Opposition Brief — United States Fish and Wildlife Service, et al., Petitioners v. Sierra Club, Inc.

No. 19-547

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------UNITED STATES FISH AND

WILDLIFE SERVICE, ET AL.,

Petitioners,

v.

SIERRA CLUB, INC.,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF IN OPPOSITION

-----------------------------------------------------------------SANJAY NARAYAN

Counsel of Record

SIERRA CLUB ENVIRONMENTAL LAW

PROGRAM

2101 Webster St., Ste. 1300

Oakland, CA 94612

(415) 977-5769

sanjay.narayan@sierraclub.org

REED SUPER

SUPER LAW GROUP, LLC

180 Maiden Ln., Ste. 603

New York, NY 10038

(212) 242-2355

SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION GROUP

1600 20th St. NW

Washington, DC 20009

(202) 588-1000

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

The U.S. Fish and Wildlife Service and National

Marine Fisheries Service conducted an assessment of

a regulation proposed by the Environmental Protection Agency, in order to determine that regulation’s

effects on threatened and endangered species, and to

decide whether the regulation was permissible under

the Endangered Species Act, 16 U.S.C. § 1536(a)(2).

The Services contend that certain documents setting

forth conclusive determinations generated by that assessment are protected by the deliberative process

privilege and therefore exempt from disclosure under

the Freedom of Information Act, 5 U.S.C. § 552(b)(5). To

prevail in that claim, the Services must show that each

document is “predecisional,” and also that each document contains material that is “deliberative” in character.

The questions presented are:

1. Did the court of appeals err in finding,

based on the record facts, that the contested

documents contain the Services’ conclusion

that the Environmental Protection Agency

was required to amend its regulation to avoid

jeopardy to threatened and endangered species and were therefore not “predecisional”?

2. Did the court of appeals also err in

finding, based on the record facts, that the

documents contain no “deliberative” material,

and for that independent reason are not protected by the deliberative process privilege?

ii

RULE 29.6 STATEMENT

The respondent has no parent corporation, and no

publicly held company has any ownership interest in

the respondent.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

RULE 29.6 STATEMENT ....................................

ii

TABLE OF AUTHORITIES .................................

v

INTRODUCTION ................................................

1

STATEMENT .......................................................

3

A.

B.

Statutory and Regulatory Background .....

3

1. The Freedom of Information Act and

Deliberative Process Privilege ............

3

2. The Endangered Species Act and the

Jeopardy Prohibition ...........................

6

3. The Clean Water Act and EPA’s IntakeStructures Rule ...................................

8

Proceedings Below ..................................... 10

REASONS FOR DENYING THE WRIT .............. 15

I.

The Court of Appeals’ Decision Creates No

Tension with Decisions of This Court or

Any Circuit Court ...................................... 15

A. The Court of Appeals’ Application of

Sears’s Pragmatic “Working-Law” Standard to the Particular Facts in This

Record Does Not Warrant Certiorari .... 16

B. The Court of Appeals’ Recognition of

the Services’ Decisional Authority

Creates No Tension with Grumman

Aircraft ................................................ 20

iv

TABLE OF CONTENTS—Continued

Page

C. The Court of Appeals’ Decision Creates

No Tension with the Decisions of Any

Other Circuit ....................................... 24

II.

The Court of Appeals’ Decision Correctly

Concluded, Based on the Facts in the

Record, that the 2013 Jeopardy Opinions

Were Not Predecisional ............................. 28

III.

Review Would Require Resolution of a

Second, Equally Fact-Bound Question:

Whether the 2013 Jeopardy Opinions

Were “Deliberative” ................................... 34

IV.

This Case Implicates No Interests

Warranting Review .................................... 37

CONCLUSION..................................................... 39

v

TABLE OF AUTHORITIES

Page

CASES:

Abdelfattah v. U.S. Dep’t of Homeland Sec.,

488 F.3d 178 (3d Cir. 2007) .....................................35

Access Reports v. U.S. Dep’t of Justice,

926 F.2d 1192 (D.C. Cir. 1991) .......................... 23, 30

ACLU v. NSA,

925 F.3d 576 (2d Cir. 2019) ......................... 17, 25, 26

Army Times Publ’g Co. v. Dep’t of Air Force,

998 F.2d 1067 (D.C. Cir. 1993) ..................................5

Arthur Anderson & Co. v. IRS,

679 F.2d 254 (D.C. Cir. 1982) ..................................18

Bennett v. Spear,

520 U.S. 154 (1997) ......................................... passim

Broward Bulldog, Inc. v. U.S. Dep’t of Justice,

939 F.3d 1164 (11th Cir. 2019) ................................35

Carter v. U.S. Dep’t of Commerce,

307 F.3d 1084 (9th Cir. 2002) ..................................35

Casad v. U.S. Dep’t of Health & Human Serv.,

301 F.3d 1247 (10th Cir. 2002) ................................35

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971) ........................................... 24, 25

Coastal States Gas Corp. v. Dep’t of Energy,

617 F.2d 854 (D.C. Cir. 1980) ..................................29

Coastal States Gas Corp. v. Dep’t of Energy,

644 F.3d 969 (3d Cir. 1981) .....................................18

vi

TABLE OF AUTHORITIES—Continued

Page

Cooling Water Intake Structure Coalition v.

EPA,

905 F.3d 49 (2d Cir. 2018) ............................... passim

Dep’t of Interior v. Klamath Water Users

Protective Ass’n,

532 U.S. 1 (2001) ................................................. 5, 11

Elec. Frontier Found. v. U.S. Dep’t of Justice,

739 F.3d 1 (D.C. Cir. 2014) ............................ 1, 17, 37

Entergy Corp. v. Riverkeeper,

556 U.S. 208 (2009) ...................................................8

Enviro Tech Int’l v. EPA,

371 F.3d 370 (7th Cir. 2004) ....................................35

EPA v. Mink,

410 U.S. 73 (1973) ................................... 4, 27, 31, 35

Ethyl Corp. v. EPA,

25 F.3d 1241 (4th Cir. 1991) .............................. 23, 35

Grand Central Partnership v. Cuomo,

166 F.3d 473 (2d Cir. 1999) .....................................35

GTE Sylvania v. Consumers Union,

445 U.S. 375 (1980) ...................................................4

Judicial Watch, Inc. v. U.S. Dep’t of Commerce,

375 F. Supp. 3d 93 (D.D.C. 2019) ............................38

King v. IRS,

684 F.2d 517 (7th Cir. 1982) ....................................18

Miccosukee Tribe v. United States,

516 F.3d 1235 (11th Cir. 2008) ..................................5

vii

TABLE OF AUTHORITIES—Continued

Page

Missouri Coal. for the Env’t Found. v.

U.S. Army Corps of Eng’rs,

542 F.3d 1204 (8th Cir. 2008) ..................................35

Nat’l Ass’n of Home Builders v.

Defenders of Wildlife,

551 U.S. 644 (2007) ...................................................2

Nat’l Ass’n of Home Builders v. Norton,

309 F.3d 26 (D.C. Cir. 2002) ............................ passim

Nat’l Sec. Archive v. CIA,

752 F.3d 460 (D.C. Cir. 2014) ............................ 26, 27

N.Y. Times Co. v. U.S. Dep’t of Justice,

939 F.3d 479 (2d Cir. 2019) ............................... 25, 26

NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975) ......................................... passim

Norwood v. FAA,

993 F.2d 570 (6th Cir. 1993) ....................................35

Petroleum Info. Corp. v. Dep’t of Interior,

976 F.2d 1429 (D.C. Cir. 1992) .......................... 30, 35

Public Citizen v. OMB,

598 F.3d 865 (D.C. Cir. 2009) .......................... passim

Renegotiation Bd. v. Grumman Aircraft

Eng’g Corp.,

421 U.S. 168 (1975) ......................................... passim

Rio Grande Silvery Minnow v.

