Pacific Coast Shellfish Growers Association v. United States Army Corps of Engineers

Filing 25

ORDER denying the Pacific Growers' 4 Cross Motion for Summary Judgment and granting the Corps' 13 Cross Motion for Summary Judgment by Judge Richard A Jones.(RS)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PACIFIC COAST SHELLFISH GROWERS
ASSOCIATION,

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CASE NO. C16-193RAJ

Plaintiff,

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ORDER

v.
UNITED STATES ARMY CORPS OF
ENGINEERS,

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Defendant.

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I.

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INTRODUCTION

This matter comes before the Court on Plaintiff Pacific Coast Shellfish Growers

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Association (the “Pacific Growers”) and Defendant United States Army Corps of

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Engineers’ (the “Corps”) cross-motions for summary judgment. Dkt. # 4 & 13. For the

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reasons set forth below, the Court DENIES the Pacific Growers’ motion and GRANTS

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the Corps’ motion.
II.

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BACKGROUND

The Pacific Growers’ requested a copy of the Programmatic Biological

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Assessment for Shellfish Activities in Washington State Inland Marine Waters (the

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“Shellfish PBA”) from the Corps pursuant to the Freedom of Information Act (“FOIA”).

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The Corps prepared the Shellfish PBA – and specifically the most recent, October 2015

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draft – for the U.S. Fish and Wildlife Service (“USFWS”) and National Marine Fisheries

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Service (“NMFS”) (collectively, the “Services”) in connection with an ongoing

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ORDER – 1

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programmatic consultation with those agencies. That consultation is intended to lead to

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the issuance of biological opinions by those agencies pursuant to the Endangered Species

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Act (“ESA”) and the Magnuson-Stevens Fishery Conservation and Management Act

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(“MSA”). See Dkt. # 15 (Bennett Decl.) ¶¶ 1, 3.

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The Corps exercises regulatory authority over the inland marine waters of

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Washington State pursuant to Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. §

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1344, and Section 10 of the River Harbor Act of 1899, 33 U.S.C. § 403. See also Wild

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Bainbridge v. Mainlander Servs. Corp., 544 F. Supp. 2d 1159, 1163 (W.D. Wash. 2008)

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(citing Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151 F.3d 1162, 1166 (9th Cir.

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1998)). Specifically, “Section 404 of the CWA prohibits the discharge of ‘dredged or fill

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material’ into navigable waters without a permit issued by the Corps.” See Wild

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Bainbridge, 544 F. Supp. 2d at 1163 (quoting 33 U.S.C. § 1344); see also Dkt. # 15

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(Bennett Decl.) ¶ 5.

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The Corps takes the position that its permitting actions must comply with the ESA.

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See Dkt. # 15 (Bennett Decl.) ¶ 8. “Section 7 of the ESA prescribes the steps that federal

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agencies must take to ensure that their actions do not jeopardize endangered wildlife and

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flora.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652 (2007).

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Section 7(a)(2) of the ESA requires federal agencies to consult with the Services before

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taking federal actions that may affect an ESA-listed species or designated critical habitat.

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See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(b); see also Butte Envtl. Council v. U.S.

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Army Corps of Eng’rs, 620 F.3d 936, 940-41 (9th Cir. 2010). At the conclusion of such a

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consultation, the Services must prepare a written statement setting forth their opinion

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“and a summary of the information on which the opinion is based, detailing how the

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agency action affects the species or its critical habitat.” See 16 U.S.C. § 1536(b)(3)(A);

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see also 50 C.F.R. § 402.14(h).

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Additionally, the Corps must comply with the MSA for federal actions that may

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adversely affect Essential Fish Habitats (“EFH”) in waters that it regulates. See Dkt. # 15

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ORDER – 2

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(Bennett Decl.) ¶ 9; see also 16 U.S.C. 1855(b)(2). When a proposed action may

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adversely affect an EFH, the federal agency must consult with NMFS. See 16 U.S.C. §

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1855(b)(2); 50 C.F.R. § 600.920. EFH has been designated for several species in

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Washington State’s inland marine waters, including for Pacific salmon, coastal pelagic

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species, and groundfish. See Dkt. # 15 (Bennett Decl.) ¶ 9. The Corps therefore cannot

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issue a permit for a proposed activity until a District Engineer of the Corps determines

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that the requirements of the EFH provisions of the MSA have been met. See id.

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Typically, the information necessary for an evaluation required by the ESA or
MSA is prepared by the permit applicant in the form of a biological evaluation or

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biological assessment. See id. ¶ 10. This information may cover whether listed species

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are present, habitat for such species and their prey sources, or other parameters impacts to

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listed or proposed species and designated or proposed critical habitat. See id.; see also 50

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C.F.R. § 402.12(a). Whatever the case, after deeming it adequate, the Corps typically

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uses the biological assessment in assessing the project, determining whether the project

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may affect listed species or their critical habitat or if it will adversely EFH. Id. If the

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Corps determines that a permit application will not have an effect, then no further

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consultation with the Services is typically necessary. See 50 C.F.R. § 402.14(b)(1). If

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the Corps determines that a proposed project will affect an endangered species, critical

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habitat, or the like, then it must consult with the relevant Service. See id.; see also Dkt. #

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15 (Bennett Decl.) ¶ 10.

