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

No. 19-547

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In The

Supreme Court of the United States

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

WILDLIFE SERVICE ET AL.,

Petitioners,

v.

SIERRA CLUB, INC.,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF FOR AMICI CURIAE CENTER FOR

BIOLOGICAL DIVERSITY AND DEFENDERS OF

WILDLIFE IN SUPPORT OF RESPONDENT

-----------------------------------------------------------------KATHERINE A. MEYER

DIRECTOR, HARVARD ANIMAL

LAW & POLICY CLINIC

1607 Massachusetts Ave.

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu

July 31, 2020

ERIC R. GLITZENSTEIN

Counsel of Record

CENTER FOR BIOLOGICAL

DIVERSITY

1411 K Street, NW,

Suite 1300

Washington, D.C. 20005

(202) 849-8401

eglitzenstein@biological

diversity.org

JASON RYLANDER

DEFENDERS OF WILDLIFE

1130 17th Street, NW

Washington, D.C. 20036

(202) 772-3245

jrylander@defenders.org

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

ii

INTERESTS OF AMICI CURIAE .......................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

BIOLOGICAL OPINIONS AND OTHER

MATERIALS GENERATED IN THE

ESA CONSULTATION PROCESS ARE

QUINTESSENTIALLY FACTUAL DOCUMENTS THAT DO NOT WARRANT

BLANKET PROTECTION UNDER THE

DELIBERATIVE PROCESS PRIVILEGE ...

4

II. THE GOVERNMENT’S CONTENTION

THAT THE PUBLIC HAS A RIGHT OF

ACCESS TO ONLY FINAL DECISION

DOCUMENTS CONFLICTS WITH MINK

AS WELL AS THE PLAIN TERMS AND

PURPOSE OF FOIA .................................... 11

III.

THE GOVERNMENT’S APPROACH TO

EXEMPTION 5 WOULD DEPRIVE THE

PUBLIC OF CRUCIAL INFORMATION

REGARDING

IMPERILED

SPECIES

THAT IS GENERATED IN THE SECTION

7 CONSULTATION PROCESS ................... 18

CONCLUSION..................................................... 25

ii

TABLE OF AUTHORITIES

Page

CASES

Bennett v. Spear,

520 U.S. 154 (1997) ...................................................9

Ctr. for Biological Diversity v.

U.S. Marine Corps,

No. 00-2387, 2005 U.S. Dist. LEXIS 50151

(D.D.C. Sept. 15, 2005) ........................................ 9, 10

Dep’t of the Air Force v. Rose,

425 U.S. 352 (1976) .................................................17

Dep’t of the Interior v. Klamath Water Users

Protective Ass’n,

532 U.S. 1 (2001) .....................................................17

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) .....................................................16

Envtl. Prot. Agency v. Mink,

410 U.S. 73 (1973) ........................................... passim

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) .............................................18