Bureau of Reclamation,

601 F.3d 1096 (10th Cir. 2010) ..................................6

Schlefer v. United States,

702 F.2d 233 (D.C. Cir. 1983) ...................... 17, 19, 23

viii

TABLE OF AUTHORITIES—Continued

Page

Senate of Puerto Rico v. U.S. Dep’t of Justice,

823 F.2d 574 (D.C. Cir. 1987) ..................................25

Skelton v. U.S. Postal Serv.,

678 F.2d 35 (5th Cir. 1982) ......................................35

Stolt-Nielsen Transp. Grp. Ltd. v. United States,

534 F.3d 728 (D.C. Cir. 2008) ....................................5

Tax Analysts v. IRS,

117 F.3d 607 (D.C. Cir. 1997) ....................................5

Town of Norfolk v. U.S. Army Corps of Eng’rs,

968 F.2d 1438 (1st Cir. 1992) ..................................35

TVA v. Hill,

437 U.S. 153 (1978) ............................................. 7, 20

U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,

136 S. Ct. 1807 (2016) .............................................31

U.S. Dep’t of Justice v. Tax Analysts,

492 U.S. 136 (1989) ...................................................3

United States v. Johnston, 268 U.S. 220 (1925) .........36

STATUTES AND REGULATIONS:

5 U.S.C. § 552(a)(2) .......................................................4

5 U.S.C. § 552(a)(3) .....................................................10

5 U.S.C. § 552(a)(3)(A) ..................................................4

5 U.S.C. § 552(a)(4)(B) ................................................25

5 U.S.C. § 552(a)(8)(A)(i) .............................................38

5 U.S.C. § 552(b) ............................................................5

ix

TABLE OF AUTHORITIES—Continued

Page

5 U.S.C. § 552(b)(5) ................................................... 1, 4

5 U.S.C. § 706 ..............................................................31

16 U.S.C. §§ 1531-44 .....................................................6

16 U.S.C. § 1536 ............................................................2

16 U.S.C. § 1536(a)(2) ............................................... 6, 7

16 U.S.C. § 1536(b)(3)(A) ........................................ 7, 34

16 U.S.C. § 1536(c) ........................................................6

16 U.S.C. § 1536(e) ........................................................7

33 U.S.C. § 1326(b) ........................................................8

50 C.F.R. § 402.14(a) .....................................................6

50 C.F.R. § 402.14(g)(5) ..................................... 7, 31, 32

50 C.F.R. § 402.14(h)(2) ................................................7

50 C.F.R. § 402.14(h)(1)(iv) ...........................................7

OTHER:

48 Fed. Reg. 29,990 (June 29, 1983) .............................7

Cong. Res. Serv., Endangered Species Act (ESA):

The Exemption Process (2017), available at

https://fas.org/sgp/crs/misc/R40787.pdf ..................21

S. Ct. R. 10 ....................................................................2

1

INTRODUCTION

The petition seeks review of the court of appeals’

application of a properly stated rule of law—a rule

grounded in this Court’s jurisprudence and uniformly

followed by the circuits. The Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552(b)(5), allows an agency to

withhold, inter alia, documents protected by the deliberative process privilege. That privilege protects material that is both “predecisional” and “deliberative.”

Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 39

(D.C. Cir. 2002). This Court has squarely held that the

first element of that two-part test—whether a document’s contents are predecisional—embodies a functional, pragmatic standard, focused upon the “force

and effect” of the document. NLRB v. Sears, Roebuck &

Co., 421 U.S. 132, 153 (1975). Contrary to the petition’s

assertion, Pet. 21-23, by longstanding judicial consensus that inquiry extends beyond whether the agency

has “designated” its decision “as ‘formal,’ ‘binding,’ or

‘final,’ ” Elec. Frontier Found. v. U.S. Dep’t of Justice,

739 F.3d 1, 7 (D.C. Cir. 2014) (citation omitted). It looks

instead to whether the “[d]ocuments reflect[ ] [the

agency’s] formal or informal policy on how it carries

out its responsibilities.” Public Citizen v. OMB, 598

F.3d 865, 875 (D.C. Cir. 2009).

The petition asks this Court to review the court of

appeals’ application of this hitherto uncontroversial

and deeply fact-bound standard to a handful of documents generated by the U.S. Fish and Wildlife Service

and National Marine Fisheries Service (collectively,

the “Services”), in carrying out their obligations under

2

the Endangered Species Act (“ESA”), 16 U.S.C. § 1536.

See, e.g., Pet. 25 (court of appeals “dr[ew] the wrong

conclusions” from facts in record). This case offers no

reason to override the usual rule against certiorari in

such cases. S. Ct. R. 10. The documents at issue conveyed the Services’ conclusion that a particular action

proposed by the Environmental Protection Agency

(“EPA”) would result in jeopardy to species protected

by the ESA, and was therefore prohibited. 16 U.S.C.

§ 1536. Pet. App. 19a-20a. No decision from any court

suggests that such documents—from Services possessing near-conclusive “decisional authority” to forbid otherwise permissible actions by the recipient

agency—are categorically non-final and predecisional.

Renegotiation Bd. v. Grumman Aircraft Eng’g Corp.,

421 U.S. 168, 187-88 (1975). The petition’s assertion

that the Services merely sought “comment” from EPA

about how to exercise their ESA duties, Pet. 29-30, is

both legally and factually groundless and provides no

reason for review by this Court.

EPA’s decision to alter its regulation, after the Services deemed its initial proposed rule unlawful, does

not make the Services’ jeopardy determination predecisional, Pet. 26-27; on the contrary, it confirms that the

Services’ determination had the force and effect associated with a final action. See Nat’l Ass’n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 652

(2007) (“NAHB”) (when Services reach a jeopardy determination, the action-agency must abandon the action, modify it by adding further wildlife restrictions,

or seek Cabinet-level exemption). Copious additional

3

material from the record further supports the court of

appeals’ holding that the documents were not predecisional. See below 28-34.

Even if the court of appeals erred in that holding,

answering the question presented by petitioners would

require this Court to address a second, equally factbound question: whether the documents contain “deliberative” material. Pet. App. 25a. That complicating,

alternative basis for the court of appeals’ decision

makes this case a poor vehicle to address any claimed

error in the court’s application of the standard for determining whether records are predecisional. And the

decision below presents no threat to agencies’ decisionmaking. It merely makes available to the public

documents that the Services generally include in the

public record, C.A. S.E.R. 164-199, and illuminates “the

reasons which . . . suppl[ied] the basis for an agency

policy actually adopted”—here, an EPA rule containing

endangered-species protections that the Agency had,

prior to the Services’ intervention, not intended to

adopt. Sears, 421 U.S. at 152.

------------------------------------------------------------------

STATEMENT

A. Statutory and Regulatory Background

1. The Freedom of Information Act and

Deliberative Process Privilege

FOIA “require[s] agencies to adhere to ‘a general

philosophy of full agency disclosure,’ ” so as “to open

agency action to the light of public scrutiny.” U.S. Dep’t

4

of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (citations omitted). When Congress enacted FOIA, its

“attention . . . was primarily focused on the efforts of

officials to prevent release of information in order to

hide mistakes or irregularities committed by the

agency.” GTE Sylvania v. Consumers Union, 445 U.S.

375, 385 (1980) (citation omitted). FOIA was written,

consequently, to “permit access” to information that

agencies had “shielded unnecessarily from public

view,” and “to create a judicially enforceable public

right to secure such information from possibly unwilling official hands.” EPA v. Mink, 410 U.S. 73, 80 (1973).

To those ends, FOIA requires federal agencies affirmatively to “make available for public inspection”

their “final opinions” and “statements of policy and interpretations which have been adopted by the agency.”

5 U.S.C. § 552(a)(2). Upon suitable request, agencies

must also “make . . . promptly available” all other records, subject to enumerated exemptions. 5 U.S.C.

§ 552(a)(3)(A). See Sears, 421 U.S. at 136 (“As [FOIA] is

structured, virtually every document generated by an

agency is available to the public in one form or another,

unless it falls within one of the Act’s nine exemptions.”). Those exemptions include “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) (“Exemption 5”). FOIA thereby “exempt[s] those documents, and only those documents, normally privileged

in the civil discovery context,” Sears, 421 U.S. at 149,

including those protected by the “deliberative process

5

privilege.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001).

To qualify for that privilege, a document must be,

first, “predecisional”—that is, “produced in the process

of formulating policy,” rather than a “statement[ ] of an

agency’s legal position.” Tax Analysts v. IRS, 117 F.3d

607, 617 (D.C. Cir. 1997).1 Second, the document must

be “deliberative”—one that “reflect[s] an agency’s preliminary positions or ruminations,” and that can “reasonably be said to reveal an agency’s or official’s mode

of formulating or exercising policy-implicating judgment.” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d

at 39 (citation omitted, alteration in original).

