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 &

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 AMERICAN FOREST

RESOURCE COUNCIL, NATIONAL ASSOCIATION

OF HOME BUILDERS, NFIB SMALL BUSINESS

LEGAL CENTER, AND AMERICAN FARM BUREAU

FEDERATION IN SUPPORT OF RESPONDENT

---------------------------------♦--------------------------------AMY CHAI

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8230

LAWSON E. FITE

Counsel of Record

SARA GHAFOURI

AMERICAN FOREST

RESOURCE COUNCIL

700 N.E. Multnomah Street,

Suite 320

Portland, OR 97232

(503) 222-9505

lfite@amforest.org

[Additional Counsel Listed On Inside Cover]

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

KAREN R. HARNED

NFIB SMALL BUSINESS

LEGAL CENTER

555 12th Street, N.W.

10th Floor

Washington, D.C. 20004

(202) 314-2061

Counsel for Amici Curiae

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Avenue, S.W.

Suite 1000W

Washington, D.C. 20024

(202) 406-3600

i

QUESTION PRESENTED

Exemption 5 of the Freedom of Information Act

(FOIA), 5 U.S.C. §552(b)(5) (2012), incorporates the deliberative process privilege. Does FOIA exempt from

disclosure nominally draft biological opinions prepared under Section 7(a)(2) of the Endangered Species

Act of 1973 (ESA), 16 U.S.C. §1536(a)(2), which were

shared in pertinent part with the action agency and

were followed by significant changes to the proposed

action to bring the action into ESA compliance?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

INTEREST OF AMICI CURIAE .........................

1

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

3

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

6

I.

Disclosure of These and Similar Opinions Is

Important to the Regulated Community .....

6

The Services’ description of the subject

documents as exempt “drafts” is not

consistent with amici’s experience of

the Section 7 consultation process ........

6

Disclosure informs the public of the

rationale for imposing potentially severe economic impacts for the purpose

of species conservation ........................ 13

II.

Draft Biological Opinions Are Frequent

and Probative Sources of Guidance for

Stakeholders, Agencies, and Courts .......... 18

The public and the courts rely on critical information contained in draft

BiOps ................................................... 18

Draft BiOps help the public and courts

determine whether an action is arbitrary or capricious ............................... 21

III.

Judicial Review and FOIA should be available at multiple steps in the regulatory

process to ensure adequate safeguards

against regulatory overreach .................... 23

iii

TABLE OF CONTENTS – Continued

Page

IV.

The Absolute Privilege Sought by the Services

Has No Grounding in FOIA’s Text ................. 28

Deliberative process is traditionally a

qualified privilege ................................ 29

Grolier’s categorical rule departs from

FOIA’s text ........................................... 30

A qualified privilege will better serve

the purpose of Exemption 5 and keep

up with rapid changes in discovery

practice ................................................ 32

CONCLUSION..................................................... 36

iv

TABLE OF AUTHORITIES

Page

CASES

Am. Hosp. Ass’n v. Bowen,

834 F.2d 1037 (D.C. Cir. 1987) .......................... 27, 28

Am. Med. Ass’n v. Reno,

57 F.3d 1129 (D.C. Cir. 1995) ..................................26

Bennett v. Spear,

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

Bibles v. Or. Nat. Desert Ass’n,

519 U.S. 355 (1997) .................................................34

California v. Azar,

911 F.3d 558 (9th Cir. 2018) ....................................28

Cheney v. U.S. Dist. Court for D.C.,

542 U.S. 367 (2004) .................................................33

Commw. v. Dalton,

467 Mass. 555, 5 N.E.3d 1206 (2014) .....................31

Cooling Water Intake Structure Coal. v.

U.S.E.P.A.,

905 F.3d 49 (2d Cir. 2018) .......................................23

Defs. of Wildlife v. Zinke,

856 F.3d 1248 (9th Cir. 2017) ..................................22

Dep’t of Interior v. Klamath Water Users

Prot. Ass’n,

532 U.S. 1 (2001) .....................................................32

Dep’t of Justice v. Reporters Cmte. for the

Freedom of the Press,

489 U.S. 749 (1989) ........................................... 33, 34

v

TABLE OF AUTHORITIES – Continued

Page

Dow AgroSciences LLC v. National

Marine Fisheries Service,

707 F.3d 462 (4th Cir. 2013) .............................. 19, 20

E.P.A. v. Mink,

410 U.S. 73 (1973) ............................................. 28, 29

Fed. Open Mkt. Cmte. of Fed. Reserve

Sys. v. Merrill,

443 U.S. 340 (1979) .................................................33

F.T.C. v. Grolier Inc.,

462 U.S. 19 (1983) ................................. 30, 31, 34, 35

F.T.C. v. Warner Commc’ns Inc.,

42 F.2d 1156 (9th Cir. 1984) ....................................29

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ....................................... 31, 32

Herbert v. Lando,

441 U.S. 153 (1979) .................................................33

Humane Soc’y of U.S. v. Locke,

626 F.3d 1040 (9th Cir. 2010) ..................................22

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) ..................................... 30, 31, 32

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ...................................................19

NAHB v. Defs. of Wildlife,

551 U.S. 644 (2007) ........................................... 18, 27

vi

TABLE OF AUTHORITIES – Continued

Page

Nat’l Audubon Soc’y v. FWS,

55 F. Supp. 3d 316 (E.D.N.Y. 2014) .........................19

Nat. Res. Def. Council v. Zinke,

No. 1:05-cv-01207-LJO-EPG, 2017 WL

3705108 (E.D. Cal. Aug. 28, 2017) ..........................19

N.L.R.B. v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978) .................................................28

N.L.R.B. v. Sears, Roebuck & Co.,

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

N.H. Right to Life v. Dep’t of Health

& Hum. Servs.,

136 S. Ct. 383 (2015) ...............................................30

North Dakota ex rel. Olson v. Andrus,

581 F.2d 177 (8th Cir. 1978) ....................................23

Oregonians for Floodplain Prot. v. U.S.

Dep’t of Commerce,

334 F.Supp.3d 66 (D.D.C. 2018) ..............................24

Owner-Operator Indep. Drivers Ass’n, Inc. v.

