the Endangered Species Act for the sole purpose of making final decisions on applications for exemptions from the Act, § 1536(e), and it is composed of high level officials. 1 Because it is the ultimate arbiter of the fate of an endangered species, the Committee is known as "The God Squad".
The Secretary must initially consider any exemption application, publish a notice and summary of the application in the Federal Register, and determine whether certain threshold requirements have been met. 16 U.S.C. §§ 1536(g)(1)-(3). If so, the Secretary shall, in consultation with the other members of the Committee, hold a hearing on the application (which is conducted by an ALJ), and prepare a written report to the Committee. § 1536(g)(4); 50 C.F.R. § 452.05(a)(2) (Oct. 1, 1991). Within thirty days of receiving the Secretary's report, the Committee shall make a final determination whether or not to grant the exemption from the Endangered Species Act based on the report, the record of the Secretary's hearing, and any additional hearings or written submissions for which the Committee itself may call. § 1536(h)(1)(A); 50 C.F.R. § 453.04. An exemption requires the approval of five of the seven members of the Committee. § 1536(h)(1).
On May 15, 1992, the Committee approved an exemption for the Bureau of Land Management for thirteen of forty-four timber sales. It was only the second exemption ever granted by the Committee. 2 The environmental groups filed a timely petition for review in this court on June 10, 1992. 3 The environmental groups have Article III standing if for no other reason than that they allege procedural violations in an agency process in which they participated. Cf. Lujan v. Defenders of Wildlife, --- U.S. ----, ---- - ----, 112 S.Ct. 2130, 2142-46, 119 L.Ed.2d 351 (1992) (). 4
Both in their petition and in this motion the environmental groups contend that improper ex parte contacts between the White House and members of the Committee tainted the decision-making process. They base their charges on two press reports, one by Associated Press ("AP") and one by Reuters, and on the facts stated in the declaration of Victor Sher, lead counsel for the environmental groups. Published on May 6, 1992, the AP and Reuters accounts reported that, according to two anonymous administration sources, at least three Committee members had been "summoned" to the White House and pressured to vote for the exemption. 5 In his declaration filed August 25, 1992, Sher stated that his conversations with "several sources within the Administration," who asked for anonymity, revealed that the media reports were accurate, and further that the pressure exerted by the White House may have changed the vote of at least one Committee member. Sher declared that his sources indicated that, in addition to in-person meetings, at least one Committee member had "substantial on-going contacts with White House staff concerning the substance of his decision on the application for exemption by telephone and facsimile, as well as through staff intermediaries." He also declared that he had learned from his sources that White House staff members had made substantial comments and recommendations on draft versions of the "Endangered Species Committee Amendment," a part of the Committee's final decision. 6 For the purposes of the present motion, the Committee neither admits nor denies that these communications occurred.
The environmental groups request three types of discovery: (1) interrogatories and requests for production of documents identifying and relating to the Committee's "decisional staffs" and communications between those individuals and persons in the White House regarding the Committee decision, (2) subpoenas for documents from the White House on the same subject, and (3) depositions of persons identified in response to (1) and (2). They maintain that the requested discovery could be completed in about thirty days. Discovery requests have already been served on both the Committee and the White House.
We heard oral argument on the discovery motion on September 23, 1992. To decide what action to take with respect to the motion, we must first determine whether the ex parte contacts concerning which discovery is sought would be impermissible if they occurred in the manner alleged. 7 If so, we must then decide what relief should be afforded.
This case raises two important and closely related questions of statutory construction: 1) Are Committee proceedings subject to the ex parte communications ban of 5 U.S.C. § 557(d)(1)? and, 2) are communications from the President and his staff covered by that provision? For the reasons that follow, we answer both questions in the affirmative.
The environmental groups contend that the Endangered Species Act incorporates by reference the ex parte communications ban of the APA 8 and forbids ex parte contacts with members of the Committee regarding an exemption application. The ex parte prohibition is set forth at 5 U.S.C. § 557(d)(1). 9 Section 557(d)(1) is a broad provision that prohibits any ex parte communications relevant to the merits of an agency proceeding between "any member of the body comprising the agency" or any agency employee who "is or may reasonably be expected to be involved in the decisional process" and any "interested person outside the agency." 10 5 U.S.C. §§ 557(d)(1)(A)-(B); see North...
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