ELR Citation: ELR 20560
No(s). 92-70436 (9th Cir. Feb 10, 1993)

The court holds that the Endangered Species Committee's (Committee's) proceedings regarding an application by the Bureau of Land Management for exemption from the requirements of the Endangered Species Act (ESA) for 13 timber sales in western Oregon are governed by the Administrative Procedure Act's (APA's) provisions applicable to formal adjudications and that the president and his staff are subject to the APA's ex parte contacts ban, and that environmental group plaintiffs are entitled to a remand and an evidentiary hearing on the matter. The court first holds that the Committee's proceedings are subject to the prohibition on ex parte communications set forth in APA §557(d)(1), because all three requirements of APA §554 are satisfied. First, the Committee's determinations are quasi-judicial, and thus constitute adjudications within the meaning of §554(a). Moreover, the ESA's legislative history indicates that the Committee is designed to be an ultimate arbiter of conflicts. Second, ESA §1526(h)(1)(A) mandates that the Committee make its final determination of an exemption application "on the record." Third, ESA §1536(h)(1)(A) requires that any Committee decision be made after an opportunity for an agency hearing. The court next holds that the president and his staff are persons, within the meaning of APA §557(d)(1), and that Congress intended them to be subject to the APA's prohibition on ex parte communications. The court holds that the president's position at the center of the executive branch renders him, ex officio, an interested person" for the purposes of APA §557(d)(1). The president necessarily has an interest in every agency proceeding, and no ex parte communication is likely to influence an agency more than one from the president or a member of his staff. Moreover, the president and his aides are not a part of the Committee's decisionmaking process, or "outside the agency," for purposes of the ex parte communications ban, and Congress did not invade any constitutional power of the president in providing that he may not attempt to influence the outcome of administrative adjudications through ex parte communications.

Addressing the remedy to which the environmental groups are entitled, the court holds that if such ex parte communications occurred, the record must be supplemented to include those contacts so that proper judicial review may be conducted. Although discovery on appeal is not warranted, the plaintiffs' allegations require a remand and an evidentiary hearing before an administrative law judge. The court retains jurisdiction over this matter pending further order of the court.

[The petition for review is digested at PEND. LIT. 66211.]

Counsel for Petitioners
Victor M. Sher, Todd D. True
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Intervenors
William P. Pendley, Todd S. Welch, Paul M. Seby
Mountain States Legal Foundation
1660 Lincoln St., Ste. 2300, Denver CO 80264
(303) 861-0244

Counsel for Respondent
Vicki A. O'Meara, Myles E. Flynt
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000