Nat’l Sec. Archive v. CIA,

752 F.3d 460 (D.C. Cir. 2014) .............................. 4, 22

Nw. Envtl. Advocates v. Envtl. Prot. Agency,

No. 05-1876, 2009 U.S. Dist. LEXIS 10456

(D. Or. Feb. 11, 2009) .................................................8

Sw. Ctr. for Biological Diversity v. Babbitt,

215 F.3d 58 (D.C. Cir. 2000) ......................................9

TVA v. Hill,

437 U.S. 153 (1978) .................................................22

iii

TABLE OF AUTHORITIES—Continued

Page

U.S. Dep’t of Justice v. Reporters Comm. for

Freedom of the Press,

489 U.S. 749 (1989) ..................................... 16, 20, 24

W. Watersheds Project v. Kraayenbrink,

632 F.3d 472 (9th Cir. 2011) ....................................22

STATUTES AND REGULATIONS

Freedom of Information Act of 1966

5 U.S.C. § 552................................................... passim

5 U.S.C. § 552(a)(1)(D) .............................................15

5 U.S.C. § 552(a)(2)(A) .............................................15

5 U.S.C. § 552(a)(2)(B) .............................................15

5 U.S.C. § 552(a)(3)(A) .............................................16

5 U.S.C. § 552(a)(4)(B) .............................................10

5 U.S.C. § 552(b) ......................................................15

Endangered Species Act of 1973

16 U.S.C. §§ 1531-1544 .................................... passim

16 U.S.C. § 1536(a)(2) .......................................... 9, 19

50 C.F.R. § 402.13 .......................................................21

50 C.F.R. § 402.13(a) ...................................................21

50 C.F.R. § 402.13(c) ...................................................21

50 C.F.R. § 402.14 .......................................................21

50 C.F.R. § 402.14(c)(1) .................................................7

50 C.F.R. § 402.14(c)(1)(ii) ..........................................19

iv

TABLE OF AUTHORITIES—Continued

Page

50 C.F.R. § 402.14(f ) .....................................................7

50 C.F.R. § 402.14(g)(1) .................................................7

50 C.F.R. § 402.14(h) .....................................................8

50 C.F.R. § 402.14(h)(ii) ..............................................19

50 C.F.R. § 402.14(i)(1)(i)-(ii) ........................................8

FEDERAL REPORTS

H.R. Rep. 97-567, Part 1, Committee on

Merchant Marine and Fisheries, Endangered

Species Amendments (1982) ............................. 21, 22

S. Rep. 813, 89th Cong., 1st Sess. (1965) ......................6

OTHER AUTHORITIES

Donald Barry, et al., For Conserving Listed Species,

Talk is Cheaper Than We Think (World Wildlife

Fund) (1992), http://www.nativefishlab.net/library/

textpdf/15635.pdf ....................................................21

FWS, NMFS, Endangered Species Consultation

Handbook (March 1998), https://www.fws.gov/

endangered/esa-library/pdf/esa_section7_

handbook.pdf ...................................................... 8, 10

FWS, U.S. Federal Endangered and Threatened

Species by Calendar Year, https://ecos.fws.gov/

ecp0/reports/species-listings-count-by-yearreport .......................................................................23

v

TABLE OF AUTHORITIES—Continued

Page

Holly Doremus, Scientific and Political Integrity

in Environmental Decisionmaking, 86 Tex. L.

Rev. 1601 (2008) ......................................................20

Jacob W. Malcom & Ya-Wei Li, Data Contradict

Common Perceptions About a Controversial

Provision of the U.S. Endangered Species Act,

112 PNAS 15844-15849 (Dec. 29, 2015),

https://www.pnas.org/content/112/52/15844 ...... 21, 23

1

INTERESTS OF AMICI CURIAE1

Amici are non-profit conservation organizations

with longstanding interests in the effective implementation of both the Freedom of Information Act, 5 U.S.C.

§ 552 (“FOIA”), and the Endangered Species Act, 16

U.S.C. §§ 1531-1544 (“ESA”).

The Center for Biological Diversity (“Center”) is a

non-profit membership organization dedicated to the

protection of native species and their habitats through

the application of science, policy, and environmental

law. The Center is incorporated in California and

headquartered in Tucson, Arizona, with field offices

throughout the United States and Mexico. The Center

has more than 1.6 million members and on-line activists who have interests in conserving endangered and

threatened species and effective implementation of the

ESA.

Defenders of Wildlife (“Defenders”) is a non-profit

membership organization also dedicated to the protection of native animals and plants in their natural habitats, including our country’s most imperiled wildlife

and habitat. Defenders is headquartered in Washington, D.C. with regional offices throughout the country.

Defenders has more than 1.8 million members and online activists across the country who have interests in

1

All parties have provided written consent to the filing of

this brief. No counsel for any party in this case authored this brief

in whole or in part and no person or entity other than amici has

made a monetary contribution to the preparation or submission

of this brief.

2

protecting endangered and threatened species and

effective implementation of the ESA.

In advancing their organizational missions to

avoid the extinction and further the recovery of imperiled species, the Center and Defenders rely heavily on

the consultation process embodied in Section 7 of the

ESA. In turn, the Center and Defenders depend on access to documents they can obtain under FOIA to monitor and inform their members about federal agencies’

compliance with Section 7 and whether the consultation process is being implemented to perform its Congressionally-mandated function to avoid jeopardizing

the continued existence of species and destroying their

critical habitats. The position advocated by the government in this case—which would cloak much of the Section 7 consultation process in secrecy and deprive the

public of vitally important factual and scientific information bearing on the effects of agency actions on

endangered and threatened species—is highly detrimental to the Center’s and Defenders’ organizational

missions to safeguard species including by informing

the public about how the ESA is being carried out.

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

SUMMARY OF ARGUMENT

It is undisputed that to qualify for the deliberative

process privilege, as incorporated into Exemption 5 of

FOIA, agency records must be both “predecisional” and

“deliberative.” See Petitioner’s Brief (“Pet. Br.”) at 26.

The government’s argument that the documents at

3

issue are predecisional under the particular circumstances of this case should be rejected for the reasons

set forth in the Sierra Club’s brief. In addition, the

Court of Appeals correctly held that the documents do

not qualify as deliberative. Biological Opinions and

other documents generated in the ESA Section 7 consultation process are, and by law are required to be,

factually-focused documents that present scientific information on the current status of imperiled species

and the ways in which agency actions will affect them.

Under this Court’s seminal ruling in Envtl. Prot.

Agency v. Mink, this kind of material, which does not

entail deliberation on any sensitive matters of policy,

cannot be withheld under Exemption 5. 410 U.S. 73

(1973).

The government’s position that drafts and other

agency records that precede a final agency decision

may be withheld in their entirety under the deliberative process privilege squarely conflicts with Mink and

is also contrary to the plain terms and pro-disclosure

purpose of FOIA. As applied to the Section 7 consultation process, this position, if adopted by the Court,

would deprive the public of essential scientific information regarding the plight of federally protected species and whether federal agency actions are driving

such species closer to extinction.