Fed. Motor Carrier Safety Admin.,

494 F.3d 188 (D.C. Cir. 2007) ..................................26

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

976 F.2d 1429 (D.C. Cir. 1992) ................................10

Renegotiation Bd. v. Grumman Aircraft

Eng’g Corp.,

421 U.S. 168 (1975) ............................................. 9, 12

Romag Fasteners, Inc v. Fossil, Inc.,

140 S. Ct. 1492 (2020) .............................................31

vii

TABLE OF AUTHORITIES – Continued

Page

Ryan v. Dep’t of Justice,

617 F.2d 781 (D.C. Cir. 1980) ....................................9

Sackett v. E.P.A.,

566 U.S. 120 (2012) ................................. 6, 24, 25, 26

In re Sealed Case,

121 F.3d 729 (D.C. Cir. 1997) ..................................29

Selkirk Conservation All. v. Forsgren,

336 F.3d 944 (9th Cir. 2003) ....................................21

Sierra Club v. U.S. Fish & Wildlife Serv.,

925 F.3d 1000 (9th Cir. 2019) .......................... passim

Small Refiner Lead Phase-Down Task

Force v. U.S.E.P.A.,

705 F.2d 506 (D.C. Cir. 1983) ..................................26

Soucie v. David,

448 F.2d 1067 (D.C. Cir. 1971) ................................35

Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978) ....................................... 5, 16, 17

United States v. Nixon,

418 U.S. 683 (1974) .................................................32

United States v. Weber Aircraft Corp.,

465 U.S. 792 (1984) .................................................32

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

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

U.S. Dep’t of Def. v. Fed. Lab. Relats. Auth.,

510 U.S. 487 (1994) ........................................... 30, 34

Vaughn v. Rosen,

523 F.2d 1136 (D.C. Cir. 1975) .......................... 12, 13

viii

TABLE OF AUTHORITIES – Continued

Page

Village of False Pass v. Clark,

733 F.2d 605 (9th Cir. 1984) ....................................21

Wild Fish Conservancy v. Salazar,

628 F.3d 513 (9th Cir. 2010) ......................................9

STATUTES AND COURT RULES

5 U.S.C. §552(b)(2) ......................................................32

5 U.S.C. §552(b)(4) ......................................................32

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

5 U.S.C. §552(b)(6) ......................................................34

16 U.S.C. §1536(a)(2) ....................................................8

16 U.S.C. §1536(b) .........................................................9

16 U.S.C. §1536(b)(3)(A) ...............................................8

16 U.S.C. §1536(e) .......................................................27

Fed. R. Civ. P. 26(a)(1)(A) ............................................11

Fed. R. Civ. P. 29(b) .....................................................11

Fed. R. Civ. P. 26(b)(1) .................................................34

Fed. R. Civ. P. 33(b)(2) .................................................11

Fed. R. Civ. P. 34(b)(2)(A) ............................................11

Fed. R. Civ. P. 36(a)(3) .................................................11

FEDERAL REGULATIONS

40 C.F.R. §125.98(h) ....................................................23

50 C.F.R. §402.02 ..........................................................4

ix

TABLE OF AUTHORITIES – Continued

Page

50 C.F.R. §§402.12–15.................................................10

50 C.F.R. §402.14(c)(1) ..................................................8

50 C.F.R. §402.14(e) ....................................................11

50 C.F.R. §402.14(g)(3) ..................................................9

50 C.F.R. §§402.14(h)(1)(iii)–(iv) ..................................9

50 C.F.R. §402.14(h)(4) .................................................8

50 C.F.R. §402.14(i)(1)(iv) ...........................................11

50 C.F.R. §§402.14(m)(1)–(2) ........................................9

50 C.F.R. §402.14(m)(2) ................................................8

50 C.F.R. §402.15(b) ......................................................7

OTHER AUTHORITIES

Scott Bauer et al., Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic

Habitat in Four Northwestern California Watersheds, 10(3) PLOS ONE e0120016 (2015);

https://journals.plos.org/plosone/article?id=

10.1371/ journal.pone.0120016 ...............................16

Susan Charnley et al., Northwest Forest Plan –

The First 10 Years (1994–2003): Socioeconomic

Monitoring Results (2006), U.S. Forest Serv.

Gen. Tech Rept. PNW-GTR-649; https://www.

fs.fed.us/pnw/pubs/pnw_gtr649.pdf. ................ 15, 16

William Dietrich, The Final Forest: The Battle

for the Last Great Trees of the Pacific Northwest (1992) ...............................................................17

x

TABLE OF AUTHORITIES – Continued

Page

Alyson C. Fluornoy, Beyond the “Spotted Owl

Problem”: Learning from the Old-Growth Controversy, 17 Harv. Envtl. L. Rev. 261 (1993) ...........17

Gov’t Accountability Office, Federal Agencies

Have Worked to Improve the Consultation Process, but More Management Attention Is

Needed, GAO-04-93, Mar. 29, 2004 .........................12

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

Common Perceptions About a Controversial

Provision of the US Endangered Species Act,

112 Proc. Nat’l Acad. Sci. 15,844 (2015) .................12

Deanna H. Olson et al. ed., People, Forests, and

Change: Lessons from the Pacific Northwest

(2017) .......................................................................16

U.S. Dep’t of Agric., Forest Serv.; U.S. Dep’t. of

the Interior, Bureau of Land Mgmt., Record of

decision for amendments to Forest Service and

Bureau of Land Management planning documents within the range of the northern spotted

owl, Apr. 13, 1994; https://www.fs.fed.us/r6/reo/

library/docs/NWFP-ROD-1994.pdf. ........................14

U.S. Fish & Wildlife Serv., Biological Opinion for

the Preferred Alternative (Alternative 9) of the

Supplemental Environmental Impact Statement on Management of Habitat for Late Successional and Old Growth Forest Related

Species on Federal Lands Within the Range of

the Northern Spotted Owl, Feb. 10, 1994;

https://www.fs.fed.us/r6/reo/library/docs/NWFPFSEIS-1994-II.pdf ...................................................14

xi

TABLE OF AUTHORITIES – Continued

Page

U.S. Fish & Wildlife Serv., Revised Recovery

Plan for the Northern Spotted Owl (2011);

https://www.fws.gov/wafwo/pdf/NSO%20Revised

%20Recovery%20Plan%202011.pdf. ......................17

U.S. Fish & Wildlife Serv., Nat’l Marine Fisheries Serv., Final ESA Section 7 Consultation

Handbook, March 1998 .............................................9

U.S. Fish & Wildlife Serv., Nat’l Marine Fisheries Serv., Notice of Interagency Cooperative

Policy on Information Standards Under the

Endangered Species Act, 59 Fed. Reg. 34271

(July 1, 1994) ...........................................................22

Max Weber: Essays in Sociology (Gerth & Mills

eds. 1946) ................................................................33

Paul Weiland et al., Analysis of data on endangered species consultations reveals nothing regarding their economic impacts, 113 Proc.