That a document contains some privileged material does not allow an agency to withhold the document

in its entirety; the agency “has the burden of demonstrating that no reasonably segregable,” non-exempt

“information exists within the documents withheld.”

Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d

1067, 1068 (D.C. Cir. 1993). If a document contains

such segregable, non-privileged material, FOIA requires that the agency disclose it (generally in the form

of a redacted copy). 5 U.S.C. § 552(b); Stolt-Nielsen

Transp. Grp. Ltd. v. United States, 534 F.3d 728, 73334 (D.C. Cir. 2008).

1

“Because there are a number of federal government agencies located in Washington . . . the majority of the caselaw interpreting FOIA has been decided by the D.C. Circuit.” Miccosukee

Tribe v. United States, 516 F.3d 1235, 1257 n.23 (11th Cir. 2008).

6

2. The Endangered Species Act and the

Jeopardy Prohibition

The ESA, 16 U.S.C. §§ 1531-44, “is intended to protect and conserve endangered and threatened species

and their habitats.” NAHB, 551 U.S. at 651. The Services administer the ESA on behalf of the Secretaries

of Interior and Commerce. Id. The two Services identify and list “species of animals that are ‘threatened’ or

‘endangered’ ” and “designate their ‘critical habitat.’ ”

Bennett v. Spear, 520 U.S. 154, 158 (1997) (citation

omitted).2 The ESA requires, inter alia, “[e]ach federal

agency . . . [to] insure that any action authorized,

funded, or carried out by such agency . . . is not likely

to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of such species’

critical habitat. 16 U.S.C. § 1536(a)(2).

That prohibition is carried out through “consultation” between the Services and other agencies. Id. An

agency first determines whether its action may affect

a listed species, 16 U.S.C. § 1536(c); 50 C.F.R.

§ 402.14(a). If so, the agency is required to consult with

the Service responsible for the listed species, “after

which the Service must provide the agency with a

written statement (the Biological Opinion) explaining

how the proposed action will affect the species or its

2

The National Marine Fisheries Service is responsible for

marine and anadromous species. The Fish and Wildlife Service

is responsible for land and freshwater species. See Rio Grande

Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1105

n.2 (10th Cir. 2010).

7

habitat.” Bennett, 520 U.S. at 158; 16 U.S.C.

§ 1536(b)(3)(A). A Biological Opinion must, in particular, convey the Service’s determination of “whether

the action is . . . [l]ikely to jeopardize the continued existence of a listed species,” or harm its critical habitat.

50 C.F.R. § 402.14(h)(1)(iv).

If the Services conclude that the agency’s proposed

action is likely to result in such jeopardy, the Services

then suggest “reasonable and prudent alternatives,”

if any, that would avoid that violation. 16 U.S.C.

§ 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(2). The Services’

regulations encourage the Services to work with action-agencies “to utilize their expertise in developing

[such] alternatives.” 48 Fed. Reg. 29,990, 29,995 (June

29, 1983). To facilitate that work the regulations contain provisions by which, following a jeopardy determination, the Services may convey a “draft biological

opinion” to an action-agency “for the purpose of analyzing the reasonable and prudent alternatives” that

might be available. 50 C.F.R. § 402.14(g)(5) (reasonable

and prudent alternatives arise only “if a jeopardy opinion is to be issued”).

A jeopardy determination by the Services effectively forecloses an agency’s authority to proceed.

“[T]he agency must either terminate the action, implement the [Service’s] proposed alternative, or seek an

exemption from the Cabinet-level Endangered Species

Committee.” NAHB, 551 U.S. at 652; 16 U.S.C.

§§ 1536(a)(2), (e); see also TVA v. Hill, 437 U.S. 153, 185

(1978) (explaining the “conscious decision by Congress

to give endangered species priority over the ‘primary

8

missions’ of federal agencies” and the consequently inflexible prohibition on agency actions that jeopardize

endangered species). Accordingly, the determinations

made by the Services’ biological opinions are final

agency actions in their own right, rather than “purely

advisory” suggestions supplementing other agencies’

decisionmaking. Bennett, 520 U.S. at 178.

3. The Clean Water Act and EPA’s IntakeStructures Rule

The Clean Water Act instructs EPA to promulgate

standards reflecting the “best technology available” to

minimize the adverse environmental impacts from

cooling water intake structures (the mechanisms used

by power plants to extract large volumes of water from

rivers, lakes, or the ocean). 33 U.S.C. § 1326(b); see

Entergy Corp. v. Riverkeeper, 556 U.S. 208, 212-13

(2009). EPA has been developing those standards for

decades. Id. at 213-14.

Following the remand of its most recent effort, EPA

proposed a new rule in 2011 (the “Intake-Structures

Rule”). Cooling Water Intake Structure Coalition v.

EPA, 905 F.3d 49, 62-63 (2d Cir. 2018). EPA initiated

formal consultation with both Services under the ESA

in June 2013. Id. at 62. In October 2013, EPA provided

the Services with what it intended to be the “final” revisions to its regulation, “approved by [EPA’s] administrators.” C.A. S.E.R. 72-73. After reviewing that

regulation, in December 2013 the Services each completed “draft jeopardy opinions” (the “2013 Jeopardy

9

Opinions”). Pet. App. 5a. The 2013 Jeopardy Opinions

describe EPA’s proposed Intake-Structures Rule, the

“location of affected structures,” and “evaluate[ ] the direct and indirect effects that the EPA’s proposed action

would have on ESA-listed species and their habitats.”

Pet. App. 46a-47a. In both Opinions, the Services concluded that “the rule in its then-current form was

likely to cause jeopardy” to species protected by the

ESA, and “negatively impact their designated critical

habitat.” Pet. App. 5a. The Services partially transmitted those documents to EPA, informing EPA that they

had reached a jeopardy determination. Pet. App. 5a-6a;

C.A. S.E.R. 76-77.

Because the Services had reached a jeopardy determination, they prepared documents describing “reasonable and prudent alternatives,” by which EPA could

avoid violating the ESA. C.A. E.R. 44; Pet. App. 10a

(describing three documents containing alternatives,

hereinafter the “Reasonable and Prudent Alternatives”). EPA then “issued a new version” of the IntakeStructures Rule, including additional restrictions on

impacts to protected species, “which it sent to the

Services” in March 2014. Pet. App. 6a; Cooling Water,

905 F.3d at 63 (noting added “process-based protections” for wildlife). The National Marine Fisheries Service prepared a draft biological opinion for that newly

revised Rule, concluding that it too was likely to result in jeopardy to listed species (the “2014 Draft

Jeopardy Opinion”). Pet. App. 6a. After further discussions with EPA, the National Marine Fisheries

Service revised that conclusion, and in May 2014 the

10

Services issued a joint opinion concluding that EPA’s

new Intake-Structures Rule would not result in jeopardy, and so required no further changes (the “2014

Final No-Jeopardy Opinion”). Id. EPA issued its regulation “the same day.” Id.

B. Proceedings Below

Sierra Club submitted FOIA requests, pursuant to

5 U.S.C. § 552(a)(3), to both Services for records prepared during their ESA consultations regarding EPA’s

Intake-Structures Rule. C.A. E.R. 94-96, 105-107. The

Services released over 3,700 documents, in full or redacted form, and withheld almost 4,000 documents as

exempt from FOIA’s disclosure requirements. C.A. E.R.

43, 61.

Sierra Club filed suit, and sought a summary judgment requiring the release of sixteen of the withheld

documents, including the 2013 Jeopardy Opinions, the

Reasonable and Prudent Alternatives, and the 2014

Draft Jeopardy Opinion. Pet. App. 8a-12a. The Services

asserted that all of the documents were protected by

the deliberative process privilege, and therefore

properly withheld under Exemption 5. Pet. App. 8a-9a.

Following in camera review, the district court found

four documents to be protected by the deliberative process privilege and exempt from disclosure; one to be

only partially exempt; and eleven documents to be nonexempt—including the 2013 Jeopardy Opinions, the

Reasonable and Prudent Alternatives, and the 2014

11

Draft Jeopardy Opinion. Pet. App. 9a-12a. The Services

appealed.