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

4

ARGUMENT

I.

BIOLOGICAL OPINIONS AND OTHER

MATERIALS GENERATED IN THE ESA CONSULTATION PROCESS ARE QUINTESSENTIALLY FACTUAL DOCUMENTS THAT DO

NOT WARRANT BLANKET PROTECTION

UNDER THE DELIBERATIVE PROCESS

PRIVILEGE.

The deliberative process privilege, as incorporated

by Exemption 5, has two requirements: agency records

for which the privilege is claimed must be both “predecisional” and “deliberative.” Nat’l Sec. Archive v. CIA,

752 F.3d 460, 462 (D.C. Cir. 2014); see also Pet. Br. 26

(citing cases). Respondent Sierra Club has convincingly explained why, under the particular circumstances of this case, the documents at issue do not

qualify as “predecisional” for purposes of the application of the privilege. Rather than rehash those arguments, with which amici agree, this brief will focus on

the alternate basis on which, after in camera review of

the actual documents, the Ninth Circuit concluded

that the information at issue does not warrant withholding from public scrutiny: the information is not

“deliberative” material of the kind that warrants

wholesale protection under Exemption 5. Rather, by

statutory mandate, Biological Opinions are fundamentally factual in nature and hence do not involve or reflect the kinds of policy debates and advice and

recommendations that the deliberative process privilege is designed to protect.

5

In Mink, this Court held that, in invoking the deliberative process privilege to withhold documents

sought under FOIA, it is insufficient for the government simply to assert that the records preceded an

agency determination. Rather, the Court explained

that the “privilege that has been held to attach to intragovernmental memoranda clearly has finite limits,

even in civil litigation,” and particularly that documents consisting of “factual material or purely factual

material contained in deliberative memoranda and

severable from its content would generally be available for discovery by private parties in litigation with

the Government.” 410 U.S. at 87-88 & n.14 (citing

cases). In addition, “in applying the privilege, courts

often were required to examine the disputed documents in camera, to determine which should be

turned over or withheld.” Id. at 88-89; see also id. at

nn.15, 16 (collecting cases). The Court further explained that

[w]e must assume, therefore, that Congress

legislated against the backdrop of this case

law, particularly since it expressly intended

‘to delimit the exception [5] as narrowly as

consistent with efficient Government operation.’ Virtually all of the courts that have

thus far applied Exemption 5 have recognized

that it requires different treatment for materials reflecting deliberative or policymaking

6

processes on the one hand, and purely factual,

investigative matters on the other.

Id. at 89 & n.16 (quoting S. Rep. 813, 89th Cong., 1st

Sess. 9 (1965)) (emphasis added).2

Documents generated in the course of ESA Section 7 consultation with regard to the impacts of

agency actions on listed species and their habitats do

not ordinarily involve “policy recommendations” of the

kind that are the focus of Exemption 5’s deliberative

process privilege. Mink, 410 U.S. at 92. Rather, they

are paradigmatic examples of the sorts of “factual, investigative” materials that are generally not covered

by Exemption 5. Id. at 89.

For example, in initiating “formal consultation”—

the process leading to issuance of Biological Opinions—the “action agency” must develop such basic factual material as a “description of the proposed action”;

“any measures intended to avoid, minimize, or offset

2

In finding that “[n]othing in the legislative history of Exemption 5 is contrary to such a construction,” the Court explained

that, as originally introduced, FOIA contained an exemption that

excluded “ ‘inter-agency memorandums or letters dealing solely

with matters of law or policy’ ” and that this language was

changed to its current form so that “confidential policy recommendations” would not have to be disclosed “simply because the document containing them also happened to contain factual data.”

Mink, 410 U.S. at 89-91. At the same time, the Court held that

this “decision should not be taken, however, to embrace an

equally wooden exemption permitting the withholding of factual

material otherwise available on discovery merely because it was

placed in a memorandum with matters of law, policy, or opinion.”

Id. at 91.

7

effects of the action”; the “duration and timing of the

action”; the “location of the action”; the “specific components of the action and how they will be carried out”;

“[m]aps, drawings, blueprints or similar schematics of

the action”; “[a]ny other available information related

to the nature and scope of the proposed action relevant

to its effects on listed species or designated critical

habitat”; a “map or description of all areas to be affected directly or indirectly by the Federal action”;

“available information such as the presence, abundance, density or periodic occurrence of listed species

and the condition and location of the species’ habitat”;

and “any other relevant information on the effects of

the proposed action on listed species or designated critical habitat, including any relevant reports such as

environmental impact statements and environmental

assessments.” 50 C.F.R. § 402.14(c)(1).

The U.S. Fish and Wildlife Service (“FWS”) and/or

National Marine Fisheries Service (“NMFS”) (collectively “Service” or “Services”) may then request “additional data” that would “provide a better information

base from which to formulate a biological opinion.” Id.

