Friends of the Earth v. US. Army Corps of Engineers, No. 18-677, 2019 WL 366207 (W.D. Wash. Jan. 30, 2019) (Zilly, J.)

Friends of the Earth v. US. Army Corps of Engineers, No. 18-677, 2019 WL 366207 (W.D. Wash. Jan. 30, 2019) (Zilly, J.)

Re:  Request for March 2017 Biological Evaluation regarding effect of new or revised permits for construction and operation of second dock for crude oil deliveries at Cherry Point Terminal operated by British Petroleum ("BP")

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, Exhaustion of Administrative Remedies:  "The Court concludes that the remedy [for defendant "fail[ing] to make a determination regarding Plaintiff's administrative appeal by the deadline set forth in 5 U.S.C. § 552 (a)(6)(A)(ii)"] is limited to declaratory relief that the Corps violated the statute and to Plaintiff's ability to seek judicial review in this Court."
   
• Exemption 5, "Inter-Agency or intra-Agency" Threshold Requirement:  "The Court concludes that [a document prepared by a private consultant, delivered to BP, and then submitted to the agency] is . . . not an agency document for purposes of the FOIA."  The court addresses defendant's argument for use of the consultant corollary and finds that "[t]he Corps admits that BP has interests at stake in the Corps' evaluation and . . . consultation."  "The Corps also admits that it did not hire BP or the consultant to prepare the BE; rather BP retained the consultant for that purpose."  "The Corps has offered no evidence that the consultant did not represent an interest of its own or the interest of BP."
   
• Exemption 5, Deliberative Process Privilege:  Alternatively, the court holds that exemption 5 does not protect this document because "the Corps 'adopted' the [document] as its own before submitting it to the Services for . . . consultation."