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In determining whether a formal consultation is necessary, however, the

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regulations permit agencies to informally consult with the relevant Service. See 50

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C.F.R. § 402.13(a). During such an informal consultation, “the Service may suggest

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modifications to the action that the Federal agency and any applicant could implement to

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avoid the likelihood of adverse effects to listed species or critical habitat.” Id. §

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402.13(b). Ultimately, if it is determined that an agency action may affect a listed species

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or critical habitat, a formal consultation is required. See id. § 402.14(a). During such a

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ORDER – 3

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formal consultation, the Service typically must prepare a biological opinion. See id. §

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402.14(g)(4), (h), (l)(1).

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To streamline its permitting process, agencies may engage in “programmatic

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consultation” which “concerns planning documents and other scenarios in which an

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agency is preparing to undertake a number of later, similar actions, the specifics of which

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have not yet been defined.” See Ctr. for Sierra Nevada Conservation v. U.S. Forest

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Serv., 832 F. Supp. 2d 1138, 1144 (E.D. Cal. 2011) (citing Gifford Pinchot Task Force v.

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U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1062 (9th Cir. 2004); Pac. Coast Fed’n of

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Fishermen’s Ass’ns v. Nat’l Marine Fisheries Serv., 482 F. Supp. 2d 1248, 1267 (W.D.

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Wash. 2007); Buckeye Forest Council v. U.S. Forest Serv., 378 F. Supp. 2d 835, 843–44

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(S.D. Ohio 2005)). In doing so, the Corps generates a programmatic biological

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assessment (“PBA”) without reference to any specific permit applications and the

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Services generate a programmatic biological opinion (“PBO”). See Dkt. # 15 (Bennett

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Decl.) ¶ 12. Ultimately, through this process, after the issuance of a PBO, if a proposed

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work activity in a permit application meets the activities evaluated considered under the

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scope of the PBO, then the Corps may rely on the PBO without any further consultation

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requirements. See id. If a proposed work activity in a permit application does not fall

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under the scope of the PBO, then the Corps must conduct the consultation process on an

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individual basis with the Services. See id.
The Seattle District of the Corps decided to go through a programmatic process

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with the Services after receiving more than 1000 permit applications for shellfish

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activities since 2007. 1 See id. ¶ 15. In 2013, to relieve its workload and streamline the

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permitting process, the Seattle District began pursuing a programmatic consultation with

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Different permit types may be used to authorize shellfish activities. Dkt. # 15 (Bennet Decl.) ¶
13. One such permit is nationwide permit (“NWP”) 48. Id. The Corps issued a new set of
NWPs in March 2012 which superseded the 2007 version of the NWPs. Id. ¶ 14. The Seattle
District has received nearly 850 applications under the 2012 version of NWP 48 under a
programmatic consultation completed in 2011. Id. ¶ 15. However, in February 2013, the Corps
and the Services determined that the 2011 consultation only covered activities under the 2007
version of NWP 48, requiring individual consultations for activities covered by NWP 48. Id.

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the Services for a range of shellfish activities in Washington State marine waters rather

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than only for NWP 48. Id. ¶ 16. The Corps and Services began preparing the Shellfish

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PBA through a process called the Standard Local Operating Procedures for Endangered

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Species. Id. ¶ 17. The Corps and the Services have, apparently, tried to keep their work

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confidential. Id. However, they have at times sought input from stakeholders. See id.

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The Corps has revised the Shellfish PBA several times since starting the process.

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See id. ¶¶ 20, 23. And the Services and Corps have routinely corresponded and met to

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discuss the Shellfish PBA. See id. ¶ 20. The Corps also involved the Environmental

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Protection Agency (“EPA”) in the process. See id. ¶ 21. Ultimately, these consultations

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resulted in the October 30, 2015 version of the Shellfish PBA at issue here. Id. ¶ 23.

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Individual sections of the Shellfish PBA were distributed to the Services throughout the

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process as those sections were exchanged among the members of the technical teams for

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review and comment. Id. ¶ 24. The consultation process is ongoing. Id. ¶ 25.

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The Pacific Growers made their FOIA request to the Corps on November 20,

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2015, seeking a copy of the October 2015 draft Shellfish PBA. See Dkt. # 6 (Carr Decl.)

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Ex. 1 at 2-3. The Corps denied the Pacific Growers’ request on December 22, 2015

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stating that the document as being withheld as predecisional because the Section 7 ESA

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consultation had not completed. See id. Ex. 4 at 11. The Pacific Growers filed an

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administrative appeal the next day. See id. Ex. 5. The Corps did not act on the appeal

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and, ultimately, the Pacific Growers filed this suit.
III.

