Desert Survivors, et al v. US Department of the Interior, et al

Filing 81

ORDER re 34 MOTION to Complete the Administrative Record. Signed by Judge Joseph C. Spero on February 6, 2017. (jcslc1S, COURT STAFF) (Filed on 2/6/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DESERT SURVIVORS, et al., Case No. 16-cv-01165-JCS Plaintiffs, 8 v. ORDER RE MOTION TO COMPLETE THE ADMINISTRATIVE RECORD 9 10 US DEPARTMENT OF THE INTERIOR, et al., Defendants. 11 United States District Court Northern District of California Re: Dkt. No. 34 12 13 14 I. INTRODUCTION In this case, Plaintiffs challenge (1) the decision of the U.S. Fish and Wildlife Service 15 (“Service” or “FWS”) to withdraw the proposed listing of the Bi-State Sage-Grouse as 16 “threatened” under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, and (2) the 17 new listing policy on which that reversal was based, namely, the Service‟s “Final Policy on 18 Interpretation of the Phrase „Significant Portion of its Range‟ in the Endangered Species Act” (the 19 “SPR Policy”). The Service provided two separate administrative records, one for its final listing 20 determination for the bi-state distinct population segment of greater sage-grouse in California and 21 Nevada (“bi-state DPS AR”) and another for the SPR Policy (the “SPR Policy AR”). The dispute 22 that is presently before the Court involves the Service‟s withholding of documents from the SPR 23 Policy AR on the basis that they are protected by the deliberative process privilege. 24 In their Motion to Complete the Administrative Record (“Motion”), Plaintiffs asked the 25 Court to compel production of all of the documents listed on Defendants‟ SPR Policy AR 26 privilege log that were withheld only on the basis of the deliberative process privilege, a total of 27 301 documents. Based on Defendants‟ subsequent representation that none of these documents 28 reflects “the agency‟s consideration of political, economic, or other non-statutory factors in its 1 development of the SPR Policy,” see Docket No. 79, Plaintiffs have now limited their request to 2 the 55 documents that Defendants have identified as “Regional office comments on the SPR 3 Policy.” 4 A hearing on the Motion was held on January 13, 2017 and the Court held a further status 5 conference in connection with the dispute on January 27, 2016. For the reasons stated below, the 6 Court concludes that the balancing test set forth in F.T.C. v. Warner Communications Inc., 742 7 F.2d 1156, 1159 (9th Cir. 1984) governs the question of whether the 55 documents Plaintiffs seek 8 are protected under the deliberative process privilege. As the Court explained at the January 27, 9 2017 status conference, the Court intends to conduct an in camera review of ten sample documents (selected by Plaintiffs after Defendants have provided a more detailed privilege log) 11 United States District Court Northern District of California 10 and will solicit briefs from the parties as to the specific factors the Court should consider in 12 conducting its review. The purpose of this Order is to rule on certain general arguments raised by 13 the parties and to set forth the principles that will guide the Court in conducting its in camera 14 review and ultimately, in making its determinations as to whether the sample documents must be 15 produced.1 16 17 II. BACKGROUND A. 18 The SPR Policy and the Withdrawal of the Proposed Listing of the Bi-State Sage Grouse The ESA requires the Service to list a species as endangered or threatened if it “is in 19 20 danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. §§ 1532(6), 21 1533. In Defenders of Wildlife v. Norton, the Ninth Circuit found that this language is “inherently 22 ambiguous.” 258 F.3d 1136, 1141 (9th Cir. 2001). In particular, the court found that “to speak of 23 a species that is „in danger of extinction‟ throughout „a significant portion of its range‟ may seem 24 internally inconsistent, since „extinction‟ suggests total rather than partial disappearance.” Id. In 25 that case, the court rejected the Secretary of the Interior‟s assertion that the “significant portion of 26 its range” language means that “a species is eligible for protection under the ESA if it faces threats 27 1 28 The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). 2 1 in enough key portions of its range that the entire species is in danger of extinction, or will be 2 within the foreseeable future.” Id. at 1141 (internal quotation omitted) (emphasis in original). The 3 court reasoned, If . . . the effect of extinction throughout “a significant portion of its range” is the threat of extinction everywhere, then the threat of extinction throughout “a significant portion of its range” is equivalent to the threat of extinction throughout all its range. Because the statute already defines “endangered species” as those that are “in danger of extinction throughout all . . . of [their] range,” the Secretary‟s interpretation of “a significant portion of its range” has the effect of rendering the phrase superfluous. 4 5 6 7 8 9 Id. at 1142. The court in Defenders of Wildlife v. Norton went on to examine the legislative history of 11 United States District Court Northern District of California 10 the Endangered Species Act, concluding that Congress intended to provide broader protections to 12 species in danger of extinction than had been afforded under two previous laws enacted in the 13 1960s to protect endangered species, the Endangered Species Conservation Act, Pub.L. 91-135 § 14 3(a), 83 Stat. 275 (Dec. 5, 1969), and the Endangered Species Preservation Act, Pub.L. 89-669 § 15 1(c), 80 Stat. 926 (Oct. 15, 1966). Id. The court explained that those laws defined endangered 16 species narrowly to include “only those species facing total extinction.” Id. The “significant 17 portion of its range” language in the ESA was thus a major change in the law, the court found, and 18 allows a species to be listed when “there are major geographical areas in which it is no longer 19 viable but once was” even if the entire species is not in danger of extinction. Id. at 1145. 20 In 2007, the Department of the Interior‟s Office of the Solicitor issued a memorandum 21 opinion (“2007 Memorandum Opinion” or “Memorandum”) regarding the “significant portion of 22 its range” language in order to assist the Service in developing a policy on this question in the 23 wake of Defender’s of Wildlife v. Norton and other decisions in which courts had struggled with 24 this question. SPR AR at SPR000427-62. In the Memorandum, the Solicitor agreed with the 25 Ninth Circuit that this language should not be interpreted to require that a species‟ viability as a 26 whole must be threatened in order for it to be found endangered in a significant portion of its 27 range, though it disagreed with certain aspects of the court‟s analysis. Id. at SPR00429-32. 28 On December 9, 2011, the Department of the Interior published a notice of a draft policy in 3 1 the Federal Register regarding the interpretation and application of the phrase “significant portion 2 of its range” in the ESA. Draft Policy on Interpretation of the Phrase “Significant Portion of Its 3 Range” in the Endangered Species Act‟s Definitions of “Endangered Species” and “Threatened 4 Species,” 76 FR 76987-01. The Service noted that “[d]espite the fact that the definitions of 5 „endangered species‟ and „threatened species‟ have been part of the Act since its enactment in 6 1973, prior to 2007, neither [FWS nor NMFS] had adopted a regulation or binding policy defining 7 or explaining the application of the phrase „significant portion of its range,‟ an element common to 8 both definitions.” Id. In July 2014, after receiving comments from the public, the Service announced its final 9 10 policy interpretation (the SPR Policy), which provides as follows: A portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion‟s contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. United States District Court Northern District of California 11 12 13 14 15 Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered 16 Species Act‟s Definitions of “Endangered Species” and “Threatened Species,” 79 FR 37578-01. On April 23, 2015, the Service withdrew a proposed listing of the Bi-State Sage Grouse as 17 18 threatened or endangered, applying the SPR Policy and finding that “threats identified in the 19 proposed rule have been reduced such that listing is not necessary for this [Distinct Population 20 Segment].” Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule To 21 List the Bi-State Distinct Population Segment of Greater Sage-Grouse and Designate Critical 22 Habitat, 80 FR at 22829, 22852-53 (“Withdrawal Decision”). The proposed listing had been 23 published in October 2013 and the public comment period ended on September 4, 2014. Id. at 24 22828-29. 25 26 B. The Withheld Documents The documents requested by Plaintiffs in the Motion were withheld solely on the grounds 27 of the deliberative process privilege. See Declaration of Alicia Thesing in Support of Plaintiffs‟ 28 Motion to Complete the Administrative Record (“Thesing Decl.”), Ex. B (privilege log listing 4 1 withheld documents at issue); Declaration of Gina Schultz, Docket No. 31-4 (“Schultz Decl. I”). 2 According to the Service‟s Deputy Assistant Director, Gina M. Schultz, these documents fall into 3 four categories: “(1) discussions and deliberations of the core FWS and [National Marine Fisheries 4 Service („NMFS‟)] „SPR Team‟ . . . ; (2) FWS Regional Office comments on the Final SPR Policy 5 (including FWS and NMFS Regional Offices), and internal FWS and NMFS discussions regarding 6 the same; (3) interagency discussions arising out of the federal interagency review process 7 coordinated by OMB for the Final SPR Policy; and (4) additional internal deliberative discussions 8 amongst FWS, [U.S. Department of the Interior (“DOI”)], and/or NMFS employees (some of 9 whom were not part of the SPR Team).” Declaration of Gina M. Schultz, Docket No. 60-2 10 (“Schultz Decl. II”) ¶ 6. As noted above, Plaintiffs have now limited their Motion to the documents in the second United States District Court Northern District of California 11 12 category, consisting of the Regional Offices‟ comment on the Final SPR Policy. According to Ms. 13 Schultz, this category contains fifty-five documents that “pertain to comments received by the 14 SPR Team from FWS and NMFS Regional Offices.” Id. ¶ 8. She further states, “[t]he comments 15 received from the Regional Offices, as well as any subsequent discussions on the comments, 16 provide views and recommendations from FWS and NMFS staff and managers related to the 17 development of the SPR Policy.” Id. 18 19 C. The Motion In the Motion, Plaintiffs argue that the assertion of the deliberative process privilege in this 20 case is inconsistent with the judicial scrutiny that is provided for under the APA and will 21 significantly impede meaningful judicial review by this Court of the decisions that are the subject 22 of Plaintiffs‟ claims. Motion at 6-13. 23 First, Plaintiffs point to the “whole record” requirement under the APA. Id. at 6. In 24 particular, the APA provides that when reviewing agency action under the APA to determine 25 whether it is arbitrary, capricious or an abuse of discretion, courts are to “review the whole 26 record.” Motion at 6 (quoting 5 U.S.C. § 706(2)(A)). According to Plaintiffs, the “whole record” 27 includes “everything that was before the agency pertaining to the merits of its decision.” Id. 28 (quoting Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 5 1993) (internal citation omitted)). The court‟s review will not be meaningful, Plaintiffs contend, if 2 the record is incomplete. Id. at 6-7 (citing Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 3 1043, 1052 (2d Cir. 1985) (“Courts cannot intelligently perform their reviewing function if an 4 administrative record is inadequate, incomplete or, as here, inconsistent.”). This is because an 5 “agency-curated” record will “sufficiently articulate the agency‟s reasoning [but] likely will omit 6 contrary evidence that is important and relevant to effective judicial review of the decision.” Id. at 7 7 (citing Exxon Corp. v. Dep’t of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 1981) (“The „whole‟ 8 administrative record, therefore, consists of all documents and materials directly or indirectly 9 considered by agency decision-makers and includes evidence contrary to the agency‟s position.”). 10 The DOI itself recognizes this principle, according to Plaintiffs, stating in its service 11 United States District Court Northern District of California 1 manual that “„[a]ll records that people involved in the decision used or that were available to them 12 when they were making the decision‟ should be included in the administrative record.” Id. 13 (quoting Fish & Wildlife Service Manual, “Records Management,” 282 FW 5.4, 5.8 (March 2, 14 2007)). Similarly, Plaintiffs contend, “the Department of the Interior advises that an 15 administrative record typically includes „[c]ommunications and other information received from 16 the public and other agencies and any responses to those communications . . . without regard to 17 whether they support or oppose the agency decision or whether the [Administrative Record] 18 Coordinator believes they contain privileged information.‟” Id. (quoting DOI, Standardized 19 Guidance on Compiling a Decision File and an Administrative Record). 20 Plaintiffs argue that in this case, where their challenge is to an implementing policy that 21 they contend will have operational effects that are contrary to the purposes of the ESA, the 22 Service‟s reliance on the deliberative process privilege is particularly troubling because these 23 documents “discuss the operational effects of the agency decision by those charged with 24 implementing it” and therefore, are an “indispensable” part of the administrative record. Id. Their 25 omission, according to Plaintiffs, will “directly undercut[] the whole purpose of APA section 26 706(2) – to foster meaningful judicial scrutiny of executive agency action.” Id. 27 28 Next, Plaintiffs look at the specific nature of the withheld documents, over two thirds of which “appear to be emails from scientists or regional officers concerning the proposed policies.” 6 1 Id. at 8. Plaintiffs contend these documents are likely to contain “factual or other relevant 2 information” about the potential impact of the proposed SPR Policy on species within the 3 scientists‟ geographic region or area of expertise and that such information is highly relevant to 4 the review that the Court must conduct under Section 706(2). Id. As an example of the 5 importance of such documents, Plaintiffs point to Center for Biological Diversity v. Kempthorne, 6 No. CV 07-0038-PHX-MHM, 2008 WL 659822, at *11 (D. Ariz. Mar. 6, 2008). Id. In that case, 7 the court found that a decision not to list the Desert bald eagle as endangered was arbitrary and 8 capricious based, in part, on comments by FWS regional biologists regarding the threat posed to 9 that species. Plaintiffs also contend inter- and intra-agency communications by other agency officials have been used by courts in reviewing decisions and actions by the Service that 11 United States District Court Northern District of California 10 implement the ESA. Id. (citing Defenders of Wildlife v. Salazar, 842 F. Supp. 2d 181 (D.D.C. 12 2012)). 13 Plaintiffs also point to the history of the deliberative process privilege, and more broadly, 14 “the concept of an executive branch privilege,” to argue that neither the statutory nor common law 15 origins of such a privilege provide a “foundation for allowing an agency to withhold documents 16 from the full administrative record simply because those documents might express concerns of 17 agency personnel about the impacts or wisdom of the decision or might offer information that 18 conflicts with the decision ultimately adopted.” Id. at 9-11 (citing Gerald Wetlaufter, Justifying 19 Secrecy: An Objection to the General Deliberative Privilege, 65 Ind. L.J. 845, 856-83 (1990)). 