Sierra Club, Inc. v. U.S. Fish and Wildlife Serv. , 911 F.3d 967 ( 2018 )


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  •                      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,                                   OPINION
    Defendants-Appellants.
    Appeal from the United States District Court
    for the Northern District of California
    Elizabeth D. Laporte, Magistrate Judge, Presiding
    Argued and Submitted March 15, 2018
    San Francisco, California
    Filed December 21, 2018
    Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
    Judges, and Terrence Berg, * District Judge.
    Opinion by Judge Berg;
    Partial Concurrence and Partial Dissent by Judge Wallace
    *
    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 affirmed in part and reversed in part the
    district court’s decision that ordered the U.S. Department of
    Fish and Wildlife Services and the National Marine Fisheries
    Service to turn over 12 of 16 requested records in a Freedom
    of Information Act (“FOIA”) action brought by the Sierra
    Club challenging the Services’ denial of their request for
    records generated during the Environmental Protection
    Agency’s rule-making process concerning cooling water
    intake structures.
    Exemption 5 of FOIA shields documents subject to the
    “deliberative process privilege” from disclosure.
    The panel held the December 2013 draft jeopardy
    biological opinions, the accompanying statistical table, the
    accompanying instructional documents, and the March 2014
    reasonable and prudent alternative (RPA) were not both pre-
    decisional and deliberative. The panel therefore affirmed in
    part the district court’s summary judgment order requiring
    the production of these records.
    The panel held that there was sufficient support to
    conclude that the December 2013 RPAs and the April 2014
    draft jeopardy opinion were pre-decisional and deliberative.
    Because these records satisfied the standard for non-
    **
    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
    disclosure under FOIA Exemption 5, the panel reversed the
    district court’s order for their production.
    The panel instructed the district court on remand to
    perform a segregability analysis.
    Judge Wallace concurred in the result reached by the
    majority as to the April 2014 draft opinion and the December
    2013 RPAs, and dissented from the result reached by the
    majority as to the rest of the documents because he disagreed
    with the majority that the deliberative process privilege did
    not protect the December draft opinions and other
    documents.
    COUNSEL
    Thomas Pulham (argued), Appellate Staff, Civil Division,
    United States Department of Justice, Washington, D.C., for
    Washington, D.C., for Defendants-Appellants.
    Reed W. Super (argued) and Michael DiGuglio, Super Law
    Group LLC, New York, New York, for Plaintiff-Appellee.
    Shaun A. Goho, Emmett Environmental Law & Policy
    Clinic, Harvard Law School, Cambridge, Massachusetts, for
    Amicus Curiae Union of Concerned Scientists.
    4                     SIERRA CLUB V. USFWS
    OPINION
    BERG, District Judge:
    Across the United States, thousands of large industrial
    facilities, power plants, and other manufacturing and
    processing complexes draw billions of gallons of water each
    day from lakes, rivers, estuaries and oceans in order to cool
    their facilities through cooling water intake structures. 1
    These structures can harm fish, shellfish, and their eggs by
    pulling them into the factory’s cooling system; they can
    injure or kill other aquatic life by generating heat or releasing
    chemicals during cleaning processes; and they can injure
    larger fish, reptiles and mammals by trapping them against
    the intake screens. 2 Section 316(b) of the Clean Water Act,
    33 U.S.C. § 1326(b), directs the Environmental Protection
    Agency (EPA) to regulate the design and operation of
    cooling water intake structures to minimize these adverse
    effects.
    In April 2011, the EPA proposed new regulations under
    Section 316(b) for cooling water intake structures. 76 Fed.
    Reg. 22,174 (April 20, 2011). The final rule was published
    in the Federal Register in August 2014. Final Regulations to
    Establish Requirements for Cooling Water Intake Structures,
    79 Fed. Reg. 48,300 (Aug. 15, 2014) (to be codified at
    40 C.F.R. pts. 122 & 125). As part of the rule-making
    process, EPA consulted with Appellants, the United States
    Fish and Wildlife Service (FWS) and the National Marine
    Fisheries Service (NMFS) (collectively, the Services), about
    1
    Riverkeeper, Inc. v. EPA, 
    358 F.3d 174
    , 181 (2d Cir. 2004).
    2
    See Cooling Water Intakes, Envtl. Protection Agency,
    https://www.epa.gov/cooling-water-intakes.
    SIERRA CLUB V. USFWS                             5
    the impact the regulation might have under the Endangered
    Species Act (ESA). Section 7 of the ESA and implementing
    regulations require federal agencies to consult with the
    Services whenever an agency engages in an action that “may
    affect” a “listed species” (i.e., one that is protected under the
    ESA). 50 C.F.R. § 402.14(a). The purpose of the
    consultation is to ensure that the agency action is “not likely
    to jeopardize the continued existence” or “result in the
    destruction or adverse modification of habitat” of any
    endangered or threatened species. 16 U.S.C. § 1536(a)(2);
    50 C.F.R. § 402.14(a). As part of this Section 7 consultation
    process, the Services must prepare a written biological
    opinion on whether the proposed agency action is one that
    poses “jeopardy” or “no jeopardy” to the continued existence
    of a listed species or critical habitat. 50 C.F.R.
    § 402.14(h)(3). If the opinion concludes that the agency
    action causes “jeopardy,” the Services must propose
    “reasonable and prudent alternatives” (RPAs) to the action
    that would avoid jeopardizing the threatened species.
    16 U.S.C § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)(8),
    (h)(3). 3
    Appellee, the Sierra Club, made a Freedom of
    Information Act (“FOIA”) request to the Services for records
    generated during the EPA’s rule-making process concerning
    cooling water intake structures, including documents
    generated by the Services as part of an ESA Section 7
    consultation about the rule. The Services withheld a number
    of the sought-after records under “Exemption 5” of FOIA,
    3
    The Second Circuit in a consolidated case recently denied a
    petition to review several challenges to this final rule under the Clean
    Water Act, the Administrative Procedures Act, and the Endangered
    Species Act. Cooling Water Intake Structure Coal. v. EPA, 
    898 F.3d 173
    (2d Cir. 2018), amended, 
    2018 WL 4678440
    (2d Cir. Sept. 27, 2018).
    6                SIERRA CLUB V. USFWS
    which shields documents subject to the “deliberative process
    privilege” from disclosure. See 5 U.S.C. § 552(b)(5); see
    also Kowack v. U.S. Forest Serv., 
    766 F.3d 1130
    , 1135 (9th
    Cir. 2014). The district court determined that 12 of the
    16 requested records were not protected by the privilege, in
    whole or in part, and ordered the Services to turn them over
    to the Sierra Club. The Services now appeal. We affirm in
    part and reverse in part.
    I. BACKGROUND
    a. Factual History
    In 2012, the EPA began an informal consultation process
    with the Services about a proposed rule for regulating the
    requirements governing the operation of cooling water
    intake structures. The EPA requested a formal consultation
    on the proposed rule in 2013. On November 4, 2013, the
    Services received a revised version of the proposed rule from
    the Office of Management and Budget (OMB). On
    November 15, 2013, the Services sent a “Description of the
    Action” (i.e. a summary of what the Services thought the
    proposed rule set out to do) to the EPA. Finally, on
    November 26, 2013, the EPA responded with corrections to
    the Services’ description of the rule and the Services
    incorporated the EPA’s corrections. The EPA and the
    Services tentatively agreed that the FWS and NMFS would
    each provide a draft biological opinion to the EPA by
    December 6, 2013, and a final opinion by December 20,
    2013.
    After reviewing the November 2013 proposed rule, both
    Services prepared draft opinions finding that the rule in its
    then-current form was likely to cause jeopardy for ESA-
    protected species and negatively impact their designated
    critical habitats. The Services also proposed RPAs to
    SIERRA CLUB V. USFWS                      7
    accompany those jeopardy opinions. At the same time,
    NMFS discussed whether the jeopardy opinions should be
    sent to “the Hill” or OMB, or posted to its docket, which was
    publicly available at regulations.gov.
    NMFS completed its draft jeopardy opinion on
    December 6, 2013 and FWS completed its draft jeopardy
    opinion on December 9, 2013, both for transmission to the
    EPA. The ESA regulations require that the Services make
    draft opinions available to the Federal agency that initiated
    the formal consultation upon request. 50 C.F.R.
    § 402.14(g)(5). Here, the Services sent the EPA portions of
    its December 2013 draft jeopardy opinions, but never
    formally transmitted them in their entirety.
    On December 12, 2013, the FWS Deputy Solicitor called
    and emailed the EPA General Counsel to “touch base . . .
    about transmitting a document to EPA.” He also emailed
    “the current draft RPAs” to the EPA that same day. On
    December 17, 2013, the NMFS sent a “Revised Combined
    NMFS and USFWS RPA” to the EPA. The Services have
    further indicated in their briefing that they also provided
    other unspecified portions of the draft jeopardy opinions to
