Sierra Club, Inc. v. U.S. Fish and Wildlife Serv.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIERRA CLUB, INC., No. 17-16560
Plaintiff-Appellee,
D.C. No.
v. 3:15-cv-05872-
EDL
UNITED STATES FISH AND WILDLIFE
SERVICE; NATIONAL MARINE
FISHERIES SERVICE, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted March 15, 2018
San Francisco, California
Filed December 21, 2018
Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
Judges, and Terrence Berg, * District Judge.
Opinion by Judge Berg;
Partial Concurrence and Partial Dissent by Judge Wallace
*
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
2 SIERRA CLUB V. USFWS
SUMMARY **
Freedom of Information Act
The panel affirmed in part and reversed in part the
district court’s decision that ordered the U.S. Department of
Fish and Wildlife Services and the National Marine Fisheries
Service to turn over 12 of 16 requested records in a Freedom
of Information Act (“FOIA”) action brought by the Sierra
Club challenging the Services’ denial of their request for
records generated during the Environmental Protection
Agency’s rule-making process concerning cooling water
intake structures.
Exemption 5 of FOIA shields documents subject to the
“deliberative process privilege” from disclosure.
The panel held the December 2013 draft jeopardy
biological opinions, the accompanying statistical table, the
accompanying instructional documents, and the March 2014
reasonable and prudent alternative (RPA) were not both pre-
decisional and deliberative. The panel therefore affirmed in
part the district court’s summary judgment order requiring
the production of these records.
The panel held that there was sufficient support to
conclude that the December 2013 RPAs and the April 2014
draft jeopardy opinion were pre-decisional and deliberative.
Because these records satisfied the standard for non-
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SIERRA CLUB V. USFWS 3
disclosure under FOIA Exemption 5, the panel reversed the
district court’s order for their production.
The panel instructed the district court on remand to
perform a segregability analysis.
Judge Wallace concurred in the result reached by the
majority as to the April 2014 draft opinion and the December
2013 RPAs, and dissented from the result reached by the
majority as to the rest of the documents because he disagreed
with the majority that the deliberative process privilege did
not protect the December draft opinions and other
documents.
COUNSEL
Thomas Pulham (argued), Appellate Staff, Civil Division,
United States Department of Justice, Washington, D.C., for
Washington, D.C., for Defendants-Appellants.
Reed W. Super (argued) and Michael DiGuglio, Super Law
Group LLC, New York, New York, for Plaintiff-Appellee.
Shaun A. Goho, Emmett Environmental Law & Policy
Clinic, Harvard Law School, Cambridge, Massachusetts, for
Amicus Curiae Union of Concerned Scientists.
4 SIERRA CLUB V. USFWS
OPINION
BERG, District Judge:
Across the United States, thousands of large industrial
facilities, power plants, and other manufacturing and
processing complexes draw billions of gallons of water each
day from lakes, rivers, estuaries and oceans in order to cool
their facilities through cooling water intake structures. 1
These structures can harm fish, shellfish, and their eggs by
pulling them into the factory’s cooling system; they can
injure or kill other aquatic life by generating heat or releasing
chemicals during cleaning processes; and they can injure
larger fish, reptiles and mammals by trapping them against
the intake screens. 2 Section 316(b) of the Clean Water Act,
33 U.S.C. § 1326(b), directs the Environmental Protection
Agency (EPA) to regulate the design and operation of
cooling water intake structures to minimize these adverse
effects.
In April 2011, the EPA proposed new regulations under
Section 316(b) for cooling water intake structures. 76 Fed.
Reg. 22,174 (April 20, 2011). The final rule was published
in the Federal Register in August 2014. Final Regulations to
Establish Requirements for Cooling Water Intake Structures,
79 Fed. Reg. 48,300 (Aug. 15, 2014) (to be codified at
40 C.F.R. pts. 122 & 125). As part of the rule-making
process, EPA consulted with Appellants, the United States
Fish and Wildlife Service (FWS) and the National Marine
Fisheries Service (NMFS) (collectively, the Services), about
1
Riverkeeper, Inc. v. EPA, 358 F.3d 174, 181 (2d Cir. 2004).
2
See Cooling Water Intakes, Envtl. Protection Agency,
https://www.epa.gov/cooling-water-intakes.
SIERRA CLUB V. USFWS 5
the impact the regulation might have under the Endangered
Species Act (ESA). Section 7 of the ESA and implementing
regulations require federal agencies to consult with the
Services whenever an agency engages in an action that “may
affect” a “listed species” (i.e., one that is protected under the
ESA). 50 C.F.R. § 402.14(a). The purpose of the
consultation is to ensure that the agency action is “not likely
to jeopardize the continued existence” or “result in the
destruction or adverse modification of habitat” of any
endangered or threatened species. 16 U.S.C. § 1536(a)(2);
50 C.F.R. § 402.14(a). As part of this Section 7 consultation
process, the Services must prepare a written biological
opinion on whether the proposed agency action is one that
poses “jeopardy” or “no jeopardy” to the continued existence
of a listed species or critical habitat. 50 C.F.R.
§ 402.14(h)(3). If the opinion concludes that the agency
action causes “jeopardy,” the Services must propose
“reasonable and prudent alternatives” (RPAs) to the action
that would avoid jeopardizing the threatened species.
16 U.S.C § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)(8),
(h)(3). 3
Appellee, the Sierra Club, made a Freedom of
Information Act (“FOIA”) request to the Services for records
generated during the EPA’s rule-making process concerning
cooling water intake structures, including documents
generated by the Services as part of an ESA Section 7
consultation about the rule. The Services withheld a number
of the sought-after records under “Exemption 5” of FOIA,
3
The Second Circuit in a consolidated case recently denied a
petition to review several challenges to this final rule under the Clean
Water Act, the Administrative Procedures Act, and the Endangered
Species Act. Cooling Water Intake Structure Coal. v. EPA, 898 F.3d 173
(2d Cir. 2018), amended, 2018 WL 4678440 (2d Cir. Sept. 27, 2018).
6 SIERRA CLUB V. USFWS
which shields documents subject to the “deliberative process
privilege” from disclosure. See 5 U.S.C. § 552(b)(5); see
also Kowack v. U.S. Forest Serv., 766 F.3d 1130, 1135 (9th
Cir. 2014). The district court determined that 12 of the
16 requested records were not protected by the privilege, in
whole or in part, and ordered the Services to turn them over
to the Sierra Club. The Services now appeal. We affirm in
part and reverse in part.