20 With respect to statutory origins, Plaintiffs cite the Housekeeping Act of 1798 and the Freedom of 21 Information Action (“FOIA”) of 1966. Id. at 10. The former allowed executives to keep 22 documents secret and was revoked in 1958, according to Plaintiffs. Id. (citation omitted). FOIA 23 exempts from its disclosure requirements “inter-agency or intra-agency memorandums or letters 24 that would not be available by law to a party other than an agency in litigation with the agency, 25 provided that the deliberative process privilege shall not apply to records created 25 years or more 26 before the date on which the records were requested.” 5 U.S.C. § 552(b)(5). Plaintiffs contend 27 this “exemption from FOIA disclosure of public documents before an agency makes a decision 28 was Congress‟ way of promoting candid discussions of policy options . . . [by] prevent[ing] 7 1 requesters from obtaining automatic public disclosure of internal agency opinions while the 2 agency is deliberating a policy decision.” Motion at 10. That rationale does not apply, however, 3 to APA review of decisions that have already been made to determine whether they are arbitrary, 4 capricious or an abuse of discretion, Plaintiffs assert. Id. 5 Executive privileges recognized under the common law, such as state secrets, identity of 6 informers and mental processes privileges, are also inapplicable, Plaintiffs contend. Id. at 10-11. 7 According to Plaintiffs, the Supreme Court in Citizens to Preserve Overton Park v. Volpe, 8 recognized that “its review of [an agency decision] under the APA‟s „arbitrary and capricious‟ 9 standard must be „based on the full administrative record that was before the [agency] at the time he made his decision.‟” Id. at 11 (citing401 U.S. 402, 420 (1971)). In that case, Plaintiffs 11 United States District Court Northern District of California 10 contend, the Court drew a clear distinction between “probing the mental processes of decision 12 makers, which generally is protected by the deliberative processes privilege” and reviewing “a full 13 administrative record, which is required for effective APA review.” Id. at 11. 14 Anticipating the Service‟s reliance on F.T.C. v. Warner Communications Inc., 742 F.2d 15 1156, 1159 (9th Cir. 1984) in support of its assertion of privilege, Plaintiffs argue that that case is 16 not on point because it did not involve an APA record review but rather, an FTC enforcement 17 action in which the defendants sought disclosure of internal memoranda that contained not only 18 discoverable information but also the agency‟s enforcement litigation recommendations (which 19 were not discoverable). Id. at 13. According to Plaintiffs, because the discoverable information 20 could also be obtained from other sources in that case, the court upheld the assertion of the 21 deliberative processes privilege as to the memoranda. Id. The factors considered in that case are 22 “nonsensical in the context of APA policy decision,” Plaintiffs assert. Id. 23 Plaintiffs also reject the Service‟s reliance on Center for Biological Diversity v. Jewell, No. 24 4-cv-02506-RM (D. Ariz. June 14, 2016) (Marquez, J.) (“CBD I”), in which the court found that 25 the deliberative process privilege applied to the same 301 documents that the Service contends are 26 privileged here. Id. at 12 n. 5. According to Plaintiffs, that case is distinguishable on procedural 27 and substantive grounds, even though the plaintiffs in that case, like Plaintiffs here, challenged a 28 decision not to list a species (the pygmy owl) and the SPR Policy. Id. In particular, according to 8 1 Plaintiffs, the decision not to list the pygmy owl was not based on the SPR Policy, in contrast to 2 this case. Id. Moreover, the court in that case did not address the question of whether the 3 deliberative processes privilege is applicable in APA case and instead assumed it was, applying 4 the four-factor test set forth in Warner. Id. Plaintiffs also point out that CBD I has no precedential 5 value and therefore is not binding on this Court. Id. 6 Finally, Plaintiffs argue that even if the deliberative process privilege applied, it would be “extremely narrow” and would protect only predecisional documents that “are „so candid and 8 personal in nature that public disclosure is likely in the future to stifle honest and frank 9 communication within the agency.‟” Id. at 13 (quoting Morley v. Cent. Intelligence Agency, 508 10 F.3d 1108, 1126 (D.C. Cir. 2007) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 11 United States District Court Northern District of California 7 854, 866 (D.C. Cir. 1980))). In addition, they assert, the privilege does not protect factual material 12 that does not reveal deliberative processes. Id. (citing Morley, 508 F.3d at 1127 (quoting Paisley 13 v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. 14 Cir. 1984))). Plaintiffs contend the Service has made no showing that the documents it seeks to 15 withhold meet these standards. Id. 16 In its Opposition brief, the Service contends its assertion of the deliberative processes 17 privilege is proper because the withheld documents are both predecisional and deliberative. 18 Opposition at 1-2, 7-8 (citing FTC v. Warner Communications, 742 F.2d 1156, 1161 (9th Cir. 19 1984) (per curiam)). It rejects Plaintiffs‟ assertion that the deliberative processes privilege is not 20 available in APA cases brought under Section 706(2), arguing that “[c]ourts in this Circuit and 21 elsewhere have consistently upheld the assertion of the deliberative process privilege in the APA 22 judicial review context.” Id. at 9 (citing CBD I, No. 14-cv-02506-RM (D. Ariz. June 14, 2016); 23 Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 14-cv-1667 PSG, 2015 WL 24 3606419, at *3 (C.D. Cal. Feb. 4, 2015) (“CBD II”); Modesto Irrigation Dist. v. Gutierrez, No. 06- 25 cv-00453 OWW DLB, 2007 WL 763370, at *12 (E.D. Cal. Mar. 9, 2007); Oceana, Inc. v. Locke, 26 634 F.Supp.2d 49, 52 (D.D.C. 2009); Overton Park, 401 U.S. at 420; San Luis Obispo Mothers 27 for Peace v. U.S. Nuclear Regulatory Commission, 789 F.2d 26, 45 (D.C. Cir. 1986); Norris & 28 Hirshberg, Inc. v. SEC, 163 F.2d 689, 693 (D.C. Cir. 1947)). The Service notes that “the Ninth 9 1 Circuit has also upheld the withholding of documents under the deliberative process privilege in 2 other contexts, such as discovery . . . and [FOIA] responses.” Id. at 10 n. 6 (citing Hongsermeier 3 v. Comm’r of Internal Revenue, 621 F.3d 890, 904 (9th Cir. 2010)(discovery); Warner, 742 F.2d 4 at 1162 (discovery); Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 984 (9th Cir. 2009) (FOIA)). 5 The Service places particular emphasis on CBD I, in which Judge Marquez concluded, after reviewing in camera the same 301 documents that the Service withholds here, that the 7 deliberative privilege applied. Id. at 10. In that case, in which Center for Biological Diversity was 8 also a plaintiff (along with other plaintiffs who are not involved in the instant action), the court 9 found that the documents were both predecisional and deliberative and concluded that they were 10 protected under the deliberative processes privilege based on consideration of the factors set forth 11 United States District Court Northern District of California 6 in Warner. Id. The court did not, however, address the question of whether the deliberative 12 process privilege was available in APA record review cases because that issue was not raised. Id. 13 n. 7. According to the Service, Plaintiffs do not explain why they did not raise this issue in CBD I. 14 Id. The Service rejects Plaintiffs‟ attempt to distinguish that case on the basis that the listing 15 decision was “not intimately related” to the SPR Policy given that in that case, as in this one, the 16 plaintiffs brought a separate challenge to the SPR Policy. Id. 17 Defendants argue that Plaintiffs‟ reliance on the “whole record” provision of the APA 18 “overstates the scope of a record considerably.” Id. at 12. According to Defendants, the “whole 19 record” need not “encompass any potentially relevant document” or include “privileged 20 documents such as deliberative inter-agency memoranda.” Id. (citing Fund for Animals v. 21 Williams, 245 F.Supp.2d 49, 57 n.7 (D.D.C. 2003); CBD I, No. 14-cv-02506-RM (D. Ariz. June 22 14, 2016); Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 370 (D.C. Cir. 1981); Oceana, 23 634 F.Supp.2d at 52; Modesto, 2007 WL 763370, at *4-5; Ariz. Rehab. Hosp. v. Shalala, 185 24 F.R.D. 263, 267 (D. Ariz. 1998)). Defendants assert that permitting an agency to withhold 25 deliberative processes documents as privileged “makes sound sense because such a privilege 26 „enhance[s] the quality of agency decisions by protecting open and frank discussion among those 27 who make them within the Government.