Lacking any clients who would testify to specific fraud in fish and wildlife contract, I focused on a different federal statute: the Federal Advisory Committee Act.
The billions of dollars expended on salmon recovery since 1980 have not produced much in the way of salmon, but they have produced an impressive salmon bureaucracy. Like the mythical hydra, the bureaucracy has many heads, which spend much of their time quarreling with one another. As a result, there is an incredible proliferation of committees established between and among federal agencies, state agencies, tribal authorities and other public and quasi public entities all of whom to purport to exercise some sort of jurisdiction over the salmon problem.
The Columbia Basin Fish and Wildlife Authority staff has prepared a diagram showing the linkages between all these committees. Here it is:
Figure 27: Salmon Entities and Roles
Looking at this diagram (which doesn’t even include all the lines of communication), it is not hard to see that one of the principal obstacles to any success in the field of salmon recovery is the lack of any authority or accountability on the part of any agency for any aspect of the problem. Any single aspect of the salmon management has several agencies, all of whom, competing for funding and Washington, D.C.’s attention, tend to make inconsistent proposals. (After all, if they don’t disagree, they have nothing to contribute to the meetings.) Any manager in private industry to came to his board of directors with a management structure like this would be told to fix it forthwith.
There is a federal law that was expressly designed to "prevent the proliferation of useless committees". It is the Federal Advisory Committee Act. The text of the law is simple. The Act regulates the use of any and all advisory committees by the President or any federal agency that are used to secure advice or recommendations for the President or federal officials (unless the committee is composed exclusively of federal employees). To limit the use of such committees, Congress required that each one be separately chartered with notice in the Federal Register. Congress could thus, in theory, keep its eyes on the problem of proliferating committees. The committees must also be balanced in terms of the points of view presented.
The Clinton/Gore Administration simply ignored this law when it came to salmon issues. The provision of the law that seemed to pose the most trouble for the Administration was the requirement that the committees be balanced in terms of the points of view presented and that their meetings be held open to the public, with opportunity for public participation.
The Administration's favored approach for resolving controversial and difficult policy issues seems to be to get together a group of its friends, who all share one point of view on an issue, and have the group labor at enormous expense in secrecy to come up with a set of recommendations which the Administration can then attempt to get enacted into law. This was the pattern established in the Administration's handling of health care reform, and it quickly extended to endangered species act questions as well.
When the question of whether to list the Alabama Sturgeon as endangered came to the attention of the Administration, the Administration quickly convened a group of scientists committed to the idea that the sturgeon should be listed. Groups opposed to the listing, who contended that there was no scientifically valid difference between the Alabama Sturgeon and any other of the more common sturgeon living in southern rivers, learned of the administration's plans and advised the Administration that the establishment of such a committee would violate FACA. The Justice Department quickly responded that the committee was not going to act as a committee. Rather, the individual scientists would present their own views, and there would be no collective group report.
Contrary to those representations, the scientists did produce a collective report, which recommended that the sturgeon be listed. Accordingly, the Administration proposed to list the fish. Luckily, a federal district judge in Alabama was less than sympathetic to the Administration's plans. Finding that the Administration had violated FACA, he issued an order enjoining the Administration from listing the sturgeon based on the report. (The order did not prevent the Administration from conducting some other process in coming to the conclusion that the sturgeon should be listed, but merely forbid it from relying on the product of an illegal committee.) The United States Court of Appeals for the Eleventh Circuit affirmed the district court's decision, stating that this was the only remedy that could possibly stop the Administration from violating the law and that "anything less would be tantamount to nothing."
In April 1994, we began to hear that the administration was conducting secret meetings with representatives of the "sovereign" parties in the Idaho Department of Fish and Game case. Among other things, the participants in the meetings were trying to come up with a new way to implement § 7 of the Endangered Species Act in the salmon context. Under longstanding rules of administrative law, federal agencies are supposed to formulate new rules of general applicability in a public, rulemaking process, not by private meetings with affected parties.
We wrote to the Justice Department asking to be allowed to go to these meetings, as members of the public generally, and as litigants in that case. We received no response. We wrote again advising the Justice Department that these meetings violated FACA. We again received no response.
In the meantime, we sought through post-judgment motions in the Idaho Department of Fish and Game case to gain access to the meetings, but Judge Marsh would grant no such relief. Ostensibly, it was up to the federal defendants how to comply with his judgment; Judge Marsh did not appear disposed to micromanage that effort, beyond requiring periodic status reports.
