Sierra Club, Inc. v. U.S. Fish and Wildlife Serv. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIERRA CLUB, INC., No. 17-16560
Plaintiff-Appellee,
D.C. No.
v. 3:15-cv-05872-
EDL
UNITED STATES FISH AND WILDLIFE
SERVICE; NATIONAL MARINE
FISHERIES SERVICE, ORDER
Defendants-Appellants.
On Remand from the Supreme Court of the United States
Filed April 26, 2021
Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
Judges, and Terrence Berg, * District Judge.
Order
*
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
2 SIERRA CLUB V. USFWS
SUMMARY **
Freedom of Information Act
The panel remanded to the district court for further
proceedings following the remand from the United States
Supreme Court, U.S. Fish & Wildlife Serv. v. Sierra Club,
Inc., 592 U.S. __, 141 S. Ct. 777 (2021), which reversed this
court, and held that two draft jeopardy biological opinions
were exempted from disclosure under the Freedom of
Information Act by the deliberative process privilege. The
Supreme Court made clear that on remand, a segregability
analysis must be undertaken to determine whether any parts
of the documents, exempted from FOIA disclosure, were
reasonably segregable and must be disclosed to the
requesting party.
COUNSEL
Thomas Pulham and H. Thomas Byron III, Appellate Staff,
Civil Division; David L. Anderson, United States Attorney;
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.
Reed W. Super and Michael DiGiulio, Super Law Group
LLC, New York, New York, for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SIERRA CLUB V. USFWS 3
Shaun A. Goho, Emmett Environmental Law & Policy
Clinic, Harvard Law School, Cambridge, Massachusetts, for
Amicus Curiae Union of Concerned Scientists.
ORDER
The previous Judgment in this case has been reversed,
and the case has been remanded to this Court for further
proceedings. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,
592 U. S. ____, 141 S. Ct. 777 (2021).
This Court had affirmed the District Court’s decision
allowing release under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, of the December 2013 draft
jeopardy biological opinions (NMFS 44516.1 and FWS
252), the March 2014 reasonable and prudent alternative
(RPA) (FWS 555), and the remaining statistical and
instructional documents (NMFS 5597.1, NMFS 61721,
NMFS 7544.2, NMFS 37695, NMFS 37667, NMFS
14973.1), but reversed the district court’s decision allowing
release of the December 2013 RPAs (FWS 279, 308) and the
April 2014 draft jeopardy opinion (NMFS 5427.1). See
Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d
1000, 1008–09, 1018 (9th Cir. 2019), rev’d, 592 U. S. ____,
141 S. Ct. 777 (providing full list of documents at issue in
the case).
In reversing this Court, the Supreme Court held that the
two draft jeopardy biological opinions are exempted from
disclosure under FOIA by the deliberative process privilege,
and that “the logic applied to these drafts also applies to the
other draft documents.” 141 S. Ct. at 786 n.3. Further, when
a document is exempted from FOIA disclosure, agencies
must nevertheless disclose “[a]ny reasonably segregable
4 SIERRA CLUB V. USFWS
portion” to a requesting party. 5 U.S.C. § 552(b); see also
Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148
(9th Cir. 2008) (“Factual portions of documents covered by
the deliberative process privilege must be segregated and
disclosed unless they are ‘so interwoven with the
deliberative material that [they are] not [segregable].’”)
(alterations in original) (quoting United States v. Fernandez,
231 F.3d 1240, 1247 (9th Cir. 2000)).
The Supreme Court remanded for proceedings consistent
with its opinion, making clear in particular that, on remand,
a segregability analysis must be undertaken. 141 S. Ct.
at 789 n.5 (“We agree with the parties that the District Court
must determine on remand whether any parts of the
documents at issue are segregable.”). Accordingly, the case
is hereby REMANDED to the District Court for
proceedings consistent with the Supreme Court’s opinion,
including a segregability analysis where indicated. See U.S.
Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. at 789
n.5.
IT IS SO ORDERED.