I. BACKGROUND
a. Factual History
In 2012, the EPA began an informal consultation process
with the Services about a proposed rule for regulating the
requirements governing the operation of cooling water
intake structures. The EPA requested a formal consultation
on the proposed rule in 2013. On November 4, 2013, the
Services received a revised version of the proposed rule from
the Office of Management and Budget (OMB). On
November 15, 2013, the Services sent a “Description of the
Action” (i.e. a summary of what the Services thought the
proposed rule set out to do) to the EPA. Finally, on
November 26, 2013, the EPA responded with corrections to
the Services’ description of the rule and the Services
incorporated the EPA’s corrections. The EPA and the
Services tentatively agreed that the FWS and NMFS would
each provide a draft biological opinion to the EPA by
December 6, 2013, and a final opinion by December 20,
2013.
After reviewing the November 2013 proposed rule, both
Services prepared draft opinions finding that the rule in its
then-current form was likely to cause jeopardy for ESA-
protected species and negatively impact their designated
critical habitats. The Services also proposed RPAs to
SIERRA CLUB V. USFWS 7
accompany those jeopardy opinions. At the same time,
NMFS discussed whether the jeopardy opinions should be
sent to “the Hill” or OMB, or posted to its docket, which was
publicly available at regulations.gov.
NMFS completed its draft jeopardy opinion on
December 6, 2013 and FWS completed its draft jeopardy
opinion on December 9, 2013, both for transmission to the
EPA. The ESA regulations require that the Services make
draft opinions available to the Federal agency that initiated
the formal consultation upon request. 50 C.F.R.
§ 402.14(g)(5). Here, the Services sent the EPA portions of
its December 2013 draft jeopardy opinions, but never
formally transmitted them in their entirety.
On December 12, 2013, the FWS Deputy Solicitor called
and emailed the EPA General Counsel to “touch base . . .
about transmitting a document to EPA.” He also emailed
“the current draft RPAs” to the EPA that same day. On
December 17, 2013, the NMFS sent a “Revised Combined
NMFS and USFWS RPA” to the EPA. The Services have
further indicated in their briefing that they also provided
other unspecified portions of the draft jeopardy opinions to
the EPA.
After the transmission of these partial December 2013
jeopardy biological opinions and accompanying documents,
the EPA issued a new version of the rule, the “final Rule and
Preamble,” which it sent to the Services on March 14, 2014.
On April 7, 2014, NMFS employees completed and
internally circulated a draft of another jeopardy biological
opinion. During this same time frame, the Services and the
EPA discussed whether the EPA agreed with the Services’
interpretation and understanding of the March 2014 final
rule: On March 31, 2014 the Services sent the EPA a
document “seeking clarification on the Services’
8 SIERRA CLUB V. USFWS
understandings of key elements in EPA’s proposed action.”
On April 8, 2014, EPA “provided confirmation on the
Services’ description and understanding of the key elements
of EPA proposed action.” Finally, on May 19, 2014, the
Services issued a joint final “no jeopardy” biological opinion
regarding the March 2014 final rule. The EPA issued the
regulation that same day, and it was published in the Federal
Register on August 15, 2014. Final Regulations to Establish
Requirements for Cooling Water Intake Structures, 79 Fed.
Reg. 48,300.
On August 11, 2014, the Sierra Club submitted FOIA
requests to the Services for records related to this ESA
Section 7 consultation. In response, the Services produced a
large quantity of documents (some of which were partially
redacted). The Services withheld other documents under
FOIA Exemption 5, which protects “inter-agency or intra-
agency memorandums or letters that would not be available
by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5).
In summary, the key chronological dates in this FOIA
dispute are:
• June 18, 2013: EPA initiates formal consultation
under ESA Section 7 with the Services regarding the
proposed rule.
• November 4, 2013: The Services receive the most
recent version of the EPA’s proposed rule from
OMB.
• November 15, 2013: The Services send the
Description of the Action (i.e. a summary of their
understanding of the proposed rule) to the EPA for
review.
SIERRA CLUB V. USFWS 9
• November 26, 2013: EPA sends the Services its
corrections and comments on the Description of the
Action, which the EPA incorporated into the final
description of the November 2013 proposed rule.
• December 3, 2013: The Services inform the EPA
that their draft opinions are “jeopardy opinions” and
will be completed on or around December 6, 2013.
• December 6, 2013: NMFS completes its draft
jeopardy opinion.
• December 9, 2013: FWS completes its draft
jeopardy opinion.
• December 12, 2013: FWS Deputy Solicitor calls the
EPA General Counsel to “touch base . . . about
transmitting a document to EPA.”
• December 12 & 17, 2013: The Services email two
RPAs—written to accompany the draft jeopardy
opinions—to the EPA.
• March 14, 2014: EPA sends the Services a new,
final rule for review and Biological Opinion analysis.
• March 31, 2014: The Services send the EPA a
document requesting clarification regarding their
understanding of elements of the final rule.
• April 7, 2014: NMFS employees internally circulate
a draft jeopardy biological opinion relating to the
March 14, 2014 proposed rule; this draft is not sent
to EPA.
10 SIERRA CLUB V. USFWS
• April 8, 2014: EPA confirms the Services’
interpretations and understanding of the final rule
contained in the Services’ clarification document.
• May 19, 2014: The Services issue a joint final no
jeopardy biological opinion regarding the March 14,
2014 proposed rule.
b. Procedural History
On December 21, 2015, the Sierra Club filed suit against
the Services, arguing that they had improperly withheld
documents under FOIA Exemption 5. The parties filed
cross-motions for summary judgment regarding their
release. During and after that hearing the district court and
the parties narrowed the list of contested documents to 16.
The district court found that 4 of the disputed documents
were fully protected under Exemption 5 but ordered that the
Services produce one document in part and the other eleven
in full. 4 The Services timely appealed the district court’s
4
Although the district court initially cited the correct test for FOIA
Exemption 5—that exempt documents must be both “pre-decisional”
and “deliberative” to avoid disclosure—the test it applied to each
document was whether it was a “relatively polished draft” that contained
“subjective comments, recommendations, or opinions.” These factors,
though they might bear on whether a document was “pre-decisional” or
“deliberative,” are not dispositive—and to the extent the district court’s
analysis depended solely on these factors, it was in error. Because the
standard of review on appeal from an Exemption 5 challenge is de novo,
however, we have examined each of the contested documents to
determine whether they satisfy the “pre-decisional” and “deliberative”
test.