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LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any material

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fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

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56(a). The moving party bears the initial burden of demonstrating the absence of a

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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Where the moving party will have the burden of proof at trial, it must affirmatively

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demonstrate that no reasonable trier of fact could find other than for the moving party.

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ORDER – 5

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where

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the nonmoving party will bear the burden of proof at trial, the moving party can prevail

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merely by pointing out to the district court that there is an absence of evidence to support

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the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets

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the initial burden, the opposing party must set forth specific facts showing that there is a

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genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most

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favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.

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Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).

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However, “[t]he usual summary judgment standard does not extend to FOIA cases

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because the facts are rarely in dispute and courts generally need not resolve whether there

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is a genuine issue of material fact.” Shannahan v. I.R.S., 637 F. Supp. 2d 902, 912 (W.D.

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Wash. 2009) (citing Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir.

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1996)). Instead, courts often follow a two step inquiry. Id.

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The first step requires the Court to “determine whether the agency has met its

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burden of proving that it fully discharged its obligations under FOIA.” Los Angeles

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Times Commc’ns, LLC v. Dep’t of Army, 442 F. Supp. 2d 880, 893 (C.D. Cal. 2006)

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(citing Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). An agency can

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demonstrate this by showing that it has conducted a search reasonably calculated to

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uncover all relevant documents. Id. “An agency can demonstrate the adequacy of its

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search through ‘reasonably detailed, nonconclusory affidavits submitted in good faith.’”

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Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 770 (9th Cir. 2015) (quoting Zemansky,

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767 F.2d at 571).

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If the agency meets its burden at the first step, then the Court “must determine

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‘whether the agency has proven that the information that it did not disclose falls within

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one of the nine FOIA exemptions.’” Shannahan, 637 F. Supp. 2d at 912 (quoting Los

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Angeles Times, 442 F. Supp. 2d at 894). “The agency bears the burden of justifying the

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ORDER – 6

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withholding of information under an exemption.” Prudential Locations LLC v. U.S.

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Dep’t of Housing and Urban Dev., 739 F.3d 424, 429 (9th Cir. 2013) (citing 5 U.S.C. §

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552(a)(4)(B)). “To carry their summary judgment burden, agencies are typically required

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to submit an index and ‘detailed public affidavits’ that, together, ‘identify[] the

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documents withheld, the FOIA exemptions claimed, and a particularized explanation of

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why each document falls within the claimed exemption.’” Yonemoto v. Dep’t of Veterans

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Affairs, 686 F.3d 681, 688 (9th Cir. 2011) (quoting Lion Raisins v. Dep’t of Agric., 354

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F.3d 1072, 1082 (9th Cir. 2004)). Such submissions must come from affiants who are

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knowledgeable about the information sought and must be detailed enough to allow the

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Court to make an independent assessment of the agency’s claim of exemption. See id.

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Of course, “[b]ecause FOIA’s purpose is to encourage disclosure, its exemptions are to

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be narrowly construed.” Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1088 (9th

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Cir. 2002) (citing Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988); Assembly of Cal. v.

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U.S. Dep’t of Commerce, 968 F.2d 916, 919 (9th Cir. 1992)).

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Finally, even if the agency satisfies this test, it ordinarily “must still disclose any

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reasonably segregable portions of the withheld documents.” Shannahan, 637 F. Supp. 2d

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at 912. “The burden is on the agency to establish that all reasonably segregable portions

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of a document have been segregated and disclosed.” Pac. Fisheries, Inc. v. United States,

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539 F.3d 1143, 1148 (9th Cir. 2008) (citing 5 U.S.C. § 552(a)(4)(B), (b)).
IV.

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a. Whether the Shellfish PBA is Covered by Exemption 5 and the Deliberative
Process Privilege
The Corps invoked FOIA Exemption 5 to withhold the October 2015 draft
Shellfish PBA. See Dkt. # 14 (Hynes Decl.) ¶ 8. Exemption 5 applies to “inter-agency or
intra-agency memorandums or letters which 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 other
words, “Exemption 5 allows the government to withhold documents that fall within a

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recognized litigation privilege.” Kowack v. U.S. Forest Serv., 766 F.3d 1130, 1135 (9th

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Cir. 2014) (citing Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,

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8 (2001)).

