Oregon Natural Desert Ass'n v. McDaniel et al
Filing
283
OPINION & ORDER: ONDA's Motion to Compel 272 is Denied in Part as it applies to Documents 1 (AR 14219-21); 2 (AR 14222-23); 6 (AR 14405-06); 9 (AR 14513-14); 10 (AR 14515-17); 12 (AR 14520-22); 13 (AR 14523-25); 17 (AR 14859-60); a nd 18 (AR 14861-65). ONDA's Motion is Granted in Part as it applies to the following documents: BLM is ordered to produce the following in their entirety for completion of the ARCRP: Documents 11 (AR 14518-19) and 14 (AR 14526-29). BLM is o rdered to produce all reasonably segregable information from the following for completion of the AR-CRP: Documents 4 (AR 14225-14354); 5 (AR 14355-14404); 7 (AR 14407-61); 8 (AR 14465-14512); 15 (AR 14530-14723); and 16 (AR 14724-14858). Signed on 12/5/16 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES D.ISTRICT COURT
FOR THE DISTRICT OF OREGON
OREGON NATURAL DESERT ASS'N,
3:09-cv-00369-PK
OPINION AND ORDER
Plaintiff,
v.
BRENDAN CAIN, Burns District Manager,
Bureau of Land Management, et al.,
Defendants,
and
HARL'!EY COUNTY,
Defendant-IntervenorCross-Claimaint.
PAP AK, J.:
Plaintiff Oregon Natural Desert Association ("ONDA") brings this action arising from
the travel management planning process for the Steens Mountain. Now before this Court is
ONDA's Motion to Compel Completion of Administrative Record, ECF No. 272. I have
1 - OPINION AND ORDER
reviewed in camera the documents submitted by the BLM pursuant to my Order of September
23, 2016. ECF No. 280. For the following reasons, ONDA's Motion is granted in part and
denied in part.
BACKGROUND
In 2009, ONDA filed this action challenging the Bureau of Land Management's
("BLM") decision to authorize the Steens Mountain Travel Management Plan ("TMP"), which
designated vehicle routes as open to motorized travel within the Steens Mountain Cooperative
Management and Protection Area. In September 2014, on remand from this Court, the U.S.
Department of the Interior's ("DOI") Interior Board of Land Appeals ("IBLA") issued a decision
amending the TMP and designating additional routes. In April 2015, BLM issued a decision
approving the Steens Mountain Comprehensive Recreation Plan ("CRP"), which further amends
the TMP. Now, ONDA challenges BLM's decision to adopt the interconnected TMP and CRP,
contending these plans violate the Steens Mountain Cooperative Management and Protection Act
of2000 ("Steens Act"), 16 U.S.C. § 460nnn et seq.; the Federal Land Policy and Management
Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701-87; the Wilderness Act of 1964, 16 U.S.C. §§ 113136; and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-61.
BLM has produced the administrative record in installments, and in September 2015,
BLM filed the Administrative Record of the Comprehensive Recreation Plan for Steens
Mountain (AR-CRP). See Notice Of Lodging of Administrative R., ECF No. 250. In June 2016,
ONDA filed a Motion to Compel Completion of Administrative Record or for In Camera
Review, ECF No. 272, arguing BLM improperly withheld 17 documents. 1 The documents at
issue are:
1
BLM withheld 18 documents total, but the privileged nature of Document 3 (AR 14224) is not disputed.
2 - OPINION AND ORDER
•
Emails, which include conespondence among BLM employees as well as from attorneys
at DOI's Office of Regional Solicitor and the U.S. Attorney's Office. These are
characterized as Documents 1 (AR 14219-21), 2 (AR 14222-23), 6 (AR 14405-06), 9
(AR 14513-14), 10 (AR 14515-17), 11(AR14518-19), 12(AR14520-22), 13 (AR
14523-25), 14 (AR 14526-29), 17 (AR 14859-60), and 18 (AR 14861-65). Additionally,
the emails make up p01iions of Documents 4 (AR 14225-26), 5 (AR 14355-56), 7 (AR
14407-13), 8 (AR 14465-67), and 15 (AR 14530).
