One of the bedrock principles of our system of justice is that litigants should have an opportunity to "discover" the facts of a case that are in the possession of their opponents. Another bedrock principle is that litigants should have an opportunity to question witnesses whose testimony is used against them. Anyone can appreciate the injustice of making judicial decisions based solely on what lawyers (rather than witnesses) tell the judge.
Even if the lawyer resists the temptation to shade the testimony, the lawyer writing an affidavit is obviously only focused on one side of the issue. Without cross-examination of the actual witness, which has been characterized as "the greatest engine for the discovery of truth ever invented", one can never be sure what has been left out of affidavits.
Most people would be surprised to learn that, generally speaking, both of these bedrock principles are thrown out the window when it comes to citizens litigating against their government. Over the past century, the Supreme Court has gradually staked out the position that in litigation against the government, the universe of relevant facts is to be limited to something called the "administrative record."
The theory for limiting the evidence in cases against the government is conceptually appealing. A court or jury is supposed to limit its consideration to facts that are presented in court through the testimony of witnesses—"facts of record". In most cases, a jury’s verdict will be set aside if it wanders off to do its own investigation, unknown to the parties in the case.
In some administrative agencies, hearings are conducted that resemble, in many respects, trial before a court or before a jury. There is a definable set of evidence that is presented by testimony, with cross-examination of witnesses, and a formal record is made. The Supreme Court reasoned that it didn’t make a lot of sense for a court to go look for other facts to see whether the agency decision was lawful. Letting parties start all over again in court could gum up the works.
Unfortunately most administrative decisions—including nearly all decisions under the Endangered Species Act—are made without any type of formal process whatsoever. Generally, a responsible official is presented with alternatives by his or her staff, hears objections from the outsiders involved (if they even know about the decision) and makes a decision. Without looking through the government’s files and questioning the officials who make decisions, no one can never really know what facts they used to make decisions, or whether they were right or wrong.
Yet, as a general matter, no one is allowed to do this. Instead, the courts pretend that there is such a thing as an administrative record. In our first salmon case, before the government learned it could put in affidavits from witnesses without letting us question the witnesses, the government let us take the deposition of J. Gary Smith of the National Marine Fisheries Service.
Mr. Smith confirmed that what really happens is that while the government is making an Endangered Species Act decision, documents accumulate in the files, which decisionmakers might or might not read.1
Later, after the decision is made, the government’s lawyers look through the files and decide in a “collaborative process” with agency officials what documents will be designated for inclusion in the fictitious administrative record.2 As counsel for the government put it, “the administrative record is really only relevant in the context of judicial review”.3
In other words, the only evidence ordinarily allowed is whatever the government’s lawyers edit and select. How can this possibly lead to justice in disputes between citizens and the government? It cannot.
Worse still, many of the most highly relevant documents in the agency's possession can be lawfully excluded from the administrative record on the ground that they are "privileged". They remain a secret from the litigants and the public at large. The Freedom of Information Act is no use, because it exempts documents protected by an “administrative deliberative process privilege” invented by the courts and then endorsed by Congress.
In the case of the salmon, the National Marine Fisheries Service adopted a formal policy of identifying scores of relevant documents as "predecisional ESA decision documents". These documents, which occasionally leak out, may be withheld entirely from the public.
Thus the law has created a situation in which the real documents that would show the basis of an official decision are often withheld as "privileged", while scores of documents of lesser importance are produced and represented to be the bases of the decision.
The idea that a government may have documents concerning endangered salmon that are "privileged" from disclosure to its citizens because they expose the deliberative process of government is one I have never understood. The theory seems to be that public officials will not make the “right” decisions if the public can see what they are doing, apparently because they will be too embarrassed, or subjected to public pressure. The unstated premise seems to be that pressure from the public is improper; pressure from those privileged to know what is going on is not.