SIERRA CLUB V. USFWS 11
order to produce the documents, and the parties stipulated to
stay of production pending appeal. 5
The documents at issue on appeal—those that the district
court found were not exempt from disclosure—were
submitted to the panel under seal for in camera review. They
are:
1. Biological Opinions
i. “NMFS 44516.1”: A 289-page NMFS draft
jeopardy biological opinion dated December
6, 2013;
ii. “FWS 252”: A 72-page FWS draft jeopardy
biological opinion dated December 9, 2013;
iii. “NMFS 5427.1”: A 334-page NMFS draft
jeopardy biological opinion dated April 7,
2014; 6
2. Reasonable and Prudent Alternatives (RPAs)
i. “FWS 279”: A 4-page FWS RPA, dated
December 17, 2013;
5
Sierra Club did not cross-appeal to challenge the district court’s
holding that four of the requested documents were completely protected
under Exemption 5.
6
The draft opinion itself is undated. The district court opinion states
that it was dated April 4, 2014, but the affidavit submitted on behalf of
the agency that created it states it was sent via email on April 7, 2014.
We therefore refer to it as the April 7, 2014 draft opinion.
12 SIERRA CLUB V. USFWS
ii. “FWS 308”: A 3-page FWS RPA, dated
December 18, 2013;
iii. “FWS 555”: A 2-page FWS RPA, dated
March 6, 2014.
3. Other Documents
i. “NMFS 61721”: A 1-page statistical table
showing estimated aggregate effects of
cooling water intake structure facilities on
protected species;
ii. “NMFS 5597.1”: A 2-page document that
describes steps that facility owners/operators
must take if abalone, an endangered species,
is affected by their cooling water intake
structures;
iii. “NMFS 7544.2”: A 15-page document on
Anadromous Salmonid Requirements that
provides criteria and guidelines to be utilized
by owner/operators in the development of
downstream migrant fish screen facilities for
hydroelectric, irrigation, and other water
withdrawal projects;
iv. “NMFS 37695”: A 2-page document that
lists the steps that owner/operators must
follow if a seal, sea lion, or fur seal, or their
designated critical habitat, may be affected
by a cooling water intake structure;
v. “NMFS 37667”: A 3-page document that
lists the steps that owner/operators must
SIERRA CLUB V. USFWS 13
follow if sea turtles are affected by their
cooling water intake structures;
vi. “NMFS 14973”: A 5-page document that
lists the terms and conditions with which the
EPA and an owner/operator must comply in
order to be exempt from Section 9 of the
ESA. These terms and conditions involve the
protocols for dealing with sea turtles near
cooling water intake structures. The district
court held NMFS could redact one sentence
but had to disclose the rest of the document.
II. STANDARD OF REVIEW
In FOIA cases, this court reviews summary judgment
determinations de novo. Animal Legal Def. Fund v. U.S.
Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en
banc).
III. DISCUSSION
Section 522 of Title 5, FOIA, “mandates a policy of
broad disclosure of government documents.” Maricopa
Audubon Soc. v. U.S. Forest Serv., 108 F.3d 1082, 1085 (9th
Cir. 1997) (Maricopa I) (quoting Church of Scientology v.
Dep’t of the Army, 611 F.2d 738, 741 (9th Cir. 1979)
(internal quotations omitted)). Agencies may withhold
documents only pursuant to the exemptions listed in
§ 552(b). See id.
Here, the Services argue that the 12 documents the
district court ordered them to produce to the Sierra Club are
protected under § 552(b)(5) (Exemption 5). Under
Exemption 5, FOIA’s general requirement to make
information available to the public does not apply to “inter-
14 SIERRA CLUB V. USFWS
agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in
litigation with the agency . . . .” 5 U.S.C. § 552(b)(5).
This exemption has been interpreted as coextensive with
all civil discovery privileges. NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 149 (1975). The particular privilege the
Services have claimed here is the “deliberative process
privilege,” which permits agencies to withhold documents
“to prevent injury to the quality of agency decisions by
ensuring that the frank discussion of legal or policy matters
in writing, within the agency, is not inhibited by public
disclosure.” Maricopa Audubon Soc. v. U.S. Forest Serv.,
108 F.3d 1089, 1092 (9th Cir. 1997) (Maricopa II) (quoting
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150–51
(1975) (internal quotations omitted)).
Because FOIA is meant to promote disclosure, its
exemptions are interpreted narrowly. Assembly of Cal. v.
U.S. Dep’t of Commerce, 968 F.2d 920 (9th Cir. 1992)
(citing Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). The
dissent argues that because the FOIA Exemption 5 privileges
“inter-agency or intra-agency memorandums or letters” and
because the documents at issue here were transmitted
between agencies, they should be exempt from disclosure.
We agree that the documents must be considered in the
context in which they were produced, Sears, Roebuck & Co.,
421 U.S. at 138. But a document’s origins as part of the inter-
agency consultation process between the EPA and the
Services, see 50 C.F.R. § 402.14(a), only relate to a
threshold requirement for applying Exemption 5—that the
document is an “inter-agency or intra-agency
memorandum.” Beyond that threshold, “to qualify [under
the deliberative process privilege] a document must thus
satisfy two conditions: its source must be a Government
SIERRA CLUB V. USFWS 15
agency and it must fall within the ambit of a privilege against
discovery under judicial standards that would govern
litigation against the agency that holds it.” Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001).
This circuit has defined the ambit of the deliberative
process privilege under Exemption 5 narrowly. It “applies
only if disclosure of the materials would expose an agency’s
decision-making process in such a way as to discourage
candid discussion within the agency and thereby undermine
the agency’s ability to perform its functions.” Kowack,
766 F.3d at 1135 (quoting Maricopa II, 108 F.3d at 1093)
(internal quotations omitted) (finding the Forest Service had
not sufficiently demonstrated that disclosure of redacted
portions of an intra-agency investigative report regarding
alleged employee misconduct contained more than factual,
i.e., deliberative, content).
The Services therefore bear the burden of proving that
the documents they maintain should be exempt from
disclosure are both “pre-decisional and deliberative.” Carter
v. Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir. 2002)
(internal quotations omitted). 7
7
In Cooling Water Intake Structure Coal. v. EPA, 898 F.3d 173 (2d
Cir. 2018), amended, 2018 WL 4678440 (2d. Cir. Sep. 27, 2018), the
plaintiffs asked to supplement the certified record with what appear to
be the same documents at issue in this case. 2018 WL 3520398 at *7 n.9.