On June 21, 1994, we filed a complaint in the federal district court alleging that these meetings violated FACA. The case was immediately assigned to Judge Marsh. We sought a temporary restraining order requiring the defendants to either open up the meetings to the public or to cease holding them. We also filed a motion for expedited discovery, asking the administration to identify who was attending the meetings and what was going on in them.
Lawyers for the Administration and the states that were attending the secret meetings assured Judge Marsh that nothing substantive was happening in the meetings at all. It was all about "process," said the lawyers. Judge Marsh refused to enter the requested injunctive relief. I asked him to rule on our request for discovery. He told me to work it out with the defendants. I told him we could not work it out with the defendants because the defendants were asserting that they had a privilege to keep everything that was happening in the meetings secret. He still declined to rule on the request.
At this point, there was nothing left to do but file a formal motion to compel discovery. We did. Judge Marsh denied it. He declared that he would determine whether the secret meetings constituted "advisory committees" within the meaning of FACA by reading the government's status reports in Idaho Department of Fish and Game case.
We were outraged. Once again, we would have no opportunity to discover disputed facts critical to analyzing whether or not the groups were established or utilized by the federal agencies to secure advice or recommendations. We could only know what the government would tell us about the activities of the groups.
We asked the United States Court of Appeals for the Ninth Circuit to review Judge Marsh's decision immediately, through a writ of mandamus. And Justices Wiggins and Fernandez declined to do so. They said a writ of mandamus should only issue in extraordinary cases.
Since we were also in the middle of the Idaho Department of Fish and Game case, we again asked Judge Marsh to open up the meetings with the federal defendants, since he was ostensibly supervising them. This time, perhaps sensing that he had been misled by the government lawyers at the June 21st hearing, Judge Marsh issued an order declaring that meetings open to any party should be open to all parties.
When we showed up at the first meeting, the federal, state and tribal agencies shut down the meeting and asked Judge Marsh to reconsider his opinion. He called for a conference in his chambers. As I walked in, I noticed that there were two judges visiting from Eastern Europe, which turned out to be some kind of omen. Judge Marsh listened patiently as all the government attorneys explained why they could not allow us into the meetings. It would slow things down. It would be disruptive. Statements they made might be used against them later in litigation. (Later, the Sierra Club Legal Defense Fund did use events in these meetings, presumably leaked to them by allies in the states and tribes, in litigation against the federal agencies.)
An obsessive desire for secrecy has long been a characteristic of the fishery agencies. At the turn of the century in the State of Washington, cannery interests got legislation passed deeming the statistics of the Fish Commissioner to be “confidential”, that they “shall not be open for inspection of the public”, and were even immune from disclosure to other government agencies.66
To this day, harvest allocation decisions for the Columbia River are carried on behind closed doors in negotiations pursuant to a consent decree in United States v. Oregon. Even when the disputes boil over into Court, Judge Marsh has been known to take the parties in chambers, excluding interested observers and even the press. One of the lawyers who was called back in chambers with Judge Marsh during a 1995 dispute that arose in United States v. Oregon when NMFS tried to limit tribal harvest of endangered Snake River fall chinook salmon told me that they talked about progress in changing dam operations. As of 1997, the state fishery agencies (except Montana and Idaho) and tribes are pushing this closed-door model for all salmon recovery planning. Oregon's Governor Kitzhaber is leading the effort.
By September, it was time to go through the motions of briefing the case we already knew was to be decided on the government's version of the facts. The government claimed, falsely, that that every person involved in the secret meetings was an employee of a federal, state or tribal fishery agency.
Judge Marsh accepted everything the government said and ruled that the groups that were meeting did not constitute "advisory committees" within the meaning of FACA. To add insult to injury, he declared that even if the meetings did violate FACA, we had suffered no injury because he had protected us during the Idaho Fish and Game case, by requiring "separate but equal" meetings.
Months later, the government filed a final report in the Idaho Fish and Game case that revealed that its papers in the FACA case had been false. There were private consultants involved in the secret meetings. Far having "separate but equal" meetings, we had attended (and learned of) only a tiny fraction of the meetings underway.
So when we appealed Judge Marsh's decision to the Ninth Circuit, we were pretty confident that this was a salmon case we could win. How could the Court of Appeals possibly affirm the decision of a district court to resolve the facts based on "testimony" from government lawyers, deny all discovery, and declare, contrary to fact, that the federal government had neither established nor utilized "advisory committees"? You can read the resulting Court of Appeals decision, ALCOA v. NMFS, No. 95-35134 (9th Cir. Aug. 9, 1996), and see how.