Nat’l Acad. Sci. E1593 (2016)............................ 11, 12

Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege, 65

Ind. L.J. 845 (1990) .................................................33

1

INTEREST OF AMICI CURIAE1

Amici represent businesses, organizations and individuals in the regulated community subject to government restrictions imposed pursuant to Section 7 of

the Endangered Species Act.

The American Forest Resource Council (AFRC) is

a regional trade association whose purpose is to advocate for sustained-yield timber harvests on public timberlands throughout the West to enhance forest health

and resistance to fire, insects, and disease. AFRC promotes active management to attain productive public

forests, protect the value and integrity of adjoining private forests, and assure community stability. It works

to improve federal and state laws, regulations, policies

and decisions regarding access to and management of

public forest lands and protection of all forest lands.

AFRC represents over 50 forest product businesses

and forest landowners throughout California, Idaho,

Montana, Oregon, and Washington. These businesses

provide tens of thousands of family-wage jobs in rural

communities.

The National Association of Home Builders

(NAHB) is a Washington, D.C.-based trade association

whose mission is to enhance the climate for housing

1

All parties have consented in writing to the filing of this

amicus brief. See Sup. Ct. R. 37.3(a). No counsel for a party authored this brief in whole or in part, and no counsel or party made

a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici, their members,

or their counsel made a monetary contribution to its preparation

or submission. See Sup. Ct. R. 37.6.

2

and the building industry. Chief among NAHB’s goals

is providing and expanding opportunities for all people

to have safe, decent, and affordable housing. Founded

in 1942, NAHB is a federation of more than 700 state

and local associations. About one-third of NAHB’s approximately 140,000 members are home builders or remodelers, and account for 80% of all homes constructed

in the United States.

The National Federation of Independent Business

Small Business Legal Center (NFIB Legal Center) is a

nonprofit, public interest law firm established to provide legal resources and be the voice for small businesses in the nation’s courts through representation on

issues of public interest affecting small businesses.

The National Federation of Independent Business

(NFIB) is the nation’s leading small business association, representing members in Washington, D.C., and

all 50 state capitals. Founded in 1943 as a nonprofit,

nonpartisan organization, NFIB’s mission is to promote and protect the right of its members to own, operate and grow their businesses. NFIB represents

small businesses nationwide, and its membership

spans the spectrum of business operations, ranging

from sole proprietor enterprises to firms with hundreds of employees. While there is no standard definition of a “small business,” the typical NFIB member

employs 10 people and reports gross sales of about

$500,000 a year. The NFIB membership is a reflection

of American small business. To fulfill its role as the

voice for small business, the NFIB Legal Center

3

frequently files amicus briefs in cases that will impact

small businesses.

The American Farm Bureau Federation (AFBF) is

a voluntary general farm organization with member

state Farm Bureau organizations in all 50 states and

Puerto Rico. As a grassroots organization, AFBF seeks

to enhance and strengthen the lives of rural Americans

and to build strong, prosperous agricultural communities. AFBF’s members are farm and ranch families,

who grow and raise every type of agricultural product

in the nation, on private and federal lands. Both AFBF

and its individual members have been directly affected

by the interpretation of various environmental laws, in

particular the ESA and the Clean Water Act.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Under the particular facts of this case, the Ninth

Circuit did not err in ordering the release of “final

draft” biological opinions. We have been here before.

Justice Scalia admonished that the text of ESA Section

7 must be read to “ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise.” Bennett v. Spear, 520 U.S. 154, 176 (1997) (per

Scalia, J. for a unanimous Court). The statute also directs the government “to avoid needless economic dislocation produced by agency officials zealously but

unintelligently pursuing their environmental objectives.” Id. at 176–77. Bennett provided substantial protections to regulated interests by holding that an ESA

4

Biological Opinion (BiOp) is final agency action subject

to judicial review. Id. at 178–79. This is true whether

the BiOp determines that the proposed action violates

the ESA or not—that is, whether the Services determine there is “jeopardy” or “no jeopardy.”2 Either determination is a final decision on the compatibility of a

particular proposal with the ESA.

Petitioners’ position turns Bennett on its head,

asking the Court essentially to adopt a disclosure rule

akin to the government’s rejected Bennett argument

that an opinion serves an “advisory function” only. Id.

at 169, 178. “[I]n reality,” Justice Scalia observed, such

an opinion “has a powerful coercive effect on the action

agency,” of which the Services are “to put it mildly,

keenly aware. . . .” Id. at 169–70. The Services here

seek to withhold a final draft jeopardy opinion on the

ground that it was merely a draft. Such a holding

would hamstring the ability of industry stakeholders

to prevent the type of economic dislocation Justice

Scalia foresaw.

Not only is the Services’ position at odds with Bennett, it is not grounded in the reality of ESA consultation as amici have experienced it. In amici’s world, the

2

Section 7(a)(2) prohibits agencies from taking action that is

“likely to jeopardize the continued existence of any endangered

species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.” 16 U.S.C.

§1536(a)(2). The standards for adverse modification and jeopardy

are essentially identical. See 50 C.F.R. §402.02. For ease of reference, we refer to BiOps as making “jeopardy” or “no jeopardy” determinations.

5

Services frequently impose draconian economic consequences—sometimes at regional scale—without ever

having to explain their scientific rationale. Far from

the Services’ description of a unified “collaborative”

process, consultation is highly structured, ordinarily

arm’s-length, and often contentious. A “jeopardy” opinion followed by revisions to the proposed action is the

end of one Section 7 consultation process. Not until the

action agency amends its proposal does the next Section 7 process start. The release of a jeopardy opinion

is essential for public understanding of the line between jeopardy and no-jeopardy, a line whose particulars the Services jealously guard.

As members of the regulated community, amici

have serious concerns about the implications of this

case on efforts to hold the Services accountable for the

substantial economic and social effects that can result

from ESA consultation. Such dislocation is expected

because the ESA is “the most comprehensive legislation for the preservation of endangered species ever

enacted by any nation.” Tenn. Valley Auth. v. Hill, 437

U.S. 153, 180 (1978).

Draft BiOps are frequent and probative subjects of

judicial review. Particularly in cases brought by the

regulated community, drafts may be the only way to

determine the actual reasoning for the requirements

imposed on the action agency or permit applicant.

When an environmental group like respondent challenges a BiOp, the reviewing court will directly examine the BiOp’s (usual) no-jeopardy conclusion. Here,

though the Services call the documents at issue

6

“drafts,” context shows the opinions terminated the

first consultation on EPA’s rule, so the opinions are not

predecisional or deliberative.

The Services would have the Court further cloak

their tremendous regulatory power, furthering neither

the ESA’s purposes nor the supposed goals of the deliberative process privilege. It places amici in a similar,

impossible position as the permit applicants in Sackett

and Hawkes.