§ 402.14(f ). Based on the “relevant information provided by the Federal agency or otherwise available,”

that may “include an on-site inspection of the action

area,” id. § 402.14(g)(1), the Services’ Biological Opinions “shall include” a “summary of the information on

which the opinion is based”; a “detailed discussion of

the environmental baseline of the listed species and

critical habitat”; a “detailed discussion of the effects of

the action on listed species or critical habitat”; and the

8

Service’s scientific finding as to whether the action is

“[l]ikely to jeopardize the continued existence of a

listed species or result in the destruction or adverse

modification of critical habitat.” Id. § 402.14(h). A Biological Opinion that makes a finding of no jeopardy and

no adverse destruction/modification of critical habitat

must also be accompanied by a “statement concerning

incidental take”—i.e., how many of the species may be

killed, injured, or otherwise harmed as a result of the

proposed action—that “[s]pecifies the impact, i.e., the

amount or extent, of such incidental taking” as well

as “reasonable and prudent measures” that are “necessary or appropriate to minimize such impact.” Id.

§§ 402.14(i)(1)(i)-(ii).

In short, Section 7 consultations overall and Biological Opinions in particular do not generally establish policy or address novel legal issues but, rather,

present a “plain account of factual information” that

must be brought to bear in reaching a “Congressionally

mandated scientific decision” concerning species and

habitat impacts. Nw. Envtl. Advocates v. Envtl. Prot.

Agency, No. 05-1876, 2009 U.S. Dist. LEXIS 10456, at

*21 (D. Or. Feb. 11, 2009); see also FWS, NMFS, Endangered Species Consultation Handbook (March 1998), at

4-15–4-34, https://www.fws.gov/endangered/esa-library/

pdf/esa_section7_handbook.pdf (“Section 7 Handbook”)

(further describing the factual information ordinarily

included in Biological Opinions, such as “[m]aps and

other graphics” reflecting the “action area within the

species’ range”; “information on the species’ life history,

its habitat and distribution, and other data or factors

9

necessary to its survival”; the “size of a [species’] population and its variance over time”; and a description

of the “factors affecting the environment of the species

or critical habitat in the action area”).

Indeed, the ESA mandates that Biological Opinions as well as other materials generated in the Section 7 consultation process be confined to an

assessment of the “best scientific and commercial data

available.” 16 U.S.C. § 1536(a)(2). The federal government is therefore foreclosed from making decisions on

these matters based on political or other non-scientific

bases. See Bennett v. Spear, 520 U.S. 154, 176 (1997)

(holding that the “obvious purpose of the requirement

that each agency ‘use the best scientific and commercial data available’ [in the Section 7 process] is to ensure that the ESA not be implemented haphazardly,

on the basis of speculation or surmise”); Sw. Ctr. for

Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir.

2000) (explaining that the “best available data” standard in the ESA “ ‘prohibits the [Service] from disregarding available scientific evidence that is in some

way better than the evidence [it] relies on’ ”) (citation

omitted).

Consequently, by legislative mandate, Biological

Opinions and other materials generated in the consultation process are “almost . . . exclusively factual document[s]” that “contain a significant amount of data,

research, and statistical figures” regarding the status

of imperiled species and the effects of agency actions

on listed species and habitats. Ctr. for Biological

10

Diversity v. U.S. Marine Corps, No. 00-2387, 2005 U.S.

Dist. LEXIS 50151, at *3 (D.D.C. Sept. 15, 2005); see

also Section 7 Handbook at xi (to “assure the quality of

the biological, ecological, and other information used in

the implementation of the Act, it is the policy of the

Services to . . . evaluate all scientific and other information used to ensure that it is reliable, credible, and

represents the best scientific and commercial data

available” and “document their evaluation of comprehensive, technical information regarding the status

and habitat requirements for a species throughout its

range”).

With regard to the specific documents at issue in

this case, both the district court and court of appeals

conducted in camera reviews to assess the deliberative

nature of the materials. See Petition Appendix (“Pet.

App.”) at 38a (District Court “Order Following In Camera Review”); id. at 25a (Court of Appeals description

of in camera review). In Mink, this Court endorsed in

camera inspection as a “necessary and appropriate”

means by which a reviewing court may, in suitable circumstances, determine whether a document consists

of genuinely deliberative material on the one hand or

quintessentially factual material on the other. 410 U.S.

at 93. FOIA also expressly authorizes district courts to

conduct in camera reviews to “determine whether

[agency] records or any part thereof shall be withheld

under any of the exemptions” in the statute, including

Exemption 5. 5 U.S.C. § 552(a)(4)(B).

Here, both the district court and court of appeals

employed that process, reviewed the actual documents

11

at issue, and made de novo findings that, even aside

from the documents’ failure to qualify as genuinely

predecisional in character, they do not contain the

sorts of deliberative materials that Exemption 5 was

intended to protect. Pet. App. 25a, 38a. This Court

should not upset the considered judgment of the two

lower courts that engaged in the very in camera review

sanctioned in Mink and specifically authorized by

Congress for distinguishing between exempt and nonexempt materials. In any event, the Court should take

into account the fundamentally factual, technical, and

scientific nature of documents generated in the Section

7 consultation process in determining how the deliberative process privilege—intended to protect the “frank

discussion of legal or policy matters” and not “factual

material,” Mink, 410 U.S. at 87-88—applies in this

case.