•
March 2015 drafts of the CRP Decision Record, which contain comments from BLM
employees and a DOI attorney. These drafts make up the majority of Documents 4 (AR
14227-14354), 5 (AR 14357-14404), and 7(AR14414-61).
•
A November 2014 draft of the CRP Response to Public Comments, which contains
comments from BLM employees and a DOI attorney. This draft makes up the majority
of Document 8 (AR 14468-14512).
•
A February 2013 draft and December 2013 draft of the CRP Environmental Assessment,
which contain comments from BLM employees and a DOI attorney. The December 2013
draft makes up the majority of Document 15 (AR 14531-14723), and the February 2013
draft is characterized as Document 16 (AR 14724-14858).
On September 23, 2016, this Comi ordered the production of the documents for in
camera review to independently determine whether they are properly withheld. Order on Mot. to
Compel, ECF No. 280.
LEGAL STANDARDS
"The statute known as the [Freedom of Info1mation Act] is actually a part of the
Administrative Procedure Act." United States Dep 't ofJustice v. Reporters Comm. for Freedom
3 - OPINION AND ORDER
ofPress, 489 U.S. 749, 754 (1989). "In 1966 Congress amended Section 3 of the APA
[hereafter, "FOIA"] to implement 'a general philosophy of full agency disclosure."' Id. (quoting
Dep 't ofAir Force v. Rose, 425 U.S. 352, 360 (1976)). FOIA "requires every agency upon any
request for records ... to make such records promptly available to any person." Id. at 754-55
(internal quotation marks and citation omitted).
Congress specifically exempted nine categories of documents from FOIA's disclosure
requirements. See 5 U.S.C. § 552(b). Agencies may withhold documents responsive to a FOIA
request from production only if they fall into one of those nine categories. See id.; see also, e.g.,
Carter v. United States Dep't of Commerce, 307 F.3d 1084, 1088 (9th Cir. 2002). Moreover,
"[b]ecause FOIA's purpose is to encourage disclosure, its exemptions are to be na11'owly
construed." Carter, 307 F.3d at 1088 (citing United States Dep 't ofJustice v. Julian, 486 U.S. 1,
8 (1988)).
Here, the only statutory exemption from FOIA's disclosure requirements at issue is
"Exemption 5," codified at 5 U.S.C. § 552(b)(5). Section 552(b)(5) exempts from FOIA
disclosure only "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), shielding from public scrutiny "those documents, and only those documents, nonnally
privileged in the civil discovery context." Nat 'l Labor Relations Bd. v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975). In addition to the standard civil discovery exemptions from
production, Exemption 5 also encompasses "a 'deliberative process' privilege." Carter, 307
F.3d at 1088 (quoting United States Dep 't of the Interior v. Klamath Water Users Protective
Assoc., 532 U.S. 1, 8 (2001)). "Thus, Exemption 5 covers 'documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
4 - OPINION AND ORDER
governmental decisions and policies are fo1mulated. "' Id. at 1089 (quoting Klamath, 532 U.S. at
8).
"If an agency improperly withholds any documents, the district court has jurisdiction to
order their production." Reporters Comm. for Freedom of Press, 489 U.S. at 755. After
performing in camera review, this Court has required a party asserting privilege to reevaluate
documents to determine the information that may be segregated and produced. See Riverkeeper
v. US. Army Corps ofEng'rs, 38 F.Supp.3d 1207, 1223 (D. Or. 2014) (ordering production of
reasonably segregable information "in a manner consistent with the [opinion]"); Nw. Envt 'l
Advocates v. United States Envt'l Prof. Agency, Civ. No. 05-1876-HA, 2009 WL 349732, at *9
(D. Or. Feb. 11, 2009) (ordering defendants to reconsider use of privilege and produce
documents that "do not meet the standards set forth in [the opinion]").
DISCUSSION
The withheld documents can be described in two broad categories: (1) emails, and (2)
draft documents. BLM argues all 17 documents are covered by attorney-client privilege. BLM
fmiher argues Documents 5, 7, 8, 12, 14, 15, 16, and 17 are also covered by the deliberative
.
process pnv1·1 ege. 2
I.