For these reasons, amici believe the Court should

affirm the Ninth Circuit decision ordering disclosure.

Alternatively, since the absolute privilege claimed by

the Services is inconsistent with Exemption 5’s text,

the Court should affirm on the ground that the public

interest in disclosure outweighs any governmental secrecy interest.

---------------------------------♦---------------------------------

ARGUMENT

I.

Disclosure of These and Similar Opinions

Is Important to the Regulated Community.

A. The Services’ description of the subject

documents as exempt “drafts” is not consistent with amici’s experience of the

Section 7 consultation process.

Stripped of ornament, labeling, and careful declaration drafting, what actually happened becomes visible. EPA prepared a regulation and submitted it to the

Services for formal programmatic consultation. The

7

Services duly prepared their biological opinions and

transmitted portions of them, at which point EPA decided it had heard enough; either the opinion was not

acceptable or the reasonable and prudent alternatives

impractical. It “notif[ied] the Service of its final decision on the action” following a jeopardy opinion, 50

C.F.R. §402.15(b), which was to withdraw the original

regulation from consultation and submit a modified

regulation. Thus the 2013 final drafts did not concern,

as the Services would have it, “a proposed agency action that was later modified in the consultation process.” Pet. Br. I. Nor were they part of “ongoing

deliberations.” Pet. Br. 2. Rather, the proposed agency

action was modified because of the consultation process, and then resubmitted to a new consultation.

ESA consultation is ordinarily arm’s-length and

frequently adversarial, and this case is no exception.

As formal consultation neared the end on the first version of the intake rule, the Services purportedly “decided that ‘additional consultation [with EPA] was

needed to better understand and consider the operation of key elements of EPA’s rule,’ ” and “[t]he Services

and EPA thereafter all ‘agreed that more work needed

to be done and [they] agreed to extend the time frame

for the consultation.’ ” Pet. 7 (citations omitted). The

Ninth Circuit held the documents “represent the final

view of the Services regarding the then-current November 2013 proposed rule.” Pet. App. 18a; Sierra Club

v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1013 (9th

Cir. 2019). As such, they were not pre-decisional. Id.

8

The Services assert the Section 7 regulations “provide for the interagency consultation process to be collaborative.” Pet. Br. 7. They claim “EPA and both

Services worked collaboratively to achieve a regulatory

solution that would allow EPA to fulfill its legal obligations under the ESA and other applicable statutes.”

Pet. 6; Pet. Br. 8. This is in keeping with the Services’

assertion that they “and the action agency work together to determine the likely effects on listed species

and critical habitat from the agency’s action, and if

necessary, how best to mitigate adverse effects.” Pet.

Br. 7. The Services do not claim, however, that there

was any “optional collaborative process” adopted under

50 C.F.R. §402.14(h)(4).

The Services rest their claim of privilege on the

assertion they created the final drafts “to facilitate

their ‘deliberations’ in assessing” the proposed rule.

Pet. Br. 27. In the Services’ view, consultation on the

rule merely continued until the final BiOp issued in

2014. Pet. Br. 8–11, 27–28. In the Services’ telling, this

was a highly collaborative process where the agencies

met “routinely.” Id. at 8. They contend this means the

2013 opinions “died on the vine” and are privileged.

Pet. Br. 39.

But the reason the drafts were not adopted as the

final BiOp was that the underlying action was

changed, leading to a new consultation process. See 50

C.F.R. §402.14(m)(2). Consultation is based on the specific proposed action submitted by the agency, not on

the general task or goal the agency is looking to address. 16 U.S.C. §1536(a)(2), 1536(b)(3)(A), 50 C.F.R.

9

§§402.14(c)(1), (g)(3), 402.14(h)(1)(iii)–(iv); Wild Fish

Conservancy v. Salazar, 628 F.3d 513, 521 (9th Cir.

2010). The Services’ Consultation Handbook directs, as

well, that “[d]etermining the action area relates only to

the action proposed by the action agency.” Final ESA

Section 7 Consultation Handbook, March 1998, at

4–18.

The “draft” was not rejected by a higher authority.

Instead, it had the same effect on EPA as if a final jeopardy BiOp had been issued. EPA decided to change the

subject action. See 50 C.F.R. §§402.14(m)(1)–(2). It is

well-settled that Exemption 5 does not privilege “communications that promulgate or implement an established policy. . . .” Ryan v. Dep’t of Justice, 617 F.2d

781, 790–91 (D.C. Cir. 1980); Renegotiation Bd. v.

Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184

(1975). Unlike the subsidiary offices in Grumman, but

like an opinion of a federal district court, the Services’

opinions have “real operative effect” independent of the

action agency’s ultimate course. See id. at 186–87; Bennett, 520 U.S. at 169–70. The Court of Appeals, in applying these principles to the documents at issue,

properly accounted for the statutory and regulatory

context.

EPA, despite the Services’ implication, was not a

higher authority on the BiOp; if an agency disagrees

with a BiOp, it cannot require changes, though it is

“free to disregard the Biological Opinion and proceed

with its proposed action, but it does so at its own

peril. . . .” Bennett, 520 U.S. at 170; 16 U.S.C. §1536(b).

The Services told EPA all it needed to know to

10

terminate the consultation, meaning the jeopardy

opinions served as the Services’ veto on that version of

EPA’s rule. Thus, when officials at the Services concluded that further consultation was required, Pet. Br.

10, the “further” consultation was due to EPA’s modification of the rule. It was not on the initiative of any

decisionmakers at the Services. Indeed, the record

shows this decision was made “based on ‘internal review and interagency review in December. . . .’ ” Pet.

App. 32a; 925 F.3d at 1020; cf. Pet. Br. 10, J.A. 37, 58

(noting EPA was considering modifying the proposed

rule).

In the context of Section 7 consultation as it actually works, this can only mean one thing. As EPA came

to understand the Services’ jeopardy opinions, it decided to amend the rule to comply with the ESA, and

accordingly persuaded the Services to hold off from formal public issuance of the opinions.

Formal consultation is highly structured, with

particular actions outlined rather than the “give-andtake” of a deliberative process. 50 C.F.R. §§402.12–15;

see Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976

F.2d 1429, 1434 (D.C. Cir. 1992) (R. Ginsburg, J.). While

the Services may be sincere in their description of a

collaborative process, their rose-colored view is not

shared by their sister agencies, affected stakeholders,

or by this Court. Nor is it supported by the record

which reveals failures to collaborate. J.A. 88–92. And,

as Bennett recognized, the Services are “to put it

mildly, keenly aware of the virtually determinative effect of [their] biological opinions.” 520 U.S. at 170.