II.

THE GOVERNMENT’S CONTENTION THAT

THE PUBLIC HAS A RIGHT OF ACCESS

TO ONLY FINAL DECISION DOCUMENTS

CONFLICTS WITH MINK AS WELL AS THE

PLAIN TERMS AND PURPOSE OF FOIA.

While acknowledging that this Court’s precedents

require documents subject to the deliberative process

privilege to be both “predecisional” and “deliberative,”

Pet. Br. 26, the government asks the Court to endorse

a broad-brush approach under which the requirement

that information be deliberative in nature is rendered

meaningless. Hence, in addition to arguing that the

documents at issue constitute “predecisional” drafts,

12

the government contends that “[a]ll of the provisional

drafts in this case were deliberative because they were

‘intended to facilitate or assist development of the [Services’] final position on’ the EPA’s rule.” Id. at 43 (emphasis added; citation omitted). In the government’s

view, therefore, merely by virtue of the documents being (according to the government) “predecisional,” they

are also, ipso facto, “deliberative” in nature in toto; see

also id. at 25 (arguing that the “only remaining question in this case” is “whether the Services’ draft documents were just that—drafts”).

Under this extraordinarily sweeping approach to

Exemption 5, every document a federal agency characterizes as a “draft,” along with virtually every other

scrap of paper any federal agency generates—besides

a document reflecting or incorporating a “final position” of the agency—may be withheld in its entirety. Id.

at 19-20 (arguing that every agency record at issue

that does not embody a final decision and therefore

“carry the force of law” falls within the deliberative

process privilege). The government seeks to justify this

functional conflation of the two distinct requirements

for invocation of the deliberative process privilege on

the grounds that there is a “need for clear and workable rules,” id. at 25, and that anything short of wholesale withholding of any purported draft or other

document that is a precursor to an ultimate decision

will not afford the “clarity that is necessary for the

privilege to be effective.” Id. at 21.

While the approach advocated by the government

is certainly “clear,” it is also irreconcilable with the

13

Court’s holding and reasoning in Mink, the plain terms

of FOIA, and the overarching design of the statute. In

Mink, the Court expressly rejected the sort of “wooden”

approach advocated by the government—i.e., one that

would “permit[ ] the withholding of factual material

otherwise available on discovery merely because it was

placed in a memorandum” that preceded the adoption

of a final agency decision. Mink, 410 U.S. at 91. The

Court instead embraced a “flexible, commonsense approach that has long governed private parties’ discovery of such documents in litigation with Government

agencies,” under which all “severable” factual material

must be disclosed even if contained in otherwise “deliberative memoranda.” Id. at 88-91.

In conflict with this holding, under the government’s proposed approach, even such quintessentially

factual information as a “statistical chart showing

estimated aggregated effects of cooling water intake

structures on protected species,” Pet. Br. 14, and any

“additional data” that were generated to “help[ ] ensure

the technical accuracy of the opinion,” id. at 31, may be

withheld from public scrutiny so long as they were predecisional to a “final biological opinion” publicly issued

by a Service and reviewable under the Administrative

Procedure Act (“APA”). Id. at 43. But that is precisely

the “wooden” approach to the deliberative process privilege that this Court rejected in Mink.

Indeed, if the government’s test for withholding

had been applied in Mink, that case would have been

resolved entirely differently than it was. The documents withheld on Exemption 5 grounds in Mink

14

involved indisputably predecisional memoranda, prepared for the President’s consideration, in which various agency officials were tasked with both “review[ing]

the annual underground nuclear test program” and

“encompass[ing] within this review requests for authorization [by the President] of specific scheduled

tests.” Mink, 410 U.S. at 76. Accordingly, if the government’s “clear” test had been applied to those disputed

documents, they undoubtedly could have been withheld in their entirety because they were designed to

“facilitate or assist development of the [President’s]

final position” on the nuclear testing issue. Pet. Br. 43.

That, however, is not how the Court resolved the case.

Instead, applying a more “flexible, commonsense approach” to Exemption 5, the Court remanded for a

determination of whether “separable, factual” information was contained within the predecisional documents, including through use of the very kind of “in

camera inspection” conducted by the district court and

court of appeals here. Mink, 410 U.S. at 91-93. Consequently, to adopt the government’s proposed approach

the Court would have to overrule Mink although the

government has not proffered (and cannot proffer) any

legitimate justification for doing so.

The government’s proposed test for invocation of

the deliberative process privilege is also impossible to

harmonize with the plain terms of FOIA itself, which

make clear that the public’s right of access cannot be

confined solely to final decision documents. To begin

with, the government’s approach disregards FOIA’s express requirement that “[a]ny reasonably segregable

15

portion of a record shall be provided to any person requesting such record after deletion of the portions

which are exempt under this subsection.” 5 U.S.C.