The court of appeals affirmed in part, and reversed

in part. Because Exemption 5 does not encompass all

documents “transmitted between agencies,” but rather

only those “inter-agency . . . memorandums or letters”

that “fall within the ambit of a privilege against discovery,” Pet. App. 13a-14a (quoting Klamath Water

Users, 532 U.S. at 8) the court of appeals undertook a

granular assessment of whether each contested document was both “predecisional” and “deliberative,” so as

to qualify for the deliberative process privilege.

After conducting its own in camera review, the

court of appeals held, first, that the 2013 Jeopardy

Opinions, and certain accompanying documents,3 were

not predecisional. Pet. App. 18a-20a. Noting that under

this Court’s precedent, “the issuance of a biological

opinion is a final agency action” in its own right, the

court of appeals assessed “whether each document at

issue is pre-decisional as to” the Service’s own “biological opinion”—not “whether it is pre-decisional as to

the EPA’s rulemaking.” Pet. App. 18a. On the record

before it, the court of appeals found that the 2013

Jeopardy Opinions, though labeled drafts, “contain

the final conclusions by the final decision-makers—the

3

These documents are a statistical table showing “estimated

aggregate effects” of EPA’s then-proposed Rule on listed species,

and several documents “explain[ing] best practices for mitigating

the projected, harmful effects” of that Rule. Pet. App. 20a-21a. For

simplicity’s sake, subsequent references to the “2013 Jeopardy

Opinions” include those additional documents.

12

Services—regarding whether” EPA’s proposed IntakeStructures Rule, in its then-current form, would jeopardize threatened and endangered species. Pet. App.

18a. The court based that conclusion on, inter alia, the

facts that: “[t]he documents had been approved by final

decision-makers at each agency”; the Assistant Director at the Fish and Wildlife Service who was the responsible decision-maker had “made final edits” to the

Fish and Wildlife Service’s Jeopardy Opinion; that

opinion awaited only “his autopen signature”; and the

National Marine Fisheries Service was prepared “to release [its Jeopardy Opinion] to the public,” and had

prepared “talking points for its legislative affairs staff.”

Pet. App. 19a.

The court of appeals found, further, that “EPA

made changes” to its Intake-Structures Rule “after

both Services’ jeopardy opinions were completed and

partially transmitted to the EPA,” Pet. App. 19a-20a.

Because the Services’ 2014 Final No-Jeopardy Opinion

addressed a “different proposed rule”—that is, the Rule

that EPA devised after the 2013 Jeopardy Opinions

prohibited its prior proposal—the court of appeals rejected the Services’ characterization of the 2013 Jeopardy Opinions as earlier, predecisional versions of the

Services’ 2014 Final No-Jeopardy Opinion. Pet. 20a.

The court of appeals held that the 2013 Jeopardy

Opinions were not entitled to the deliberative process

privilege for a second, independent reason: they did not

contain “deliberative” discussions. See Pet. App. 21a

(“To shield documents from disclosure . . . the Services

must not only show that they are pre-decisional, but

13

also that they are deliberative.”). It noted, based on its

in camera review, “that the documents do not contain

line edits, marginal comments, or other written material that expose any internal agency discussion about

the jeopardy finding.” Pet. App. 25a. The 2013 Jeopardy

Opinions did not “[c]ontain any insertions or writings

reflecting input from lower level” agency staff. Id.

Nothing in the documents would “allow a reader to reconstruct the ‘mental processes’ that [led] to the production of the” Services’ joint 2014 Final No-Jeopardy

Opinion. Pet. App. 27a. It found that the 2013 Jeopardy

Opinions revealed nothing regarding the Services’ internal deliberations beyond “what the Services themselves have already disclosed during this litigation: that

the initial proposed regulations resulted in final drafts

of jeopardy opinions . . . that the EPA received portions

of those opinions and proposed a revised regulation . . .

and that the Services ultimately issued a no jeopardy

opinion for” EPA’s revised Intake-Structures Rule. Pet.

App. 26a.

By contrast, the court of appeals held that a number of the Services’ other documents leading up to the

2014 Final No-Jeopardy Opinion were privileged. Pet.

App. 29a. The court of appeals found that two of the

three documents describing the Services’ Reasonable

and Prudent Alternatives did “not reflect the [Services’] final position regarding the kinds of changes . . .

needed in order to comply with the ESA.” Pet. App. 17a.

They were, rather, “earlier drafts” of the third and final

document, which contained the Services’ conclusive determination of the options available to EPA. For that

14

reason, the court of appeals found the two earlier Reasonable and Prudent Alternatives to be predecisional.

Id. And because “comparing these [earlier] drafts

would shed light on [the Services’] internal vetting process,” it found them to be deliberative. Pet. App. 27a28a. The court of appeals therefore held that all but

the last of the Services’ Reasonable and Prudent Alternatives (prepared just before EPA revised its IntakeStructures Rule, Pet. App. 8a, 10a) were exempt under

the deliberative process privilege.

Likewise, the court of appeals held that the 2014

Draft Jeopardy Opinion was exempt from disclosure.

Pet. App. 29a. Unlike the 2013 Jeopardy Opinions, it

did “not appear to represent the [Services’] conclusion”

as to the “likely impact” of EPA’s revised, 2014 IntakeStructures Rule. Pet. App. 17a. It was, rather, “an interim step,” expressing “the agency’s staff ’s initial

opinion as to the Rule,” which was never “adopted . . .

as the agency’s” decision—the Services had instead

jointly issued the 2014 Final No-Jeopardy Opinion. Id.

The court consequently found the 2014 Draft Jeopardy

Opinion to be predecisional. Id. And because its contents might allow a reader to “reconstruct some of the

deliberations” that preceded the National Marine

Fisheries Service’s later no-jeopardy conclusion, the

court of appeals found that the 2014 Draft Jeopardy

Opinion was deliberative. Pet. App. 28a.

Judge Wallace partially dissented. “[E]ven if [the

2013 Jeopardy Opinions] represented the view of the

‘entire’ Services,” as to the lawfulness of EPA’s initial

Intake-Structures Rule, he would have held that

15

Exemption 5 allowed the Services to withhold them.

Pet. App. 33a.

The court of appeals later issued an amended

opinion, and an order denying the Services’ petition for

panel rehearing, as well as its petition for rehearing en

banc (as to which no judge requested a vote). Pet. App.

2a. The Services then reviewed the 2014 Draft Jeopardy Opinion and the two Reasonable and Prudent

Alternatives that the court of appeals found to be

within the ambit of the deliberative process privilege,

to assess whether those documents contained reasonably segregable, non-exempt information. See Pet. App.

29a. The Services determined that the three documents’ contents were not privileged in their entirety

and released redacted copies of each. See Order on

Stipulation, D.C. Doc. No. 87.

------------------------------------------------------------------

REASONS FOR DENYING THE WRIT

I.

The Court of Appeals’ Decision Creates No

Tension with Decisions of This Court or

Any Circuit Court.

The petitioners do not contend that there is a conflict among the circuits, or that the court of appeals’

decision conflicts with any decision of this Court. They

rest solely upon a claim of “serious tension” with “decisions of this Court and other courts of appeals.” Pet. 13.

But even that claim is unsupported. Rather, the court

of appeals’ decision applies settled principles to an idiosyncratic set of facts, and is entirely consistent with

16

this Court’s decisions and those of every other court of

appeals.

A. The Court of Appeals’ Application of

Sears’s Pragmatic “Working-Law” Standard to the Particular Facts in This Record

Does Not Warrant Certiorari.

In conducting a fact-specific inquiry into the contents and context of the contested documents, rather

than giving “dispositive” weight to whether the Services formally “signed” and “issued” the 2013 Jeopardy

Opinions, Pet. 21, the court of appeals followed the rule

established by NLRB v. Sears, Roebuck & Co., 421 U.S.

at 151-52. Sears holds that FOIA’s textual “aversion to

‘secret (agency) law’ ” requires disclosure of all “documents which have ‘the force and effect of law.’ ” Id. at

153 (citations omitted). Consequently, an agency may

not invoke Exemption 5 and the deliberative process

privilege to conceal “ ‘opinions and interpretations’

which embody the agency’s effective law and policy.” Id.

at 152 (deliberative process privilege encompasses

only “papers which reflect the agency’s group thinking

in the process of working out what its policy and determining what its law shall be” (citation omitted)). The

emphasis on function rather than form—on “effective

law and policy”—mandates disclosure of any “reasons

. . . expressed within the agency” that “constitute the

‘working law’ of the agency.” Id. at 152-53 (emphasis

added, citations omitted).