‟” Id. at 13 (quoting U.S. Dep’t of Interior v. Klamath 28 Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) and citing Lahr, 569 F.3d at 981; Sellers v. 10 1 IRS, No. 08-cv-00553-AC, 2009 WL 700647, at *11 (D. Or. Mar. 17, 2009)). Defendants contend 2 “[c]ourts in this Circuit thus have repeatedly recognized the risk that „debate and deliberation 3 could not occur if any difference of opinion along the way could establish a basis for finding the 4 final decision arbitrary.‟” Id. at 14 (quoting Guidiville Rancheria of Cal. v. United States, No. 12- 5 cv-01326 YGR, 2013 WL 6571945, at *8 (N.D. Cal. Dec. 13, 2013); and citing CBD II, 2015 WL 6 3606419, at *7; Nw. Envtl. Advocates v. EPA, No. 05-cv-01876-HA, 2009 WL 349732, at *3 (D. 7 Or. Feb. 11, 2009)). 8 9 Other policy reasons cited by Defendants for supporting the deliberative processes privilege are that it “protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon” 11 United States District Court Northern District of California 10 and “protects the integrity of the decision-making process itself by confirming that „officials 12 should be judged by what they decided[,] not for matters they considered before making up their 13 minds.‟” Id. at 14 n. 10 (quoting Sellers v. IRS, No. 08-cv-00553-AC, 2009 WL 700647, at *11 14 (D. Or. Mar. 17, 2009) (internal citation omitted)). 15 Here, the Service contends it “has identified a substantial risk that „the quality of future 16 internal deliberations . . . would suffer‟ if the withheld deliberative process documents are added 17 to the record.” Id. at 15 (quoting Shultz Decl. I at ¶7; see also Shultz Decl. II at ¶11). Schultz 18 states in her declaration that “[i]f the candid views of staff contained in emails were required to be 19 disclosed in the administrative record, the quality of future internal deliberations on resource 20 issues would suffer . . .[because] FWS and other federal agency employees would hesitate to give 21 their complete, honest recommendations on issues via email based on fears that these candid 22 recommendations would be provided to, and misunderstood by, the public and other entities with 23 whom FWS deals . . . on a frequent basis.” Schultz Decl. I at ¶ 7. She further states that “the 24 working drafts of the SPR Policy contain comments from personnel on significant legal or policy 25 matters” and that “FWS personnel may hesitate to provide their frank and forthright opinions and 26 recommendations on these draft documents based on fears that candid recommendations would be 27 broadcast outside the agency and misunderstood outside of context.” Id. In short, she opines, 28 “this material, if disclosed, would significantly and adversely impair the integrity and quality of 11 1 2 the decision making process for future FWS policy decisions.” Id. Defendants further assert that disclosure of these documents would be improper because 3 “the SPR Policy must be „judged in accordance with its stated reasons.‟” Opposition at 15 4 (quoting In re Subpoena Duces Tecum Served on Office of Comtroller of Currency, 156 F.3d 1279 5 (D.C. Cir. 1998)). Therefore, Defendants contend, “Plaintiffs should not be permitted „to probe 6 the editorial and policy judgment‟ of decision-makers or seek to “„uncover any discrepancies 7 between the findings, projections, and recommendations‟ in draft documents and those in final 8 decision documents.” Id. (quoting In re Subpoena Duces Tecum, 156 F.3d at 1279 (emphasis 9 added) and Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114 (9th Cir. 1988)). Defendants reject Plaintiffs‟ reliance on internal documents such as the Service Manual or 11 United States District Court Northern District of California 10 the DOI guidance document, arguing that both of the documents cited by Plaintiffs recognize that 12 privileged documents may be excluded from the administrative record. Id. at 16-17 (citing 282 13 FW 5, Compiling a Decision File and an Administrative Record (Mar. 2, 2007); Interior, Office of 14 the Solicitor, Standardized Guidance on Compiling a Decision File and an Administrative Record 15 (June 27, 2006)). Defendants also argue that Plaintiffs have not met their burden to show the 16 documents are likely to be important to the Court‟s review when they state that the withheld 17 documents are “likely to include factual or relevant information” from “scientists or regional 18 offices.” Id. at 17 (quoting Motion at 8). Defendants further fault Plaintiffs for their “lack of 19 specificity” to the extent Plaintiffs assert that approximately two thirds of the withheld documents 20 appear to fall within this category without identifying any specific document. Id. at 17 n. 13. 21 Moreover, Defendants assert, even if the documents contain relevant factual information, that 22 information may be withheld if it is “inextricably intertwined” with “policy-making processes.” 23 Id. at 18-19 (citing Pacific Coast Shellfish Growers Ass’n v. v. U.S. Army Corps of Eng’rs, No. 24 16-cv-00193 RAJ, 2016 WL 3000259, at *6 (W.D. Wash. May 25, 2016); Nat’l Wildlife Fed’n, 25 861 F.2d at 111). Finally, Defendants concede that the deliberative process privilege is a qualified 26 privilege that can be overcome under certain circumstances but contend Plaintiffs have waived any 27 such argument by failing to address the four-factor test set forth in Warner for overcoming the 28 privilege. Id. at 20-21 n. 12 1 In their Reply, Plaintiffs assert that Defendants have misrepresented the “prevailing case 2 law” when they assert that “„courts in this Circuit and elsewhere‟ apply the „deliberative process 3 privilege‟ in the [APA] context.” Reply at 1. Most of the cases Defendants cite, according to 4 Plaintiffs, applied the deliberative process privilege in the context of FOIA and discovery requests 5 and did not involve record review under the APA. Id. The former are not applicable here, 6 according to Plaintiffs, because the FOIA cases were decided under a statutory exemption that 7 prevents premature disclosure of pre-decisional documents where a policy is still being developed 8 and no comparable exception exists under the APA. Id. Nor does the rationale that underlies that 9 exemption make sense in the context of an APA record review case, Plaintiffs contend. Id. The logic that underpins the common law mental processes privilege that has been applied in civil 11 United States District Court Northern District of California 10 discovery cases also does not apply, according to Plaintiffs, because it flies in the face of the “very 12 purpose of judicial scrutiny” under the APA, which is to “ensure the integrity and legality of the 13 agency decision process.” Id. Plaintiffs further assert that the cases that are cited by Defendants that do involve the APA 14 15 do not support Defendants‟ position because in those cases, the courts addressed whether the 16 record should be supplemented with information that was not considered by the agency that made 17 the decision “and sometimes did not even exist[ ] at the time of the challenged decision.” Id. at 3 18 (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-744 (1985); Citizens to Preserve 19 Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); Southwest Center for Biological Diversity 20 v. U.S. Forest Service, 100 F. 3d 1443 (9th Cir. 1996); San Luis Obispo Mothers for Peace v. U.S. 21 Nuclear Regulatory Comm’n, 789 F. 2d 26 (D.C. Cir. 1986); Oceana Inc, v. Pritzker, No. 1:15-cv- 22 01220-ESH, slip op. (Dkt. 20) (D.D.C. Nov. 4, 2016); Oceana, Inc. v. Locke, 634 F. Supp. 2d 49 23 (D.D.C. 2009)). That is not the case as to the withheld documents at issue here, Plaintiffs contend. 