11

The action agency and the Services may mutually

agree to waive any number of provisions of the consultation regulations, see 50 C.F.R. §402.14(e), just as,

for example, litigants may agree to waive initial disclosures or to extend discovery response deadlines. Fed.

R. Civ. P. 26(a)(1)(A), 29(b), 33(b)(2), 34(b)(2)(A),

36(a)(3). These practicalities do not mean litigation is

a “collaborative” process. Nor is ESA consultation.

In practice, the formalized steps of the consultation process may be elided or glossed over. The Services

may simply delay providing a BiOp if unsatisfied with

the action agency, or the agency will modify the action

during consultation without formal communication of

that fact, leading to a BiOp imposing terms and conditions that the action agency has already agreed to. Cf.

50 C.F.R. §402.14(i)(1)(iv). Where the Services are

ready to issue a jeopardy opinion, it is very much in

their interest to get the message across with a minimum of fingerprints so that the Services’ future freedom of action is not constrained.

Moreover, agencies often depart from the structure at the front end by modifying proposed actions before submitting them to formal consultation. This is

because the Services have “unilateral authority to determine when a consultation package is complete, and

therefore when formal consultation commences.” Paul

Weiland et al., Analysis of data on endangered species

consultations reveals nothing regarding their economic

impacts, 113 Proc. Nat’l Acad. Sci. E1593 (2016). In the

experience of the regulated community, “substantial

12

time and resources frequently are expended before the

Service[s] agree[ ] to initiate formal consultation.” Id.

It sheds some light to understand that “jeopardy”

biological opinions are hardly ever issued. A 2015

study found that over a several-year period, of the

6,829 formal consultations, “only two (0.0023%) resulted in jeopardy, one of which also resulted in

destruction/adverse modification of critical habitat.”

Jacob W. Malcom & Ya-Wei Li, Data Contradict Common Perceptions About a Controversial Provision of the

US Endangered Species Act, 112 Proc. Nat’l Acad. Sci.

15,844, 15,845 (2015). The study found “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. If negotiations are successful, the final biological opinion will

have neither of those conclusions.” Malcom & Li at

15,847; cf. Gov’t Accountability Office, Federal Agencies

Have Worked to Improve the Consultation Process, but

More Management Attention Is Needed, GAO-04-93,

Mar. 29, 2004, at 48 (“Some action agency officials said

that they feel they are forced to compromise their project designs too much in order to avoid receiving [a

jeopardy] opinion from the Services.”). While this may

have beneficial effects of protecting species and permitting some sort of agency action to occur, it obscures

the reasons the agencies acted as they did.

To that end, the D.C. Circuit in Vaughn v. Rosen

sensibly rejected the Civil Service Commission’s reliance on Grumman to claim an “entire process of

13

management appraisal, evaluation, and recommendations for improvement is a seamless whole, that it is in

its entirety a deliberative process, and that it is this

process which the Government seeks to protect as an

ongoing continuous affair.” 523 F.2d 1136, 1145 (D.C.

Cir. 1975). Vaughn held “the phrase ‘management process’ or ‘personnel improvement process’ would swallow up a substantial part of the administrative process,

and virtually foreclose all public knowledge regarding

the implementation of personnel policies in any given

agency.” Id. Similarly, deeming deliberative the “consultation process” as the Services describe it would obscure much of the important day-to-day work of ESA

implementation.

The documents at issue are necessary to understand “the reasons which did supply the basis for an

agency policy actually adopted,” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 152 (1975), and to understand

where the Services believe the jeopardy threshold to

lie. They accordingly make up the Services’ working

law, which should not become secret law.

B. Disclosure informs the public of the rationale for imposing potentially severe

economic impacts for the purpose of

species conservation.

This case highlights a factual scenario that amici

have encountered with some frequency, where an

agency will assert that it cannot select a particular

course of action because it would not pass muster with

14

the Services. It is very difficult to pinpoint the influence of the Services to test their conclusions under the

ESA, as the Services, along with Federal action agencies, tend to structure consultation to avoid issuing

jeopardy opinions. For one example, take the 1994

Clinton Northwest Forest Plan.3 Then-President Bill

Clinton sold the Plan as “a balanced, comprehensive

and long-term policy for the management of over 24

million acres of public land.”4 Secretaries Babbitt and

Espy considered ten Plan alternatives, but represented

“we think it is unlikely” that Plan alternatives that

cause less economic dislocation “would be deemed to

satisfy the requirements of the Endangered Species

Act.”5 Thus, the agencies submitted only their preferred alternative to ESA section 7 consultation.6 The

Fish & Wildlife Service prepared a no-jeopardy opinion

for the preferred alternative but not for any of the others,7 and the Service strongly advocated for that option.8

3

U.S. Dep’t of Agric., Forest Serv.; U.S. Dep’t. of the Interior,

Bureau of Land Mgmt., Record of decision for amendments to Forest Service and Bureau of Land Management planning documents

within the range of the northern spotted owl, Apr. 13, 1994;

https://www.fs.fed.us/r6/reo/library/docs/NWFP-ROD-1994.pdf.

4

Id. at 1.

5

Id. at 27.

6

Id. at 50–51.

7

Id.

8

U.S. Fish & Wildlife Serv., Biological Opinion for the Preferred Alternative (Alternative 9) of the Supplemental Environmental Impact Statement on Management of Habitat for Late

Successional and Old Growth Forest Related Species on Federal

15

Once the Clinton Plan was adopted, this is what

happened: 9

Lands Within the Range of the Northern Spotted Owl, Feb. 10,

1994, at 3; https://www.fs.fed.us/r6/reo/library/docs/NWFP-FSEIS1994-II.pdf.

9

2 Susan Charnley et al., Northwest Forest Plan—The First

10 Years (1994–2003): Socioeconomic Monitoring Results 8, Figs.

2–3 (2006); https://www.fs.fed.us/pnw/pubs/pnw_gtr649.pdf. Figure 2 (above): Timber harvested and sold on Northwest Forest

Plan area national forests, fiscal year 1978–2002 (long log). Figure 3 (p. 16): Timber offered for sale on western Oregon Bureau

of Land Management districts, fiscal years 1970–2002 (short log).

16

Timber harvests decreased by 85% on federal

lands,10 leading to socioeconomic carnage—direct loss

of over 25,000 family-wage jobs and over half a million

more people living in communities with low or very low

social well-being,11 and forests overrun with illegal marijuana grow operations.12

Dislocation of this magnitude may be inevitable

where, as the Court has held, it is “beyond doubt that

Congress intended endangered species to be afforded

the highest of priorities.” T.V.A. v. Hill, 437 U.S. at 174;

10

Deanna H. Olson et al. ed., People, Forests, and Change:

Lessons from the Pacific Northwest 52–54 (2017).