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The deliberative process privilege is one of those privileges and the Corps has

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attempted to assert it here. See Dkt. # 13 at 12. The deliberative process privilege

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“covers ‘documents reflecting advisory opinions, recommendations and deliberations

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comprising part of a process by which governmental decisions and policies are

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formulated.’” Kowack, 766 F.3d at 1135 (quoting Carter, 307 F.3d at 1089). This

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privilege “shields certain intra-agency communications from disclosure to ‘allow

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agencies freely to explore possibilities, engage in internal debates, or play devil’s

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advocate without fear of public scrutiny.’” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d

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964, 979 (9th Cir. 2009) (quoting Assembly of Cal., 968 F.2d at 920). For a document to

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fall within this privilege, it must be both “predecisional” and “deliberative.” Id.; see also

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Kowack, 766 F.3d at 1135 (quoting Maricopa Audubon Soc’y v. U.S. Forest Serv., 108

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F.3d 1089, 1093 (9th Cir. 1997)).

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“Predecisional documents are those ‘prepared in order to assist an agency

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decisionmaker in arriving at his decision, and may include recommendations, draft

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documents, proposals, suggestions, and other subjective documents which reflect the

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personal opinions of the writer rather than the policy of the agency.’” Our Children’s

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Earth Found. v. Nat’l Marine Fisheries Serv., 85 F. Supp. 3d 1074, 1087 (N.D. Cal.

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2015) (quoting Assembly of Cal., 968 F.2d at 920). The decision making agency need not

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be the same agency as the preparing the one preparing the document. See Renegotiation

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Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188 (1975) (“Congress plainly

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intended to permit one agency possessing decisional authority to obtain written

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recommendations and advice from a separate agency not possessing such decisional

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authority without requiring that the advice be any more disclosable than similar advice

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received from within the agency”). Of course, “[m]aterial which predates a decision

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ORDER – 8

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chronologically, but did not contribute to that decision, is not predecisional in any

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meaningful sense.” Carter, 307 F.3d at 1089 (quoting Assembly of Cal., 968 F.2d at

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921).
There does not appear to be a significant dispute that the Shellfish PBA is

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predecisional. See Dkt. # 16. As the Corps rightly notes, draft documents often fall

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under this prong, though they are not always predecisional. 2 See e.g. Nat’l Wildlife Fed.

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v. U.S. Forest Serv., 861 F.2d 1114, 1120 (9th Cir. 1988) (finding that draft forest plans

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and draft environmental impact statements were predecisional because they were “merely

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working drafts subject to revision” and would be released once they were in their final

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form); Kortlander v. Bureau of Land Mgmt., 816 F. Supp. 2d 1001, 1012 (D. Mont. 2011)

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(holding that “[d]raft documents subject to revision or containing proposed changes fall

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well within the deliberative process privilege” and protecting draft documents planning

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an undercover operation and investigation); see also Fox News Network, LLC v. U.S.

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Dep’t of Treasury, 911 F. Supp. 2d 261, 275 (S.D.N.Y. 2012) (citing New York Times

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Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 515 (S.D.N.Y. 2007)); Nevada v. U.S.

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Dep’t of Energy, 517 F. Supp. 2d 1245, 1262-65 (D. Nev. 2007).

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Moreover, there is little doubt that the Shellfish PBA is predecisional to the

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issuance of a PBO. 3 As the Corps convincingly argues, the decisionmakers in this

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particular process are the Services, not the Corps. See Dkt. # 13 at 14-15. Indeed, the

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implementing regulations make clear that a federal agency must prepare a biological

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assessment before the Services can initiate a formal consultation. See 50 C.F.R. §

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402.14(c). And, in issuing a biological opinion, the Services are directed to review the

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“[D]rafts are not presumptively privileged.” Judicial Watch, Inc. v. U.S. Postal Serv., 297 F.
Supp. 2d 252, 260 (D.D.C. 2004) (citing Arthur Anderson & Co. v. I.R.S., 679 F.2d 254, 257
(D.C. Cir. 1982)).
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Neither party addresses the issue, but the Corps has certainly identified the decision making
process to which the Shellfish PBA contributed and to which it is predecisional: the creation of a
PBO by the Services. See Nat’l Res. Def. Council v. U.S. Dep’t of Def., 388 F. Supp. 2d 1086,
1103 (C.D. Cal. 2005).

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information provided by the federal agency and to issue a biological opinion setting forth

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the terms for which the federal agency must comply. See 16 U.S.C. § 1536(b)(4); 50

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C.F.R. § 402.14(g). In fact, several courts have held that biological assessments are not

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final agency actions, 4 at least in the context of the Administrative Procedures Act. See

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e.g. Or. Nat’l Desert Ass’n v. Tidwell, 716 F. Supp. 2d 982, 995 (D. Or. 2010) (citing Or.

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Nat’l Res. Council v. Allen, 476 F.3d 1031, 1035-36 (9th Cir. 2007)). In short, the

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Shellfish PBA is predecisional because it was prepared to advise the Services in how to

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prepare their PBO. The Court finds that the Corps has met its burden on this point. 5 See

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Dkt. # 15 (Bennett Decl.) ¶¶ 10-11.

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Whether the Shellfish PBA is deliberative, however, remains strongly disputed.