17

Sears’s “working law” standard, id., requires

courts—as the court of appeals did here—to look past

an agency’s decision whether to publicly issue a document as well as its official designation of the document

as “draft” or “final,” Pet. 21-23. Any other rule would

permit agencies to maintain the “secret (agency) law”

that Sears prohibits. 421 U.S. at 152 (citation omitted).

For that reason, Sears—like the court of appeals

here—declined to extend the privilege to internal

memoranda that had the effect of altering an agency’s

decisions, even though the agency had characterized

those memoranda as “advisory only and not binding.”

Id. at 157.

The circuits have, consequently, uniformly understood Sears to prescribe a fact-intensive standard, emphasizing practicalities rather than formalities, to

determine whether an agency document qualifies as

predecisional. “[A]n agency is not permitted to develop

‘a body of secret law,’ used by it in the discharge of its

regulatory duties . . . but hidden behind a veil of privilege because it is not designated as ‘formal,’ ‘binding,’

or ‘final.’ ” Elec. Frontier Found., 739 F.3d at 7 (quoting

Schlefer v. United States, 702 F.2d 233, 244 (D.C. Cir.

1983)). Documents that are “not issued in final form,

signed off on . . . or otherwise adopted as official policy”

may still describe “the ‘final views’ ” of an agency, Pet.

14, and consequently fall outside the deliberative process privilege. ACLU v. NSA, 925 F.3d 576, 594 (2d Cir.

2019) (adopting “functional test to determine whether

a document constitutes ‘working law,’ ” based on “operative effect” rather than “nominal[ ]” designations).

18

Accord Coastal States Gas Corp. v. Dep’t of Energy, 644

F.3d 969, 978 (3d Cir. 1981) (deliberative process privilege does not cover “internal advice that was in fact

agency policy”); King v. IRS, 684 F.2d 517, 520-21 (7th

Cir. 1982) (adoption of a position, either “formally or

informally,” places document outside privilege).

“Documents reflecting [an agency’s] formal or informal policy as to how it carries out its responsibilities fit comfortably within the ‘working law’

framework” by which Sears identifies conclusive, rather than predecisional, material. Public Citizen, 598

F.3d at 875 (D.C. Cir. 2010) (emphasis added). Under

that framework, an agency’s designation of documents

as drafts does not necessarily render them predecisional; “the agency must present to the court the ‘function and significance of the document(s) in the agency’s

decisionmaking process,’ ‘the nature of the decisionmaking authority vested in the office or person issuing the disputed documents,’ and the positions in

the chain of command of the parties to the documents.”

Arthur Anderson & Co. v. IRS, 679 F.2d 254, 258 (D.C.

Cir. 1982) (citations omitted).

Sears and its progeny establish that, contrary to

the petition’s insistence, the court of appeals made no

“legal” error in looking beyond the formalities of signature and public issuance. Pet. 21, 24. It correctly examined the entirety of the facts surrounding the contested

documents—such as whether they had been “approved

by final-decisionmakers at each agency,” and whether

the documents had the effect of forcing EPA to “ma[ke]

changes to its proposed regulations”—to determine

19

whether the documents contained “the Services’ final

views,” Pet. App. 18a-19a. See Schlefer, 702 F.3d at 238

(Under Sears, a court’s “consideration looks beneath

formal lines of authority to the reality of the decisionmaking process in question.”). The petition cites no federal appellate authority—in fact, no judicial authority

at all—that supports its view that labels are determinative under FOIA.

Indeed, Sears forbids the approach urged by the

petitioners: giving “dispositive” weight to a subset of

purely formal “facts”—here, signature and public

adoption, Pet. 21-22—regardless of whether the documents describe the Services’ “effective law and policy.”

421 U.S. at 153. The “force and effect,” id., of the Services’ jeopardy determination does not depend upon

the formalities emphasized by the petition. The “effective law and policy” standard established by Sears is

necessarily broader and more fact-intensive, requiring

detailed scrutiny of the information within the contested documents and the particulars of the decisionmaking process within which those documents

were generated. For the reasons set forth in Part II,

below, the court of appeals correctly concluded that the

2013 Jeopardy Opinions were not predecisional under

that standard. But regardless, any mistake in the

court’s conclusion would be one of fact rather than

law—whether this particular record demonstrates

that the 2013 Jeopardy Opinions contained the Services’ final conclusions, or merely their preliminary

suppositions. Even if the court of appeals had erred by

characterizing as “final” material that was instead

20

“nearly final,” Pet. 23, that close factual call would not

warrant certiorari.

B. The Court of Appeals’ Recognition of the

Services’ Decisional Authority Creates

No Tension with Grumman Aircraft.

Contrary to the petition’s assertion, the court of

appeals’ opinion is also entirely consistent with Renegotiation Board v. Grumman Aircraft Engineering

Corp., 421 U.S. 168. Grumman holds, as the petitioners

acknowledge, that the deliberative process privilege

encompasses “recommendations and advice” given to

“an agency possessing decisional authority,” by “a separate agency not possessing such decisional authority.”

Id. at 187-88 (emphasis added). Accord Pet. 29. Because the documents at issue in Grumman originated

in an agency lacking such authority, and thus were

“functionally indistinguishable from the recommendation of any agency staff member whose judgment has

earned the respect of [the agency’s] decisionmaker,”

this Court found them to be predecisional. Grumman,

421 U.S. at 187.

The Services’ role under the ESA is very different.

The ESA grants the Services’ independent decisional

authority—authority that is, in the case of a jeopardy

finding, well-nigh conclusive. Such a determination definitively delimits an agency’s discretion to undertake

its proposed action, regardless of the statutes providing the agency’s “primary missions.” TVA, 437 U.S. at

185. The agency must either terminate the action

21

entirely; add those restrictions that the Services approve as reasonable and prudent alternatives; or seek

an exemption from a Cabinet-level Endangered Species Committee.4 NAHB, 551 U.S. at 652 (citation omitted). The Services’ decision “has direct and appreciable

legal consequences” that dramatically “alter the legal

regime to which the action agency is subject.” Bennett,

520 U.S. at 178 (concluding that the Services’ role is

not akin to providing “tentative recommendations,” but

rather to issuing “binding determination[s]”). See also

id. at 169 (despite nominally “advisory function,” Services’ consultation “in reality . . . has a powerful coercive effect on the action agency”).

Where an agency’s role is not to advise, but to

decide, Grumman does not suggest that its interagency communications are categorically predecisional.

Grumman extends the deliberative process privilege

only to documents that have “no operative effect” on

the receiving agency, due to the sending agency’s “total

lack of decisional authority.” 421 U.S. at 190-91. Compare id. at 184 (finding that “the evidence utterly fails

to support the conclusion that the reasoning in the reports [was] adopted by the Board”) with Pet. App. 19a20a (noting that after 2013 Jeopardy Opinions, “EPA

made changes to its proposed regulations”). The court

of appeals correctly recognized that, under Grumman,

it was required to ask “whether each document at issue

4

Exemptions have been sought only six times, and granted

twice. Cong. Res. Serv., Endangered Species Act (ESA): The Exemption Process 1 (2017), available at https://fas.org/sgp/crs/misc/

R40787.pdf.

22

is pre-decisional as to a biological opinion,” rather

than deeming them “pre-decisional as to EPA’s rulemaking.” Pet. App. 18a (citations omitted).

The court of appeals did not, moreover, ignore

Grumman’s holding that “Exemption 5 does not distinguish between inter-agency and intra-agency memoranda.” 421 U.S. at 188. The court’s opinion recognizes

that inter-agency communications and intra-agency

communications are subject to the same standards: if

predecisional and deliberative, they are privileged. Pet.

App. 13a-14a (citations omitted). When confronted

with facts demonstrating that the Services’ interagency communications met that standard, the court

found them exempt from disclosure. Pet. App. 17a, 27a28a (finding that two drafts of Reasonable and Prudent

Alternatives sent by Services to EPA did not “reflect

the final position” of the Services and were deliberative). Faced with different facts—indicating that the

2013 Jeopardy Opinions described the Services’ “final

conclusions,” Pet. App. 18a, and revealed nothing

“about the internal deliberative process,” Pet. App.