24 Id. 25 Plaintiffs reject Defendants‟ claim that protection of the withheld documents in APA 26 record review cases is necessary to ensure that agency officials feel free to speak with candor 27 when making decisions. Id. at 7. While such protection may be necessary to ensure candor in the 28 FOIA context, Plaintiffs contend, it is “not a concern in the APA context, where agencies and their 13 1 staff fully understand that administrative records, once a decision becomes final, are subject to 2 review by the courts.” Id. Even if there is a valid concern about candor in connection with APA 3 record review cases, Plaintiffs argue that the Service has not offered any “evidence . . . that the 4 biologists, regional officials and others who commented on the [SPR] Policy would be in any way 5 deterred by the knowledge that their written comments would become part of the APA record.” 6 Id. at 8. Plaintiffs further challenge Defendants‟ assertion that disclosure of the withheld 7 documents would impair the Service‟s decision-making ability on the ground that the authors of 8 many of the documents appear to be staff biologists and regional office staff, who are not 9 responsible for making governmental decisions. Id. at 9 (citing Federal Trade Commission v. 10 Warner Communications, Inc., 742 F.2d 1156 (9th Cir. 1984)). United States District Court Northern District of California 11 Plaintiffs also reject Defendants‟ argument that they have waived the argument that even if 12 the privilege is available in the APA context it is inapplicable under the circumstances here. Id. at 13 9. Plaintiffs contend they addressed the Warner factors in their opening brief and that these 14 factors support the conclusion that the privilege is not properly asserted in this case. Id. at 10-11. 15 Plaintiffs argue that only a handful of cases have applied the deliberative process privilege 16 in APA record review cases and that these are neither “precedential nor persuasive.” Id. at 12-14 17 (addressing the application of the deliberative process privilege in Modesto Irrigation Dist. v. 18 Gutierrez, No. 1:06-cv-00453 OWW DLB, 2007 WL 763370, *4-5 (E.D. Cal. Mar. 9, 2007); 19 Northwest Environmental Advocates v. EPA, No. 05-cv-01876-HA, 2009 WL 349732 (D. Or. Feb. 20 11, 2009); Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 14-cv- 21 1667 PSG, 2015 WL 3606419 (C.D. Cal. Feb. 4, 2015); CBD I, No. 14-cv-02506-RM (D. Ariz. 22 June 14, 2016)). 23 Finally, Plaintiffs contend their request for the documents the Service has withheld is 24 reasonable. Id. at 14. In particular, they assert that they are not asking for “asking for „every 25 document potentially relevant‟ to the Service‟s challenged decision, as Defendants contend. Id. 26 (quoting Opposition at 6, 12). Instead, they are asking only for the documents that “Defendants 27 themselves have asserted were relevant to the challenged decision and considered by the Service” 28 in adopting the SPR Policy. Id. 14 1 III. ANALYSIS A. 3 The deliberative process privilege is a common law privilege, but “[f]ederal courts 4 regularly apply FOIA precedent when interpreting the deliberative process privilege” because that 5 privilege has been incorporated into FOIA in Exemption 5, which “permits nondisclosure of 6 „inter-agency or intra-agency memorandums or letters which would not be available by law to a 7 party other than an agency in litigation with the agency.‟” Nw. Envtl. Advocates v. U.S. E.P.A., 8 No. CIV 05-1876-HA, 2009 WL 349732, at *3 (D. Or. Feb. 11, 2009) (quoting 5 U.S.C. § 9 552(b)(5)). To qualify for protection under the deliberative process privilege, a document must be 10 both (1) “predecisional,” that is, “generated before to the adoption of agency‟s policy or decision” 11 United States District Court Northern District of California 2 and (2) “deliberative,” meaning that it contains opinions, recommendations or advice about agency 12 policies. FTC v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (citing 13 Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980)). The 14 privilege does not cover “[p]urely factual material that does not reflect the deliberative process.” 15 Id. (citation omitted). On the other hand, the privilege applies where the “factual material is so 16 interwoven with the deliberative material that it is not severable.” Id. (citing Binion v. Department 17 of Justice, 695 F.2d 1189, 1193 (9th Cir. 1983)). 18 19 20 21 22 23 24 25 The Deliberative Process Privilege In Coastal States, the court described the purposes of the deliberative process privilege as follows: The privilege has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency‟s action. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). 26 The deliberative process privilege is a qualified privilege. Warner, 742 F.2d at 1161. 27 Thus, a party may obtain disclosure of deliberative materials if it can establish that the need for the 28 materials to allow for accurate fact-finding outweighs the government‟s interest in non-disclosure. 15 1 Id. (citing United States v. Leggett & Platt, Inc., 542 F.2d 655, 658 (6th Cir.1976), cert. denied, 2 430 U.S. 945 (1977); United States v. American Telephone and Telegraph Co., 524 F. Supp. 1381, 3 1386 n. 14 (D.D.C.1981)). The Ninth Circuit in Warner set forth four non-exclusive factors that 4 may be considered in determining whether the litigant has met this requirement: “1) the relevance 5 of the evidence; 2) the availability of other evidence; 3) the government‟s role in the litigation; and 6 4) the extent to which disclosure would hinder frank and independent discussion regarding 7 contemplated policies and decisions.” Id. (citations omitted). “Other factors that a court may 8 consider include: (5) the interest of the litigant, and ultimately society, in accurate judicial fact 9 finding, (6) the seriousness of the litigation and the issues involved, (7) the presence of issues concerning alleged governmental misconduct, and (8) the federal interest in the enforcement of 11 United States District Court Northern District of California 10 federal law.” N. Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003). 12 13 B. Standards Governing Review of the Record Under the APA Under the APA, a reviewing court shall “hold unlawful and set aside agency action, 14 findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or 15 otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Section 706 expressly provides that 16 in determining whether a decision is arbitrary and capricious, “the court shall review the whole 17 record or those parts of it cited by a party . . . .” 5 U.S.C. § 706 (emphasis added). The Ninth 18 Circuit has held that “„[t]he whole record‟ includes everything that was before the agency 19 pertaining to the merits of its decision.” Portland Audubon Soc. v. Endangered Species Comm., 20 984 F.2d 1534, 1548 (9th Cir. 1993) (citing Thompson v. United States Dep’t of Labor, 885 F.2d 21 551, 555-56 (9th Cir.1989)). This includes “„all documents and materials directly or indirectly 22 considered by agency decision-makers and . . . evidence contrary to the agency‟s position.‟” 23 Thompson, 885 F.2d at 555 (quoting Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 32 24 (N.D.Tex.1981)). The court in Portland Audubon Society reasoned that “[a]n incomplete record 25 must be viewed as a „fictional account of the actual decisionmaking process.