There may be legitimate claims of privilege in the endangered species context, such as documents that would, for example, reflect the location of some of the few remaining salmon redds, which might be used by those who wish to injure the salmon. Those were not the documents we sought. We sought documents that would reflect the agency's beliefs and misconceptions, and would be highly relevant in rendering any reasoned appraisal of the agency's action. Indeed, such documents often contain information that is embarrassing to the government, because they flatly contradict the final decision made.
But in the view of the courts, avoiding embarrassment to the government is more important than allowing citizens to find out what is really going on. Given that courts invented this rule, only new judges or some sort of amendment to the Constitution can really cure the problem. And from what I can tell, courts aren't too eager to enforce the Constitution against the government either.
Jeff and I were a little surprised to find out that our clients were not particularly eager to bring affirmative claims against the government for overlooking other causes of salmon decline. Large corporations have a visceral distaste for bringing claims against other sectors of economic activity, and there are many forums in which such conduct is criticized. Some legitimately fear retribution from the government.
But we recognized that the "blame the dams" strategy was going to be a perfect success so long as all the other causes of decline were essentially ignored. The unholy alliance of commercial fisherman and environmentalists meant that at least two of the three main human-induced causes of decline, harvest and hatcheries, would go essentially untouched.
We convinced the clients to allow us to file a complaint that targeted not only harvest and hatcheries, but also certain activities on federal land, including federal grazing and mining permits and timber contracts. We quickly ran afoul of another strange development in environmental law. Our complaint set forth the specific activities on federal land causing harm to salmon. We knew that the government had lists of particular timber sales that had potential salmon problems, and lists of grazing allotments with an assessment of their effects on important salmon tributaries.
But the government refused to produce the lists. We moved to compel production of the lists, and Judge Marsh refused. Worse still, Judge Marsh threatened to dismiss the complaint unless we could file a "bill of particulars" (a device sometimes used to make prosecutors specify their charges against criminal defendants) identifying the particular areas we were concerned about.
So we hired a biologist to go to the BLM and Forest Service offices in Idaho and Eastern Oregon and Washington. The Justice Department quickly tried to close the files that had heretofore been open to the public, but our people got in before the word got around to all the offices, so we were able to get enough information to file the requested "bill of particulars". Over and over again, I have seen the government’s lawyers tell employees not to talk to us or our representatives. Over and over again, by restricting citizens’ access to public documents and public employees, government justice departments promote injustice.
Most environmental groups bringing Endangered Species Act suits avoid the problem of actually identifying the particular actions injuring salmon by challenging a general planning document, such as a Forest Plan, instead. In our view, this did not make a lot of sense, since the planning document just outlines general principles that are supposed to guide specific administrative decisions.
Dozens of Supreme Court precedents have counseled that the federal courts are supposed to review only specific administrative decisions that have an "immediate and concrete impact" on the litigant. But the United States Court of Appeals for the Ninth Circuit has repeatedly allowed challenges to the most general of plans whose impact on any particular citizen is minimal at best.
Even the Clinton/Gore Administration took issue with the Ninth Circuit's 1995 decision in the Pacific Rivers Council case.4 There Judges Reinhardt, Tang and Wright held that the Forest Service could not lawfully proceed to manage an Idaho forest—allowing logging to proceed—unless they conducted consultations with the Forest Service on a forest plan made several years before the Endangered Species Act listing of spotted owls. The Forest Service protested that each and every individual timber sale had been reviewed for effects on endangered species and were “not likely to adversely affect” listed salmon within the meaning of the Endangered Species Act and the governing federal regulations. The Court held that that did not matter. All activities in the forest that might affect salmon were enjoined until another paper addressing the effects of the obsolete planning document could be produced.
Deposition of J. Gary Smith, taken in Case Nos. 92-1260-MA, 92-1164-MA, & 92-973-MA, Jan. 7, 1993, at 132.
4 Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1995), cert. denied, ___ U.S. ____ (1995).
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