26a—the court reached a different conclusion.

Those factual distinctions do not reflect any differential treatment of “inter-agency and intra-agency

memoranda.” Pet. 28 (citation omitted). The court of

appeals did not, as the petition supposes, mandate disclosure of any documents sent to EPA by the Services

to seek “advice from the EPA about the [Services’] decision,” Pet. 29 (quoting dissenting opinion, Pet. App.

34a); it found, as a factual matter, that the documents

in question were not intended to seek advice, but to

23

convey the Services’ final conclusions. Pet. App. 18a19a. That finding produces no tension with Grumman.

See Schlefer, 702 F.2d at 243 (documents that do “not

invite a response” and “contain no hint that they are

anything but final,” are not predecisional).

Finally, the court of appeals generated no friction

with Grumman when it distinguished the 2014 Draft

Jeopardy Opinion from the 2013 Jeopardy Opinions.

Pet. 28-29. In keeping with the uniform holdings of the

circuits, the court of appeals examined “the identity

and position of the author and any recipients of the

document” as a “relevant factor” in assessing whether

the documents contained the Services’ final conclusions. Ethyl Corp. v. EPA, 25 F.3d 1241, 1249 (4th Cir.

1991) (citing Access Reports v. U.S. Dep’t of Justice, 926

F.2d 1192, 1195 (D.C. Cir. 1991)). In the case of the

2014 Draft Jeopardy Opinion—which was “only circulated between groups of [National Marine Fisheries

Service] employees”—that factor (among others) supported the court of appeals’ conclusion that the document was part of the agency’s “ ‘back-and-forth’

debate,” and predecisional. Pet. App. 16a-17a, 17a n.9

(also noting that document “expressed the agency

staff ’s initial opinion”). In the case of the 2013 Jeopardy Opinions—which were “approved by final decisionmakers,” and partially conveyed to EPA as expressions

of the Services’ jeopardy conclusion—the court of appeals weighed that factor (among others) in favor of

finding those documents not predecisional. Pet. App.

19a. This distinction is confirmed by the fact that the

2013 Jeopardy Opinions prompted revision of EPA’s

24

Intake-Structures Rule, while after the 2014 Draft

Jeopardy Opinion the Services ultimately reached a

different final conclusion without requiring any further changes to EPA’s Rule. Pet. App. 8a. The court of

appeals’ consideration of those facts is wholly in keeping with—indeed, implements—Grumman’s basic concern with the document’s relationship to “decisional

authority.” 421 U.S. at 186. See id. at 184 (to be predecisional, document must “be prepared in order to assist

an agency decisionmaker in arriving at his decision”).

C. The Court of Appeals’ Decision Creates

No Tension with the Decisions of Any

Other Circuit.

There is no “serious tension” between the court of

appeals’ decision and the Second Circuit’s decision upholding EPA’s final Intake-Structures Rule and the

Services’ 2014 Final No-Jeopardy Opinion. Pet. 27. Before the Second Circuit, the agencies excluded the 2013

Jeopardy Opinions from the administrative record, citing the deliberative process privilege. Cooling Water,

905 F.3d at 65 n.9. The Second Circuit saw “nothing in

the privilege log that would disturb the ‘presumption

of regularity’ afforded to the agencies’ certified record,”

under Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402 (1971), and therefore denied a motion to compel amendment of that record. 905 F.3d at 65 n.9. As

the court of appeals below explained, the Second Circuit’s ruling on the adequacy of the privilege log—in a

footnote, with no analysis of either the requirements of

25

the deliberative process privilege or the facts surrounding the documents—does not “suggest[ ] a different result” from the one reached by the court below on

the FOIA issue presented by this case. Pet. App. 14a15a n.8. The court of appeals here assessed the

Services’ privilege invocation under FOIA, in which

Congress specified that “the burden is on the agency”

to sustain any exemption from disclosure. 5 U.S.C.

§ 552(a)(4)(B); Senate of Puerto Rico v. U.S. Dep’t of

Justice, 823 F.2d 574, 584-85 (D.C. Cir. 1987). The Second Circuit applied a “presumption of regularity,” demanding instead “a strong showing of bad faith or

improper behavior,” from the parties seeking to add the

2013 Jeopardy Opinions to the administrative record.

Citizens to Preserve Overton Park, 401 U.S. at 420. See

Cooling Water, 905 F.3d at 65 n.9 (citing Overton Park

as providing applicable standard).

In light of the inverted burdens of proof properly

applied by the two decisions, there is no basis for reading the decisions to reflect disagreement on any legal

issue—and, especially, no indication that the Second

Circuit adopted petitioners’ view that the Services’

failure to formally designate the 2013 Jeopardy Opinions ‘final’ should be given “dispositive” weight. Pet. 21.

Reading Cooling Water to take that view is especially

unwarranted given that the Second Circuit, in two

more recent decisions that directly involve FOIA, has

expressly rejected that formalistic approach, emphasizing, like the court of appeals below (and Sears), that

the “operative effect” of the documents in question is

decisive. ACLU, 925 F.3d at 594-95; N.Y. Times Co. v.

26

U.S. Dep’t of Justice, 939 F.3d 479, 491 (2d Cir. 2019). A

document is not predecisional, according to the Second

Circuit, merely because it is “nominally non-binding”

or “nominally advisory”; rather, its finality is evidenced

by, inter alia, “whether agency officials feel free to disregard the document’s instructions,” and “whether an

agency superior distributes the document to subordinates (rather than vice versa).” ACLU, 925 F.3d at 594.

Accord Pet. App. 18a-19a. There is no reason to believe

that the Second Circuit would reach a different conclusion if asked to apply that pragmatic standard to the

record in this case; even where a “document purports

to offer recommendations or advice,” that Circuit does

not consider it predecisional if the facts suggest that

the agency “nonetheless regard[s] it in practice as embodying the agency’s ‘working law’ on an issue.” N.Y.

Times, 939 F.3d at 490.

The decision below is also entirely consistent with

the D.C. Circuit’s decision in National Security Archive

v. CIA, 752 F.3d 460 (D.C. Cir. 2014). National Security

Archive found, first, that the draft agency history at

issue preceded “any final agency decision on the relevant matter.” Id. at 463. Having established the document’s predecisional nature, then-Judge Kavanaugh

wrote that it was “still pre-decisional,” even though

the agency had never completed a “final CIA history.”

Id. (“[D]raft regulation[s] that the [agency] never issues” are “no less drafts than the drafts that actually

evolve into final . . . actions.”). That holding—that a

predecisional document remains predecisional, even if

the agency fails to complete the action to which it

27

pertains—only applies where a court determines that

the document is, in the first place, predecisional.

The court of appeals here reached the opposite

conclusion: that the 2013 Jeopardy Opinions were

never predecisional, but rather contained the “final

conclusions” of the “final decision-makers” at the Services, Pet. App. 18a—that is, “the final view of an entire

agency as to a matter which, once concluded, is final

agency action,” Pet. App. 19a. Nothing in the court of

appeals’ decision suggests that “abandonment . . . elevate[s] a draft document into a final decision,” Pet. 26.

The court of appeals did not conclude that the 2013

Jeopardy Opinions were predecisional drafts that became final when the Services “abandoned” them; nor

did it indicate that any such “abandonment” followed

EPA’s decision to reduce its Rule’s impact on endangered species. Pet. 26-27. It found the 2013 Jeopardy

Opinions were final decisions, “approved by final decisionmakers at each agency.” Pet. App. 19a; and that those

decisions provoked “changes” to EPA’s preferred course

of action, Pet. App. 19a-20a.

National Security Archive does not hold that such

a document—a conclusive agency decision, with “a

powerful coercive effect on the action agency,” Bennett,

520 U.S. at 169—becomes predecisional when the action agency complies with it by abandoning the proposal that the document deems unlawful. To suggest

otherwise, petitioners insist that the Services’ jeopardy

determination and the EPA’s Intake-Structures Rule

are a “single decisionmaking process,” in which EPA’s

modification of its Rule necessitates the conclusion

28

that the Services modified or abandoned their jeopardy

decisions. Pet. 26-27. But, as explained above, the ESA

gives the Services independent and consequential decisionmaking authority, distinct from EPA’s authority

to promulgate the Intake-Structures Rule. Pet. App.

