Hypo 3-2: White House Contacts The Northern Spotted Owl is a small grayish-brown owl that lives in the so-called old growth forests of the Pacitic Northwest. Due to substantial logging in the area, the habitat of the owl has decreased significantly and the Fish and Wildlife Service responded (with some prodding from environmental groups and the courts) by listing the owl as a threatened species under the Endangered Species Act. The Bureau of Land Management wished to make a number of timber sales on land within its jurisdic- tion, but it was determined that logging those areas would "jeopardize" the owl. The Endangered Species Act prohibits Federal agencies from taking any action that would jeopardize a listed species unless they obtain an exemption from the Endangered Species Committee (ESC) (popularly known as the "God Squad" because it decides whether a species lives or dies). The Committee is composed of seven members: the Secretary of the Interior, the Secretary of Agriculture, the Secretary of the Army, the Chair of the Council of Economic Advisors, the Administrator of the EPA, the Administrator of the National Oceanic and Atmospheric Administration (NOAA), and one person appointed by the President to represent the affected State. The procedure for the exemption is somewhar confusing and cumbersome. Initially, the Secretary of Interior, who is chair of the Committee, determines whether an application for exemption meets certain statutory criteria. If it does, the Secretary holds a formal adjudication and prepares a report to the Committee. The Act then requires the Committee to make a final determination within 30 days of receiving the Secretary's report. Specifically, it provides that "the Commit- tee shall grant an exemption it, by a vote of not less than five of its members voting in person -it determines on the record, based upon the report of the Secretary, the record of the hearing held, and on such other testimony or evidence as it may receive, that (the statutory requirements have been satisfied]." This language is interpreted as requiring a formal adjudication under the APA. The Bureau of Land Management petitioned for an exemption from the God Squad, and the Secretary made his initial finding, held the formal adjudication, and reported to the Committee. The Committee by a 5-2 vote granted the exemption. An environmental group, which was allowed to participate in the adjudication, appeals the committee's decision to the Court of Appeals, alleging that some members of the Committee were subject to ex parte communications concerning the petition The allegation was based upon wire service reports and an affidavit by the lead counsel for the environmental group. The AP report, in pertinent part, reads as follows: The Bush administration is pressuring "God Squad" members to exempt 44 Northwest timber sales from the Endangered Species Act's protection of the northern spotted owl, sources said Tuesday. Two administration sources, speaking on condition of anonymity, said that at least three members of the panel have been summoned to White House meetings to discuss coming decisions on the owl. But a spokesman for Interior Secretary Manuel Lujan Jr. said the conversations pertain to general environmental policy and that no political pressure is being placed on the Endangered Species Committee. According to the sources, each of the meetings was attended by Lujan, the chairman of the committee, and Clayton Yeutter, President Bush's domestic policy adviser. William K. Reilly, head of the Environmental Protection Agency and a committee member, joined Lujan and Yeutter in a meeting Tuesday, one source said. John Knauss, head of the National Oceanic and Atmospheric Administration and a committee member, attended a similar meeting within the last two weeks, the source said. Frances Hunt, a forestry specialist for the National Wildlife Federation, said other administration sources had told her that Knauss was pressured at the meeting to vote for the exemption to the Endangered Species Act. "My understanding is that it was all-out arm-twisting," she said Tuesday. "Lujan is portraying this as some- thing the administration needs." Steve Goldstein, Lujan's chief spokesman, confirmed that Lujan and Reilly met Tuesday with Yeutter. "Clayton Yeutter is the environmental policy coordinator for the administration. We are part of the administration. But no one from the administration will dictate to any committee member how they should vote," Goldstein said. The Reuters report contained similar information. The affidavit filed by the environmental group said: Since the ESC's final decision, I have spoken with several sources within the Administration, including federal staff and employees close to some of the decisionmakers on the ESC. These individuals hold positions in which I would expect them either to have direct access to SC decisionmakers themselves, or to other individuals with such access, and I would therefore expect them to be familiar with the events surrounding the ESC's decision to exempt 13 timber sales from the provision of the Endangered Species Act. In fact, these sources have indicated to me that they are familiar with these events in considerable detail. In particular, my conversations with these individuals have revealed both that the media reports of pre-decisional pressure from the White House on ESC members were accurate (despite denials from a spokesman for the Department of the Interior). Moreover, they reveal that at least in one instance, such pressure may have succeeded in influencing (and, ultimately, changing) the vote of at least one decisionmaker. Such a changed vote would have led directly to the ESC's granting of the exemption, instead of denying it. (Given that an exemption application must receive five votes to prevail, and that the ESC voted 5-2 in favor of the exemption in this case, even a single vote change would have meant a denial of the exemption.) Based on these conversations, I have good cause to believe at least the following facts regarding contacts between the White House and the ESC; a. The press reports of White House pressure on ESC decisionmakers to vote in favor of an exemption-_particularly, on Administrator John Knauss and Administrator William Reilly--during the period preceding the ESC's vote are accurate. Administrator Knauss met with Clayton Yeutter and other members of the White House staff on April 28, 1992, and several times thereafter. Administrator Knauss and his staff also had substantial on-going contacts with White House staff concerning the substance of his decision on the application for exemption by telephone b and facsimile, as well as through staff intermediaries. Administrator Reilly also met with Clayton Yeutter and other White House stall, on May 5, 1992, and again on May 13, 1992. 228 C. ESC members were told by White House stalf that the Bush Administra- ton viewed an ESC decision to grant an exemption as extremely impor cant politically. White House staff sought to persuade ESC members,. including both Administrator Knauss and Administrator Reilly, to support an exemption. d. Administrator Knauss ultimately voted to support granting the exemption for 13 timber sales. Administrator Reilly ultimately voted against the e. exemption. The terms of the ESC's final decision were presented to most of the ESC for the first time at the ESC's meeting on May 14. These terms were discussed directly and repeatedly in direct contacts between Administrator Knauss and his staff at NOAA (on the one hand), and Clayton Yeutter and his staff at the White House (on the other); other ESC members and staff may have been involved as well. A series of written drafts of the final decision passed between the White House and NOAA prior to the ESCs meeting, and White House staff provided substantive comments and recommendations on draft versions of the Amendment. Assume that you are an attorney at the United States Department of Justice who is assigned to defend the government against the law suit brought by the environmental group. Your boss would like you to assess candidly the probability that the government will prevail. (1) Assuming that the information alleged by the environmentalists is true, what is likely to be the response of the court? Do you need additional facts to reach a judgment, and if so, what are they? (2) If the vote had been 6-1 instead of 5-2, would that make a difference in the likely outcome of the case? Why or why not? what remedy would you expect? 0) Finally, assuming that the court determines that the APA has been violated