‟” Id. (quoting Home 26 Box Office, Inc. v. Federal Communications Comm’n, 567 F.2d 9, 54 (D.C.Cir.1977)). The court 27 continued, “[i]f the record is not complete, then the requirement that the agency decision be 28 supported by „the record‟ becomes almost meaningless.” Id. (citing Home Box Office, Inc. v. 16 1 2 Federal Communications Comm’n, 567 F.2d 9, 54 (D.C.Cir.1977)). One of the seminal cases that informs the federal courts‟ understanding of the “whole record” requirement and the type of scrutiny that is required under Section 706(2)(A) is Citizens to 4 Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). In that case, the plaintiffs challenged a 5 decision by the Secretary of Transportation, issued without factual findings, to build a highway 6 that would cut through a large park in Memphis, even though federal law prohibited the use of 7 federal funds where a “feasible and prudent” alternative route was available. Id. at 404-405. The 8 Secretary of Transportation submitted affidavits prepared for the litigation and the lower courts 9 based their review of the Secretary‟s decision based solely on those affidavits. Id. at 409. The 10 lower courts refused the plaintiffs‟ request to depose a former Federal Highway Administrator 11 United States District Court Northern District of California 3 who had been involved in the decision on the basis that “probing of the mental processes of an 12 administrative decisionmaker was prohibited.” Id. It went on to affirm the decision of the 13 Secretary based on the affidavits. Id. at 409. 14 The Supreme Court reversed, holding that in reviewing agency action under the “arbitrary 15 and capricious” standard of Section 706 of the APA, courts must conduct a “thorough, probing, in- 16 depth review.” 401 U.S. at 415. In particular, the Court explained, “the court must consider 17 whether the decision was based on a consideration of the relevant factors and whether there has 18 been a clear error of judgment.” Id. at 417 (citations omitted). The Supreme Court went on to 19 find that the affidavits offered by the Secretary were merely “post-hoc rationalizations” of the 20 decision that provided “an inadequate basis for review” and “clearly [did] not constitute the 21 „whole record‟ compiled by the Agency,” under Section 706. Id. at 419. The Court concluded 22 that it was not required to remand to the Secretary to make factual findings because there was an 23 “administrative record that allows the full, prompt review of the Secretary‟s action,” even though 24 that record was not before the Court because the lower courts had relied entirely on the affidavits. 25 Id. Instead, it remanded to the district court for “plenary review of the Secretary‟s decision,” 26 instructing it to review the agency action “based on the full administrative record that was before 27 the Secretary at the time he made the decision.” Id. at 420. 28 The Court also left open the possibility that it might be necessary for the district court to 17 1 require testimony from the administrative officials who participated in the decision. Id. In 2 particular, it acknowledged that the “bare record [might] not disclose the factors that were 3 considered or the Secretary‟s construction of the evidence” and therefore “it may be that the only 4 way there can be effective judicial review is by examining the decisionmakers themselves.” Id. 5 It acknowledged, however, that “such inquiry into the mental processes of administrative 6 decisionmakers is usually to be avoided” and therefore, if there were “administrative findings that 7 were made at the same time as the decision . . . there must be a strong showing of bad faith or 8 improper behavior before such inquiry can be made.” Id. As Citizen’s to Preserve Overton Park suggests, the term “whole record” has not been 9 interpreted to preclude the withholding of documents or information considered by an agency in 11 United States District Court Northern District of California 10 connection with a decision on the basis of privilege. See Arizona Rehab. Hosp., Inc. v. Shalala, 12 185 F.R.D. 263, 267 (D. Ariz. 1998) (“In spite of this rather expansive view of what constitutes 13 the „whole‟ record for purposes of APA review, exceptions based on claims of privilege are 14 recognized.”); see also Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 370 (D.C. Cir. 1981) 15 (holding that “[i]t is well established that an agency may claim a privilege with respect to 16 documents that may have influenced a particular decision” but also noting that the court “would 17 not uphold the claim of privilege if failure to disclose the [information] would substantially impair 18 the rights of” the party challenging the agency action). However, the relationship between the 19 “whole record” requirement under Section 706 of the APA and the deliberative process privilege 20 has not been directly addressed by the Supreme Court or the Ninth Circuit. 21 22 C. Whether the Deliberative Process Privilege is Available in Record Review Cases Brought Under the APA Plaintiffs ask the Court to hold that the deliberative process privilege is unavailable in 23 24 25 APA cases claiming that agency action was “arbitrary, capricious, an abuse of discretion, or otherwise inconsistent with the law,” asserting that the privilege is inconsistent with the APA‟s “whole record” requirement and the court‟s obligation to conduct a meaningful review of the 26 record. Plaintiffs‟ concerns carry some weight with the Court. There is a tension between the 27 court‟s duty to “consider whether the decision was based on a consideration of the relevant 28 18 1 factors,” Citizens of Overton Park, 401 U.S. at 417, on the one hand, and a privilege that protects 2 from disclosure deliberative documents reflecting the factors the agency considered in making its 3 decision. Nonetheless, the Court rejects Plaintiffs‟ assertion that the deliberative process 4 privilege may not be applied, under any circumstances, in APA record review cases. There can be no doubt that under some circumstances, pre-decisional deliberative 5 6 communications may go to the heart of the question of whether an agency action was arbitrary and 7 capricious, an abuse of discretion or otherwise inconsistent with the law under Section 706(2) of 8 the APA. For example, in Center for Biological Diversity v. Kempthorne, No. CV 07-0038-PHX- 9 MHM, 2008 WL 659822 (D. Ariz. Mar. 6, 2008), communications between the Washington office and scientists and staff at certain regional FWS offices included what is the equivalent of a 11 United States District Court Northern District of California 10 “smoking gun” in an environmental case – statements that the decision had already been made on 12 policy grounds and that the staff at the regional offices needed to come up with ways to defend it. 2 13 Id. at *11 (“[w]e‟ve been given an answer now we need to find an analysis that works. . . . Need to 14 fit argument in as defensible a fashion as we can.”). Similarly, in Defenders of Wildlife v. Salazar, 15 comments by the agency‟s Regional Directors about a proposed regulation that was subsequently 16 issued by DOI under the ESA were the basis for the court‟s conclusion that the agency had 17 violated the APA‟s arbitrary and capricious standard because the agency “for all practical 18 purposes, ignored the warnings and advice of their own in-house experts . . . about the future 19 adverse impact of the” regulation “on the many species protected under the Congressional 20 mandate of the ESA.” 842 F. Supp. 2d 181, 188-89 (D.D.C. 2012). Another example cited by a legal commentator in a 2009 law review article involves 21 22 apparent abuses by a DOI Deputy Assistant Secretary who had oversight of FWS operations, 23 including ESA reviews, who was found by the Office of the Inspector General of DOI to have 24 routinely intimidated and bullied field staff to change their analysis and ignore good science to 25 conform to her policy positions. Michael Ray Harris, Standing in the Way of Judicial Review, 53 26 St. Louis U. L. J. 349, 395 (2009) (citing Report of Investigation, found at 27 28 2 In Kempthorne, the government did not assert the deliberative process privilege. 