    the EPA.
    After the transmission of these partial December 2013
    jeopardy biological opinions and accompanying documents,
    the EPA issued a new version of the rule, the “final Rule and
    Preamble,” which it sent to the Services on March 14, 2014.
    On April 7, 2014, NMFS employees completed and
    internally circulated a draft of another jeopardy biological
    opinion. During this same time frame, the Services and the
    EPA discussed whether the EPA agreed with the Services’
    interpretation and understanding of the March 2014 final
    rule: On March 31, 2014 the Services sent the EPA a
    document “seeking clarification on the Services’
    8                 SIERRA CLUB V. USFWS
    understandings of key elements in EPA’s proposed action.”
    On April 8, 2014, EPA “provided confirmation on the
    Services’ description and understanding of the key elements
    of EPA proposed action.” Finally, on May 19, 2014, the
    Services issued a joint final “no jeopardy” biological opinion
    regarding the March 2014 final rule. The EPA issued the
    regulation that same day, and it was published in the Federal
    Register on August 15, 2014. Final Regulations to Establish
    Requirements for Cooling Water Intake Structures, 79 Fed.
    Reg. 48,300.
    On August 11, 2014, the Sierra Club submitted FOIA
    requests to the Services for records related to this ESA
    Section 7 consultation. In response, the Services produced a
    large quantity of documents (some of which were partially
    redacted). The Services withheld other documents under
    FOIA Exemption 5, which protects “inter-agency or intra-
    agency memorandums or letters that would not be available
    by law to a party other than an agency in litigation with the
    agency.” 5 U.S.C. § 552(b)(5).
    In summary, the key chronological dates in this FOIA
    dispute are:
    •   June 18, 2013: EPA initiates formal consultation
    under ESA Section 7 with the Services regarding the
    proposed rule.
    •   November 4, 2013: The Services receive the most
    recent version of the EPA’s proposed rule from
    OMB.
    •   November 15, 2013: The Services send the
    Description of the Action (i.e. a summary of their
    understanding of the proposed rule) to the EPA for
    review.
    SIERRA CLUB V. USFWS                      9
    •   November 26, 2013: EPA sends the Services its
    corrections and comments on the Description of the
    Action, which the EPA incorporated into the final
    description of the November 2013 proposed rule.
    •   December 3, 2013: The Services inform the EPA
    that their draft opinions are “jeopardy opinions” and
    will be completed on or around December 6, 2013.
    •   December 6, 2013: NMFS completes its draft
    jeopardy opinion.
    •   December 9, 2013: FWS completes its draft
    jeopardy opinion.
    •   December 12, 2013: FWS Deputy Solicitor calls the
    EPA General Counsel to “touch base . . . about
    transmitting a document to EPA.”
    •   December 12 & 17, 2013: The Services email two
    RPAs—written to accompany the draft jeopardy
    opinions—to the EPA.
    •   March 14, 2014: EPA sends the Services a new,
    final rule for review and Biological Opinion analysis.
    •   March 31, 2014: The Services send the EPA a
    document requesting clarification regarding their
    understanding of elements of the final rule.
    •   April 7, 2014: NMFS employees internally circulate
    a draft jeopardy biological opinion relating to the
    March 14, 2014 proposed rule; this draft is not sent
    to EPA.
    10                    SIERRA CLUB V. USFWS
    •   April 8, 2014: EPA confirms the Services’
    interpretations and understanding of the final rule
    contained in the Services’ clarification document.
    •   May 19, 2014: The Services issue a joint final no
    jeopardy biological opinion regarding the March 14,
    2014 proposed rule.
    b. Procedural History
    On December 21, 2015, the Sierra Club filed suit against
    the Services, arguing that they had improperly withheld
    documents under FOIA Exemption 5. The parties filed
    cross-motions for summary judgment regarding their
    release. During and after that hearing the district court and
    the parties narrowed the list of contested documents to 16.
    The district court found that 4 of the disputed documents
    were fully protected under Exemption 5 but ordered that the
    Services produce one document in part and the other eleven
    in full. 4 The Services timely appealed the district court’s
    4
    Although the district court initially cited the correct test for FOIA
    Exemption 5—that exempt documents must be both “pre-decisional”
    and “deliberative” to avoid disclosure—the test it applied to each
    document was whether it was a “relatively polished draft” that contained
    “subjective comments, recommendations, or opinions.” These factors,
    though they might bear on whether a document was “pre-decisional” or
    “deliberative,” are not dispositive—and to the extent the district court’s
    analysis depended solely on these factors, it was in error. Because the
    standard of review on appeal from an Exemption 5 challenge is de novo,
    however, we have examined each of the contested documents to
    determine whether they satisfy the “pre-decisional” and “deliberative”
    test.
    SIERRA CLUB V. USFWS                               11
    order to produce the documents, and the parties stipulated to
    stay of production pending appeal. 5
    The documents at issue on appeal—those that the district
    court found were not exempt from disclosure—were
    submitted to the panel under seal for in camera review. They
    are:
    1. Biological Opinions
    i. “NMFS 44516.1”: A 289-page NMFS draft
    jeopardy biological opinion dated December
    6, 2013;
    ii. “FWS 252”: A 72-page FWS draft jeopardy
    biological opinion dated December 9, 2013;
    iii. “NMFS 5427.1”: A 334-page NMFS draft
    jeopardy biological opinion dated April 7,
    2014; 6
    2. Reasonable and Prudent Alternatives (RPAs)
    i. “FWS 279”: A 4-page FWS RPA, dated
    December 17, 2013;
    5
    Sierra Club did not cross-appeal to challenge the district court’s
    holding that four of the requested documents were completely protected
    under Exemption 5.
    6
    The draft opinion itself is undated. The district court opinion states
    that it was dated April 4, 2014, but the affidavit submitted on behalf of
    the agency that created it states it was sent via email on April 7, 2014.
    We therefore refer to it as the April 7, 2014 draft opinion.
    12           SIERRA CLUB V. USFWS
    ii. “FWS 308”: A 3-page FWS RPA, dated
    December 18, 2013;
    iii. “FWS 555”: A 2-page FWS RPA, dated
    March 6, 2014.
    3. Other Documents
    i. “NMFS 61721”: A 1-page statistical table
    showing estimated aggregate effects of
    cooling water intake structure facilities on
    protected species;
    ii. “NMFS 5597.1”: A 2-page document that
    describes steps that facility owners/operators
    must take if abalone, an endangered species,
    is affected by their cooling water intake
    structures;
    iii. “NMFS 7544.2”: A 15-page document on
    Anadromous Salmonid Requirements that
    provides criteria and guidelines to be utilized
    by owner/operators in the development of
    downstream migrant fish screen facilities for
    hydroelectric, irrigation, and other water
    withdrawal projects;
    iv. “NMFS 37695”: A 2-page document that
    lists the steps that owner/operators must
    follow if a seal, sea lion, or fur seal, or their
    designated critical habitat, may be affected
    by a cooling water intake structure;
    v. “NMFS 37667”: A 3-page document that
    lists the steps that owner/operators must
    SIERRA CLUB V. USFWS                     13
    follow if sea turtles are affected by their
    cooling water intake structures;
    vi. “NMFS 14973”: A 5-page document that
    lists the terms and conditions with which the
    EPA and an owner/operator must comply in
    order to be exempt from Section 9 of the
    ESA. These terms and conditions involve the
    protocols for dealing with sea turtles near
    cooling water intake structures. The district
    court held NMFS could redact one sentence
    but had to disclose the rest of the document.
    II. STANDARD OF REVIEW
    In FOIA cases, this court reviews summary judgment
    determinations de novo. Animal Legal Def. Fund v. U.S.
    Food & Drug Admin., 
    836 F.3d 987
    , 990 (9th Cir. 2016) (en
    banc).
    III.    DISCUSSION
    Section 522 of Title 5, FOIA, “mandates a policy of
    broad disclosure of government documents.” Maricopa
    Audubon Soc. v. U.S. Forest Serv., 
    108 F.3d 1082
    , 1085 (9th
    Cir. 1997) (Maricopa I) (quoting Church of Scientology v.
    Dep’t of the Army, 
    611 F.2d 738
    , 741 (9th Cir. 1979)
    (internal quotations omitted)). Agencies may withhold
    documents only pursuant to the exemptions listed in
    § 552(b). See 
    id. Here, the
    Services argue that the 12 documents the
    district court ordered them to produce to the Sierra Club are
    protected under § 552(b)(5) (Exemption 5). Under
    Exemption 5, FOIA’s general requirement to make
    information available to the public does not apply to “inter-
    14                SIERRA CLUB V. USFWS
    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).
    This exemption has been interpreted as coextensive with
    all civil discovery privileges. NLRB v. Sears, Roebuck &
    Co., 
    421 U.S. 132
    , 149 (1975). The particular privilege the
    Services have claimed here is the “deliberative process
    privilege,” which permits agencies to withhold documents
    “to prevent injury to the quality of agency decisions by
    ensuring that the frank discussion of legal or policy matters
    in writing, within the agency, is not inhibited by public
    disclosure.” Maricopa Audubon Soc. v. U.S. Forest Serv.,
    