18a (citing Bennett, 520 U.S. at 178). See Public Citizen,

598 F.3d at 875 (“[A]n agency’s application of a policy

to guide further decision-making does not render the

policy itself predecisional,” if the policy represents a

“decision regarding the agency’s legal position”). That

“EPA modified” its 2013 Intake-Structures Rule by

adding wildlife protections consequently does not

mean that “the Services abandoned” their 2013 Jeopardy Opinions. Pet. 26. It suggests the opposite: EPA’s

modifications are precisely the effect that would follow

from a final jeopardy determination by the Services.

NAHB, 551 U.S. at 652 (citation omitted).

II.

The Court of Appeals’ Decision Correctly

Concluded, Based on the Facts in the Record,

that the 2013 Jeopardy Opinions Were Not

Predecisional.

In applying legal standards on which this Court

and the lower courts broadly agree to the facts of this

case, the court of appeals reached the correct conclusion: the government did not demonstrate that the

contents of the 2013 Jeopardy Opinions (or the final

version of the Reasonable and Prudent Alternatives)

were predecisional. Pet. App. 17a-20a.

29

The court of appeals did not err in determining

that the “record reflects the finality of the conclusions”

in the 2013 Jeopardy Opinions, Pet. App. 19a, notwithstanding the Services’ failure to formally designate the

Opinions ‘final’ through signature, official transmission,5 or inclusion of “final[ ]” in their titles. Pet. 21. As

noted above, Sears’s prohibition on “secret law” prevents a court from treating an agency’s “designat[ion]

as ‘formal,’ ‘binding,’ or ‘final’ ” as dispositive. Coastal

States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 86768 (D.C. Cir. 1980). Such formalities merely separate

the decisions the agency wishes to make public from

those it wishes to keep secret. The question is whether

the documents describe “orders and interpretations

which [an agency] actually applies.” Id.; see Sears, 421

U.S. at 160 (suggesting need to look to “real operative

effect” to determine whether deliberative process privilege applies).

The court of appeals was therefore correct to weigh

both the formalities cited by petitioners and other

“informal” indicia of the policy by which the Services

“carr[y] out their responsibilities.” Public Citizen, 598

F.3d at 875. And it was correct to find that the balance

indicated that “[a]lthough 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

5

The Services did convey to EPA portions of their 2013 Jeopardy Opinions—including the Services’ conclusion that EPA’s initial Rule would result in jeopardy and was therefore prohibited.

Pet. App. 40a; C.A. S.E.R. 76-77.

30

regulation.” Pet. App. 18a. The Fish and Wildlife Service’s responsible decisionmaker had made his “final

edits,” and the Opinion was ready for his “autopen signature.” Pet. App. 19a; C.A. S.E.R. 79; see Access Reports, 926 F.2d at 1195 (Information “moving from

senior to junior is far more likely to manifest decisionmaking authority and to be the denouement of the decisionmaking rather than part of its give-and-take.”).

The National Marine Fisheries Service had prepared a

“roll-out plan” and “talking points,” C.A. S.E.R. 11-12—

activities that an agency does not undertake for mere

“preliminary positions or ruminations,” Petroleum Info.

Corp. v. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir.

1992) (Ginsburg, J.).

The Services indicated to EPA that they had

reached “draft Jeopardy opinions,” C.A. S.E.R. 76, and

sent EPA Reasonable and Prudent Alternatives, C.A.

S.E.R. 81—a step which, according to the Services, occurs after “the Services conclude that [the] agency action is likely to jeopardize listed species.” C.A. E.R. 44.

The Services completed the 2013 Jeopardy Opinions

expecting that EPA would place them on its public

docket. C.A. S.E.R. 11. And, perhaps most crucially, the

2013 Jeopardy Opinions had the “force and effect,”

Sears, 421 U.S. at 152, of a final jeopardy finding: EPA

did not finalize its Rule, but instead complied with the

Services’ decision by adopting wildlife restrictions designed to reduce the Rule’s impact on protected species.

Pet. App. 19a-20a. See NAHB, 551 U.S. at 652.

That the Services “retain[ed] authority to revise”

their jeopardy determination does not make the 2013

31

Jeopardy Opinions predecisional. Pet. 18. As this Court

has noted, such authority is “a common characteristic

of agency action,” and “does not make an otherwise definitive decision nonfinal,” U.S. Army Corps of Eng’rs v.

Hawkes Co., Inc., 136 S. Ct. 1807, 1814 (2016) (citations omitted).6 The record does not suggest that the

Services did, in fact, alter their jeopardy decision; rather, they allowed EPA to finalize its Rule only after

EPA adopted an alternative that addressed impacts to

protected species. Pet. App. 19a-20a; Cooling Water,

905 F.3d at 63. The petitioners’ insistence that the Services’ jeopardy determination “carries no legal consequences” until it is formally stamped ‘final,’ Pet. 23,

defies the pragmatism that has long governed this

Court’s approach to agency decisionmaking. See Hawkes,

136 S. Ct. at 1814; Mink, 410 U.S. at 91 (Exemption

5 demands “flexible, common-sense approach”). The

statement “stop or I’ll shoot” carries consequences,

even before the speaker pulls the trigger.

Second, the ESA’s implementing regulations do

not render the 2013 Jeopardy Opinions predecisional.

Pet. 24. The dissenting opinion cites 50 C.F.R.

§ 402.14(g)(5) as providing EPA “time to comment” on

a draft biological opinion transmitted to the agency under that regulatory sub-section, and therefore supporting the conclusion that all information contained in

such a draft must be predecisional. Pet. App. 30a. But

6

A document need not embody a final agency action reviewable under the Administrative Procedure Act, 5 U.S.C. § 706, to

be subject to disclosure under FOIA. See Sears, 421 U.S. at 15455 (Exemption 5 “can never apply” to final agency opinions).

32

the Services’ regulations do not state that a jeopardy

determination, conveyed to an action-agency pursuant

to 50 C.F.R. § 402.14(g)(5), is preliminary and subject

to comment by the action-agency. On the contrary, that

sub-section states that when the Services “make available to the Federal agency [their] draft biological opinion,” they do so “for the purpose of analyzing . . .

reasonable and prudent alternatives,” 50 C.F.R.

§ 402.14(g)(5) (emphasis added)—not the jeopardy

determination that requires the adoption of such alternatives. The regulation provides for further deliberation regarding reasonable and prudent alternatives

(deliberations that the court of appeals found to be

privileged, until they reached their conclusion, Pet.

App. 17a, 27a). It does not thereby render all of the

Services’ conclusions predecisional—especially the

jeopardy determination that necessitates discussion of

more protective alternatives. C.A. E.R. 44 (“[I]f the

Services conclude that an agency action is likely to

jeopardize listed species . . . the Services must provide”

reasonable and prudent alternatives). Cf. Public Citizen, 598 F.3d at 875 (A document that makes a recommendation is “hardly contagious, spreading [its]

predecisional and deliberative nature to all other

documents in [its] vicinity,” and an agency’s general

“advisory role” does not render all its documents predecisional.).

Third, the record fully supports the court of appeals’ determination that the 2013 Jeopardy Opinions

were not merely preliminary versions of the Services’

2014 Final No-Jeopardy Opinion. Pet. App. 19a-20a.

33

The 2014 Final No-Jeopardy Opinion addressed a

distinct regulation—one that included endangeredspecies protections absent from the Intake-Structures

Rule addressed by the 2013 Jeopardy Opinions. Id.

That “EPA modified” its Intake-Structures Rule following receipt of the Services’ jeopardy determination,

Pet. 26, supports rather than negates the finality of the

2013 Jeopardy Opinions. As noted above, a final jeopardy determination compels exactly such modifications. To ignore the “changes” that “arise” from the

Services’ decision, id., would be to ignore the “force and

effect” of that decision—something the court of appeals

could not do. Sears, 421 U.S. at 153.

The record flatly contradicts any suggestion that

EPA “modified” the Intake-Structures Rule for reasons

independent of the 2013 Jeopardy Opinions, inducing

the Services to “abandon[ ]” their jeopardy determinations. Pet. 26-27. Prior to completion of the 2013

Jeopardy Opinions, EPA confirmed, at the Services’ insistence, that EPA had provided its “final rule revisions,”

which had been “approved by [EPA’s] administrators.”