Attorney-Client Privilege
"The attorney-client privilege protects confidential disclosures made by a client to an
attorney in order to obtain legal advice, as well as an attorney's advice in response to such
disclosures." United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal ellipsis
2
BLM also argues that Document !,which consists of May 2015 emails,should not be reviewed because it
post-dates the challenged April 2015 CRP Decision Record. See Tri-Valley CAREs v. United States Dep 't of
Energy, 671 F.3d 1113, 1130-31 (9th Cir. 2012) (post-decision information inappropriate for APA judicial review).
However, the CRP Decision Record did not become final for purposes of judicial review until June 24, 2015, when
the IBLA denied petitions for stay filed by ONDA and Harney County. See 43 C.F.R. § 4.2l(a); see also Joint
Status Rep011, ECF No. 240, at 2 (IBLA denial of petitions for stay rendered "CRP effective and final for purposes
of judicial review."). Therefore, I have included Document 1 in my review.
5 - OPINION AND ORDER
omitted) (quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997)). "The fact that a
person is a lawyer does not make all communications with that person privileged." Id. (quoting
United States v. ivfartin, 278 F.3d 988, 999 (9th Cir. 2002)). Moreover, "[b]ecause it impedes
full and free discovery of the truth, the attorney-client privilege is strictly construed." Id.
(quoting lvfartin, 278 F.3d at 999). The following test determines whether information is
covered by the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser
in his capacity as such, (3) the communications relating to that purpose, (4) made
in confidence (5) by the client, (6) are at his instance permanently protected (7)
from disclosure by himself or by the legal adviser, (8) unless the protection be
waived.
United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (quoting Ruehle, 548 F.3d at 607).
a. Emails
After performing in camera review of the withheld emails, I find the attorney-client
privilege does not apply to all the emails as BLM posits. However, the privilege does apply in
certain instances. The emails in Documents 1, 2, 6, 9, 10, 12, 13, and 18 are covered entirely by
the privilege. These communications concern BLM seeking confidential legal advice from a
DOI attorney or an Assistant U.S. Attorney, and no non-privileged communication can be
reasonably redacted from the correspondence.
Regarding Documents 4 and 7, portions of the emails are privileged for the same reason,
but these po1tions are segregable from the larger chain of correspondence. Finally, the emails in
Documents 5, 8, 11, 14, and 17 are not covered by the privilege. These communications appear
to be internal correspondence among BLM employees, and at most, they acknowledge that an
attorney's comments regarding a draft are ready for review. Therefore, BLM shall produce all of
6 - OPINION AND ORDER
the emails in Documents 5, 8, 11, and 14;3 and those non-privileged portions of emails in
Documents 4 and 7.
b. Draft Documents
After performing in camera review of the draft documents, I find the attorney-client
privilege applies to comments by attorneys in the drafts' margins. Only those comments,
however, that are related to providing legal advice to BLM are privileged. Therefore, BLM ~hall
determine which of these comments are privileged, and some are ce1iainly not, and redact those
privileged comments from Documents 4, 5, 8, 15, and 16.
II.
Deliberative Process Privilege
"To fall within the deliberative process privilege, a document must be both
'predecisional' and 'deliberative."' Carter, 307 F.3d at 1089 (quoting Assembly of Calif. v.
United States Dep't of Commerce, 986 F.2d 916, 920 (9th Cir. 1992)). "A 'predecisional'
document is one 'prepared in order to assist an agency decisionmaker in aniving 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."' Id. (quoting Assembly, 986 F.2d at 920). "A predecisional document is
['deliberative'] if 'the disclosure of [the] materials would expose an agency's decisionmaking
process in such a way as to discourage candid discussion within the agency and thereby
unde1mine the agency's ability to perfo1m its functions."' Id. (quoting Assembly, 986 F.2d at
920). "The deliberative process privilege is a qualified one. A litigant may obtain deliberative
materials if his or her need for the materials and the need for accurate fact-finding override the
3
As discussed infi'a § 2.a, Document 17 remains covered by the deliberative process privilege.
7 - OPINION AND ORDER
government's interest in non-disclosure." 4 FTC v. Warner Commc 'ns Inc., 742 F.2d 1156, 1161
(9th Cir. 1984).