    108 F.3d 1089
    , 1092 (9th Cir. 1997) (Maricopa II) (quoting
    NLRB v. Sears, Roebuck & Co., 
    421 U.S. 132
    , 150–51
    (1975) (internal quotations omitted)).
    Because FOIA is meant to promote disclosure, its
    exemptions are interpreted narrowly. Assembly of Cal. v.
    U.S. Dep’t of Commerce, 
    968 F.2d 920
    (9th Cir. 1992)
    (citing Dep’t of Justice v. Julian, 
    486 U.S. 1
    , 8 (1988)). The
    dissent argues that because the FOIA Exemption 5 privileges
    “inter-agency or intra-agency memorandums or letters” and
    because the documents at issue here were transmitted
    between agencies, they should be exempt from disclosure.
    We agree that the documents must be considered in the
    context in which they were produced, Sears, Roebuck & 
    Co., 421 U.S. at 138
    . But a document’s origins as part of the inter-
    agency consultation process between the EPA and the
    Services, see 50 C.F.R. § 402.14(a), only relate to a
    threshold requirement for applying Exemption 5—that the
    document is an “inter-agency or intra-agency
    memorandum.” Beyond that threshold, “to qualify [under
    the deliberative process privilege] a document must thus
    satisfy two conditions: its source must be a Government
    SIERRA CLUB V. USFWS                             15
    agency and it must fall within the ambit of a privilege against
    discovery under judicial standards that would govern
    litigation against the agency that holds it.” Dep’t of Interior
    v. Klamath Water Users Protective Ass’n, 
    532 U.S. 1
    , 8
    (2001).
    This circuit has defined the ambit of the deliberative
    process privilege under Exemption 5 narrowly. It “applies
    only if disclosure of the materials would expose an agency’s
    decision-making process in such a way as to discourage
    candid discussion within the agency and thereby undermine
    the agency’s ability to perform its functions.” 
    Kowack, 766 F.3d at 1135
    (quoting Maricopa 
    II, 108 F.3d at 1093
    )
    (internal quotations omitted) (finding the Forest Service had
    not sufficiently demonstrated that disclosure of redacted
    portions of an intra-agency investigative report regarding
    alleged employee misconduct contained more than factual,
    i.e., deliberative, content).
    The Services therefore bear the burden of proving that
    the documents they maintain should be exempt from
    disclosure are both “pre-decisional and deliberative.” Carter
    v. Dep’t of Commerce, 
    307 F.3d 1084
    , 1089 (9th Cir. 2002)
    (internal quotations omitted). 7
    7
    In Cooling Water Intake Structure Coal. v. EPA, 
    898 F.3d 173
    (2d
    Cir. 2018), amended, 
    2018 WL 4678440
    (2d. Cir. Sep. 27, 2018), the
    plaintiffs asked to supplement the certified record with what appear to
    be the same documents at issue in this case. 
    2018 WL 3520398
    at *7 n.9.
    Finding “nothing in the privilege log that would disturb the ‘presumption
    of regularity’ afforded to the agencies’ certified record,” 
    id. (citing Citizens
    to Pres. Overton Park, Inc. v. Volpe, 
    401 U.S. 402
    , 415 (1971)),
    the Second Circuit denied this motion in a footnote, noting that the EPA
    had “produced a privilege log that adequately describes the nature of [the
    requested documents] and their rationale for classifying [them] as
    16                    SIERRA CLUB V. USFWS
    These pre-decisional and deliberative prongs are
    analyzed separately although the issues they address overlap.
    Assembly of 
    Cal., 986 F.2d at 920
    . For the reasons explained
    below, we conclude that the December 2013 draft jeopardy
    biological opinions (NMFS 44516.1 and FWS 252), the
    accompanying statistical table (NMFS 61721), the
    accompanying instructional documents (NMFS 5597.1,
    NMFS 7544.2, NMFS 37695, NMFS 37667, NMFS
    14973.1), and the March 2014 RPA (FWS 555) were not
    both pre-decisional and deliberative. We therefore AFFIRM
    in part the district court’s summary judgment order requiring
    the production of these records. There is, however, sufficient
    support for concluding the December 2013 RPAs (FWS 279,
    308) and the April 2014 draft jeopardy opinion (NMFS
    5427.1) were pre-decisional and deliberative. Because these
    records satisfy the standard for non-disclosure under FOIA
    Exemption 5, we REVERSE the district court’s order for
    their production.
    deliberative and therefore privileged,” and thus the Agency had satisfied
    their obligation under Fed. R. Civ. P. 26(b)(5)(A)(ii) (requiring that a
    party claiming privilege describe the privileged documents in a manner
    that allowed other parties to assess the claim). Cooling Water Intake
    Structure Coal., 
    2018 WL 4678440
    at *7 n.9. Cooling Water Intake did
    not, however, analyze whether the reasons given in the privilege log for
    the claims of privilege were justified. Instead, the Second Circuit applied
    a “presumption of regularity” regarding the administrative record, not
    applicable here. It did not address whether the EPA had carried a burden
    of showing that the documents at issue were both deliberative and pre-
    decisional, as we must do to determine whether they should be disclosed
    under FOIA, 
    Carter, 307 F.3d at 1089
    . Given the different burdens, we
    do not believe that the footnote in that decision suggests a different result
    than the one we reach.
    SIERRA CLUB V. USFWS                      17
    a. Pre-decisional
    A document is pre-decisional if it is “prepared in order
    to assist an agency decision-maker in arriving 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.” Assembly of 
    Cal., 968 F.2d at 920
    (citation and internal quotations omitted). The agency
    requesting the exemption “must identify a specific decision
    to which the document is pre-decisional.” Maricopa 
    II, 108 F.3d at 1094
    .
    Here, the Services argue that the December 2013 and
    April 2014 jeopardy opinions, the three RPAs, and all of the
    other statistical and instructional documents pre-date the
    May 2014 “no jeopardy” opinion and are thus pre-decisional
    as to that final opinion.
    1. April 2014 NMFS Draft Biological
    Opinion
    We agree that the April 2014 draft jeopardy opinion
    (NMFS 542.71) was prepared as an internal agency
    document. It was only circulated between groups of NMFS
    employees, and there is nothing in the record that indicates
    that the jeopardy finding was communicated even informally
    to the EPA. Where one document reflects an earlier position
    of the agency—as the April 2014 draft jeopardy opinion
    does here when compared with the May 2014 final no
    jeopardy opinion—it is pre-decisional as to the issues
    addressed in both. See Nat. Wildlife 
    Fed., 861 F.2d at 1120
    (documents that were “working drafts” subject to revision
    are pre-decisional). In other words, it does not appear to
    represent the conclusion of the agency on the likely impact
    of the final March 2014 rule, but rather is an interim step,
    18                   SIERRA CLUB V. USFWS
    communicated only internally within NMFS. The document
    expressed the agency staff’s initial opinion as to the rule.
    NMFS never adopted that opinion as the agency’s; instead,
    the NMFS ultimately joined the FWS in a final joint no
    jeopardy opinion in May 2014 regarding the final March
    2014 rule. 8
    2. RPAs
    We also agree that the December 2013 RPAs (FWS 279,
    308) are pre-decisional because they appear to be earlier
    drafts of the third, March 2014 RPA (FWS 555). In other
    words, the December 2013 RPAs do not reflect the FWS’
    final position regarding the kinds of changes the November