Finding “nothing in the privilege log that would disturb the ‘presumption
of regularity’ afforded to the agencies’ certified record,” id. (citing
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)),
the Second Circuit denied this motion in a footnote, noting that the EPA
had “produced a privilege log that adequately describes the nature of [the
requested documents] and their rationale for classifying [them] as
16 SIERRA CLUB V. USFWS
These pre-decisional and deliberative prongs are
analyzed separately although the issues they address overlap.
Assembly of Cal., 986 F.2d at 920. For the reasons explained
below, we conclude that the December 2013 draft jeopardy
biological opinions (NMFS 44516.1 and FWS 252), the
accompanying statistical table (NMFS 61721), the
accompanying instructional documents (NMFS 5597.1,
NMFS 7544.2, NMFS 37695, NMFS 37667, NMFS
14973.1), and the March 2014 RPA (FWS 555) were not
both pre-decisional and deliberative. We therefore AFFIRM
in part the district court’s summary judgment order requiring
the production of these records. There is, however, sufficient
support for concluding the December 2013 RPAs (FWS 279,
308) and the April 2014 draft jeopardy opinion (NMFS
5427.1) were pre-decisional and deliberative. Because these
records satisfy the standard for non-disclosure under FOIA
Exemption 5, we REVERSE the district court’s order for
their production.
deliberative and therefore privileged,” and thus the Agency had satisfied
their obligation under Fed. R. Civ. P. 26(b)(5)(A)(ii) (requiring that a
party claiming privilege describe the privileged documents in a manner
that allowed other parties to assess the claim). Cooling Water Intake
Structure Coal., 2018 WL 4678440 at *7 n.9. Cooling Water Intake did
not, however, analyze whether the reasons given in the privilege log for
the claims of privilege were justified. Instead, the Second Circuit applied
a “presumption of regularity” regarding the administrative record, not
applicable here. It did not address whether the EPA had carried a burden
of showing that the documents at issue were both deliberative and pre-
decisional, as we must do to determine whether they should be disclosed
under FOIA, Carter, 307 F.3d at 1089. Given the different burdens, we
do not believe that the footnote in that decision suggests a different result
than the one we reach.
SIERRA CLUB V. USFWS 17
a. Pre-decisional
A document is pre-decisional if it is “prepared in order
to assist an agency decision-maker in arriving at his decision,
and may include recommendations, draft documents,
proposals, suggestions, and other subjective documents
which reflect the personal opinions of the writer rather than
the policy of the agency.” Assembly of Cal., 968 F.2d at 920
(citation and internal quotations omitted). The agency
requesting the exemption “must identify a specific decision
to which the document is pre-decisional.” Maricopa II,
108 F.3d at 1094.
Here, the Services argue that the December 2013 and
April 2014 jeopardy opinions, the three RPAs, and all of the
other statistical and instructional documents pre-date the
May 2014 “no jeopardy” opinion and are thus pre-decisional
as to that final opinion.
1. April 2014 NMFS Draft Biological
Opinion
We agree that the April 2014 draft jeopardy opinion
(NMFS 542.71) was prepared as an internal agency
document. It was only circulated between groups of NMFS
employees, and there is nothing in the record that indicates
that the jeopardy finding was communicated even informally
to the EPA. Where one document reflects an earlier position
of the agency—as the April 2014 draft jeopardy opinion
does here when compared with the May 2014 final no
jeopardy opinion—it is pre-decisional as to the issues
addressed in both. See Nat. Wildlife Fed., 861 F.2d at 1120
(documents that were “working drafts” subject to revision
are pre-decisional). In other words, it does not appear to
represent the conclusion of the agency on the likely impact
of the final March 2014 rule, but rather is an interim step,
18 SIERRA CLUB V. USFWS
communicated only internally within NMFS. The document
expressed the agency staff’s initial opinion as to the rule.
NMFS never adopted that opinion as the agency’s; instead,
the NMFS ultimately joined the FWS in a final joint no
jeopardy opinion in May 2014 regarding the final March
2014 rule. 8
2. RPAs
We also agree that the December 2013 RPAs (FWS 279,
308) are pre-decisional because they appear to be earlier
drafts of the third, March 2014 RPA (FWS 555). In other
words, the December 2013 RPAs do not reflect the FWS’
final position regarding the kinds of changes the November
2013 version of the rule needed in order to comply with the
ESA. The December 2013 RPAs, but not the March 2014
RPA, are therefore pre-decisional.
3. 2013 Draft Biological Opinions
We disagree with the Services, however, that the
December 2013 draft jeopardy opinions (NMFS 44516.1;
FWS 252) are pre-decisional. These two jeopardy opinions
8
We recognize the difference between the NMFS April 2014
“jeopardy opinion” and the NMFS and FWS joint May 2014 “no-
jeopardy” opinion, both of which address the March 2014 proposed EPA
rule. The cover letter transmitting the final “no jeopardy” opinion of May
19, 2014 explains that its opinion is based in part on “the Services’
interpretations of that rule as agreed upon by EPA on April 8, 2014.”
These interpretations—obviously considered of key importance to the
Services—were agreed to by EPA during the same time frame that
NMFS was preparing its earlier jeopardy opinion, which it ultimately
decided not to send. Beyond this, we do not know why NMFS decided
to join the final “no jeopardy” opinion after its staff earlier proposed
reaching the opposite conclusion. But “back-and-forth” debate is
precisely the type of deliberative process that Exemption 5 protects.
SIERRA CLUB V. USFWS 19
represent the final view of the Services regarding the then-
current November 2013 proposed rule; the May 2014 no
jeopardy opinion represents the final view of Services
regarding the later March 2014 revised, proposed rule.
Both the Supreme Court and this court have held that the
issuance of a biological opinion is a final agency action.
Bennet v. Spear, 520 U.S. 154, 178 (1997); Ctr. for
Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d
930, 940 (9th Cir. 2006). So our focus is on whether each
document at issue is pre-decisional as to a biological
opinion, not whether it is pre-decisional as to the EPA’s
rulemaking. Although the December 2013 biological
opinions in this case were not publicly issued, they
nonetheless represent the Services’ final views and
recommendations regarding the EPA’s then-proposed
regulation. The purpose of the December 2013 jeopardy
biological opinions and their accompanying documents was
not to advise another decision-maker higher up the chain
about what the Service’s position should be on the proposed
rule. Instead, these opinions, created pursuant to an ESA
Section 7 formal consultation, contain the final conclusions
by the final decision-makers—the consulting Services—
regarding whether a proposed regulation will harm protected
species and habitat. See 50 C.F.R. 402.14(h)(3) (a biological
opinion is “[t]he Service’s opinion on whether the action is
likely to jeopardize the continued existence of listed
species. . . .”) (emphasis added).
