Old growth forest study group subject to advisory committee act

WASHINGTON, D.C.–Scientists convened by the Forest Service to study old growth forests in the Sierra Nevada must adhere to the open meeting and record requirements of the Federal Advisory Committee Act, a U.S. Court of Appeals panel in Washington, D.C., ruled in late December.

The panel reversed a December 1995 decision of the federal District Court in Washington, D.C., that because a specific congressional appropriation to the U.S. Forest Service triggered the formation of the 18-member study group, it existed to advise Congress, not the executive branch.

For FACA to apply to an advisory group set up by an agency it must be “established and utilized” by the agency.

The Forest Service, acting on an appropriation for the study and letters from the chairs of congressional committees concerned with the Sierra Nevada, brought the study group together in 1993. But it funded the bulk of the study itself and used the results in its own decisionmaking.

The California Forestry Association sued to keep the Forest Service from acting on the final recommendations of the group, which were ultimately presented to Congress in June 1996, because the scientists had not met openly in compliance with FACA. The lower court ruled that FACA did not apply.

But the appeals panel noted that the Forest Service used the data accumulated by the group for its own decisionmaking. It had also contributed substantial monies from its own budget and had sought additional years of appropriated monies from Congress for continuing the study. The agency had both established and utilized the group of scientists, it found. (California Forestry Association v. U.S. Forest Service; Counsel: Robin Rivett, Sacramento)