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See Dkt. # 16 at 12. “A document is ‘deliberative’ if it exposes personal opinions such

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that releasing the document ‘would expose an agency’s decision-making process in such

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a way as to discourage candid discussion within the agency and thereby undermine the

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agency's ability to perform its functions.’” Cal. Native Plant Soc’y, 251 F.R.D. at 411

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(quoting Carter, 307 F.3d at 1090). Accordingly, courts are instructed to “focus on the

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effect of the materials’ release.” Carter, 307 F.3d at 1090 (quoting Assembly of Cal., 968

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F.2d at 921).

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Of course, a “decision” for purposes of the FOIA is not necessarily the same as a “final agency
action” under the APA. See Cal. Native Plant Soc’y v. U.S. E.P.A., 251 F.R.D. 408, 412 n.2
(N.D. Cal. 2008) (citing Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995)).
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The court in Ctr. for Biological Diversity v. U.S. Marine Corps, No. CIV. 00-2387 (TFH), 2005
WL 3262901, at *2 (D.D.C. Sept. 19, 2005) held that a biological assessment was not
predecisional because it reflected the agency’s “official position on the impact of military and
other base activities on listed threatened and endangered species.” The Ctr. for Biological
Diversity court found it inconsequential “that the policy may change as a result of FWS's
biological opinion does not affect the biological assessment from being Defendant's final
decision at the time the assessment was given to FWS.” Id.

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This Court disagrees with that conclusion. “[A]n agency’s recommendation does not cause the
recommendation to lose its ‘pre-decisional’ status merely because it has been communicated to
another agency or Executive Branch component.” Trea Senior Citizens League v. U.S. Dep’t of
State, 994 F. Supp. 2d 23, 33 (D.D.C. 2013) (citing cases). This is particularly true when another
agency makes the final decision, even when the recommending agency’s communications are
likely to frame that decision. See Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice, 742 F.2d
1484, 1497 (D.C. Cir. 1984).

ORDER – 10

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Initially, the Pacific Growers argue that the Corps has not met its burden of

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showing with particularity that the Shellfish PBA is deliberative. See Dkt. # 16 at 13.

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But the Corps has already provided affidavits from individuals who are knowledgeable

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about the information sought. See Dkt. # 15 (Bennett Decl.) ¶¶ 1-3; Dkt. # 20 (Bennett

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Decl.) ¶¶ 1. Those affiants describe the contents (though not the particulars) of the

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Shellfish PBA – and, more importantly, the process by which the Shellfish PBA came

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into being – in substantial detail, allowing the Court to consider how its disclosure would

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reveal the agency’s decisionmaking process.

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Beyond that, much of the disagreement centers on whether the Shellfish PBA

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concerns the personal opinions of the drafters or is simply a factual document. See Dkt. #

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4 at 12; Dkt. # 13 at 20. The Ninth Circuit has clarified that “[w]here either the

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disclosure of the manner of selecting or presenting facts would expose the deliberative

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process, or where facts are ‘inextricably intertwined’ with ‘policy-making processes,’ the

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material is exempt.” Nat’l Wildlife Fed., 861 F.2d at 1119 (quoting Ryan v. Dep’t of

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Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)). Thus, even if much of the material of the

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Shellfish PBA is factual, those portions may still be deliberative if revealing that

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information exposes the deliberative process. See Martins v. U.S. Citizenship &

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Immigration Servs., 962 F. Supp. 2d 1106, 1122 (N.D. Cal. 2013) (quoting Sanchez v.

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Johnson, No. C-00-1593 CW (JCS), 2001 WL 1870308, at *5 (N.D. Cal. Nov. 19,

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2001)).

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The Pacific Growers cite Greenpeace v. Nat’l Marine Fisheries Serv., 198 F.R.D.

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540 (W.D. Wash. 2000) and Nw. Envt’l Advocates v. U.S. E.P.A., No. CIV 05-1876-HA,

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2009 WL 349732 (D. Or. Feb. 11, 2009) for the proposition that documents from ESA

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consultations are not subject to the deliberative process privilege, but both cases are

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easily distinguishable. See Dkt. # 16 at 13.

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In Greenpeace, the court held that the NMFS could not withhold certain

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documents which “were prepared by NMFS scientists and staff in connection with the

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ORDER – 11

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development of” reasonable and prudent alternatives under Section 7 of the ESA under

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the deliberative process privilege because the specific “determination of jeopardy and

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adverse modification under the ESA was not a process that implicated NMFS’s policy-

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oriented judgment.” 198 F.R.D. at 542, 544. Instead, the court determined that “[a]

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determination of jeopardy and adverse modification under the ESA requires the agency to

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collect scientific facts and data, and to reach expert scientific conclusions based on these

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facts,” meaning that few policy oriented judgments were implicated. Id. at 544.

