and Submitted March 15, 2018 San Francisco, California
December 21, 2018
from the United States District Court No. 3:15-cv-05872-EDL
for the Northern District of California Elizabeth D. Laporte,
Magistrate Judge, Presiding.
Pulham (argued) and H. Thomas Byron III, Appellate Staff;
David L. Anderson, United States Attorney; Joseph H. Hunt,
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C., for Washington,
D.C., for Defendants-Appellants.
W. Super (argued) and Michael DiGiulio, Super Law Group LLC,
New York, New York, for Plaintiff-Appellee.
A. Goho, Emmett Environmental Law & Policy Clinic,
Harvard Law School, Cambridge, Massachusetts, for Amicus
Curiae Union of Concerned Scientists.
Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
Judges, and Terrence Berg, [*] District Judge.
of Information Act
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.
5 of FOIA shields documents subject to the "deliberative
process privilege" from disclosure.
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.
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 nondisclosure under FOIA
Exemption 5, the panel reversed the district court's
order for their production.
panel instructed the district court on remand to perform a
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.
Opinion filed December 21, 2018 and reported at 911 F.3d 967
is hereby amended. The amended opinion will be filed
concurrently with this order.
majority of the panel has voted to deny the petition for
panel rehearing. The full court was advised of the petition
for rehearing en banc. No judge requested a vote on whether
to rehear the matter en banc pursuant to Fed. R. App. P.
35(f). The petition for panel rehearing and the petition for
rehearing en banc are DENIED.
petitions for rehearing or rehearing en banc will not be
entertained in this case.
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.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. 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.
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
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).
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, 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.
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.
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
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.
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
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 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'
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.
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).
summary, the key chronological dates in this FOIA dispute
• 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.
• 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,
• 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
• March 31, 2014: The Services send the
EPA a document requesting clarification regarding their