Where, as here, a document is created by a final decision-
maker and represents the final view of an entire agency as to
a matter which, once concluded, is a final agency action
independent of another agency’s use of that document, it is
not pre-decisional. Cf. Maricopa II, 108 F.3d at 1094 (Forest
Service’s internal investigative report was prepared to advise
20 SIERRA CLUB V. USFWS
the Chief of the Forest Service on how the agency should
respond to misconduct allegations and was thus pre-
decisional); Kowack v. U.S. Forest Serv., 766 F.3d 1130,
1135 (9th Cir. 2014) (investigative reports prepared by the
Forest Service’s Misconduct Investigations program
manager were meant to assist the agency in making a final
decision regarding how to deal with an employee and were
thus pre-decisional).
The record reflects the finality of the conclusions in the
December 2013 draft jeopardy opinions. The documents had
been approved by final decision-makers at each agency: the
email correspondence in the record indicates Gary Frazer,
the Assistant Director for Ecological Services at FWS who
was responsible for overseeing and administering ESA
consultations, made final edits to the FWS Service
December 9, 2013 jeopardy opinion and that the document
was awaiting his autopen signature. NMFS meanwhile was
preparing “talking points” for its legislative affairs staff and
preparing to release the drafts to the public.
Moreover, the Services’ own account indicates that the
EPA made changes to its proposed regulations after
December 2013—that is, after both Services’ jeopardy
opinions were completed and partially transmitted to the
EPA—and that the “final” May 2014 Biological Opinion
reflected the Services’ opinion concerning the EPA’s later
revised proposed regulation.
The fact that the December 2013 jeopardy opinions pre-
dated the later no jeopardy opinion does not render them pre-
decisional. “[M]aterial which predate[s] a decision
chronologically, but did not contribute to that decision is not
predecisional in any meaningful sense.” Assembly of Cal.,
968 F.2d at 921 (census data prepared by the Department of
Commerce “solely for the purpose of post-decision
SIERRA CLUB V. USFWS 21
dissemination” if the Secretary decided to adjust the census
was not pre-decisional merely because it predated the
Secretary’s decision). The December 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.
4. Other Documents
We disagree with the Services’ arguments that the
remaining documents, which accompanied the December
2013 draft jeopardy opinions, were pre-decisional because
they were either “modified” or excluded from the May 2014
final no jeopardy opinion. These documents—1) a statistical
table showing estimated aggregate effects of cooling water
intake structures on ESA-protected species (NMFS 61721);
2) several instructional documents for cooling water intake
structure operators detailing how to abate the harmful
impacts of those structures on specific species (NMFS
5597.1, “Abalone Measures”), (NMFS 7544.2, “Andromous
Salmonid Measures”), (NMFS 37695, “Pinniped
Measures”), and (NMFS 37667, “Sea Turtle
Requirements”); and 3) “Terms and Conditions” that
operators of cooling water intake structures must follow in
implementing the RPAs (NMFS 14973.1)—were largely
instructional, and intended to explain best practices for
mitigating the projected, harmful effects of the November
2013 proposed rule. They were not early-stage
recommendations for mitigating the impacts of the revised,
March 2014 rule, and are thus not pre-decisional as to the
May 2014 no jeopardy opinion the Services issued in
response to that later rule.
22 SIERRA CLUB V. USFWS
b. Deliberative
To shield documents from disclosure under Exemption
5, the Services must not only show that they are pre-
decisional, but also that they are deliberative. Maricopa II,
108 F.3d at 1093. Examples of “deliberative” materials
include “recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect
the personal opinions of the writer rather than the policy of
the agency” or that “inaccurately reflect or prematurely
disclose the views of the agency.” Nat’l Wildlife Fed’n v.
U.S. Forest Serv., 861 F.2d 1114, 1118–19 (9th Cir. 1988)
(quoting Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 866 (D.C. Cir. 1980)). With three exceptions
noted below, the contested documents here are not
“deliberative.”
The Supreme Court has cautioned against relying on a
“wooden” facts-versus-opinions dichotomy for determining
whether a document is deliberative. Assembly of Cal.,
968 F.2d at 921 (citing EPA v. Mink, 410 U.S. 73, 91
(1973)). Accordingly, this circuit applies a “functional
approach,” which considers whether the contents of the
documents “reveal the mental processes of the decision-
makers” and would “expose [the Services’] decision-making
process in such a way as to discourage candid discussion
within the agency and thereby undermine [their] ability to
perform [their] functions.” Id. at 920–21.
After conducting a de novo review of the documents, we
conclude that only three—the December 2013 RPAs (FWS
279, 308) and April 2014 draft jeopardy opinion (NMFS
5427.1)—could reveal inter- or intra- agency deliberations
and are thus exempt from disclosure.
SIERRA CLUB V. USFWS 23
The Services argue that all the documents at issue are
deliberative because they were created as part of a “lengthy
and complicated” consultation process between the Services
and the EPA about the EPA’s water cooling intake structures
rule—a process during which many drafts of biological
opinions and other documents were circulated intra-agency
and inter-agency and “commented upon by others, revised,
and recirculated for further discussion.” According to the
Services, the Sierra Club’s request is intended to “uncover
any discrepancies between the findings, projection and
recommendations” between jeopardy opinions created by
“lower-level” Services personnel and the final joint no
jeopardy opinion. (quoting Nat’l Wildlife Fed’n, 861 F.2d at
1122).
The underlying concern in National Wildlife Federation
was that releasing “working drafts” and comments on Forest
Plans and Environmental Impact Statements (EISs) prepared
by “lower-level” Forest Service employees would “reveal
the mental processes” that went into choosing and publishing
a final Forest Plan and EIS. Id. at 1119–22. In other words,
a reader with access to both these working drafts and the
final plan could “probe the editorial and policy judgment of
the decision-makers” who selected and issued the final plan.
Id.