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The Nw. Envt’l Advocates court confronted an effort by the EPA, USFWS, and

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NMFS to withhold documents related to the creation of a regional temperature guidance

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utilized by the EPA to help it develop water quality standards. See 2009 WL 349732 at

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*3. The court disagreed with the Greenpeace court, holding that “documents related to

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the § 7(a)(2) consultation process” could be deliberative, even if relatively few would

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qualify. See id. at *7. The court noted that under the ESA, agencies are required to make

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scientific decisions which are unlikely to expose an agency’s decisionmaking process in a

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manner likely to discourage candor within the agency. See id. As a result, the court

16

found that the “largely scientific drafts [was] unlikely to harm future agency

17

decisionmaking or to result in embarrassment to the agencies.” Id.

18

In contrast to the largely policy-neutral documents in those cases, however, the

19

Shellfish PBA at issue relates to a programmatic biological assessment by the Corps.

20

Rather than making specific scientific findings related to a single permit application, the

21

Shellfish PBA (and the forthcoming PBO) covers general categories of future work

22

activities. See Dkt. # 15 (Bennett Decl.) ¶ 12; Dkt. # 20 (Bennett Decl.) ¶ 3, Ex. 1. In

23

this sense, even discussing specific facts or scientific findings may reveal internal

24

deliberative processes (and policy judgments) that reflect the categories of conduct the

25

Corps seeks to regulate and how it proposes to do so in accord with the ESA and MSA.

26

In other words, contrary to the situations in Greenpeace and Nw. Envt’l Advocates, the

27

Shellfish PBA here is “open to discretionary decisionmaking.” See Nw. Envt’l

28

ORDER – 12

1

Advocates, 2009 WL 349732 at *7. As the affiants make clear, the Corps decided to

2

undertake the consultation process because it found that a previous consultation did not

3

cover certain activities under the 2012 version of NWP 48. See Dkt. # 15 (Bennett Decl.)

4

¶ 15. Moreover, the Seattle District of the Corps chose to pursue a new programmatic

5

consultation to “streamline the process for the range of shellfish activity applicants”

6

beyond those “for NWP 48,” but also others. Id. ¶ 16. In doing so, the Corps certainly

7

made policy determinations as to which categories of shellfish activity applications could

8

appropriately be streamlined and which could not and reported its opinions on those

9

activities to the Services. The inclusion or exclusion of these activity categories

10

necessarily entails some give and take as to what types of activities may be

11

accommodated in a programmatic manner, especially when paired with the informal

12

participation of the Services. In fact, comparing earlier drafts of the Corps’ Shellfish

13

PBA 6 and the Corps’ pronouncements on the subject matter of the Shellfish PBA

14

suggests that priorities may have shifted during the course of internal deliberations.

15

Compare Dkt. # 17-1 (DeNike Decl.) Ex. 1 and Dkt. # 18-1 (Carr Decl.) Ex. 1 with Dkt.

16

# 20-1 (Bennett Decl.) Ex. 1.

17

Disclosure of the Shellfish PBA at this juncture also could expose the Services’

18

decision making process in such a way as to discourage candid discussion and thereby

19

undermine their ability to perform their functions. Depending on what activities the

20

Corps seeks to cover under the Shellfish PBA, the Services necessarily must provide an

21

opinion on the proposed activities. See 16 U.S.C. § 1536(b)(4). In this sense, revealing

22

the proposed activities themselves will tip the Services’ hand as to how they reach their

23

opinions. See Mobil Oil Corp. v. U.S. E.P.A., 879 F.2d 698, 703 (9th Cir. 1989) (citing

24

Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983)) (noting that the

25

effect of requiring an agency to show the difference between how a draft differs from the

26

6

27

The Pacific Growers have not detailed the provenance of the filed December 2014 PBA. See
Dkt. # 18 (Carr Decl.) ¶ 4. Nevertheless, the Corps does not dispute its authenticity. See Dkt. #
20 (Bennett Decl.) ¶ 18.

28

ORDER – 13

1

final document to claim the deliberative process privilege “would be to expose what

2

occurred in the deliberative process between the draft’s creation and the final document’s

3

issuance”).
Still, the Pacific Growers argue that the ESA consultation process expressly

4
5

contemplates its (and its members’) participation as “applicants,” contending that the

6

consultative process is not as secret as the Corps claims. 7 See Dkt. # 16 at 16-17. But

7

the Pacific Growers ignore “that FOIA does not permit selective disclosure of

8

information only to certain parties.” Maricopa Audobon, 108 F.3d at 1088. Instead, “the

9

identity of the requesting party has no bearing on the merits of his or her FOIA request.”