    2013 version of the rule needed in order to comply with the
    ESA. The December 2013 RPAs, but not the March 2014
    RPA, are therefore pre-decisional.
    3. 2013 Draft Biological Opinions
    We disagree with the Services, however, that the
    December 2013 draft jeopardy opinions (NMFS 44516.1;
    FWS 252) are pre-decisional. These two jeopardy opinions
    8
    We recognize the difference between the NMFS April 2014
    “jeopardy opinion” and the NMFS and FWS joint May 2014 “no-
    jeopardy” opinion, both of which address the March 2014 proposed EPA
    rule. The cover letter transmitting the final “no jeopardy” opinion of May
    19, 2014 explains that its opinion is based in part on “the Services’
    interpretations of that rule as agreed upon by EPA on April 8, 2014.”
    These interpretations—obviously considered of key importance to the
    Services—were agreed to by EPA during the same time frame that
    NMFS was preparing its earlier jeopardy opinion, which it ultimately
    decided not to send. Beyond this, we do not know why NMFS decided
    to join the final “no jeopardy” opinion after its staff earlier proposed
    reaching the opposite conclusion. But “back-and-forth” debate is
    precisely the type of deliberative process that Exemption 5 protects.
    SIERRA CLUB V. USFWS                     19
    represent the final view of the Services regarding the then-
    current November 2013 proposed rule; the May 2014 no
    jeopardy opinion represents the final view of Services
    regarding the later March 2014 revised, proposed rule.
    Both the Supreme Court and this court have held that the
    issuance of a biological opinion is a final agency action.
    Bennet v. Spear, 
    520 U.S. 154
    , 178 (1997); Ctr. for
    Biological Diversity v. U.S. Fish & Wildlife Serv., 
    450 F.3d 930
    , 940 (9th Cir. 2006). So our focus is on whether each
    document at issue is pre-decisional as to a biological
    opinion, not whether it is pre-decisional as to the EPA’s
    rulemaking. Although the December 2013 biological
    opinions in this case were not publicly issued, they
    nonetheless represent the Services’ final views and
    recommendations regarding the EPA’s then-proposed
    regulation. The purpose of the December 2013 jeopardy
    biological opinions and their accompanying documents was
    not to advise another decision-maker higher up the chain
    about what the Service’s position should be on the proposed
    rule. Instead, these opinions, created pursuant to an ESA
    Section 7 formal consultation, contain the final conclusions
    by the final decision-makers—the consulting Services—
    regarding whether a proposed regulation will harm protected
    species and habitat. See 50 C.F.R. 402.14(h)(3) (a biological
    opinion is “[t]he Service’s opinion on whether the action is
    likely to jeopardize the continued existence of listed
    species. . . .”) (emphasis added).
    Where, as here, a document is created by a final decision-
    maker and represents the final view of an entire agency as to
    a matter which, once concluded, is a final agency action
    independent of another agency’s use of that document, it is
    not pre-decisional. Cf. Maricopa 
    II, 108 F.3d at 1094
    (Forest
    Service’s internal investigative report was prepared to advise
    20                SIERRA CLUB V. USFWS
    the Chief of the Forest Service on how the agency should
    respond to misconduct allegations and was thus pre-
    decisional); Kowack v. U.S. Forest Serv., 
    766 F.3d 1130
    ,
    1135 (9th Cir. 2014) (investigative reports prepared by the
    Forest Service’s Misconduct Investigations program
    manager were meant to assist the agency in making a final
    decision regarding how to deal with an employee and were
    thus pre-decisional).
    The record reflects the finality of the conclusions in the
    December 2013 draft jeopardy opinions. The documents had
    been approved by final decision-makers at each agency: the
    email correspondence in the record indicates Gary Frazer,
    the Assistant Director for Ecological Services at FWS who
    was responsible for overseeing and administering ESA
    consultations, made final edits to the FWS Service
    December 9, 2013 jeopardy opinion and that the document
    was awaiting his autopen signature. NMFS meanwhile was
    preparing “talking points” for its legislative affairs staff and
    preparing to release the drafts to the public.
    Moreover, the Services’ own account indicates that the
    EPA made changes to its proposed regulations after
    December 2013—that is, after both Services’ jeopardy
    opinions were completed and partially transmitted to the
    EPA—and that the “final” May 2014 Biological Opinion
    reflected the Services’ opinion concerning the EPA’s later
    revised proposed regulation.
    The fact that the December 2013 jeopardy opinions pre-
    dated the later no jeopardy opinion does not render them pre-
    decisional. “[M]aterial which predate[s] a decision
    chronologically, but did not contribute to that decision is not
    predecisional in any meaningful sense.” Assembly of 
    Cal., 968 F.2d at 921
    (census data prepared by the Department of
    Commerce “solely for the purpose of post-decision
    SIERRA CLUB V. USFWS                    21
    dissemination” if the Secretary decided to adjust the census
    was not pre-decisional merely because it predated the
    Secretary’s decision). The December 2013 jeopardy
    opinions pre-date the May 2014 no jeopardy opinion, but
    address and thus make final conclusions about a different
    version of the EPA’s rule. These earlier opinions therefore
    were not pre-decisional with respect to the later opinion,
    which addressed a different proposed rule.
    4. Other Documents
    We disagree with the Services’ arguments that the
    remaining documents, which accompanied the December
    2013 draft jeopardy opinions, were pre-decisional because
    they were either “modified” or excluded from the May 2014
    final no jeopardy opinion. These documents—1) a statistical
    table showing estimated aggregate effects of cooling water
    intake structures on ESA-protected species (NMFS 61721);
    2) several instructional documents for cooling water intake
    structure operators detailing how to abate the harmful
    impacts of those structures on specific species (NMFS
    5597.1, “Abalone Measures”), (NMFS 7544.2, “Andromous
    Salmonid Measures”), (NMFS 37695, “Pinniped
    Measures”),      and     (NMFS    37667,     “Sea     Turtle
    Requirements”); and 3) “Terms and Conditions” that
    operators of cooling water intake structures must follow in
    implementing the RPAs (NMFS 14973.1)—were largely
    instructional, and intended to explain best practices for
    mitigating the projected, harmful effects of the November
    2013 proposed rule. They were not early-stage
    recommendations for mitigating the impacts of the revised,
    March 2014 rule, and are thus not pre-decisional as to the
    May 2014 no jeopardy opinion the Services issued in
    response to that later rule.
    22               SIERRA CLUB V. USFWS
    b. Deliberative
    To shield documents from disclosure under Exemption
    5, the Services must not only show that they are pre-
    decisional, but also that they are deliberative. Maricopa 
    II, 108 F.3d at 1093
    . Examples of “deliberative” materials
    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” or that “inaccurately reflect or prematurely
    disclose the views of the agency.” Nat’l Wildlife Fed’n v.
    U.S. Forest Serv., 
    861 F.2d 1114
    , 1118–19 (9th Cir. 1988)
    (quoting Coastal States Gas Corp. v. Dep’t of Energy,
    