11

2 Charnley, 6–10 (2006); 3 Charnley 28, 40–43.

12

Scott Bauer et al., Impacts of Surface Water Diversions for

Marijuana Cultivation on Aquatic Habitat in Four Northwestern

California Watersheds, 10(3) PLOS ONE e0120016 (2015); https://

journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

17

cf. Alyson C. Fluornoy, Beyond the “Spotted Owl Problem”: Learning from the Old-Growth Controversy, 17

Harv. Envtl. L. Rev. 261, 323 (1993) (acknowledging

“the legal system fails to provide an adequate response

to the short-term economic dislocation environmental

protection creates.”). According to Hill, “[t]he plain intent of Congress in enacting this statute was to halt

and reverse the trend toward species extinction, whatever the cost.” 437 U.S. at 184. Decades later, FWS realized it swung the pendulum too far.13 Due to the

structure of the decision-making process, the dislocation from the Clinton Plan was imposed without clear

explanation as to whether it was based on “speculation

or surmise.” Instead, stakeholders from across the

spectrum indicated the owl was a surrogate for a different objective, that of forest preservation generally.14

In this case, EPA proposed to issue one version of

the cooling-water intake rule, but was advised of the

Services’ jeopardy opinion. This concluded the Section

7 process on that version of the rule, as EPA’s next step

was to revise the rule and submit that rule to a new

13

FWS, Revised Recovery Plan for the Northern Spotted Owl,

at II-10–12, III-11–19, 37–38, 52 (2011) (“Federal, State, and local

managers should consider long-term maintenance of local forest

management infrastructure as a priority in planning and land

management decisions.”); https://www.fws.gov/wafwo/ pdf/NSO%20

Revised%20Recovery%20Plan%202011.pdf.

14

William Dietrich, The Final Forest: The Battle for the Last

Great Trees of the Pacific Northwest (1992), at 85 (environmental

advocate describing owl as “the wildlife species of choice to act as

a surrogate for old-growth protection”), 231 (Forest Service official stating, “This issue was never just about a bird . . . The owl

was a surrogate.”).

18

consultation process. The resulting final rule imposes

unusually intensive supervision of each permit application by the Services. Neither the public nor the potential applicants have been told why that supervision

is necessary.

II.

Draft Biological Opinions Are Frequent and

Probative Sources of Guidance for Stakeholders, Agencies, and Courts.

A. The public and the courts rely on critical

information contained in draft BiOps.

The opinions at issue here are not true drafts, despite the label. Whatever label applies, amici have

found that draft biological opinions are often highly

probative of whether a final biological opinion is arbitrary or capricious. Amici have also frequently been

forced to defend agency actions despite inconsistencies

in drafts or preliminary statements, including before

this Court. NAHB v. Defs. of Wildlife, 551 U.S. 644,

657–61 (2007).

Like respondent, amici on occasion seek to obtain

agency documentation through FOIA in order to better

understand an agency’s decisional process and to inform their membership of the workings of the Services.

Some Amici have filed FOIA requests in recent years

that seek draft biological opinions, consultationrelated communications, and other related documents.

As applicants for federal permits and purchasers of

federal resources, amici’s members have often been

19

frustrated by delays or restrictions imposed by the consultation process.

BiOps are not themselves subject to the APA’s notice and comment process. However, draft BiOps are

frequently disclosed as part of an administrative record. Courts have found that these draft documents provide important context and relevant evidence in

determining whether the Services’ findings in the final

BiOp were arbitrary and capricious. See, e.g., Nat. Res.

Def. Council v. Zinke, No. 1:05-cv-01207-LJO-EPG,

2017 WL 3705108, at *11 (E.D. Cal. Aug. 28, 2017)

(adding draft BiOp to administrative record in action

challenging result of ESA consultation); Nat’l Audubon

Soc’y v. FWS, 55 F. Supp. 3d 316, 354 (E.D.N.Y. 2014)

(relying on draft BiOp to uphold final opinion).

For example, the Services’ failure to respond to

comments to the analysis in a draft BiOp may inform

whether the final BiOp made a “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted). In

Dow AgroSciences LLC v. National Marine Fisheries

Service, 707 F.3d 462 (4th Cir. 2013), three pesticide

manufacturers challenged the National Marine Fisheries Service’s (NMFS) BiOp for EPA’s registration of

various pesticides, which found that the pesticides

would jeopardize the viability of certain Pacific salmonids and their habitat. NMFS produced a 389-page

draft BiOp to the EPA concluding that certain pesticides would result in jeopardy. Id. at 465–66. EPA

placed the draft BiOp on a public docket and invited

20

comments. Id. at 466. In response, EPA, pesticide manufacturers, several States, and others commented on

the draft and criticized many of NMFS’ assumptions in

its analysis. Id. at 466.

For two of the claims related to the manufacturers’

challenge to the BiOp, the Fourth Circuit’s consideration of the draft BiOp was critical to the determination

of: (1) whether the NMFS “failed to justify its model’s

assumption that juvenile salmonids would be exposed

to a lethal level of pesticides continuously for 96

hours”; and (2) whether NMFS’ “BiOp fail[ed] to justify

its reliance on water monitoring data that the manufacturers allege were outdated and not representative

of current conditions.” Id. at 469.

For the 96-hour exposure assumption claim, the

Fourth Circuit noted that after NMFS released the

draft BiOp and posted it for comment, those assumptions were “severely criticized” and NMFS “added

nothing to the final [biological opinion] to respond to

it.” Id. at 471. For the water monitoring data, the

Fourth Circuit noted how public comments “promptly

noted the flaws in the U.S. Geological Survey data and

directed [NMFS] to more recent available data,” but

NMFS “continued to rely on the older U.S. Geological

Survey data.” Id. at 472. The Fourth Circuit concluded

that the final BiOp was not well-reasoned since it

failed to explain or support several assumptions from

the draft critical to NMFS’ jeopardy finding. Id. at 464,

472–73.

Judicial review of a draft BiOp is also useful in

analysis of whether the Services relied on the “best

21

available science” in their final BiOp as required by

ESA Section 7(a)(2). Bennett, 520 U.S. at 176–77. In

Village of False Pass v. Clark, 733 F.2d 605 (9th Cir.

