## Facts

- The Bureau of Land Management planned to auction timber rights to 44 tracts of old-growth forest in western Oregon that constituted habitat for the threatened northern spotted owl.
- The Bureau sought an exemption under Endangered Species Act (ESA) § 7(h) from the Endangered Species Committee, a statutorily created body authorized to grant limited exemptions from ESA § 7.
- The Committee granted an exemption for 13 of the 44 proposed timber sales and denied an exemption for the remaining 31.
- Environmental organizations petitioned for judicial review of the Committee’s exemption decision under the ESA’s special review provision.
- While the petition for review was pending, the environmental organizations moved in the court of appeals for leave to conduct discovery into alleged ex parte communications between White House officials and individual Committee members and requested appointment of a special master to supervise discovery.
- The Committee opposed the motion, arguing judicial review was confined to the existing record and that White House communications were permissible, making discovery unjustified.
- The court’s decision addressed only the interlocutory motion concerning discovery/record development and remedy, not the ultimate lawfulness of the exemption decision on the merits.

## Issues

1. Whether ex parte communications between the White House (including the President and staff) and members of the Endangered Species Committee are unlawful in an ESA § 7(h) exemption proceeding conducted on the record.
2. Whether the Administrative Procedure Act (APA) requires the “whole record” for judicial review to include all materials actually considered or relied upon by the Committee, including off-record communications.
3. Whether the court of appeals should authorize appellate-level discovery and appoint a special master, or instead order a remand for agency fact-finding to develop a complete record.

## Decision

- The court held that ex parte communications between the White House and the Committee in this type of on-the-record exemption proceeding are contrary to law.
- The court held that an administrative record omitting matters relied upon by the Committee is not the “whole record” required for judicial review and violates the APA.
- The court denied the motion for appellate-level discovery and the request to appoint a special master.
- The court remanded to the Committee for an evidentiary hearing before an administrative law judge to investigate the alleged communications and to compile an adequate record for subsequent judicial review.

## Legal Principles

- APA ex parte prohibitions apply when a statute requires a formal, on-the-record hearing and the agency action is adjudicatory in character.
- In such adjudicatory proceedings, the President and White House staff may qualify as “interested persons” for purposes of the APA’s ex parte restrictions.
- APA “whole record” review requires inclusion of all materials actually considered by the decisionmaker; an agency may not limit the record to a curated subset if other relied-on matters exist.
- Courts of appeals generally do not conduct primary fact-finding in direct review of agency action; when record integrity is questioned, the ordinary remedy is remand for agency evidentiary proceedings and record completion.
- Parties with concrete interests affected by the agency action may raise claims based on procedural violations in the administrative decisionmaking process, including unlawful ex parte contacts.

## Conclusion

The Ninth Circuit ruled that ex parte White House contacts with the Endangered Species Committee are unlawful in ESA exemption proceedings conducted on the record and that the APA requires judicial review on a complete record including all relied-on materials; however, it denied appellate discovery and instead remanded for an ALJ-led evidentiary hearing to develop the record.


Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993)