    617 F.2d 854
    , 866 (D.C. Cir. 1980)). With three exceptions
    noted below, the contested documents here are not
    “deliberative.”
    The Supreme Court has cautioned against relying on a
    “wooden” facts-versus-opinions dichotomy for determining
    whether a document is deliberative. Assembly of 
    Cal., 968 F.2d at 921
    (citing EPA v. Mink, 
    410 U.S. 73
    , 91
    (1973)). Accordingly, this circuit applies a “functional
    approach,” which considers whether the contents of the
    documents “reveal the mental processes of the decision-
    makers” and would “expose [the Services’] decision-making
    process in such a way as to discourage candid discussion
    within the agency and thereby undermine [their] ability to
    perform [their] functions.” 
    Id. at 920–21.
    After conducting a de novo review of the documents, we
    conclude that only three—the December 2013 RPAs (FWS
    279, 308) and April 2014 draft jeopardy opinion (NMFS
    5427.1)—could reveal inter- or intra- agency deliberations
    and are thus exempt from disclosure.
    SIERRA CLUB V. USFWS                    23
    The Services argue that all the documents at issue are
    deliberative because they were created as part of a “lengthy
    and complicated” consultation process between the Services
    and the EPA about the EPA’s water cooling intake structures
    rule—a process during which many drafts of biological
    opinions and other documents were circulated intra-agency
    and inter-agency and “commented upon by others, revised,
    and recirculated for further discussion.” According to the
    Services, the Sierra Club’s request is intended to “uncover
    any discrepancies between the findings, projection and
    recommendations” between jeopardy opinions created by
    “lower-level” Services personnel and the final joint no
    jeopardy opinion. (quoting Nat’l Wildlife 
    Fed’n, 861 F.2d at 1122
    ).
    The underlying concern in National Wildlife Federation
    was that releasing “working drafts” and comments on Forest
    Plans and Environmental Impact Statements (EISs) prepared
    by “lower-level” Forest Service employees would “reveal
    the mental processes” that went into choosing and publishing
    a final Forest Plan and EIS. 
    Id. at 1119–22.
    In other words,
    a reader with access to both these working drafts and the
    final plan could “probe the editorial and policy judgment of
    the decision-makers” who selected and issued the final plan.
    