The draft Forest Plans in National Wildlife Federation
were a collection of “tentative opinions and
recommendations of Forest Service employees”; the draft
EISs compared these alternative Forest Plan proposals,
thereby revealing the agency’s deliberations in choosing a
final plan. Id. at 1121–22. This understanding of
“deliberative”—meaning reflecting the opinions of
individuals or groups of employees rather than the position
of an entire agency—is shared among the circuits. See, e.g.,
24 SIERRA CLUB V. USFWS
Moye, O’Brien, Hogan & Pickert v. Nat’l R.R. Passenger
Corp., 376 F.3d 1270, 1279 (11th Cir. 2004) (Amtrak OIG
“audit work papers and internal memoranda” that “lower
level staff” played a “significant role” in authoring were
deliberative); Grand Cent. Partnership, Inc. v. Cuomo,
166 F.3d 473, 483 (2d Cir. 1999) (emails between HUD
employees that discussed their personal opinions on an
investigation into misconduct by a HUD funding recipient
were deliberative); Providence Journal Co. v. U.S. Dep’t of
Army, 981 F.2d 552, 560 (1st Cir. 1992) (Inspector General
Reports that were “essential to the consultative process
within the agency” were deliberative) (emphasis added)).
The dissent makes a similar point about the ongoing
nature of the consultative process to argue that documents
exchanged between the Services and the EPA during that
process are protected inter-agency memoranda. It cites to the
ESA Section 7 regulations to point out that the Services
“shall make available to the Federal agency the draft
biological opinion for the purpose of analyzing the
reasonable and prudent alternatives.” 50 C.F.R. § 402.14(a).
The agency may in turn submit comments to the Service
regarding the draft biological opinion within a given window
of time, at which point the Service may receive an extension
on the time for issuing the opinion. Id.
Nothing in the documents at issue here indicates whether
the EPA sent these types of comments to the Services, how
those comments impacted the Services’ jeopardy/no
jeopardy conclusion, or anything else about what the
substance of those comments might have been. Such
documents would likely satisfy the two aforementioned
conditions of 1) being an inter-agency memorandum that
2) fell within the ambit of deliberative process.
SIERRA CLUB V. USFWS 25
In the case before the court, we know that the draft
opinion was transmitted piecemeal to the EPA, the Services
and the EPA agreed to extend the time frame for the
consultation, and that “[u]ltimately based on changes to the
regulation, the Services’ final conclusion was that the
regulation”—the final version—“was not likely to
jeopardize the continued existence of listed species nor
likely to destroy or adversely modify critical habitat.”
(emphasis added). The fact that the decision to revise the rule
after the jeopardy finding was the result of additional back-
and-forth between the Services and the EPA—deliberative
discussions that are not memorialized in the documents
before us—does not render the December 2013 opinions or
accompanying documents pre-decisional or deliberative as
to the Services’ opinion about the November 2013 version
of the EPA regulation or as to the Services’ later conclusion
about a different version of the rule.
1. 2013 Draft Biological Opinions and
Other Documents
After reviewing the documents in this case in camera to
make a de novo determination, we conclude that neither the
December 2013 draft jeopardy opinions (NMFS 44516.1;
FWS 252), nor the accompanying statistical and
instructional documents (NMFS 5597.1, NMFS 7544.2,
NMFS 37695, NMFS 37667, NMFS 14973.1) were
prepared by low-level officials, or contain merely tentative
findings. These 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.
We note that the documents do not contain line edits,
marginal comments, or other written material that expose
any internal agency discussion about the jeopardy finding.
26 SIERRA CLUB V. USFWS
Nor do these documents contain any insertions or writings
reflecting input from lower level employees. 9 The two
December 2013 opinions both state they were prepared on
behalf of the entire agency and represent that agency’s
opinion. And the record shows that preparations were being
made for the NMFS opinion (NMFS 44516.1), as is, to be
publicly “roll[ed] out” and published in the administrative
record; the FWS opinion (FWS 252), which includes its
agency’s seal/header, had received final edits from a senior
official and was just awaiting his autopen signature.
The only thing the December 2013 draft jeopardy
opinions have in common with the draft Forest Plans and
EISs in National Wildlife Federation is that they were
referred to as “draft” documents. But to treat them similarly
would ignore clear substantive distinctions. Unlike the
documents in National Wildlife Federation, these opinions
and accompanying documents represent the final view of the
Services on the likely impact of the then-proposed
regulation. These final jeopardy opinions from December
2013 pertain to a different rule and are not “earlier draft”
versions of the no jeopardy opinion from May 2014; that
later opinion addressed a new and different proposed rule. 10
Moreover, taking seriously our obligation to consider the
underlying purpose of the deliberative process privilege,
these documents do not reveal more about the internal
9
The NMFS December 2013 jeopardy opinion (NMFS 44516.1)
does contain two insertions that could possibly be editorial notes not
intended to be included in the final report. For that reason, we instruct
the district court to redact these lines from that report.
10
As discussed earlier, the NMFS did prepare a jeopardy opinion
concerning the March 2014 rule, which was pre-decisional as to the final
no jeopardy joint opinion on that rule.
SIERRA CLUB V. USFWS 27
deliberative process that the Services went through before
issuing their joint May 2014 no jeopardy opinion than what
the Services themselves have already disclosed during this
litigation: that the initial proposed regulation resulted in final
drafts of jeopardy opinions in December 2013, that the EPA
received portions of those opinions and proposed a revised
regulation at some point after that, and that the Services
ultimately issued a no jeopardy opinion for that revised,
proposed regulation. Nor do the December 2013 jeopardy
opinions reveal either the Services’ internal deliberative
processes that lead to reaching those opinions or the EPA’s
internal deliberative process that resulted in revising the
draft regulation. Cf. Assembly of Cal. v. U.S. Dep’t of Comm.
968 F.2d 916, 922–23 (9th Cir. 1992) (disclosing final
census figures would not reveal the deliberative process in
reaching those figures, particularly when the method used to
generate the data was already a matter of public record).
Nor would releasing these opinions and accompanying
documents allow a reader to reconstruct the “mental
processes” that lead to the production of the May 2014 no
jeopardy opinion by allowing one to compare an early draft
of that opinion to the final opinion. There is no later draft of
the Services’ opinion regarding the November 2013 version
of the rule that a discerning reader could compare to the two
December 2013 opinions requested here.
Again, the statistical table (NMFS 61721) and the
instructional documents and terms and conditions (NMFS
5597.1, NMFS 7544.2, NMFS 37695, NMFS 37667, NMFS
14973.1) summarize the Services’ best practices and
recommendations for mitigating environmental harm to
certain species, and effectively monitoring the welfare of
certain protected species should they appear in the vicinity
of a water cooling intake structure. They do not reveal any
28 SIERRA CLUB V. USFWS
internal discussions about how those recommendations were
vetted and are thus not deliberative.
2. RPAs
Our analysis regarding the December 2013 RPAs (FWS
279, 308) is different from our analysis concerning the
December 2013 Draft Biological Opinions and Other
Documents because, as discussed above, they do appear to
be successive drafts of the Services’ recommendations for
the November 2013 proposed rule. And comparing these
drafts would shed light on FWS’ internal vetting process.