§ 552(b). As Mink holds, that requirement applies fully

to materials prepared for consideration by an ultimate

decisionmaker. See Mink, 410 U.S. at 92-93.3

Further, as the government itself points out, in addition to the public’s right to request agency records—

the statutory provision at issue here—FOIA contains

“affirmative disclosure” provisions providing that even

without a request, agencies must proactively publicize

particular kinds of agency materials. Pet. Br. 37. These

provisions encompass materials that must be published in the Federal Register, such as “substantive

rules of general applicability” and “statements of general policy or interpretations of general applicability,”

5 U.S.C. § 552(a)(1)(D), and other materials that must

be made affirmatively “available for public inspection,”

including “final opinions,” and “statements of policy

and interpretations which have been adopted by the

agency and are not published in the Federal Register.”

Id. §§ 552(a)(2)(A), (B) (emphasis added).

According to the government, this “statutory

text” somehow “shows that Congress separated protected documents from unprotected ones based on

whether they established a final opinion, policy, or

3

Even the dissenting judge below would have “instruct[ed]

[the district court] to perform a segregability analysis on remand,” Pet. App. 37a, which the government ignores while asking

for a ruling that all of the documents in their entirety be deemed

“protected against compelled disclosure.” Pet. Br. 48.

16

interpretation, not whether the document addressed

an earlier version of an agency proposal.” Pet. Br. 37.

That might be a valid argument if FOIA contained only

the affirmative disclosure obligations. But the argument makes no sense in view of the fact that FOIA also

authorizes the public to request other agency records

that are not covered by the affirmative disclosure requirements. See 5 U.S.C. § 552(a)(3)(A) (“each agency,

upon request for any record which [ ] reasonably describes such records . . . shall make the records

promptly available to any person”); see also U.S. Dep’t

of Justice v. Reporters Comm. for Freedom of the Press,

489 U.S. 749, 754-55 (1989) (explaining that the ability

to request information that is not affirmatively required to be disclosed is an “addition[al]” right under

FOIA). The only reasonable interpretation of that additional public disclosure right—and the only one

consistent with basic principles of statutory construction—is that Congress did not, as the government

maintains, intend to restrict public access only to “a

final opinion, policy, or interpretation” of an agency.

Pet. Br. 37 (emphasis added); see also Direct Mktg.

Ass’n v. Brohl, 575 U.S. 1, 13 (2015) (explaining that

rendering statutory provisions “mere surplusage” is a

“result we try to avoid” in statutory construction).

Indeed, the government’s effort to restrict public

scrutiny only to what the government itself acknowledges as final decision documents would nullify the

overarching pro-disclosure mandate of FOIA. As this

Court has stressed, Congress’s determination to authorize members of the public to request access to

17

specific agency records—in addition to the final decision documents that must be affirmatively disclosed

under other provisions—embodies the “ ‘basic policy

that disclosure, not secrecy, is the dominant objective

of the Act.’ ” Dep’t of the Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting

Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)).

The Court explained in Mink that FOIA was a “revision of § 3, the public disclosure section” of the APA,

which was “generally recognized as falling far short of

its disclosure goals and came to be looked upon more

as a withholding statute than a disclosure statute.” 410

U.S. at 79. The requirements of FOIA were therefore

intended to “stand in sharp relief against those of

§ 3” by “permit[ting] access to official information

long shielded unnecessarily from public view” and

“creat[ing] a judicially enforceable public right to secure such information from possibly unwilling official

hands.” Id. at 79, 80.

However, the government’s proposed approach to

Exemption 5 would, in practical effect, render FOIA

functionally indistinguishable from its discarded predecessor. Virtually every agency-generated document

is part and parcel of an agency decision making process

of some kind. Consequently, if, as the government

maintains, virtually everything other than an agency

record that reflects a final agency decision may be

withheld as “deliberative” as well as “predecisional,”

then the overwhelming majority of agency records can

be withheld in their entirety, FOIA will be rendered

“more [of ] a withholding statute than a disclosure

18

statute,” Mink, 410 U.S. at 79, and secrecy rather than

disclosure will be the order of the day in contravention

of Congress’s design.4

III. THE GOVERNMENT’S APPROACH TO EXEMPTION 5 WOULD DEPRIVE THE PUBLIC

OF CRUCIAL INFORMATION REGARDING

IMPERILED SPECIES THAT IS GENERATED IN THE SECTION 7 CONSULTATION

PROCESS.

