completes an advisory process in compliance with FACA.
No reason is shown not to enter the requested declaratory judgment; indeed, if there is any conclusion inevitable from the foregoing, it is that the declaratory judgment prayed must be given.
As to production of all FEMAT documents, the defendants claim that they have assembled all documents from all 600-plus FEMAT "participants," and that those documents which are not subject to FOIA exemptions are now publicly available. Plaintiff has a separate FOIA request pending. It will fall to any reviewing court to determine the merit of the defendants' decisions to withhold any documents on FOIA-exemption grounds when administrative appeals are exhausted.
As to plaintiff's request for preparation of a final report and the minutes of meetings, the defendants contend that the FEMAT Report itself satisfies the requirements of section 10(d) and that preparation of some comparable document at this late date would be redundant, superfluous, and overly burdensome; the FEMAT Report constitutes a sufficient "summary of [the committee's] activities and such related matters as would be informative to the public," say defendants, and the Court agrees.
To the extent that plaintiff seeks the minutes of meetings to reveal FEMAT's internal deliberations and decisionmaking processes, there are, as plaintiff itself acknowledges, more effective ways to gather this information. There is, moreover, no evidence that any "minutes," as such, exist.
Finally, plaintiff seeks an order enjoining the Administration from relying upon the FEMAT report to promulgate regulations implementing its Forest Plan. Such an injunction is, of course, the relief of which plaintiff is most desirous. In the Court's opinion, however, such an injunction would exceed the injury presently to be redressed. There is nothing in the record to suggest that the FEMAT Report, or its advice and recommendations to the President, would have in any way been altered had FACA been complied with to the letter. It would, moreover, be premature. At the moment the Forest Plan is merely a plan; it has yet to be translated into action. There will be time enough when the Forest Plan is implemented to determine if any harm it does to NFRC and its constituents can be traced to FEMAT.
Of greatest significance to the Court in declining to issue the injunction is the affront it would represent to the separation-of-powers principle. The Court is aware of no authority upon which it could confidently rely in concluding that it may forbid the President and his Cabinet to act upon advice that comes to them from any source, however irregular.
There is no "exclusionary rule" applicable to the decisionmaking processes of the President. And it is certainly no less presumptuous than would be a similar instruction from Congress to the President -- as plaintiff deems FACA to be -- as to what he can and cannot consider in executing the duties of his office.
It is sufficient for present purposes, and all that this Court concludes it should award, that plaintiff have the declaratory judgment it has prayed for. The effect and consequences of that judgment will be left to other courts and/or other cases.
It is, therefore, this 21st day of March, 1994,
ORDERED, that defendant's motion for summary judgment is denied, and plaintiff's motion for summary judgment is granted in part; and it is
FURTHER ORDERED, ADJUDGED and DECREED, that the Forest Ecosystem Management Assessment Team was and is an advisory committee subject to the Federal Advisory Committee Act, 5 U.S.C. App. 2 (1988), and that its proceedings from approximately April 2, 1993, to July 16, 1993, were conducted in violation of the Act.
Thomas Penfield Jackson
U.S. District Judge