Pac. Coast Shellfish Growers Ass'n v. U.S. Army Corps or Engineers, No. 16-193, 2016 WL 3000259 (W.D. Wash. May 24, 2016) (Jones, J.)
Re: Request for Programmatic Biological Assessment (PBA) for Shellfish Activities in Washington State Inland Marine Waters
Disposition: Granting defendant's cross-motion for summary judgment; denying plaintiff's cross-motion for summary judgment
- Exemption 5, Deliberative Process Privilege: The court finds that defendant appropriately used Exemption 5. First, the court finds that "the Shellfish PBA is predecisional because it was prepared to advise the Services in how to prepare their [programmatic biological opinion ('PBO')]." The court explains that, "[a]s the Corps convincingly argues, the decisionmakers in this particular process are [the U.S. Fish and Wildlife Service and National Marine Fisheries Service], not the Corps." Second, the court finds that the document is deliberative because "the Shellfish PBA at issue relates to a programmatic biological assessment by the Corps." "Rather than making specific scientific findings related to a single permit application, the Shellfish PBA (and the forthcoming PBO) covers general categories of future work activities." The court explains that "even discussing specific facts or scientific findings may reveal internal deliberative processes (and policy judgments) that reflect the categories of conduct the Corps seeks to regulate and how it proposes to do so in accord with [the Endangered Species Act 'ESA' and the Magnuson-Stevens Fishery Conservation and Management Act 'MSA']." The court explains that "the Shellfish PBA here is 'open to discretionary decisionmaking.'" Finally, the court finds that "[d]isclosure of the Shellfish PBA at this juncture also could expose the Services' decision making process in such a way as to discourage candid discussion and thereby undermine their ability to perform their functions."
- Procedural Requirements, FOIA Requesters: In response to "[plaintiff's] argu[ment] that the ESA consultation process expressly contemplates its (and its members') participation as 'applicants,' contending that the consultative process is not as secret as the Corps claims[,]" the court finds that "[plaintiff] ignore[s] 'that FOIA does not permit selective disclosure of information only to certain parties.'" "Indeed, whether [plaintiff] or its members have other rights of access to the Shellfish PBA is irrelevant to the Court's FOIA inquiry."
- Waiver: "[T]he Court finds that the Corps has not waived Exemption 5 as to the whole October 2015 Shellfish PBA." The court relates that "[t]he Parties do not seriously dispute that portions of [a] December 2014 draft of the Shellfish PBA were disclosed." Additionally, "[p]ortions of  September and December 2014 drafts were shared with various Indian Tribes, the Northwest Indian Fisheries Commission, and the EPA." "Moreover, the Corps admits that an unauthorized release of [a] December 2014 draft of the Shellfish PBA occurred." "Still, [the court finds that ]the current draft of the Shellfish PBA has never been released outside of the Corps and the Services." The court explains that "[w]aiver of a FOIA exemption as to one document does not extend to other documents." "Moreover, should the Corps reveal the mere differences between the prior drafts and the current draft of the Shellfish PBA, it likely will expose the internal deliberations undertaken to create the October 2015 draft."
- Procedural Requirements, "Reasonably Segregable" Obligation: "[T]he Court finds that the Corps has met its burden in showing that it has released all reasonably segregable portions of the Shellfish PBA" because even "the factual material itself reveals the relative policy priorities the Corps (and perhaps the Services) are advancing in an effort to streamline prospective permit applications."