The dire implications of the government’s position

are illustrated vividly by the shroud of secrecy the government asks the Court to drape over the ESA Section

7 consultation process. According to the government,

the “deliberative process privilege stops at final agency

documents [ ] and a Service’s decision in an ESA Section 7 consultation is not final until it issues a final

biological opinion.” Pet. Br. 47. Under this view, every

piece of technical information exchanged between a

4

The government cites the Court’s recent ruling in Food

Mktg. Inst. v. Argus Leader Media for the proposition that FOIA’s

“exemptions serve ‘important interests’ and they are ‘as much a

part of FOIA’s purposes and policies as the statute’s disclosure

requirement.’ ” Pet. Br. 22 (quoting 139 S. Ct. 2356, 2366 (2019)).

But under the government’s approach, Exemption 5 would completely overwhelm the statute’s disclosure requirement. In that

regard, it is also worth noting that Food Marketing significantly

expanded the scope of Exemption 4 as it applies to non-agency

generated records, i.e., those submitted to the government by private entities. If the government’s approach to Exemption 5 were

also to be adopted as to agency-generated documents, then very

little of substance would be left of the public’s right to request

access to records covered by FOIA.

19

Service and an action agency that does not, for whatever reason, make it into a “final biological opinion” reviewable under the APA is covered by the “deliberative

process privilege” and should be shielded from public

scrutiny. Id.

For example, a FWS expert biologist’s factual description of a depleted species’ population numbers or

the current threats to its continued existence before

additional effects of the agency action are factored in—

what is known as the “baseline” condition of the species

and its critical habitat, 50 C.F.R. § 402.14(h)(ii)—may

be withheld from public review so long as such data

are, for whatever reason, not included in a final Biological Opinion. Likewise, a geographic map of the “area[ ]

to be affected directly or indirectly by the Federal action,” id. § 402.14(c)(1)(ii), may never see the light of

day if it is not included in a final opinion. Allowing such

core factual material to be withheld from the public

merely because it is contained in an ostensibly “draft”

document—or is otherwise deemed predecisional to a

Service’s ultimate Biological Opinion—would foreclose

meaningful public understanding of how agencies are

fulfilling their vital responsibilities to “insure” that

their actions are not “jeopardiz[ing] the continued existence of any endangered species or threatened species” and, in particular, whether they are relying on the

“best scientific and commercial data available” in the

consultation process, as required by the ESA. 16 U.S.C.

§ 1536(a)(2). Indeed, allowing the government to

shield this entire Congressionally-mandated extinction-avoidance process from public review, but for the

20

Services’ ultimate Biological Opinions, would fundamentally abridge the “citizens’ right to be informed

about ‘what their government is up to’ ”—which is

FOIA’s prime concern. Reporters Comm., 489 U.S. at

772-73.5

This deprivation of public access is especially destructive to government transparency and public oversight in view of the fact that, as explained further

below, very few of the thousands of ESA consultations

that are conducted each year even result in final Biological Opinions, and even fewer in so-called “jeopardy”

Biological Opinions. Consequently, under the government’s proposed approach, the public could be deprived

of a vast amount of important factual information

bearing on agencies’ performance of their obligations

under Section 7 to avoid contributing to the loss of

species.

The ESA implementing regulations distinguish

between “formal” and “informal” Section 7 consultations, with only the former resulting in final Biological

5

The public’s acute interest in learning about whether federal agencies, including the Services, are in fact relying on the

best available science is reinforced by high-profile instances in

which political appointees have directed FWS biologists to disregard the technical data they have compiled and instead make

ESA decisions based on non-scientific considerations in contravention of the law. See, e.g., Holly Doremus, Scientific and Political Integrity in Environmental Policy, 86 Tex. L. Rev. 1601, 160309, 1640-43 (2008) (describing instances in which interference by

a political appointee in the Interior Department prevented FWS

scientists from issuing Biological Opinions and other ESA decisions based on the best available scientific data, resulting in decisions subsequently being withdrawn or invalidated).

21

Opinions. See 50 C.F.R. §§ 402.13, 14. Informal consultation is an “optional process that includes all discussions, correspondence, etc. between the Service and the

Federal agency . . . designed to assist the Federal

agency in determining whether formal consultation” is

required. Id. § 402.13(a). If, during informal consultation, the Service provides “written concurrence” that

the agency’s action “is not likely to adversely affect

listed species or critical habitat, the consultation process is terminated, and no further action is necessary”—i.e., no formal consultation is conducted and

no final Biological Opinion is ever produced. Id.

§ 402.13(c).

According to several studies, the overwhelming

majority of consultations conducted over the years

have been informal, with no resulting Biological Opinion.6 The most recent such study found that, of 88,290

ESA consultations conducted between 2008 and 2015,

81,461 of them were informal, so that only about 8% of

all consultations resulted in formal consultation, the

process by which final Biological Opinions are produced. See Jacob W. Malcom & Ya-Wei Li, Data Contradict Common Perceptions About a Controversial

Provision of the U.S. Endangered Species Act, 112

6

See H.R. Rep. 97-567, Part 1, Committee on Merchant

Marine and Fisheries, Endangered Species Amendments (1982)

(“1982 House Report”); Donald Barry, et al., For Conserving Listed

Species, Talk is Cheaper Than We Think (World Wildlife Fund)

(1992), http://www.nativefishlab.net/library/textpdf/15635.pdf

(“Barry Study”).