Thus, considering de novo whether the Services have carried
their burden in showing that these documents are
deliberative, we find that they have done so.
By comparison, disclosure of only the March 2014 RPA
(FWS 555) 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. The Services have
offered no evidence that there were any subsequent versions
of this RPA addressing the November 2013 proposed rule.
The March 2014 RPA is therefore not deliberative.
3. April 2014 NMFS Draft Biological
Opinion
Finally, we agree with the Services that the NMFS April
2014 draft jeopardy biological opinion is deliberative. As
discussed above, it addresses the revised rule that the EPA
proposed in March 2014. A reader could thus conceivably
reconstruct some of the deliberations that occurred between
the April 2014 and May 2014 opinions by comparing the
two. Additionally, the Acting Assistant Administrator for
NMFS testified in an affidavit provided to the district court
SIERRA CLUB V. USFWS 29
that this draft of the jeopardy opinion was only circulated
internally between one employee and a group of other lower-
level employees. The April 2014 draft jeopardy opinion is
therefore deliberative and subject to Exemption 5.
IV. CONCLUSION
For the foregoing reasons the district court’s order to
produce the December 2013 draft jeopardy biological
opinions (NMFS 44516.1 and FWS 252), the March 2014
RPA (FWS 555), and the remaining statistical and
instructional documents (NMFS 5597.1, NMFS 61721,
NMFS 7544.2, NMFS 37695, NMFS 37667, NMFS
14973.1) is AFFIRMED because the record shows that
these materials are not both pre-decisional and deliberative
and therefore not exempt under §522(b)(5) of FOIA,
Exemption 5.
The district court’s order to produce the December 2013
RPAs (FWS 279, 308) and the April 2014 draft jeopardy
opinion (NMFS 5427.1) is REVERSED because these
materials are both pre-decisional and deliberative and thus
exempt from disclosure under FOIA Exemption 5. The
parties agree that reversal would require the district court to
perform a segregability analysis on remand. We instruct the
district court to perform that analysis.
The case is REMANDED for further proceedings
consistent with this opinion.
30 SIERRA CLUB V. USFWS
WALLACE, Circuit Judge, concurring in the result in part
and dissenting in part:
I concur in the result reached by the majority as to the
April 2014 draft opinion (NMFS 5427.1) and the December
2013 RPAs (FWS 279, 308). I dissent from the result
reached by the majority as to the rest of the documents. I
respectfully disagree with my colleagues that the
deliberative process privilege does not protect the December
draft opinions (NMFS 44516.1, FWS 252) and other
documents.
The majority overlooks the “context of the
administrative process which generated” the December draft
opinions. NLRB. v. Sears, Roebuck & Co., 421 U.S. 132, 138
(1975). They were part of an inter-agency consultation
process. 50 C.F.R. § 402.14(a). 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 comments. Specifically, the
regulations forbid the Services from issuing the final opinion
before the agency has had time to comment on the draft and
build in time for the Services to revise a draft opinion to
incorporate or respond to any agency comments. See
50 C.F.R. § 402.14(g)(5) (Services cannot issue the final
opinion “prior to the 45-day or extended deadline while the
draft is under [the agency’s] review” and if the agency
submits comments within 10 days of the final opinion
deadline, the Services are entitled to a 10-day deadline
extension). The preamble to the regulations explains that the
“release of draft opinions to Federal agencies . . . facilitates
a more meaningful exchange of information,” “may result in
the development and submission of additional data, and the
preparation of more thorough biological opinions,” and
“helps ensure the technical accuracy of the opinion.”
SIERRA CLUB V. USFWS 31
Interagency Cooperation—Endangered Species Act of 1973,
51 Fed. Reg. 19,926, 19,952 (June 3, 1986). Therefore, the
regulations governing formal consultations set up a process
by which the Services may receive feedback from the agency
on draft opinions.
Moreover, a formal consultation may involve not only
the Services making a jeopardy decision, but also a decision
about what alternative actions are reasonable and prudent,
so-called RPAs. The Services and the agency “work[]
closely” on the “development of [RPAs]” contained in a
jeopardy opinion. Id. The “provision to review draft
biological opinions” provides the necessary “exchange of
information for the development of [RPAs].” Id. The
Services “will, in most cases, defer to the Federal agency’s
expertise and judgment” as to whether a draft RPA is
feasible, but if the Services disagree, the Services make the
ultimate call. Id. Thus, even though the Services have
discretion as to whether to accept the EPA’s comments, the
purpose of agency review is to seek the agency’s advice on
the draft opinion. Seeking comments on a document
presupposes the ability to make changes to it, showing it is
pre-decisional. It also shows the deliberative nature of the
process. Accordingly, the administrative context shows that
draft opinions are generally both pre-decisional and
deliberative.
A quick look at the record in this case dispels any doubt
that the December draft opinions are pre-decisional and
deliberative. The FWS draft opinion requests that the EPA
“provide any comments” and states that the FWS would
need about ten days after receiving comments, assuming
they are not substantial, to issue the final opinion. Likewise,
the government submitted declarations of two management-
level Service employees stating that the drafts were subject
32 SIERRA CLUB V. USFWS
to revision. Gary Frazer, assistant director of the FWS, stated
that both draft opinions “were subject to internal review
within FWS and the Department of the Interior and
consultation with the EPA.” Samuel D. Rauch, an
administrator at the NMFS, stated that by transmitting a draft
opinion to the EPA, the “NMFS is not rendering a final
decision” and the document “remains a draft and is subject
to change until final signature.”
The majority asserts that there is nothing in the record
that “indicates whether the EPA sent . . . comments to the
Services” on the December draft opinions. Of course, there
is not. As the majority observes, the Services “never
formally transmitted” the drafts to the EPA. The EPA could
not mark up a document it never received. The record,
however, is clear that the EPA and the Services engaged in
extensive discussions about the draft opinions before and
after the December 6 deadline. As the deadline approached,
the Services decided based on “internal review and
interagency review in December” that “additional
consultation [with the EPA] was needed to better understand
and consider the operation of key elements of EPA’s rule.”
The EPA and the Services “agreed[ ] that more work needed
to be done and agreed to extend the time frame for the
consultation.” That the EPA and the Services jointly
concluded the draft opinions needed more work shows their
predecisional and deliberative nature: the Services had not
made a final decision as of December and the deliberative
process was ongoing.