1984), the Village challenged the proposed sale of oil

leases in the Bering Sea. Id. at 607. The Village argued

that the Secretary violated the “interagency consultation” and “best available data” requirements under the

ESA by issuing the Final Notice of Sale only two days

before receiving the Fisheries Service’s final BiOp on

the oil lease sale. Id. at 609. The Village argued that

the difference between the draft and final version of

the BiOp demonstrated that the Secretary did not act

on the “best scientific . . . data available.” Id. at 610 (internal quotation marks omitted; omission in original).

The Ninth Circuit ultimately rejected the best available science argument and found that the Final Notice

of Sale decision appropriately incorporated the findings in the final BiOp. Id.

B. Draft BiOps help the public and courts

determine whether an action is arbitrary

or capricious.

Courts have found that the prior inconsistent findings by the Services are relevant data that require a

satisfactory explanation as to why the agency would

change its position. See, e.g., Selkirk Conservation All.

v. Forsgren, 336 F.3d 944, 955–57 (9th Cir. 2003) (the

court upheld FWS’s no jeopardy finding despite the

plaintiffs’ concerns that the Conservation Agreement

failed to address concerns raised in the draft BiOp,

which had concluded the effect of roads and harvesting

timber would jeopardize the survival of grizzly bears);

22

Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1262 (9th Cir.

2017) (“Under certain circumstances, an agency’s prior

factual findings or conclusions may be relevant data

such that an agency must articulate a satisfactory explanation when it changes its mind.” (internal quotation marks omitted)); Humane Soc’y of U.S. v. Locke,

626 F.3d 1040, 1051 (9th Cir. 2010) (acknowledging

that agencies do not have a “duty to identify any potential tensions between current and earlier factual

determinations in marginally related administrative

actions,” but explaining that the impact of fisheries

compared to that of sea lion predation “ha[d] occupied

the center of this controversy from the start” and the

prior fishery environmental assessments were therefore relevant data that required an explanation).

Draft BiOps may also reveal that politics, economics, and the like may have inappropriately influenced

the jeopardy analysis in the Final BiOp. Both FWS and

NMFS have a policy that requires “management-level

review of documents developed and drafted by Service

biologists to verify and assure the quality of the science

used to establish official positions, decisions, and actions taken by the Services during their implementation of the Act.” Notice of Interagency Cooperative

Policy on Information Standards Under the Endangered Species Act, 59 Fed. Reg. 34271 (July 1, 1994).

However, such “management level review” can also

present an opportunity for agencies to impose regulation that is not supported by the best available science.

Moreover, it is fundamentally unfair for the Services to selectively disclose draft BiOps in some circumstances but not others. “[S]elective” disclosure “is

23

offensive to the purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment

of persons or interest groups fosters precisely the distrust of government that the FOIA was intended to obviate.” North Dakota ex rel. Olson v. Andrus, 581 F.2d

177, 182 (8th Cir. 1978). The Services, as all parties

agree, have frequently included such documents in administrative records without any claim of privilege.

Pet. Br. 46–48. Uniformity in the disclosure of these

draft consultation documents will lead to fairness and

more informed judicial review of the challenged agency

action.

III. Judicial Review and FOIA should be available at multiple steps in the regulatory process to ensure adequate safeguards against

regulatory overreach.

The eventual no-jeopardy BiOp was premised on a

“built-in” process to avoid jeopardy by “giving the Services a meaningful opportunity to review permit applications and to recommend control measures and

requirements for monitoring and reporting.” Cooling

Water Intake Structure Coal. v. U.S.E.P.A., 905 F.3d 49,

71 (2d Cir. 2018). That is, the Services will have the

opportunity not just to veto an insufficient rule but

every individual permit application. Because of the

programmatic nature of the consultation, applicants

will not be impacted directly until the Service undertakes its secret pre-permitting review under the process EPA finally adopted. 40 C.F.R. §125.98(h). It is

unfair to subject those permittees to additional

24

requirements for the benefit of listed species without

any explanation. Applicants should not be forced to

“assume such risks” while waiting for an agency to

“ ‘drop the hammer.’ ” U.S. Army Corps of Eng’rs v.

Hawkes Co., Inc., 136 S. Ct. 1807, 1815 (2016) (citation

omitted). Moreover, because such schemes can present

ripeness issues if challenged directly,15 access to the

full consultation record will at least better equip applicants to engage with objections from the Services.

Amici do not contend the drafts themselves are subject

to judicial review under Bennett. Rather, the hidden

role of the Services threatens to impose regulatory burdens well in advance of likely judicial review. Transparency is an important safeguard against regulatory

overreach.

In Sackett v. E.P.A., 566 U.S. 120 (2012), the Petitioners, in preparation of building a home, added fill

dirt to their lot. The EPA issued the Sacketts a compliance order claiming various Clean Water Act violations

because, according to EPA, the lot contained wetlands.

Id. at 122. The Sacketts disputed EPA’s conclusions

and initiated a lawsuit. The Ninth Circuit Court of Appeals held that the Clean Water Act precluded judicial

review of compliance orders and dismissed the case for

want of jurisdiction. Id. at 125. The Supreme Court reversed.

Among other reasons, the Court found that judicial review of the compliance order was appropriate

15

Cf., e.g., Oregonians for Floodplain Prot. v. U.S. Dep’t of

Commerce, 334 F.Supp.3d 66, 72 (D.D.C. 2018).

25

due to the legal consequences flowing from it. For example, the order exposed the Sacketts to double penalties in future enforcement proceedings and limited

their opportunity to obtain a permit for the fill dirt. Id.

at 126. Furthermore, the EPA argued that the compliance order was just a step in a deliberative process that

ended with the government filing an enforcement action. The Court rejected the EPA’s contention. It explained that the EPA’s “deliberations” as to the legality

of the Sacketts’ actions were at an end and EPA’s only

other decision was whether it should initiate litigation

over the order. Id. at 129.

Similarly, in Hawkes, property owners who mined

peat had obtained “jurisdictional determinations”

(JDs) from the Corps of Engineers. 136 S. Ct. at 1812–

13. The JDs determined that their property contained

Clean Water Act jurisdictional wetlands and that permits would be needed to impact them. Id. The property

owners disagreed and sought review. Ultimately, this

Court held that judicial review was warranted.

As in Sackett, the Court determined that there

were legal consequences that flowed from the JD. It explained that if a JD provided that no wetlands exist on

a site, then the Corps was bound by that determination

for five years. Similarly, if the Corps’ JD determined

that wetlands exist, then the property owner would

lose the five-year safe harbor. Id. at 1814–15. The

Court also rejected the Corps’ argument that a JD is

just a step in a process that ends with a permit and it

is the permit that is reviewable in court. The Court explained that just because a permit is reviewable does

26

not mean that a JD cannot also be reviewable. Id. at

1816.