    Id. The draft
    Forest Plans in National Wildlife Federation
    were a collection of “tentative opinions and
    recommendations of Forest Service employees”; the draft
    EISs compared these alternative Forest Plan proposals,
    thereby revealing the agency’s deliberations in choosing a
    final plan. 
    Id. at 1121–22.
    This understanding of
    “deliberative”—meaning reflecting the opinions of
    individuals or groups of employees rather than the position
    of an entire agency—is shared among the circuits. See, e.g.,
    24               SIERRA CLUB V. USFWS
    Moye, O’Brien, Hogan & Pickert v. Nat’l R.R. Passenger
    Corp., 
    376 F.3d 1270
    , 1279 (11th Cir. 2004) (Amtrak OIG
    “audit work papers and internal memoranda” that “lower
    level staff” played a “significant role” in authoring were
    deliberative); Grand Cent. Partnership, Inc. v. Cuomo,
    
    166 F.3d 473
    , 483 (2d Cir. 1999) (emails between HUD
    employees that discussed their personal opinions on an
    investigation into misconduct by a HUD funding recipient
    were deliberative); Providence Journal Co. v. U.S. Dep’t of
    Army, 
    981 F.2d 552
    , 560 (1st Cir. 1992) (Inspector General
    Reports that were “essential to the consultative process
    within the agency” were deliberative) (emphasis added)).
    The dissent makes a similar point about the ongoing
    nature of the consultative process to argue that documents
    exchanged between the Services and the EPA during that
    process are protected inter-agency memoranda. It cites to the
    ESA Section 7 regulations to point out that the Services
    “shall make available to the Federal agency the draft
    biological opinion for the purpose of analyzing the
    reasonable and prudent alternatives.” 50 C.F.R. § 402.14(a).
    The agency may in turn submit comments to the Service
    regarding the draft biological opinion within a given window
    of time, at which point the Service may receive an extension
    on the time for issuing the opinion. 
    Id. Nothing in
    the documents at issue here indicates whether
    the EPA sent these types of comments to the Services, how
    those comments impacted the Services’ jeopardy/no
    jeopardy conclusion, or anything else about what the
    substance of those comments might have been. Such
    documents would likely satisfy the two aforementioned
    conditions of 1) being an inter-agency memorandum that
    2) fell within the ambit of deliberative process.
    SIERRA CLUB V. USFWS                      25
    In the case before the court, we know that the draft
    opinion was transmitted piecemeal to the EPA, the Services
    and the EPA agreed to extend the time frame for the
    consultation, and that “[u]ltimately based on changes to the
    regulation, the Services’ final conclusion was that the
    regulation”—the final version—“was not likely to
    jeopardize the continued existence of listed species nor
    likely to destroy or adversely modify critical habitat.”
    (emphasis added). The fact that the decision to revise the rule
    after the jeopardy finding was the result of additional back-
    and-forth between the Services and the EPA—deliberative
    discussions that are not memorialized in the documents
    before us—does not render the December 2013 opinions or
    accompanying documents pre-decisional or deliberative as
    to the Services’ opinion about the November 2013 version
    of the EPA regulation or as to the Services’ later conclusion
    about a different version of the rule.
    1. 2013 Draft Biological Opinions and
    Other Documents
    After reviewing the documents in this case in camera to
    make a de novo determination, we conclude that neither the
    December 2013 draft jeopardy opinions (NMFS 44516.1;
    FWS 252), nor the accompanying statistical and
    instructional documents (NMFS 5597.1, NMFS 7544.2,
    NMFS 37695, NMFS 37667, NMFS 14973.1) were
    prepared by low-level officials, or contain merely tentative
    findings. These are final products that reflect the agencies’
    findings on the jeopardy posed by the November 2013
    proposed rule, and their recommendations for mitigating the
    harmful impacts of that rule.
    We note that the documents do not contain line edits,
    marginal comments, or other written material that expose
    any internal agency discussion about the jeopardy finding.
    26                   SIERRA CLUB V. USFWS
    Nor do these documents contain any insertions or writings
    reflecting input from lower level employees. 9 The two
    December 2013 opinions both state they were prepared on
    behalf of the entire agency and represent that agency’s
    opinion. And the record shows that preparations were being
    made for the NMFS opinion (NMFS 44516.1), as is, to be
    publicly “roll[ed] out” and published in the administrative
    record; the FWS opinion (FWS 252), which includes its
    agency’s seal/header, had received final edits from a senior
    official and was just awaiting his autopen signature.
    The only thing the December 2013 draft jeopardy
    opinions have in common with the draft Forest Plans and
    EISs in National Wildlife Federation is that they were
    referred to as “draft” documents. But to treat them similarly
    would ignore clear substantive distinctions. Unlike the
    documents in National Wildlife Federation, these opinions
    and accompanying documents represent the final view of the
    Services on the likely impact of the then-proposed
    regulation. These final jeopardy opinions from December
    2013 pertain to a different rule and are not “earlier draft”
    versions of the no jeopardy opinion from May 2014; that
    later opinion addressed a new and different proposed rule. 10
    Moreover, taking seriously our obligation to consider the
    underlying purpose of the deliberative process privilege,
    these documents do not reveal more about the internal
    9
    The NMFS December 2013 jeopardy opinion (NMFS 44516.1)
    does contain two insertions that could possibly be editorial notes not
    intended to be included in the final report. For that reason, we instruct
    the district court to redact these lines from that report.
    10
    As discussed earlier, the NMFS did prepare a jeopardy opinion
    concerning the March 2014 rule, which was pre-decisional as to the final
    no jeopardy joint opinion on that rule.
    SIERRA CLUB V. USFWS                        27
    deliberative process that the Services went through before
    issuing their joint May 2014 no jeopardy opinion than what
    the Services themselves have already disclosed during this
    litigation: that the initial proposed regulation resulted in final
    drafts of jeopardy opinions in December 2013, that the EPA
    received portions of those opinions and proposed a revised
    regulation at some point after that, and that the Services
    ultimately issued a no jeopardy opinion for that revised,
    proposed regulation. Nor do the December 2013 jeopardy
    opinions reveal either the Services’ internal deliberative
    processes that lead to reaching those opinions or the EPA’s
    internal deliberative process that resulted in revising the
    draft regulation. Cf. Assembly of Cal. v. U.S. Dep’t of Comm.
    
