The opinion of the court was delivered by: THOMAS PENFIELD JACKSON
In two recent cases six federal justices and judges have written at length on the problem presented in this case, namely, the implications of the constraints placed by the Federal Advisory Committee Act ("FACA" or "the Act"), 5 U.S.C. App. 2 (1988), on the President's ability to solicit and receive collective advice privately and without formality.
Their several opinions developed most of the research and reasoning that underlies this decision as well, and it need not, therefore, be reiterated here. Superficially characterized, however, their scholarship in the aggregate has revealed FACA to be an uncomfortably broad statute, dating from 1972, that would, if literally applied, stifle virtually all non-public consultative communication between policy-making federal officials and a group of any two or more other people, any one of whom is not in government service. As a result, the majority opinions in those cases were at pains to elide the literal reading of FACA to avert what those courts believed were surely legislatively unintended consequences on the one hand, or a major constitutional issue on the other.
This case arises upon yet another attempt by the Executive Branch to escape the toils of FACA in formulating the current Administration's policy for the future of over 24 million acres of federally owned forest lands in the states of Oregon and Washington. The plaintiff Northwest Forest Resource Council ("NFRC") is a not-for-profit association incorporated in Oregon representing the interests of the timber and other forest products industries in the two states. Defendants are the U.S. Secretaries of Agriculture and Interior, a group of individuals comprising the object of this suit, an entity known as the Forest Ecosystem Management Assessment Team ("FEMAT"), and FEMAT's chairman, a research wildlife biologist with the U.S. Forest Service.
Plaintiff alleges that, as convened and employed by the President, FEMAT constituted an "advisory committee" within the contemplation of FACA which, if so, then entitled NFRC (and the public generally) to certain rights to be (or to have been) privy to and to have participated in FEMAT's proceedings. Having been denied those rights while FEMAT was engaged in preparing a document, published in July, 1993, upon which the defendant secretaries will, at the President's direction, in major part rely in establishing and implementing a "Forest Plan," NFRC asks this Court to declare FEMAT to have been an "advisory committee" and accord NFRC as many of those rights as possible nunc pro tunc; to declare FEMAT's proceedings null and void for failure to comply with FACA; and to enjoin defendants from any reliance upon FEMAT's report in managing federal forest lands unless and until FEMAT complies with FACA.
Defendants respond that, for various reasons, FEMAT was never conceived, nor did it function, as an "advisory committee" under FACA, and, were this Court to find it so, then FACA itself must be deemed an unconstitutional invasion of the executive privilege for communications necessary to his exercise of the powers entrusted by the Constitution to the President. See United States v. Nixon, 418 U.S. 683, 705, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), and Nixon v. Administrator of General Services, 433 U.S. 425, 449, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977).
The material facts are of record and are not genuinely in dispute. On April 2, 1993, President Clinton, Vice President Gore, and other government officials (including the defendant Secretaries) attended a day-long "forest conference" in Portland, Oregon, to address the long-standing controversy between environmentalists and the forest products industry over the uses to be made of federal forest lands. At the conclusion of the conference, the President announced that the Administration planned to "begin work immediately to craft a balanced, a comprehensive, and a long-term policy" toward forest management. Concurrently (or nearly so) with the President's announcement, Katie McGinty, Director of the White House Office of Environmental Policy, in the Executive Office of the President, established an inter-agency group called the Forest Conference Executive Committee ("Executive Committee") to direct and supervise the work of FEMAT, which was then already in the formative stages. Ms. McGinty chaired the Executive Committee. Other active members of the Executive Committee included Thomas Collier, Chief of Staff of the Interior Department, James Lyons, Assistant Secretary of Agriculture for Natural Resources, and five other sub-Cabinet officials. The Executive Committee instructed FEMAT to identify management alternatives, employing an "ecosystem" approach, to attain the "greatest economic and social contribution from the forests." Defendant Jack Ward Thomas, a biologist with the U.S. Forest Service, was named the leader of FEMAT and reported weekly on FEMAT's progress to the Executive Committee.
FEMAT was composed of six subteams whose participants admittedly included private contractors paid with federal funds. FEMAT also established 14 advisory subgroups to provide it with biological impact assessments on various forms of plant and animal life. Altogether somewhere between 600 and 700 people contributed in some way to FEMAT's work. The subteams and each of the advisory subgroups eventually had benefit of the services of some non-federal personnel, and although the parties are not in agreement as to which of the 600-700 individuals should be counted as "members" of FEMAT for purposes of FACA, in May, 1993, the Administration released a list of 37 FEMAT participants who defendants are presently willing to acknowledge must be deemed "members." At least five of those people, defendants also concede, were not regular federal employees. They were Norman Kenneth Johnson, Brian Greber, and George Stankey, full-time faculty members at Oregon State University, and Margaret Shannon and Jerry Franklin, both on the faculty of the University of Washington. None of those professors took leaves of absence from their institutions while working for FEMAT; all continued to receive their full faculty paychecks, and they or their universities were paid varying sums by the federal government.
On July 1, 1993, President Clinton announced his "Forest Plan for a Sustainable Economy and a Sustainable Environment" ("Forest Plan") which is based in significant part on Option 9, one of the ten forest management "options" presented by FEMAT in its Report. On July 16, 1993, the Forest Service released the FEMAT Report of over 1,000 pages,
and an ensuing "Draft Supplemental Environmental Impact Statement" analyzed only the FEMAT-sanctioned options with Option 9 appearing as the preferred alternative.
The final policy embodied in the Forest Plan is expected by all parties to go into effect on March 31, 1994, pursuant to the order of another district judge. See Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1484 (W.D. Wash. 1992).
The defendants first argue that FEMAT was simply not an "advisory committee" or not the sort of "advisory committee" with which FACA is concerned. But FACA itself defines an "advisory committee" to which it applies as "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or subgroup thereof" that is "established or utilized" by the President or an agency "in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal government." 5 U.S.C. App. 2 § 3(2).
By any fair interpretation of the facts and certainly by a literal reading of the statutory definition, FEMAT was an "advisory committee" within the contemplation of FACA in form and function, unless elsewhere excepted in the statute. It was a consultative assembly of knowledgeable persons for a specific purpose; calling it a "team" does not alter its nature. It was both "established" and "utilized" by the President for his guidance in devising ...