19 1 http://www.biologicaldiversity.org/swcbd/PROGRAMS/esa/ pdfs/ doi-ig-report_jm.pdf). The Court concludes, however, that the appropriate way to address these circumstances is 2 3 through in camera review and a rigorous application of the balancing test set forth in Warner 4 rather than rejecting the application of the privilege altogether in cases involving APA record 5 review. 6 First, the Court is not persuaded that the APA‟s “whole record” requirement, as interpreted 7 by the federal courts, is necessarily inconsistent with the assertion of the deliberative process 8 privilege. In particular, it is apparent from the case law that the phrase “whole record” is a term of 9 art that under some circumstances, at least, does not extend to privileged communications. See Arizona Rehab. Hosp., Inc. v. Shalala, 185 F.R.D. 263, 267 (D. Ariz. 1998); Izaak Walton League 11 United States District Court Northern District of California 10 of Am. v. Marsh, 655 F.2d 346, 370 (D.C. Cir. 1981). Further, in Citizens to Preserve Overton 12 Park, the Supreme Court at least implied that an administrative record that excludes evidence 13 relating to the mental processes of a decision maker might be complete under some circumstances. 14 Consequently, the “whole record” requirement of the APA does not provide significant guidance 15 in determining whether the deliberative process privilege is available under the APA. 16 Second, federal courts, including the Ninth Circuit, have accepted the general premise that 17 forced disclosure of predecisional deliberative communications can have an adverse impact on 18 government decision-making. See, e.g., F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1162 19 (9th Cir. 1984) (finding that disclosure of agency memoranda prepared internally by the Federal 20 Trade Commission‟s Bureau of Economics was likely to “chill[ ] frank discussion and deliberation 21 in the future among those responsible for making governmental decisions” and would 22 “encourage[] the Commission to have deliberative reports and recommendations prepared only by 23 those economists who will draw the conclusions sought by the Commission.”). While Plaintiffs – 24 and at least one commentator – argue that there is no evidence to support the connection between 25 disclosure of deliberative communications and chilling, see Wetlaufer, 65 Ind. L.J. at 886-887, the 26 concern of federal courts, to the extent it is justified at all, appears to be no less salient when 27 disclosures are required in APA record review cases than in other contexts. It is this Court‟s 28 obligation to apply the federal common law of privilege. As there is binding authority that 20 1 requires this Court to be mindful of the possibility of chilling of frank and candid deliberations by 2 administrative decision-makers, the undersigned declines Plaintiffs‟ invitation to refuse to apply 3 the privilege on the basis that such chilling simply does not occur or is not a legitimate concern in 4 the APA context. The Court also finds unpersuasive Plaintiffs‟ assertion that the Warner factors are 6 “nonsensical” in the APA context. See Reply at 10. To the contrary, the court finds that Warner 7 offers an approach that allows courts to balance the need to conduct a meaningful review of 8 agency decision-making under Section 706 of the APA against the possibility that disclosure 9 might give rise to a chilling effect that threatens the quality of agency actions. This balancing is 10 illustrated in the handful of cases that have applied the Warner factors in the APA context, which 11 United States District Court Northern District of California 5 offer some guidance as to how the factors may apply in this case. 12 The first factor is relevance. Plaintiffs contend the documents that were before the agency 13 are always relevant because the agency‟s decision must be supported by the record. Id. The 14 undersigned finds, however, that the relevance of pre-decisional communications is likely to vary 15 depending on the type of communication at issue and the contents of the communication. For 16 example, in CBD II, Judge Gutierrez found in applying the Warner factors that certain types of 17 communications were likely to be relevant to whether the challenged decision was arbitrary and 18 capricious. Id. at *6. The court reasoned: 19 20 21 22 23 24 25 26 Documents disclosing information before the Corps regarding the environmental impacts of the Project and the adequacy of mitigation measures and special conditions are relevant to Plaintiff‟s challenge that the issuance of the permit in the face of that information was arbitrary and capricious. Although the “reasonableness of the agency‟s action is judged in accordance with its stated reasons” in its final decision, the Court should analyze whether that decision properly flowed from the evidentiary record before the agency. See Allegheny Def. Project, Inc. v. U.S. Forest Serv., 423 F.3d 215 (3d Cir.2005). Thus, the privileged documents containing information critiquing and analyzing the permit impacts and conditions are relevant to whether the Corps issued the permit arbitrarily and capriciously, and this factor weighs in favor of disclosure Id. at *6 (emphasis added). 27 Similarly, in Northwest Environmental Advocates v. U.S. E.P.A., the court ordered 28 production, after in camera review, of preliminary drafts of scientific documents that were 21 1 “relatively polished” and scientific in nature, even though they might “treat scientific information 2 differently than it is treated in the final draft.” No. CIV 05-1876-HA, 2009 WL 349732, at *8 (D. 3 Or. Feb. 11, 2009). The court reasoned that these documents were relevant to the question of 4 whether the agency was “using the best scientific information available,” a question that was 5 “properly before the court.” Id. “Indeed,” the court stated, “this is precisely the sort of 6 information that ought to be in front of the court when it determines whether the decisions made 7 by the agencies were arbitrary, capricious, or otherwise not in accordance with law.” Id.3 8 In applying the Warner factors to the dispute at hand, the undersigned will look to the 9 nature of the withheld documents and the context in which the communications were made to 10 determine their relevance to Plaintiffs‟ claim under Section 706(2) of the APA. United States District Court Northern District of California 11 Similarly, the second Warner factor, the availability of “other evidence” with the same 12 information, need not give rise to the same answer in every case. For example, in CBD II, the 13 government provided Judge Gutierrez with sufficient detail about the contents of the withheld 14 documents to allow him to address this factor with some degree of specificity and to identify 15 unprivileged evidence contained in the administrative record that addressed the same subject 16 matter as the withheld documents. Some decisions applying the Warner factors in the APA 17 context have addressed this factor in a relatively conclusory manner. See, e.g., Modesto Irrigation 18 Dist. v. Gutierrez, No. 1:06-CV-00453 OWW DLB, 2007 WL 763370, at *11 (E.D. Cal. Mar. 9, 19 2007)(concluding based on the “breadth and extent of the existing [administrative record]” that 20 this factor supported assertion of the deliberative privilege because the “plaintiffs can adequately 21 frame their arguments based on the existing AR”); CBD I, No. 14-cv-02506-RM (D. Ariz. June 22 14, 2016) (holding that under Warner, the same 301 documents that have been withheld in this 23 case are protected by the deliberative process privilege without specifically addressing whether the 24 same information was available in the existing administrative record). The undersigned finds that 25 while such an approach may appropriate in cases where the other Warner factors strongly support 26 3 27 28 Presumably, communications that reflect reliance on improper factors, such as the ones at issue in Kempthorne (discussed above) would also be highly relevant and would weigh heavily in favor of disclosure under Warner. The Service has represented, however, that the withheld documents reveal no such communications. 