    968 F.2d 916
    , 922–23 (9th Cir. 1992) (disclosing final
    census figures would not reveal the deliberative process in
    reaching those figures, particularly when the method used to
    generate the data was already a matter of public record).
    Nor would releasing these opinions and accompanying
    documents allow a reader to reconstruct the “mental
    processes” that lead to the production of the May 2014 no
    jeopardy opinion by allowing one to compare an early draft
    of that opinion to the final opinion. There is no later draft of
    the Services’ opinion regarding the November 2013 version
    of the rule that a discerning reader could compare to the two
    December 2013 opinions requested here.
    Again, the statistical table (NMFS 61721) and the
    instructional documents and terms and conditions (NMFS
    5597.1, NMFS 7544.2, NMFS 37695, NMFS 37667, NMFS
    14973.1) summarize the Services’ best practices and
    recommendations for mitigating environmental harm to
    certain species, and effectively monitoring the welfare of
    certain protected species should they appear in the vicinity
    of a water cooling intake structure. They do not reveal any
    28               SIERRA CLUB V. USFWS
    internal discussions about how those recommendations were
    vetted and are thus not deliberative.
    2. RPAs
    Our analysis regarding the December 2013 RPAs (FWS
    279, 308) is different from our analysis concerning the
    December 2013 Draft Biological Opinions and Other
    Documents because, as discussed above, they do appear to
    be successive drafts of the Services’ recommendations for
    the November 2013 proposed rule. And comparing these
    drafts would shed light on FWS’ internal vetting process.
    Thus, considering de novo whether the Services have carried
    their burden in showing that these documents are
    deliberative, we find that they have done so.
    By comparison, disclosure of only the March 2014 RPA
    (FWS 555) will offer no insights into the agency’s internal
    deliberations. It appears to be the final version in a
    progression of agency recommendations about how to
    amend the November 2013 proposed rule. The Services have
    offered no evidence that there were any subsequent versions
    of this RPA addressing the November 2013 proposed rule.
    The March 2014 RPA is therefore not deliberative.
    3. April 2014 NMFS Draft Biological
    Opinion
    Finally, we agree with the Services that the NMFS April
    2014 draft jeopardy biological opinion is deliberative. As
    discussed above, it addresses the revised rule that the EPA
    proposed in March 2014. A reader could thus conceivably
    reconstruct some of the deliberations that occurred between
    the April 2014 and May 2014 opinions by comparing the
    two. Additionally, the Acting Assistant Administrator for
    NMFS testified in an affidavit provided to the district court
    SIERRA CLUB V. USFWS                      29
    that this draft of the jeopardy opinion was only circulated
    internally between one employee and a group of other lower-
    level employees. The April 2014 draft jeopardy opinion is
    therefore deliberative and subject to Exemption 5.
    IV.     CONCLUSION
    For the foregoing reasons the district court’s order to
    produce the December 2013 draft jeopardy biological
    opinions (NMFS 44516.1 and FWS 252), the March 2014
    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) is AFFIRMED because the record shows that
    these materials are not both pre-decisional and deliberative
    and therefore not exempt under §522(b)(5) of FOIA,
    Exemption 5.
    The district court’s order to produce the December 2013
    RPAs (FWS 279, 308) and the April 2014 draft jeopardy
    opinion (NMFS 5427.1) is REVERSED because these
    materials are both pre-decisional and deliberative and thus
    exempt from disclosure under FOIA Exemption 5. The
    parties agree that reversal would require the district court to
    perform a segregability analysis on remand. We instruct the
    district court to perform that analysis.
    The case is REMANDED for further proceedings
    consistent with this opinion.
    30                SIERRA CLUB V. USFWS
    WALLACE, Circuit Judge, concurring in the result in part
    and dissenting in part:
    I concur in the result reached by the majority as to the
    April 2014 draft opinion (NMFS 5427.1) and the December
    2013 RPAs (FWS 279, 308). I dissent from the result
    reached by the majority as to the rest of the documents. I
    respectfully disagree with my colleagues that the
    deliberative process privilege does not protect the December
    draft opinions (NMFS 44516.1, FWS 252) and other
    documents.
    The majority overlooks the “context of the
    administrative process which generated” the December draft
    opinions. NLRB. v. Sears, Roebuck & Co., 
    421 U.S. 132
    , 138
    (1975). They were part of an inter-agency consultation
    process. 50 C.F.R. § 402.14(a). The regulations governing
    that process make clear that the purpose of agency review is
    to allow the Services to consider changes to the draft opinion
    based on the agency’s comments. Specifically, the
    regulations forbid the Services from issuing the final opinion
    before the agency has had time to comment on the draft and
    build in time for the Services to revise a draft opinion to
    incorporate or respond to any agency comments. See
    50 C.F.R. § 402.14(g)(5) (Services cannot issue the final
    opinion “prior to the 45-day or extended deadline while the
    draft is under [the agency’s] review” and if the agency
    submits comments within 10 days of the final opinion
    deadline, the Services are entitled to a 10-day deadline
    extension). The preamble to the regulations explains that the
    “release of draft opinions to Federal agencies . . . facilitates
    a more meaningful exchange of information,” “may result in
    the development and submission of additional data, and the
    preparation of more thorough biological opinions,” and
    “helps ensure the technical accuracy of the opinion.”
    SIERRA CLUB V. USFWS                      31
    Interagency Cooperation—Endangered Species Act of 1973,
    51 Fed. Reg. 19,926, 19,952 (June 3, 1986). Therefore, the
    regulations governing formal consultations set up a process
    by which the Services may receive feedback from the agency
    on draft opinions.
    Moreover, a formal consultation may involve not only
    the Services making a jeopardy decision, but also a decision
    about what alternative actions are reasonable and prudent,
    so-called RPAs. The Services and the agency “work[]
    closely” on the “development of [RPAs]” contained in a
    jeopardy opinion. 
    Id. The “provision
    to review draft
    biological opinions” provides the necessary “exchange of
    information for the development of [RPAs].” 
    Id. The Services
    “will, in most cases, defer to the Federal agency’s
    expertise and judgment” as to whether a draft RPA is
    feasible, but if the Services disagree, the Services make the
    ultimate call. 
    Id. Thus, even
    though the Services have
    discretion as to whether to accept the EPA’s comments, the
    purpose of agency review is to seek the agency’s advice on
    the draft opinion. Seeking comments on a document
    presupposes the ability to make changes to it, showing it is
    pre-decisional. It also shows the deliberative nature of the
    process. Accordingly, the administrative context shows that
    draft opinions are generally both pre-decisional and
    deliberative.
    A quick look at the record in this case dispels any doubt
    that the December draft opinions are pre-decisional and
    deliberative. The FWS draft opinion requests that the EPA
    “provide any comments” and states that the FWS would
    need about ten days after receiving comments, assuming
    they are not substantial, to issue the final opinion. Likewise,
    the government submitted declarations of two management-
    level Service employees stating that the drafts were subject
    32                SIERRA CLUB V. USFWS
    to revision. Gary Frazer, assistant director of the FWS, stated
    that both draft opinions “were subject to internal review
    within FWS and the Department of the Interior and
    consultation with the EPA.” Samuel D. Rauch, an
    administrator at the NMFS, stated that by transmitting a draft
    opinion to the EPA, the “NMFS is not rendering a final
    decision” and the document “remains a draft and is subject
    to change until final signature.”
    The majority asserts that there is nothing in the record
    that “indicates whether the EPA sent . . . comments to the
    Services” on the December draft opinions. Of course, there
    is not. As the majority observes, the Services “never
    formally transmitted” the drafts to the EPA. The EPA could
    not mark up a document it never received. The record,
    however, is clear that the EPA and the Services engaged in
    extensive discussions about the draft opinions before and
    after the December 6 deadline. As the deadline approached,
    the Services decided based on “internal review and
    interagency review in December” that “additional
    consultation [with the EPA] was needed to better understand
    and consider the operation of key elements of EPA’s rule.”
    The EPA and the Services “agreed[ ] that more work needed
    to be done and agreed to extend the time frame for the
    consultation.” That the EPA and the Services jointly
    concluded the draft opinions needed more work shows their
    predecisional and deliberative nature: the Services had not
    made a final decision as of December and the deliberative
    process was ongoing.
    SIERRA CLUB V. USFWS                          33
    The majority and Sierra Club argue that because the
    December draft opinions were the Services’ “final” word on
    the November 2013 regulations, the opinions are not pre-
    decisional. I disagree. The Services’ decision would become
    final only “once the biological opinion is issued.” Ctr. for
    Biological Diversity v. U.S. Fish & Wildlife Serv., 
    450 F.3d 930
    , 940 (9th Cir. 2006); see also Bennett v. Spear, 
    520 U.S. 154
    , 177–78 (1997). The majority’s observation that the
    December draft opinions did not contribute to the Services’
    later decision about the March 2014 regulations is beside the
    point. The draft opinions are pre-decisional as to the
    November 2013 regulations, which the EPA changed before
    finalizing. That the Services never gave their final word as
    to those regulations does not strip the drafts of their
    privileged status. A draft that “die[s] on the vine . . . . is still
    a draft and thus still pre-decisional and deliberative.” Nat’l
    Sec. Archive v. CIA, 
    752 F.3d 460
    , 463 (D.C. Cir. 2014); see
    also 
    Sears, 421 U.S. at 151
    n.18 (privilege may apply even
    if documents “do not ripen into agency decisions”).
    The majority and Sierra Club contend that the December
    draft opinions are not deliberative because the Services’
    management had vetted them and they represented the view
    of the “entire” Services. But even if true, those facts do not
    show that the drafts are not deliberative. It is well established
    that circulation of a draft opinion to another agency does not
    change its privileged status, any more than circulation within
    the agency. The Supreme Court has spoken decisively on
    this point: “By including inter-agency memoranda in
    Exemption 5, Congress plainly intended to permit one
    agency possessing decisional authority to obtain written
    recommendations and advice from a separate agency not
    possessing such decisional authority without requiring that
    the advice be any more disclosable than similar advice
    received from within the agency.” Renegotiation Bd. v.
    34                SIERRA CLUB V. USFWS
    Grumman Aircraft Eng’g Corp., 
    421 U.S. 168
    , 188 (1975).
    Here, the Services had decisional authority in preparing the
    opinions, but sought advice from the EPA about the
    decision. Grumman Aircraft teaches that is precisely the type
    of inter-agency process that Congress designed the privilege
    to protect.
    The majority’s decision sets out a categorical rule that
    the deliberative process privilege protects only documents
    “reflecting the opinions of individuals or groups of
    employees rather than the position of an entire agency.” This
    rule contravenes Grumman Aircraft, which acknowledged
    Exemption 5’s parity between inter- and intra-agency 
    drafts. 421 U.S. at 188
    . There the Supreme Court explained,
    “Exemption 5 does not distinguish between inter-agency and
    intra-agency memoranda.” 
    Id. Unsurprisingly, the
    out-of-
    circuit cases the majority cites provide no support for its ill-
    founded rule, much less do they reflect that this view “is
    shared among the circuits” as the majority claims. In each
    cited case, the court concluded that the deliberative process
    privilege protected the documents at issue. Moye, O’Brien,
    O’Rourke, Hogan & Pickert v. Nat’l R.R. Passenger Corp.,
    