The Court began by misconceiving what Judge Marsh had done in the Idaho Department of Fish and Game case. According to the Court, Judge Marsh "directed" the offending federal agencies to "take action" on the biological opinion for 1994-98. In fact, he had no jurisdiction over the 1994-98 opinion, because the plaintiffs in that case had sued on the 1993 biological opinion. Judge Marsh’s judgment was that “the 1993 biological opinion and records of decision are set aside and remanded to federal defendants with instructions to review and reconsider them, or at their option, to review and reconsider the 1994-98 hydropower biological opinion”.67 The federal defendants had, instead of appealing Judge Marsh’s decision, elected voluntarily to reconsider the 1994-98 biological opinion.
Having mischaracterized the entire context of the case, Judges Reinhardt and Fernandez then declared that the two advisory committees, the Biological Requirements Work Group and the Actions Work Group, "were not ‘groups’ formed by, at the prompting of, or solely for the federal government".
Then they declared that the District Court "had required ‘the government to ‘reinitiate consultation consistent with my findings'", perhaps assuming (erroneously) that the phrase consultation meant consultation with the parties in the two Groups. The District Court would have had no authority to order the federal defendants to consult with any non-federal parties; by statute, § 7 consultations are between federal agencies.
Judges Reinhardt and Fernandez also pointed out that the record before it—written by government lawyers—did not "show that the groups were funded by the federal government". In fact, some Group members were consultants paid for by the government. The Ninth Circuit could have, as Judge Marsh did, taken judicial notice of the fact that a very significant percentage of state (and nearly 100% of tribal) fish and wildlife spending—including the salaries of those that attended Group meetings¾was paid by the Bonneville Power Administration.
The Federal Advisory Committee Act itself merely required us to prove that the federal agencies had "established or utilized" the Groups. Clearly the federal agencies had "established or utilized" the Groups under any common-sense definition of those words.
The two Judges also suggested that the Groups did not provide any "advice, except in the sense that one advises an opponent to mend its ways". The whole point of our lawsuit was to enjoin future reliance on a biased report that was a consensus product of the Biological Requirements Work Group. It was a consensus product of federal, state, and tribal members. It represented precisely the evil Congress was intending to avoid: a committee unbalanced in viewpoint, shielded from public scutiny, and working its will upon the federal government to the detriment of the public.
In formal comments to the National Marine Fisheries Service, BPA had confirmed that bias: “Most of the concerns with the recommended application of analytical methods and any discussion of alternative approaches raised by BPA and others were excluded from the BRWG by the state and tribal participants who performed the final report edits.”68
Judges Reinhardt and Fernandez would not even acknowledge that Judge Marsh had refused to compel any discovery against the federal defendants. According to them, the District Court was "not convinced that there was more buried treasure to be dug out". The case was clear enough, they concluded, that the District Court could rule without any of what conventionally passes for evidence: the sworn testimony of witnesses that could be cross-examined.
The dissenting judge, Judge Kozinski, had no trouble realizing that the Groups in question were "actually created" by federal agencies, and that the federal government was trying to pull a fast one on the Court. One of the highlights of my career was watching him relentlessly question the government attorney before him who was attempting to misrepresent the record. To Judge Kozinski, the law was simple:
"Where an agency sets up an advisory committee, the agency has ‘established' that committee for purposes of FACA. If FACA does not apply in such a case, it never will."
It is that simple. The federal defendants violated FACA. Their Biological Requirements Work Group reports were the "product of an unlawful procedure" within the meaning of the Administrative Procedures Act. The federal government should have been enjoined from relying upon them.
"It never will" is a good epitaph for FACA. Congress tried to take aim at a specific problem and solve it, and the courts never gave it a chance. Judge Kozinski's epitaph came true, not just for us, but for the timber industry as well. The federal government’s secret meetings to take care of the problem of "timber junkies", as the youthful Clinton/Gore staffers referred to rural Northwesterners, will remain secret forever. Lawyers for both the timber industry and environmentalists state that literally garbage bags full of documents were shredded to keep them secret from the public. According to the environmentalists’ lawyers, it took four shredders to take care of all the evidence.
66 B. Brown, Mountain in the Clouds 67 (quoting a Dec.28, 1912 letter on the subject).
67 Final Judgment, IDFG v. NMFS, No. 93-1603-MA (D. Or. filed April 28, 1994), at 4.
68 BPA Comments on Draft 1995 Biological Opinion, at 25.
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