This is an appeal by the Aluminum Company of America from a grant of summary judgment in favor of the National Marine Fisheries Service (NMFS) under the Federal Advisory Committee Act (FACA). The Aluminum Company of America, a group composed of various producers of aluminum who rely on large quantities of electricity for their manufacturing processes, claim a right under the FACA to participate in advisory committee meetings concerning the protection of endangered Snake River salmon. The aluminum companies wish to influence possible decisions relating to dam modifications that may increase salmon survival and hence, effect electricity production on the several Snake River dams. The question of whether the aluminum companies should be allowed to participate in the meetings turns on whether the committees, largely composed of federal agencies, the Pacific Northwest states, and several Indian Tribes, were established and utilized by the federal government. If they were, then the meetings would be governed by the FACA, which would mandate inclusion of interested parties in the proceedings.

The committees, the Biological Requirements Work Group (BRWG) and the Actions Work Group (AWG) were formed in the wake of the district court's judgment in related litigation, Idaho Dep't of Fish and Game v. National Marine Fisheries Serv.[1] In this case, NMFS was ordered to draft an acceptable 1994-1998 biological opinion concerning the continued survival of the Snake River salmon, and examine possible actions and alternatives, largely relating to hydropower operations, which may impact continued survival of the species. The BRWG was to assess technical data and recommend a "range of analytical methods for determining requirements for survival and recovery" of the listed salmon. The AWG was to provide a list of possible Federal Columbia River Power System actions and impacts. The aluminum companies attended several committee meetings and workshops, and were provided with summary reports of committee meetings and invited to comment on actions taken by the working groups.

The aluminum companies, in their desire to participate more fully in the proceedings, filed this action claiming that NMFS and the participants in the working groups had formed de facto advisory committees in violation of the FACA. The district court denied the companies' motion for a temporary restraining order and motion for reconsideration, as well as their motions to expedite and compel discovery. NMFS then filed a motion for summary judgment, which the aluminum companies answered with a cross-motion for summary judgment. The district court granted NMFS' motion, and the aluminum companies brought this appeal.

The Ninth Circuit affirmed the district court's ruling, finding that the groups were not "established and utilized" by the federal government as defined by FACA. The court pointed out that the Supreme Court has cautioned against a literal adherence to a dictionary reading of the FACA's extremely broad definition of "advisory committee": the FACA was simply not "intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice."[2]

The Ninth Circuit found that the working groups at issue in this case were formed for the purpose of aiding compliance with the district court's order, which required NMFS to facilitate consideration of scientific evidence and to comply with the additional directives of the district court's order. Thus, the district court, which is not covered by the FACA, prompted the formation of these groups. In addition, the working groups were not funded by the federal government, and they were not subject to management by federal officials. In answer to appellants' contention that the committees were formed to render advice or recommendations to NMFS as a group, and not a collection of individuals, and are therefore covered by the FACA, the Ninth Circuit stated that the groups were more internally motivated or "designed to present the victorious entities' positions to their erstwhile opponents and to win approval of those positions in the future." In sum, the Ninth Circuit concluded that the NMFS did not inadvertently establish or utilize an advisory committee while following the demands of the Endangered Species Act and the district court.