    376 F.3d 1270
    , 1278 (11th Cir. 2004); Grand Cent. P’ship,
    Inc. v. Cuomo, 
    166 F.3d 473
    , 483 (2d Cir. 1999); Providence
    Journal Co. v. U.S. Dep’t of Army, 
    981 F.2d 552
    , 562–63
    (1st Cir. 1992). Therefore, even if the majority is right that
    these cases show that “opinions of individuals or groups of
    employees” are generally deliberative, they do not support
    the contrary proposition that “the position of an entire
    agency” can never be deliberative.
    SIERRA CLUB V. USFWS                     35
    Sierra Club makes much of the fact that “the Services
    typically include draft biological opinions in their
    administrative records.” Again, even if true, the
    government’s waiver of privilege in some contexts does not
    waive the privilege here, see Assembly of Cal. v. U.S. Dep’t
    of Commerce, 
    968 F.2d 916
    , 922 n.5 (9th Cir. 1992), a point
    that Sierra Club concedes.
    Finally, Sierra Club argues that the Services’ draft
    opinions are “significant, legally-mandated drafts, apart
    from any number of internal or ‘working drafts.’” It argues
    that they are “formal documents reflecting and conveying
    the Services’ conclusions at a prescribed point in the
    consultation process.” This argument reflects a
    misunderstanding of the governing regulation. It does not
    require draft opinions shared with the EPA to be
    “significant” or to constitute a formal statement of the
    Services’ conclusions. The regulation states that the Services
    must, upon the agency’s request, “make available to the
    Federal agency the draft biological opinion for the purpose
    of analyzing the [RPAs].” 50 C.F.R. § 402.14(g)(5). The
    regulation, however, does not provide that a draft opinion
    shared with an agency be at any particular level of
    completion or approval. For example, nothing appears to
    preclude the EPA from requesting to see a draft at the
    beginning of the process. It also does not require that the
    Services ever provide a draft opinion to the EPA if the EPA
    does not request it. Given that “Exemption 5 does not
    distinguish between inter-agency and intra-agency” drafts,
    Grumman 
    Aircraft, 421 U.S. at 188
    , a draft opinion sent to
    the EPA is no more disclosable than a draft sent from one
    working group within the Service to another.
    36                SIERRA CLUB V. USFWS
    In conclusion, the administrative process that generated
    the draft opinions shows that they are pre-decisional and
    deliberative. They are pre-decisional because they do not
    reflect the Services’ final jeopardy and RPA decisions as to
    the November 2013 regulations. They are deliberative
    because they are “part of the deliberative process” by which
    the Services and the EPA consult on those decisions. Nat’l
    Wildlife Fed’n v. U.S. Forest Serv., 
    861 F.2d 1114
    , 1118 (9th
    Cir. 1988). I conclude that the Services may withhold them.
    The deliberative process privilege also protects the other
    documents at issue in this case. Because the NMFS never
    finalized or adopted the April draft jeopardy opinion (NMFS
    5427.1), my analysis above applies to it with equal force.
    The same is true for the three draft RPAs (FWS 279, FWS
    308, FWS 555), which were part of never-finalized jeopardy
    opinions. In addition, the Services should be able to withhold
    the four species-specific protective measures (NMFS
    5597.1, NMFS 7544.2, NMFS 37695, NMFS 37667), the
    affected species table (NMFS 61721), and the terms and
    conditions (NMFS 14973.1). The protective measures are
    earlier versions of those included in the final opinion.
    Likewise, NMFS decided not to include the table in the final
    opinion after deliberations among scientists. Finally, NMFS
    staff circulated the terms and conditions internally as a
    possible precedent for a section of the final opinion. In each
    case, the documents are privileged because disclosure would
    allow Sierra Club to “probe the editorial and policy
    judgment of the decisionmakers” by comparing the draft
    versions to what the Services finally published. Nat’l
    
    Wildlife, 861 F.2d at 1122
    .
    SIERRA CLUB V. USFWS                             37
    In conclusion, I would reverse the district court’s
    judgment ordering production of all twelve documents and
    instruct it to perform a segregability analysis on remand. 1
    1
    The Second Circuit recently sustained the Services’ assertion of
    the deliberative process privilege over the critical documents at issue in
    this case: the three draft biological opinions and the three draft RPAs.
    Cooling Water Intake Structure Coal. v. EPA, 
    905 F.3d 49
    , 65 n.9 (2d
    Cir. 2018). The court held that the Services’ privilege log “adequately
    describes the nature of the . . . requested documents and their rationale
    for classifying those documents as deliberative and therefore privileged.”
    
    Id. While we
    do not have the privilege log’s descriptions of the
    documents, the Second Circuit described them as “draft documents
    produced by the Services during consultation with the EPA.” 
    Id. These key
    facts—that the documents were subject to change and that they
    reflect a joint deliberative process—are the basis for my dissent.
    

Document Info

Docket Number: 17-16560

Citation Numbers: 911 F.3d 967

Filed Date: 12/21/2018

Precedential Status: Precedential

Modified Date: 12/21/2018

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