Portland Audubon Society v. Endangered Species Committee
Not provided in the text (1992)
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Rule of Law:
Proceedings of the Endangered Species Committee are formal adjudications subject to the Administrative Procedure Act's (APA) prohibition on ex parte communications. This prohibition on off-the-record communications concerning the merits of a proceeding extends to the President of the United States and his staff, who are considered 'interested persons' outside the agency.
Facts:
- The Endangered Species Committee, also known as the 'God Squad', was considering an application from the Bureau of Land Management for an exemption to the Endangered Species Act for thirteen timber sales in Oregon.
- Portland Audubon Society and other environmental groups participated in the agency process, opposing the exemption.
- Press reports surfaced alleging that at least three Committee members were summoned to the White House and pressured by staff to vote in favor of granting the exemption.
- Victor Sher, lead counsel for the environmental groups, submitted a declaration stating that anonymous administration sources confirmed these reports.
- Sher's sources also alleged that at least one Committee member had substantial, ongoing ex parte contacts with White House staff via telephone and facsimile concerning the substance of the decision.
- The sources further claimed that White House staff provided substantial comments and recommendations on draft versions of an amendment to the Committee's final decision.
- The Committee ultimately voted 5-2 to grant the exemption for the thirteen timber sales.
Procedural Posture:
- The Bureau of Land Management applied to the Endangered Species Committee for an exemption from the Endangered Species Act.
- The Committee held hearings and ultimately granted an exemption for thirteen timber sales.
- The Portland Audubon Society and other environmental groups filed a timely petition for review of the Committee's final decision in the U.S. Court of Appeals for the Ninth Circuit.
- While the petition for review was pending, the environmental groups filed a motion in the Court of Appeals seeking leave to conduct discovery into alleged improper ex parte communications between the White House and members of the Committee.
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Issue:
Does the Administrative Procedure Act's prohibition on ex parte communications apply to the Endangered Species Committee's formal adjudication process, and if so, does that prohibition extend to communications from the President and his staff?
Opinions:
Majority - Reinhardt, Circuit Judge
Yes. The Administrative Procedure Act's (APA) ban on ex parte communications applies to the Endangered Species Committee's proceedings, and that ban includes communications from the President and his staff. The Committee's proceedings are formal adjudications because they are quasi-judicial, are required by statute to be 'on the record,' and are based on an agency hearing. Under the APA, such formal adjudications trigger the procedural protections of 5 U.S.C. § 557, including the absolute ban on ex parte communications relevant to the merits of the case. The President and his staff are 'interested persons outside the agency' because the term is meant to be interpreted broadly to include any public official with an interest greater than the public as a whole. Prohibiting such contacts does not violate the separation of powers doctrine, as Congress has the authority to create quasi-judicial agencies that must act independently of executive control in their adjudicatory functions.
Concurring - Goodwin, Circuit Judge
While I agree to remand for an evidentiary hearing regarding the ex parte contacts, I would not reach the question of whether the President himself is subject to the APA's ban. The record contains no evidence that the President personally made any ex parte contacts with Committee members, only allegations concerning his staff. Therefore, the court need not address the troubling separation of powers question of whether the President falls within the rule's purview until that issue is squarely presented.
Analysis:
This decision significantly reinforces the principle of agency independence in quasi-judicial proceedings by explicitly applying the APA's ban on ex parte communications to the President and the White House staff. It establishes that high-stakes, adjudicatory decisions, like those of the 'God Squad,' must be insulated from off-the-record political pressure to maintain the integrity of the administrative process. The ruling clarifies that when executive officials serve on a quasi-judicial body, they are bound by the procedural rules of an adjudicator, not their political roles, thereby limiting the executive's ability to influence such outcomes through informal channels.