SIERRA CLUB V. USFWS 33
The majority and Sierra Club argue that because the
December draft opinions were the Services’ “final” word on
the November 2013 regulations, the opinions are not pre-
decisional. I disagree. The Services’ decision would become
final only “once the biological opinion is issued.” Ctr. for
Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d
930, 940 (9th Cir. 2006); see also Bennett v. Spear, 520 U.S.
154, 177–78 (1997). The majority’s observation that the
December draft opinions did not contribute to the Services’
later decision about the March 2014 regulations is beside the
point. The draft opinions are pre-decisional as to the
November 2013 regulations, which the EPA changed before
finalizing. That the Services never gave their final word as
to those regulations does not strip the drafts of their
privileged status. A draft that “die[s] on the vine . . . . is still
a draft and thus still pre-decisional and deliberative.” Nat’l
Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014); see
also Sears, 421 U.S. at 151 n.18 (privilege may apply even
if documents “do not ripen into agency decisions”).
The majority and Sierra Club contend that the December
draft opinions are not deliberative because the Services’
management had vetted them and they represented the view
of the “entire” Services. But even if true, those facts do not
show that the drafts are not deliberative. It is well established
that circulation of a draft opinion to another agency does not
change its privileged status, any more than circulation within
the agency. The 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.” Renegotiation Bd. v.
34 SIERRA CLUB V. USFWS
Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188 (1975).
Here, the Services had decisional authority in preparing the
opinions, but sought advice from the EPA about the
decision. Grumman Aircraft teaches that is precisely the type
of inter-agency process that Congress designed the privilege
to protect.
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.” This
rule contravenes Grumman Aircraft, which acknowledged
Exemption 5’s parity between inter- and intra-agency drafts.
421 U.S. at 188. There the Supreme Court explained,
“Exemption 5 does not distinguish between inter-agency and
intra-agency memoranda.” Id. Unsurprisingly, the out-of-
circuit cases the majority cites provide no support for its ill-
founded rule, much less do they reflect that this view “is
shared among the circuits” as the majority claims. In each
cited case, the court concluded that the deliberative process
privilege protected the documents at issue. Moye, O’Brien,
O’Rourke, Hogan & Pickert v. Nat’l R.R. Passenger Corp.,
376 F.3d 1270, 1278 (11th Cir. 2004); Grand Cent. P’ship,
Inc. v. Cuomo, 166 F.3d 473, 483 (2d Cir. 1999); Providence
Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 562–63
(1st Cir. 1992). Therefore, even if the majority is right that
these cases show that “opinions of individuals or groups of
employees” are generally deliberative, they do not support
the contrary proposition that “the position of an entire
agency” can never be deliberative.
SIERRA CLUB V. USFWS 35
Sierra Club makes much of the fact that “the Services
typically include draft biological opinions in their
administrative records.” Again, even if true, the
government’s waiver of privilege in some contexts does not
waive the privilege here, see Assembly of Cal. v. U.S. Dep’t
of Commerce, 968 F.2d 916, 922 n.5 (9th Cir. 1992), a point
that Sierra Club concedes.
Finally, Sierra Club argues that the Services’ draft
opinions are “significant, legally-mandated drafts, apart
from any number of internal or ‘working drafts.’” It argues
that they are “formal documents reflecting and conveying
the Services’ conclusions at a prescribed point in the
consultation process.” This argument reflects a
misunderstanding of the governing regulation. It does not
require draft opinions shared with the EPA to be
“significant” or to constitute a formal statement of the
Services’ conclusions. The regulation states that the Services
must, upon the agency’s request, “make available to the
Federal agency the draft biological opinion for the purpose
of analyzing the [RPAs].” 50 C.F.R. § 402.14(g)(5). The
regulation, however, does not provide that a draft opinion
shared with an agency be at any particular level of
completion or approval. For example, nothing appears to
preclude the EPA from requesting to see a draft at the
beginning of the process. It also does not require that the
Services ever provide a draft opinion to the EPA if the EPA
does not request it. Given that “Exemption 5 does not
distinguish between inter-agency and intra-agency” drafts,
Grumman Aircraft, 421 U.S. at 188, a draft opinion sent to
the EPA is no more disclosable than a draft sent from one
working group within the Service to another.
36 SIERRA CLUB V. USFWS
In conclusion, the administrative process that generated
the draft opinions shows that they are pre-decisional and
deliberative. They are pre-decisional because they do not
reflect the Services’ final jeopardy and RPA decisions as to
the November 2013 regulations. They are deliberative
because they are “part of the deliberative process” by which
the Services and the EPA consult on those decisions. Nat’l
Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1118 (9th
Cir. 1988). I conclude that the Services may withhold them.
The deliberative process privilege also protects the other
documents at issue in this case. Because the NMFS never
finalized or adopted the April draft jeopardy opinion (NMFS
5427.1), my analysis above applies to it with equal force.
The same is true for the three draft RPAs (FWS 279, FWS
308, FWS 555), which were part of never-finalized jeopardy
opinions. In addition, the Services should be able to withhold
the four species-specific protective measures (NMFS
5597.1, NMFS 7544.2, NMFS 37695, NMFS 37667), the
affected species table (NMFS 61721), and the terms and
conditions (NMFS 14973.1). The protective measures are
earlier versions of those included in the final opinion.
Likewise, NMFS decided not to include the table in the final
opinion after deliberations among scientists. Finally, NMFS
staff circulated the terms and conditions internally as a
possible precedent for a section of the final opinion. In each
case, the documents are privileged because disclosure would
allow Sierra Club to “probe the editorial and policy
judgment of the decisionmakers” by comparing the draft
versions to what the Services finally published. Nat’l
Wildlife, 861 F.2d at 1122.
SIERRA CLUB V. USFWS 37
In conclusion, I would reverse the district court’s
judgment ordering production of all twelve documents and
instruct it to perform a segregability analysis on remand. 1
1
The Second Circuit recently sustained the Services’ assertion of
the deliberative process privilege over the critical documents at issue in
this case: the three draft biological opinions and the three draft RPAs.
Cooling Water Intake Structure Coal. v. EPA, 905 F.3d 49, 65 n.9 (2d
Cir. 2018). The court held that the Services’ privilege log “adequately
describes the nature of the . . . requested documents and their rationale
for classifying those documents as deliberative and therefore privileged.”
Id. While we do not have the privilege log’s descriptions of the
documents, the Second Circuit described them as “draft documents
produced by the Services during consultation with the EPA.” Id. These
key facts—that the documents were subject to change and that they
reflect a joint deliberative process—are the basis for my dissent.