C.A. S.E.R. 72. The Services informed EPA that they

viewed EPA’s then-current regulatory text as the “final rule,” which would “serve as the basis” for the Services’ biological opinion. Id. Those facts, found in the

contemporaneous agency record, amply support the

conclusion that EPA’s adoption of endangered-species

protections was a product of the Services’ jeopardy

determination—not an independent, unrelated EPA

decision that caused the Services to discard that determination. And the agencies followed the 2013

34

Jeopardy Opinions with Reasonable and Prudent Alternatives, C.A. S.E.R. 81—the very existence of

which required the Services to have reached a jeopardy conclusion. 16 U.S.C. § 1536(b)(3)(A); C.A. E.R.

44. Had the Services abandoned the 2013 Jeopardy

Opinions, neither those Alternatives nor the wildliferelated restrictions that distinguished EPA’s final

Intake-Structures Rule from its 2013 proposed regulation would have been necessary. See also Pet. App. 6a

(when Services issued their final 2014 “no-jeopardy”

conclusion, EPA issued Rule “the same day”).

III. Review Would Require Resolution of a Second, Equally Fact-Bound Question: Whether

the 2013 Jeopardy Opinions Were “Deliberative.”

Even if this Court were to accept petitioners’ claim

that the court of appeals erred by concluding that the

documents in question contain “ ‘final’ agency decisions,” Pet. 27, that would only satisfy one of the two

prerequisites of the deliberative process privilege—

that the documents be “predecisional.” To grant petitioners relief, this Court would have to answer a second, equally fact-bound question: whether the 2013

Jeopardy Opinions were also “deliberative.” Public Citizen, 598 F.3d at 367 (“ ‘[I]t is not enough that a communication precede the adoption of an agency policy.’

To qualify under Exemption 5, a document must also

‘be a direct part of the deliberative process in that it

makes recommendations or expresses opinions. . . .’ ”

35

(citation omitted))7; see Mink, 410 U.S. at 88 (privilege

only applies where “production of the contested document would be ‘injurious to the consultative functions

of government.’ ” (citation omitted)); Carter v. U.S. Dep’t

of Commerce, 307 F.3d 1084, 1090 (9th Cir. 2002) (to

determine if material is deliberative, court examines

“the effect of the materials’ release” (citation omitted)).

“Material is deliberative if it ‘reflects the giveand-take of the consultative process,’ ” a standard that

“focuse[s] upon whether disclosure of the requested

material would tend to ‘discourage candid discussion

within an agency.’ ” Petrochemical Info. Corp., 976 F.2d

at 1434 (citations omitted). Based on its in camera review of the contested documents, the court of appeals

concluded that the 2013 Jeopardy Opinions did not

meet that standard. Pet. App. 26a-27a. It found that

the Opinions “do not contain line edits, marginal comments, or any other written material that expose any

internal agency discussion about the jeopardy finding.”

Pet. App. 25a. They do not include “any insertions or

writings reflecting input from lower level employees.”

7

Accord Town of Norfolk v. U.S. Army Corps of Eng’rs, 968

F.2d 1438, 1458 (1st Cir. 1992); Grand Central Partnership v.

Cuomo, 166 F.3d 473, 482 (2d Cir. 1999); Abdelfattah v. U.S. Dep’t

of Homeland Sec., 488 F.3d 178, 184 (3d Cir. 2007); Ethyl Corp.,

25 F.3d at 1247; Skelton v. U.S. Postal Serv., 678 F.2d 35, 36 (5th

Cir. 1982); Norwood v. FAA, 993 F.2d 570, 576-77 (6th Cir. 1993);

Enviro Tech Int’l v. EPA, 371 F.3d 370, 374 (7th Cir. 2004);

Missouri Coal. for the Env’t Found. v. U.S. Army Corps of Eng’rs,

542 F.3d 1204, 1211 (8th Cir. 2008); Casad v. U.S. Dep’t of Health

& Human Serv., 301 F.3d 1247, 1252 (10th Cir. 2002); Broward

Bulldog, Inc. v. U.S. Dep’t of Justice, 939 F.3d 1164, 1194-95 (11th

Cir. 2019).

36

Id. Their contents “do not reveal more about the internal deliberative process . . . than what the Services

have already disclosed during [the] litigation: that the

initial proposed regulation resulted in final drafts of

jeopardy opinions in December 2013,” and do not “reveal either the Services’ internal deliberations that

[led] to reaching those opinions or the EPA’s internal

deliberative process that resulted in revising the draft

regulations.” Pet. App. 26a.

Review of the court of appeals’ not-deliberative

holding would entail only reassessment of the abovedescribed “evidence and . . . specific facts.” United

States v. Johnston, 268 U.S. 220, 227 (1925). Yet this

Court cannot answer the question petitioners present—whether the 2013 Jeopardy Opinions are exempt

from disclosure under the deliberative process privilege, Pet. (I)—without undertaking that additional

fact-specific inquiry. Predecisional material is not privileged, if it does not “ ‘reflect[ ] an agency’s preliminary

positions or ruminations’ about a particular policy

judgment.” NAHB v. Norton, 309 F.3d at 39 (citation

omitted). Addressing only whether the records are predecisional, without considering whether they are also

deliberative, could provide no basis for altering the

judgment below, rendering the Court’s determination

merely advisory. Accordingly, even if the petition’s

claims of error as to the records’ predecisional status

might otherwise merit this Court’s review, the need to

address this fact-bound issue to resolve the question

presented would make the case a poor candidate for

review.

37

IV. This Case Implicates No Interests Warranting Review.

The court of appeals’ decision does not create any

“risk of confusing and misleading the public,” Pet. 33.

The ESA gives the Services decisive authority, firmly

circumscribing action-agencies’ discretion. Allowing

the Services to draw a veil of privilege over the exercise

of that authority, merely by declining to formalize “signature” and “public issuance” of an otherwise conclusive opinion, Pet. 32, would run directly contrary to

FOIA’s fundamental purpose of ensuring that the public is aware of the reasons actually supplying “the basis

for an agency policy,” Sears, 421 U.S. at 152. See Elec.

Frontier Found., 739 F.3d at 7.

Neither does the opinion threaten to “chill the deliberative process” by upsetting any agency expectation that these particular biological opinions, or all

opinions marked “draft,” will be secret. Pet. 32-33. The

record demonstrates that no such agency expectation

exists. The Services believed that the 2013 Jeopardy

Opinions would be made public when they completed

them. C.A. S.E.R. 11-12 (noting understanding that EPA

would place Opinions in record). Similar documents

are, as a matter of general practice, routinely included

in the public record, C.A. S.E.R. 164-199 (providing

examples).8 Far from “creat[ing] uncertainty,” Pet. 32,

8

The Services’ practice of making “draft” biological opinions

public may not constitute waiver. Pet. 32 n.4. But it strongly

undercuts petitioners’ suggestion that the “possibility” of draft

opinions’ disclosure will drastically alter the Services’ decisionmaking. Pet. 32-33.

38

the court’s decision merely confirmed the agencies’ existing expectations.

Finally, the court of appeals applied a statutory

provision that Congress has amended since the requests

at issue. To assert a FOIA exemption as to records requested subsequent to the amendment, agencies must

additionally show that “disclosure would harm an interest protected by [the] exemption,” or that “disclosure

is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). See

Pet. App. 12a n.7. Were a member of the public to request the 2013 Jeopardy Opinions today, that “heightened standard” would apply to any effort by the

Services to withhold them. Judicial Watch, Inc. v. U.S.

Dep’t of Commerce, 375 F. Supp. 3d 93, 100 (D.D.C.

2019) (holding that the government must articulate a

link between specific, reasonably foreseeable harm and

specific material withheld). A decision from this Court

would thus address the court of appeals’ application of

a superseded legal standard, further diminishing any

grounds for certiorari.

------------------------------------------------------------------

39

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

SANJAY NARAYAN

Counsel of Record

SIERRA CLUB ENVIRONMENTAL LAW

PROGRAM

2101 Webster St., Ste. 1300

Oakland, CA 94612

(415) 977-5769

sanjay.narayan@sierraclub.org

REED SUPER

SUPER LAW GROUP, LLC

180 Maiden Ln., Ste. 603

New York, NY 10038

(212) 242-2355

SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION GROUP

1600 20th St. NW

Washington, DC 20009

(202) 588-1000

January 6, 2020