Appeals court says closed meeting invalidates action taken by advisory committee

ALABAMA — The Alabama-Tombigbee Rivers Coalition, supporting state business interests, has for the moment kept the Alabama sturgeon off the endangered species list. An appeals court in Atlanta said that the U.S. Fish and Wildlife Service cannot rely on a report of an illegally closed advisory committee to protect the fish.

The U.S. Court of Appeals (11th Cir.) in late July affirmed a lower court ruling that enjoins the government from “publishing, employing and relying” on the joint report of nine scientists whose views on the imperiled fish were solicited in violation of the Federal Advisory Committee Act (FACA).

The appeals court rejected the service’s argument that because the sturgeon is seriously threatened and the agency’s objectives are worthy the court should not be concerned with minor violations such as the failure to strictly adhere to FACA’s openness requirements.

“A simple ‘excuse us’ cannot be sufficient,” the court said, refusing to allow the government to use the product of “tainted” procedure.

The Fish and Wildlife Service in June 1993 proposed listing the Alabama sturgeon, which inhabits rivers in Alabama and Mississippi, on the endangered species list.

It named four scientists to analyze the sturgeon’s plight, but restructured the panel after the Alabama congressional delegation objected to “bias,” however, it refused to name any scientists suggested by the delegation.

Initially panel members were told to do independent studies and relay individual reports which would have brought them under a narrow exception to the openness requirements of FACA. But shortly before the reports were due, the agency asked instead for one report.

The business coalition notified the agency that it would seek a restraining order against release of the report and the service the same day announced the findings in the report by press release. Federal district court in Birmingham granted the injunction against use of the report in December 1993.

The FACA requires generally that when the government convenes groups of outsiders to help in its decisionmaking, it must meet several openness requirements, among them public notice and public meetings.

The appeals panel noted that appeals courts in the District of Columbia and in New York had refused to issue injunctions against agencies which had violated FACA but said that the fact differed in those cases.

(Alabama-Tombigbee Rivers Coalition v. Fish and Wildlife Service; Counsel: Will Hill Tankersley Jr., Birmingham)