Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., No. 17-16560, 2019 WL 2297454 (9th Cir. May 30, 2019) (Berg, J.)

Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., No. 17-16560, 2019 WL 2297454 (9th Cir. May 30, 2019) (Berg, J.)

Re:  Request for records concerning rule-making process for cooling water intake structures

Disposition:  Affirming in part and reversing in part district court's grant of requester's motion for summary judgment; amending earlier December 21, 2018 opinion

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Ninth Circuit holds that "the district court's order to produce [two] draft jeopardy biological opinions . . . , [one reasonable and prudent alternative], and the remaining statistical and instructional documents . . . is affirmed because the record shows that these materials are not both pre-decisional and deliberative . . . ."  However, the court also finds that "[t]he district court's order to produce [one reasonable and prudent alternative] and [one] draft jeopardy opinion . . . is reversed because these materials are both pre-decisional and deliberative and thus exempt from disclosure under FOIA Exemption 5."
   
  Regarding the pre-decisional issues, the court holds that one draft biological opinion "does not appear to represent the conclusion of the agency on the likely impact of [a] final . . . rule, but rather is an interim step, communicated only internally" and is therefore predecisional.  "[The court] also agree[s] that [one reasonable and prudent alternative] [is] pre-decisional because [it] appear[s] to be earlier drafts of [another]."  "[The court] disagree[s] with the Services, however, that [two] draft jeopardy opinions . . . are pre-decisional."  "These two jeopardy opinions represent the final view of the Services regarding the then-current . . . proposed rule."  Responding to the requester's objection, the court finds that "'[m]aterial which predate[s] a decision chronologically, but did not contribute to that decision is not predecisional in any meaningful sense.'"  The court explains that "[the] 2013 jeopardy opinions pre-date the May 2014 no jeopardy opinion, but address and thus make final conclusions about a different version of the EPA's rule."  "These earlier opinions therefore were not pre-decisional with respect to the later opinion, which addressed a different proposed rule."  Finally, the court finds that other documents "were largely instructional, and intended to explain best practices for mitigating the projected, harmful effects of the November 2013 proposed rule[,]" and, therefore, "[t]hey were not early-stage recommendations for mitigating the impacts of [a] revised, March 2014 rule, and are thus not pre-decisional . . . ."
   
  Regarding the deliberative issue, the court holds that "[w]ith three exceptions noted below, the contested documents here are not 'deliberative.'"  The court finds that the draft biological opinions "are final products that reflect the agencies' findings on the jeopardy posed by the November 2013 proposed rule, and their recommendations for mitigating the harmful impacts of that rule."  The court also rejects as irrelevant that the documents "were referred to as 'draft' documents" because "these documents do not reveal more about the internal deliberative process."  However, the court finds that some reasonable and prudent alternatives "do appear to be successive drafts of the Services' recommendations for the November 2013 proposed rule."  "By comparison, disclosure of [one reasonable and prudent alternative] will offer no insights into the agency's internal deliberations."  "It appears to be the final version in a progression of agency recommendations about how to amend the November 2013 proposed rule."  "Finally, [the court] agree[s] with the Services that . . . [one] draft jeopardy biological opinion is deliberative."  The court explains that "it addresses [a] revised rule . . . ."  "A reader could thus conceivably reconstruct some of the deliberations that occurred between the [two] opinions by comparing the two."
   
  Circuit Judge Wallace, dissenting in part, explains that "[t]he majority overlooks the 'context of the administrative process which generated' the December draft opinions."  "They were part of an inter-agency consultation process."  "The regulations governing that process make clear that the purpose of agency review is to allow the Services to consider changes to the draft opinion based on the agency's comment."  "The majority’s decision sets out a categorical rule that the deliberative process privilege protects only documents 'reflecting the opinions of individuals or groups of employees rather than the position of an entire agency'" but "[t]he Supreme Court has spoken decisively on this point: 'By including inter-agency memoranda in Exemption 5, Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency not possessing such decisional authority without requiring that the advice be any more disclosable than similar advice received from within the agency.'"