22

PNAS 15844-15849 (Dec. 29, 2015) (“Malcom & Li

Study”).7

Consequently, if, as the government maintains, the

“deliberative process privilege stops at final agency

documents [ ] and a Service’s decision in an ESA Section 7 consultation is not final until it issues a final

biological opinion,” Pet. Br. 47, the public may be denied even the most basic information generated during

Section 7 consultation—the central legal tool crafted

by Congress to stem the tide of extinctions, see TVA v.

Hill, 437 U.S. 153, 179 (1978)—more than 92% of the

time. See also W. Watersheds Project v. Kraayenbrink,

632 F.3d 472, 495 (9th Cir. 2011) (describing the Section 7 process as the “[h]eart of the ESA”). That is

hardly consistent with the “broader objective of transparent and open government.” Nat’l Sec. Archive, 752

F.3d at 464.

Even in the relatively rare circumstances in which

formal consultation is pursued, the Services’ issuance

of final Biological Opinions finding that particular

agency actions will jeopardize the continued existence

of species is scarcer still. While that has always been

the case, see 1982 House Report at 13 (finding that

1.8% of the formal consultations studied resulted in

jeopardy opinions), in more recent years, jeopardy

opinions have become virtually non-existent. Between

2008 and 2015, out of 6,829 formal consultations, FWS

7

Available at https://www.pnas.org/content/112/52/15844.

23

issued a jeopardy opinion only twice, for a rate of just

0.03%. See Malcom & Li Study, 112 PNAS at 15848.8

While there are a number of reasons for the increasing paucity of jeopardy findings, including pressure applied by agency higher-ups to Service biologists

to avoid them, see supra at n.6, one of the principal

explanations is that such opinions are “negotiated

away” during the consultation process—as apparently

occurred in this case. In other words, “federal agencies

are now more inclined to continue negotiating the

scope of their proposed projects in response to FWS

issuing a draft biological opinion with a jeopardy or

destruction/adverse modification conclusion.” Malcom

& Li Study, 112 PNAS at 15847.

According to the government, such outcomes signify that the “ESA consultation process [has] worked

as Congress intended for the benefit of protected species.” Pet. Br. 34; id. at 8 (asserting that the agencies

“worked collaboratively to achieve a regulatory solution that would benefit ESA-listed species”). But, as in

this case, in the absence of any public scrutiny of the

process by which a jeopardy determination on a certain

action has been altered to a no jeopardy conclusion on

a modified action, it is impossible for the public to know

8

This decline in the number of jeopardy opinions is particularly striking since it occurred during a time frame in which the

number of species listed as endangered or threatened increased

by 318 species. See FWS, U.S. Federal Endangered and Threatened Species by Calendar Year, at https://ecos.fws.gov/ecp0/

reports/species-listings-count-by-year-report.

24

whether such a dramatic shift in conclusions—which

may spell the difference between survival or extinction

for a species already on the brink of oblivion—is in fact

supported by the “best available scientific data” as required by the statute. This is exactly the kind of “[o]fficial information that sheds lights on an agency’s

performance of its statutory duties [that] falls squarely

within [FOIA’s] statutory purpose.” Reporters’ Comm.,

489 U.S. at 773.

To be sure, as the government acknowledges, the

Services have frequently released to the public the

kinds of documents at issue here, thereby recognizing

the vital interest that conservation—as well as industry—advocates have in understanding how the Section

7 process is being carried out in practice. See Pet. Br.

47. Yet the government contends that the “fact that the

Services have weighed the benefits and drawbacks of

disclosure differently in other proceedings does nothing to undermine the Services’ official judgments here.”

Id. That is tantamount to a concession that releasing

draft Biological Opinions and other documents that

provide the public with insight into the consultation

process cannot be inherently harmful to any agency

deliberations. More important, the government’s argument betrays a fundamental misunderstanding of why

FOIA was enacted: “to create a judicially enforceable

public right to secure such information from possibly

unwilling official hands” rather than to allow government officials to pick and choose when they will deign

to allow public access to agency records of paramount

25

public import and when they will not. Mink, 410 U.S.

at 80.

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

CONCLUSION

For the foregoing reasons, the Court should affirm

the holding of the court of appeals.

Respectfully submitted,

ERIC R. GLITZENSTEIN

Counsel of Record

CENTER FOR BIOLOGICAL DIVERSITY

1411 K Street, NW, Suite 1300

Washington, D.C. 20005

(202) 849-8401

eglitzenstein@biologicaldiversity.org

JASON RYLANDER

DEFENDERS OF WILDLIFE

1130 17th Street, NW

Washington, D.C. 20036

(202) 772-3245

jrylander@defenders.org

KATHERINE A. MEYER

DIRECTOR, HARVARD ANIMAL LAW &

POLICY CLINIC

1607 Massachusetts Ave.

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu