Buffalo Field Campaign v. U.S. Dep't of the Interior, No. 19-165, 2020 WL 3790725 (D. Mont. July 7, 2020) (Molloy, J.)

Buffalo Field Campaign v. U.S. Dep't of the Interior, No. 19-165, 2020 WL 3790725 (D. Mont. July 7, 2020) (Molloy, J.)

Re:  Request for records concerning Yellowstone National Park's policy "'surrounding the size of the bison population or herds in the Yellowstone ecosystem'"

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations:  The court relates that "[plaintiff] first alleges that the Park Service failed to make a final determination on its FOIA Appeal within the statutory timeframe."  "In its briefing, however, [plaintiff] clarifies that this allegation is not an independent cause of action but was included to show it exhausted its administrati[ve] appeals."  "Because there is no independent cause of action or remedy for the allegations contained in Count I, [the court holds that] the Park Service's motion for summary judgment is granted as to this count."
   
• Exemption 5, Deliberative Process Privilege:  The court relates that "[t]he withheld records can be divided into four categories:  (1) emails, (2) briefing statements, (3) a draft Environmental Assessment ('EA'); and (4) drafts of an internal scientific article."  First, regarding the emails at issue, the court holds that, "[a]s argued by [plaintiff], this withholding fails at the predecisional stage."  "Neither the email's contents nor the Vaughn index identify a specific decisionmaking process beyond the routine management of bison and their habitat."  "But even if the language regarding 'getting this up and running' were sufficient to make it predecisional, it also fails the deliberative requirement."  "It is unclear from either the document or the Vaughn index who authored the forwarded message and what his or her capacity is within the Bureau of Land Management."  "[It] is also unclear whether the redacted information proposes formal recommendations from the sister bureau or the opinions of the individual employee."  Second, regarding the six briefing statements at issue, the court finds that "all the briefing statements individually fail to meet the withholding requirements."  Concerning four briefing statements, the court finds that "[t]he Ninth Circuit 'rejected the application of the privilege to protect from disclosure the routine collection of data and analysis where the agency could point only to speculative or generalized purposes for which the information would be used.'"  "The continued implementation of the Bison Management Long-term Strategy falls into this category."  Concerning one briefing statement, the court holds that defendant "sufficiently identifies a particular decisionmaking process to be predecisional."  "It also appears to be deliberative as it contains recommendations from a subordinate to a superior."  "But the Vaughn index only includes boilerplate language about how the release of the redacted information would deter agency personnel 'from sharing opinions, advice and recommendations in the course of agency decisionmaking.'"  Concerning one briefing statement, the court holds that, "[a]s argued by [plaintiff], the presence of redlines or [the] fact that [the] document itself is not final does not necessarily make it either predecisional or deliberative."  Third, regarding a draft environmental assessment, the court holds that "[plaintiff] explicitly concedes that the draft EA is predecisional and appears to implicitly concede that it is deliberative."  The court finds that "the Park Service's foreseeable harm analysis meets [the foreseeable harm] standard."  "'[I]n some instances, the withheld information may be so obviously sensitive – such as the disclosure of internal deliberations between a high-ranking military commander and senior government officials about a new detention operation in the United States – that a simple statement illustrating why the privilege applies and identifying the harm likely to result from release 'may be enough.'"  "'In other instances –such as where the withheld deliberations involve more mundane, quotidian matters or the decision has already been made – more explanation may be necessary.'"  The court relates that defendant stated that the foreseeable harm at issue was that "'[i]f such preliminary versions of documents were to be released and subject to public scrutiny, employees would be reluctant to provide preliminary information, or to commit such information into writing, thereby denying decision-makers access to important information.'"  However, the court finds that "the Park Service fails to provide any evidence of its good faith effort to segregate the information as it has completely withheld every page of the draft."  The court holds that "while nuanced segregation efforts are apparent in other records at issue, they are not in the case of the draft."  Fourth, regarding the drafts of an internal scientific article, the court holds that "[t]he Park Service fails to show the draft article is predecisional and it must be disclosed."  The court explains that "[i]f publication was never intended, the agency cannot now argue that it was engaged in a decision-making process culminating in a publication decision."