10

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 772

11

(1989). Indeed, whether the Pacific Growers or its members have other rights of access

12

to the Shellfish PBA is irrelevant to the Court’s FOIA inquiry. See Yonemoto, 686 F.3d

13

at 689 (distinguishing between agency’s offer of documents to applicant in his capacity

14

as an employee and public, unrestricted access provided by FOIA); Spurlock v. F.B.I., 69

15

F.3d 1010, 1015-16 (9th Cir. 1995) (noting that the FOIA analysis generally ends once

16

the court determines whether an exemption applies); see also 5 U.S.C. § 552(a)(4)(B).
Furthermore, the regulations and the Services’ ESA Section 7 Consultation

17
18

Handbook strongly suggest that the Pacific Growers (and its members) are not

19

“applicants” to a programmatic consultation. The comments to the rulemaking clarify

20

that the Services have taken the position that “prospective permit applicants” are not

21

“applicants.” See Interagency Cooperation—Endangered Species Act of 1973, as

22

Amended; Final Rule, 51 Fed. Reg. 19,930 (June 3, 1986) (to be codified at 7 C.F.R. pt.

23

402) (“One commenter suggested that the definition of applicant be amended to allow

24

prospective permit applicants to participate in section 7 consultations”). Likewise, the

25

Services’ handbook on ESA consultations reiterates that “[u]sers of public resources

26
27

7

28

ORDER – 14

Somewhat ironically, the Pacific Growers argue that the Corps waived the deliberative process
for disclosing portions of older drafts of the Shellfish PBA with various Indian Tribes.

1

(e.g., timber companies harvesting on National Forests) are not parties to programmatic

2

section 7 consultations dealing with an agency’s overall management operations,

3

including land management planning and other program level consultations.” See U.S.

4

Fish & Wildlife Serv. & Nat. Marine Fisheries Serv., Endangered Species Consultation

5

Handbook: Procedures for Conducting Consultation and Conference Activities under

6

Section 7 of the Endangered Species Act 2-12 (1998) (emphasis added). 8

7

b. Whether the Corps Waived Exemption 5

8

Having found that the deliberative process – and Exemption 5 – may apply to the

9

Shellfish PBA, the Court turns to the question of whether the Corps nevertheless waived

10

the exemption because previous drafts of the PBA have been disclosed to third parties.

11

See Dkt. # 16 at 18.

12

The Parties do not seriously dispute that portions of the December 2014 draft of

13

the Shellfish PBA were disclosed. See Dkt. # 20 (Bennett Decl.) ¶¶ 16-19. Portions of

14

the September and December 2014 drafts were shared with various Indian Tribes, the

15

Northwest Indian Fisheries Commission, and the EPA. See id. ¶¶ 15, 17. Moreover, the

16

Corps admits that an unauthorized release of the December 2014 draft of the Shellfish

17

PBA occurred. See id. ¶ 18. Still, the current draft of the Shellfish PBA has never been

18

released outside of the Corps and the Services. Id. ¶ 19.
“Voluntary disclosure of documents, either in whole or in part, to third parties has

19
20

sometimes been held to waive FOIA exemptions for those documents.” Mobil Oil, 879

21

F.2d at 700 (citing cases); AIDS Healthcare Found. v. United States Food & Drug

22

Admin., No. CV1107925MMMJEMX, 2014 WL 10983763, at *7 (C.D. Cal. Feb. 13,

23

2014). However, “release of certain documents waives FOIA exemptions only for those

24
25
26
27
28

8

The Pacific Growers’ invective on this point (see Dkt. # 22 at 3) is not well taken. The current
programmatic consultation certainly was intended to cover pending permit applications,
including by Pacific Grower members. See Dkt. # 15 (Bennett Decl.) ¶ 15. But the pending
permit applicants are far closer to general users of public resources than to individuals who have
already successfully obtained licenses. Cf. Hawaii Longline Ass’n v. Nat’l Marine Fisheries
Serv., No. CIV.A.01-765(CKK/JMF, 2002 WL 732363, at *8 (D.D.C. Apr. 25, 2002).

ORDER – 15

1

documents released” and the burden is generally on the requester to show that the

2

withheld information has been specifically revealed to the public and that a duplicate is

3

being withheld. See id. (quoting U.S. Student Ass’n v. CIA, 620 F. Supp. 2d 565, 571

4

(D.D.C. 1985)); see also Wulf v. C.I.A., 473 F.3d 370, 378 (D.C. Cir. 2007) (quoting

5

Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)) (holding that an agency

6

could waive FOIA exemptions if it officially acknowledged the existence of those

7

records, but that a plaintiff asserting prior disclosure bore the “burden of pointing to

8

specific information in the public domain that appears to duplicate that being withheld”). 9

9

To be sure, there is no “Indian trust” exemption in the FOIA. See Klamath Water,

10

532 U.S. at 15-16. And, accordingly, it would appear that the portions of the September

11

and December 2014 drafts which were voluntarily released by the Corps would not fall

12

under Exemption 5. But the voluntary disclosure of those drafts does not per se waive

13

the privilege as to the October 2015 draft at issue here. Waiver of a FOIA exemption as

14

to one document does not extend to other documents. See Mobil Oil, 879 F.2d at 701.