In conducting in camera review, I adhere to the "process-oriented" approach set out in
Nat'! Wildlife Fed'n v. United States Forest Serv. See 861 F.2d 1114, 1118-20 (9th Cir. 1988).
"[T]he scope of the deliberative process privilege should not tum on whether we label the
contents ofa document 'factual' as opposed to 'deliberative."' Id. at 1119. Instead, "documents
containing nonbinding recommendations on law or policy," as well as factual materials that
"reveal the mental processes of decisionmakers," are exempt from disclosure. Id. "Those
documents that do not express subjective opinions or whose release is unlikely to expose an
agency's decisionmaking process such as to discourage 'frank and open discussions of ideas'
must be released." Nw. Envt'l Advocates, 2009 WL 349732, at *6 (quoting Nat'! Wildlife Fed'n,
861 F.2d at 1117). Further, those non-privileged "portions of documents covered by the
deliberative process privilege must be segregated and disclosed unless they are 'so inte1woven
with the deliberative material that [they are] not [segregable]." Pacific Fisheries, Inc. v. United
States, 539 F.3d 1143, 1148 (9th Cir. 2008) (quoting United States v. Fernandez, 231 F.3d 1240,
1247 (9th Cir. 2000)) (alterations in original).
a. Emails
After perfonning in camera review of the emails in Documents 5, 7, 8, 12, 14, 15, and
17, !find the deliberative process privilege applies only to the emails within Documents 12 and
17. These communications represent the "give-and-take of [BLM's] internal deliberations, and
their disclosure would discourage such deliberations." Nw. Envt'l Advocates, 2009 WL 349732,
'"Among the factors to be considered in making this determination are: I) the relevance of the evidence; 2)
the availability of other evidence; 3) the government's role in the litigation; and 4) the extent to which disclosure
would hinder frank and independent discussion regarding contemplated policies and decisions." Warner Commc'ns
Inc., 742 F.2d at 1161.
8 - OPINION AND ORDER
at *8; see also id ("emails requesting clarification on issues before the agency, or discussing the
manner in which the agency plans to move forward," are covered by the deliberative process
privilege). I also find no information can be reasonably segregated from either document, and I
conclude the balance of the Warner factors weigh against the disclosure of Document 17. 5
b. Draft Documents
After performing in camera review of the draft documents, I find the deliberative process
privilege applies to ce1iain comments in the drafts' margins. These comments "contain the
personal views of agency staff or contain questions concerning the accuracy of the info1mation
or analysis contained within the draft," as well as "internal discussions concerning the method by
which info1mation is to be analyzed or how the law is to be applied to that information." Nw.
Envt'l Advocates, 2009 WL 349732, at *8. I also conclude that the Warner factors weigh against
disclosure of these comments; however, these comments are segregable from both "mundane"
commentary and the drafts themselves. See Nat 'l Wildlife Fed'n, 861 F.2d at 1123 ("mundane
editorial comments relating to organization, clarity, and precision of language" not covered by
deliberative process privilege). Therefore, BLM shall determine which comments are privileged,
redact those from the drafts' margins, and produce the remaining po1iions of Documents 5, 7, 8,
15, and 16.
I II I
I II I
I II I
II II
II II
5
As discussed supra§ I.a, Document 12 is already covered by the attorney-client privilege.
9 - OPINION AND ORDER
CONCLUSION
ONDA's Motion, ECF No. 272, is denied in part as it applies to Documents 1 (AR
14219-21); 2(AR14222-23); 6(AR14405-06); 9(AR14513-14); 10 (AR 14515-17); 12 (AR
14520-22); 13(AR14523-25); 17 (AR 14859-60); and 18 (AR 14861-65).
ONDA's Motion is granted in part as it applies to the documents listed below.
1. BLM is ordered to produce the following in their entirety for completion of the ARCRP:
Documents 11(AR14518-19) and 14 (AR 14526-29).
2. BLM is ordered to produce all reasonably segregable information from the following
for completion of the AR-CRP:
Documents 4 (AR 14225-14354); 5 (AR 14355-14404); 7 (AR 14407-61); 8 (AR
14465-14512); 15 (AR 14530-14723); and 16(AR14724-14858).
IT IS SO ORDERED.
Dated this 5-t.\ay of December, 2016.
10- OPINION AND ORDER
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