22 1 the assertion of the deliberative process privilege, in closer cases – for example, where the 2 withheld documents contain information that is highly relevant to the plaintiff‟s claims – a more 3 detailed showing that the same information is available elsewhere may be required. The third Warner factor looks to the nature of the government‟s role in the litigation. In 4 CBD II, Judge Gutierrez found that this factor weighed against upholding the deliberative process 6 privilege because the government was a defendant in the litigation. 2015 WL 3606419, at *7 7 (quoting Thomas v. Cate, 715 F. Supp. 2d 1012, 1028 (E.D. Cal. 2010)(“The fact that a 8 government entity‟s action is the focal point of litigation weighs against upholding the deliberative 9 process privilege.”)); see also Arizona Rehab. Hosp., Inc. v. Shalala, 185 F.R.D. 263, 271 (D. 10 Ariz. 1998) (finding under Warner that “the Government‟s role in the litigation is primary since 11 United States District Court Northern District of California 5 the Agency‟s actions are challenged in this APA suit”). Thus, Plaintiffs may be correct that this 12 factor will often be the same in APA cases challenging agency action under Section 706(2). Even 13 so, this does not make consideration of this factor nonsensical. Rather, it simply reflects the fact 14 that APA record review cases raise special concerns with respect to the assertion of the 15 deliberative process privilege.4 Finally, the fourth Warner factor, which asks whether the disclosure of a document or 16 17 communication is likely to have a chilling effect, need not give rise to a uniform answer. Rather, 18 as the court recognized in Northwest Environmental Advocates v. EPA, the disclosure of some 19 types of documents will be less likely to cause embarrassment or chilling than others. See 2009 20 WL 349732, at *8. In that case, the court distinguished between “preliminary drafts,” on the one 21 hand, and documents that contained “preliminary staff views or tentative opinions.” Id. The court 22 found that the disclosure of the former type of document was not likely to chill speech, even 23 though such documents might be used to recreate the course of the decisionmaking process 24 because “[t]hese are relatively polished drafts, and the recreation of the decisionmaking process 25 4 26 27 28 The Court notes that Judge Wanger concluded in Modesto that the third Warner factor requires the court to look for evidence that the government acted in bad faith. See 2007 WL 763370, at *12. The undersigned concludes that while this factor does not preclude the Court from considering whether there is evidence of bad faith on the part of the government, it is not limited to that question. Rather, the Court adopts the broader interpretation of this factor used in CBD II, Thomas v. Cate, and Arizona Rehab. Hosp., Inc. v. Shalala. 23 1 should in no way embarrass the agencies.” Id. at *7. On the other hand, the court found, 2 disclosure of the second category of documents might chill speech: 3 These documents . . . represent internal discussions concerning the method by which information is to be analyzed or how the law is to be applied to that information. Some of these documents express doubt or confusion regarding the information before the agency or how it should be interpreted. Others are the fragmented thoughts of individuals, or embryonic draft documents that risk misinterpretation should they be subject to disclosure. Although some of these drafts are of a scientific nature, substantial portions of these unpolished scientific drafts contain the personal views of agency staff or contain questions concerning the accuracy of the information or analysis contained within the draft. Some of these documents are emails requesting clarification on issues before the agency, or discussing the manner in which the agency plans to move forward. These documents represent the give-and-take of the agencies‟ internal deliberations, and their disclosure would discourage such deliberations. 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 Id. at *8. In sum, the Court concludes that the deliberative process privilege is available in APA 13 14 cases but because it is a qualified privilege, courts must look to the specific circumstances, 15 applying the approach set forth in Warner, to determine whether the privilege should be upheld as 16 to particular documents and communications. Further, while Plaintiffs‟ Motion focused heavily 17 on their assertion that the deliberative process privilege may not ever be applied in APA record 18 review cases, they also made clear their position that the assertion of the privilege under the 19 specific facts of this case is improper. Therefore the Court concludes that Plaintiffs have not 20 waived that challenge. 21 IV. CONCLUSION 22 The Court rejects Plaintiffs‟ argument that as a general matter, the deliberative processes 23 privilege cannot be invoked in cases involving challenges to agency action under Section 706(2) 24 of the APA. The Court does not reach at this time the question of whether the deliberative 25 process privilege should be upheld with respect to the specific documents Plaintiffs seek. Rather, 26 the Court will decide that question according to the process described at the January 27, 2017 27 status conference. In particular, by February 10, 2017, Defendants shall provide Plaintiffs with an 28 amended privilege log describing in greater detail the contents of the 55 documents containing 24 1 regional office comments on the Final SPR Policy. See Docket No. 80. In addition, the Court 2 requests that Defendants file under seal all of the 301 documents originally sought by Plaintiffs, 3 which were previously lodged with the Court at the Court‟s request.5 Defendants need not 4 provide paper Chambers copies of the documents as these have already been delivered to 5 Chambers. Defendants should file a log, however, listing the documents that fall into each of the 6 categories described by Ms. Schultz in her declaration. The documents should be identified by 7 their number on the privilege log previously provided to the Court. To avoid confusion, the Court 8 also requests that Defendants use in their amended privilege log the same privilege log numbers 9 that were used on the previous privilege log for the 55 documents containing regional office 10 comments on the Final SPR Policy. United States District Court Northern District of California 11 By March 3, 2017, Plaintiffs shall select ten (10) of the documents described in the 12 amended privilege log for in camera review and shall file a brief addressing why these documents 13 are subject to disclosure under the Warner test. Defendants shall file a responsive brief by March 14 17, 2017. Plaintiffs may file a Reply by March 24, 2017. Unless notified by the Court, the Court 15 will determine without a hearing which, if any, of the ten documents must be disclosed. The 16 parties will then be expected to meet and confer as to any disputes that remain as to whether the 17 other 45 documents are protected by the deliberative process privilege. IT IS SO ORDERED. 18 19 20 Dated: February 6, 2017 21 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 22 23 24 25 26 27 28 5 While the Court does not envision conducting an in camera review of all of these documents and will likely limit its review to the ten sample documents selected by Plaintiffs, it retains discretion to conduct a broader review of the documents if it deems necessary. 25

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