15

And it is undisputed that the Corps has never revealed the October 2015 Shellfish PBA to

16

any non-governmental entity. See Dkt. # 20 (Bennett Decl.) ¶ 19. As a result, the Court

17

finds that the Corps has not waived Exemption 5 as to the whole October 2015 Shellfish

18

PBA. Moreover, should the Corps reveal the mere differences between the prior drafts

19

and the current draft of the Shellfish PBA, it likely will expose the internal deliberations

20

undertaken to create the October 2015 draft. Id. at 703.

21

c. Whether the Corps Must Disclose Portions of the Shellfish PBA

22

One final point merits mention. A district court must make a segregability

23

determination when it approves the withholding of a document, though it need not

24
25
26
27
28

9

Nat. Res. Def. Council v. U.S. Dep’t of Def., 442 F. Supp. 2d 857, 865-66 (C.D. Cal. 2006) is
largely in accord. The court there held that the Office of Management and Budget waived the
deliberative process privilege when it did not take efforts to limit a non-government lobbying
entity’s dissemination of the two specific letters at issue, but also actively discussed the content
of the letters with the group. Id. Crucially, the court did not rely on the fact that the documents
were leaked to find waiver. Id. (finding that the agency’s conduct with the third party following
the purported leak was sufficient in and of itself to waive Exemption 5).

ORDER – 16

1

necessarily conduct a document-by-document (or sentence-by-sentence as the Pacific

2

Growers would have it) review. See Hamdan, 797 F.3d at 779.

3

As the Pacific Growers rightly note, “[a]n agency may withhold only that

4

information to which the exemption applies, and so must provide all ‘reasonably

5

segregable’ portions of that record to the requester.” Yonemoto, 686 F.3d at 688 (quoting

6

5 U.S.C. § 552(b)). The agency bears the burden in showing that all reasonably

7

segregable portions of each document have been disclosed and an agency can meet that

8

“by providing the district court with a reasonably detailed description of the withheld

9

material and ‘alleging facts sufficient to establish an exemption.’” Hamdan, 797 F.3d at

10

779 (quoting Pac. Fisheries, 539 F.3d at 1148). “[A] blanket declaration that all facts are

11

so intertwined to prevent disclosure under the FOIA does not constitute a sufficient

12

explanation of non-segregability.” Wilderness Soc. v. U.S. Dep’t of Interior, 344 F.

13

Supp. 2d 1, 19 (D.D.C. 2004) (citing Animal Legal Def. Fund, Inc. v. Dep’t of Air Force,

14

44 F. Supp. 2d 295, 301-02 (D.D.C. 1999)).

15

The Pacific Growers argue that the Corps has not met its burden in showing that

16

all reasonably segregable portions of the October 2015 Shellfish PBA have been

17

disclosed. See Dkt. # 16 at 22-23. The Corps argues that it cannot do so because all

18

material – even purely factual material – in the current Shellfish PBA is inextricably

19

intertwined with deliberative material. See Dkt. # 13 at 20.

20

The Court notes that the Corps has provided a reasonably detailed description of

21

the Shellfish PBA. See Dkt. # 15 (Bennett Decl.) ¶¶ 16-17; Dkt. # 20 (Bennett Decl.) ¶ 3.

22

It has also emphasized the necessity of withholding the entirety of the Shellfish PBA to

23

preserve – functionally the entirety of the briefing is directed at the same point: disclosure

24

of any portion of the Shellfish PBA is likely to reveal the inner deliberations of the Corps

25

and the Services in completing the consultation process and issuing a PBO. This makes

26

sense – given the nature of the Shellfish PBA (and as readily revealed by reviewing the

27

September and December 2014 drafts), the factual material itself reveals the relative

28

ORDER – 17

1

policy priorities the Corps (and perhaps the Services) are advancing in an effort to

2

streamline prospective permit applications.

3
4

As a result, the Court finds that the Corps has met its burden in showing that it has
released all reasonably segregable portions of the Shellfish PBA.
V.

5
6

CONCLUSION

For the foregoing reasons, the Court DENIES the Pacific Growers’ cross-motion

7

for summary judgment (Dkt. # 4) and GRANTS the Corps’ cross-motion for summary

8

judgment (Dkt. # 13).

9

The Court recognizes that the Pacific Growers are entitled to the factual material

10

contained in the Shellfish PBA. In fact, the Corps concedes as much and has

11

acknowledged that the ultimate version of the Shellfish PBA will likely become available

12

to the public after the completion of the Services’ consultation process and issuance of

13

the PBO. However, the Pacific Growers’ current request is premature and the time for

14

disclosure of the Shellfish PBA has yet to arrive.

15
16

DATED this 24th day of May, 2016.

17
18

A

19
20

The Honorable Richard A. Jones
United States District Judge

21
22
23
24
25
26
27
28

ORDER – 18