Aluminum Co. of America v. National Marine Fisheries Service

Opinion by Judge FERNANDEZ; Dissent by Judge KOZINSKI.

Aluminum Company of America, et al. (DSIs) appeal the district court’s grant of summary judgment in favor of the Department of Commerce’s National Marine Fisheries Service, et al. (NMFS) in the DSIs’ action pursuant to the Federal Advisory Committee Act (FACA), § 3(2), 86 Stat. 770 (1972) (codified as amended at 5 U.S.C. app. 2). 1 The DSIs argue that they are entitled under FACA to participate in certain advisory committee meetings concerning the protection of endangered Snake River salmon. In addition, the DSIs argue the district court abused its discretion in refusing to grant the DSIs’ discovery requests and in refusing to enjoin NMFS’ reliance upon the advisory committee’s work product. We affirm.

BACKGROUND

The DSIs are various producers of aluminum. They requested permission to participate in the post-judgment conferences conducted in the wake of the district court’s judgment in related litigation, Idaho Dep’t of Fish & Game v. National Marine Fisheries Serv., 850 F.Supp. 886 (D.Or.1994) (IDFG I), vacated as moot, 56 F.3d 1071 (9th Cir.1995). 2 Those meetings were initially attended by “the relevant federal agencies,…

dissenting.

According to the majority, “if anyone prompted the [working groups’] formation it was the district court itself.” Maj. op. at 10. But the district court only ordered the National Marine Fisheries Service (NMFS) to “re-initiate” some form of consultation. Idaho Dep’t v. National Marine Fisheries Serv., 850 F.Supp. 886, 901 (D.Or.1994), remanded by 56 F.3d 1071 (9th Cir.1995). As the court made clear, the method of compliance was left to NMFS: “Although I have encouraged all parties to take on a more conciliatory approach to the overall problem, I left the specific method of compliance with the judgment to the federal defendants.” District Court’s Opinion and Order Denying Motion to Compel, at 9 (D.Or. Aug. 10, 1994). The district court also noted: “As the government points out, it could have met with each individual state and Indian tribe but chose not to for the sake of procedural expediency.” District Court’s Opinion and Order Granting Defendant’s Motion for Summary Judgment, at 18 (D.Or. Dec. 7,1994).

Even if the district court had ordered NMFS to create the working groups, why would it matter? A court cannot relieve an agency of its obligation to comply with…