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Sierra Club, Inc. v. United States Fish and Wildlife Service

United States Court of Appeals, Ninth Circuit

May 30, 2019

Sierra Club, Inc., Plaintiff-Appellee,
v.
United States Fish and Wildlife Service; National Marine Fisheries Service, Defendants-Appellants.

          Argued and Submitted March 15, 2018 San Francisco, California

          Filed December 21, 2018

          Appeal from the United States District Court No. 3:15-cv-05872-EDL for the Northern District of California Elizabeth D. Laporte, Magistrate Judge, Presiding.

          Thomas 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.

          Reed W. Super (argued) and Michael DiGiulio, 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.

          Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Terrence Berg, [*] District Judge.

         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 nondisclosure 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.

         ORDER

         The 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.

         A 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.

         Future petitions for rehearing or rehearing en banc will not be entertained in this case.

          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 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, 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 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' 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.
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 ...

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