Thus, in both Sackett and Hawkes, the Court found

that the APA allows for judicial review of interim steps

along a process.16 In Sackett, the ultimate agency action was an EPA enforcement action, yet the Court allowed review of the compliance order. In Hawkes, the

ultimate agency action was a permit, yet the court allowed review of the JD.

Here, “[t]he Services argue that all the documents

at issue are deliberative because they were created as

part of a ‘lengthy and complicated’ consultation process. . . .” Pet. App. 22a; 925 F.3d at 1015. The Court

rejected similar arguments in Sackett and Hawkes

with respect to judicial review, and it should reject

those arguments with respect to FOIA. Here, the final

BiOps are the ultimate agency action and all agree

that they are not exempt from FOIA. However, like the

16

Similarly, the APA “notice-and-comment requirement

helps to ensure that [new rules are] subjected to thoroughgoing

analysis and critique by interested parties” before they become

final. Am. Med. Ass’n v. Reno, 57 F.3d 1129, 1134 (D.C. Cir. 1995).

Thus, the public is not simply informed of new rules once they are

complete. The APA demands public participation during the process. See Owner-Operator Indep. Drivers Ass’n, Inc. v. Fed. Motor

Carrier Safety Admin., 494 F.3d 188, 201 (D.C. Cir. 2007) (vacating portions of a rule because the agency did not disclose part of

its modeling until the rule was published—“too late for interested

parties to comment.”); Small Refiner Lead Phase-Down Task

Force v. U.S.E.P.A., 705 F.2d 506, 540 (D.C. Cir. 1983) (explaining

that it was “highly improper” for EPA to rely on evidence that it

added near or after the end “of the comment period and too late

for effective rebuttal.”).

27

order in Sackett and the JD in Hawkes, the draft jeopardy BiOps17 that the government wishes to withhold

are steps in a process and have legal consequences.

“Following the issuance of a ‘jeopardy’ opinion, the

agency must either terminate the action, implement

the proposed alternative, or seek an exemption from

the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e).” NAHB v. Defs. of Wildlife,

551 U.S. at 652. Here, once the Services issued the

draft jeopardy BiOps, the EPA chose to “terminate” its

current proposal and change it to comply with the law.

Clearly a legal consequence flowed from the draft jeopardy BiOps.

Thus, the Court has granted judicial review to

steps along a process when legal consequences flow

from those steps. By analogy, here it should grant public review to documents that are steps along a process

under FOIA as legal consequences flow from the documents.

FOIA, APA notice and comment requirements, and

judicial review combine to provide the public meaningful access to the government actions that impact their

lives. The D.C. Circuit recognized the importance Congress attached to public participation in tones similar

to the rationale for FOIA. See Am. Hosp. Ass’n v.

Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (noting

that one of the purposes of notice and comment opportunities were to “reintroduce public participation and

fairness to affected parties after governmental

17

Amici are here referring to the December 2013 BiOps.

28

authority has been delegated to unrepresentative

agencies.”) (internal quotation marks omitted). As with

FOIA, courts have held that the APA’s notice and comment requirement is broadly applicable and exceptions

must be narrowly interpreted. See California v. Azar,

911 F.3d 558, 575 (9th Cir. 2018) (“Exceptions to notice

and comment rulemaking ‘are not lightly to be presumed.’ ”) (internal citations omitted); Bowen, 834 F.2d

at 1044 (“We begin our analysis by noting that Congress intended the exceptions to § 553’s notice and

comment requirements to be narrow ones.”). These are

necessary tools for the governed to hold their governors to account, N.L.R.B. v. Robbins Tire & Rubber Co.,

437 U.S. 214, 242 (1978), and this Court has time and

again affirmed the need for them to be broadly construed. That trend should continue here.

IV. The Absolute Privilege Sought by the Services Has No Grounding in FOIA’s Text.

In the event the Court determines the BiOps are

deliberative, it should still affirm on the basis that the

public interest in the documents outweighs the government’s secrecy interest. Bennett, 520 U.S. at 166 (“A respondent is entitled . . . to defend the judgment on any

ground supported by the record.”). This result would be

most faithful to the history of the privilege and to

FOIA’s text.

29

A. Deliberative process is traditionally a

qualified privilege.

In civil litigation, the deliberative process privilege “is a qualified privilege and can be overcome by a

sufficient showing of need.” In re Sealed Case, 121 F.3d

729, 737 (D.C. Cir. 1997); F.T.C. v. Warner Commc’ns

Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).

E.P.A. v. Mink held the text of Exemption 5 “clearly

contemplates that the public is entitled to all such

memoranda or letters that a private party could discover in litigation with the agency.” 410 U.S. 73, 86

(1973) (emphasis added). Thus, the Court held “Exemption 5 contemplates that the public’s access to internal memoranda will be governed by the same

flexible, common-sense approach that has long governed private parties’ discovery of such documents involved in litigation with Government agencies.” Id. at

91.

The Court remarked in Sears that “it is not sensible to construe the Act to require disclosure of any document which would be disclosed in the hypothetical

litigation in which the private party’s claim is the most

compelling.” Sears, 421 U.S. at 149 n.16. It concluded

that the FOIA “House Report says that Exemption 5

was intended to permit disclosure of those intraagency memoranda which would ‘routinely be disclosed’ in private litigation, H.R. Rep. No. 1497, p. 10,

and we accept this as the law.” Id. (emphasis added).

From there the Court tightened the screws. “It

makes little difference,” the Court held, “whether a

30

privilege is absolute or qualified in determining how it

translates into a discrete category of documents that

Congress intended to exempt from disclosure under

Exemption 5. Whether its immunity from discovery is

absolute or qualified, a protected document cannot be

said to be subject to ‘routine’ disclosure.” F.T.C. v.

Grolier Inc., 462 U.S. 19, 27 (1983). Concurring,

Justice Brennan opined that “[i]f a document is work

product under the Rule, and if it is an ‘inter-agency or

intra-agency memorandu[m] or lette[r]’ under the Exemption, it is absolutely exempt.” Grolier, 462 U.S. at

32 (Brennan, J., concurring) (brackets in original).

B. Grolier’s categorical rule departs from

FOIA’s text.

Exemption 5 provides that FOIA does not extend

to “inter-agency or intra-agency memorandums or letters that would not be available” to a party in litigation. 5 U.S.C. §552(b)(5) (emphasis added). This Court

has “long maintained that ‘FOIA reflects a general philosophy of full agency disclosure unless information is

exempted under clearly delineated statutory language.’ ” N.H. Right to Life v. Dep’t of Health & Hum.

Servs., 136 S. Ct. 383 (Thomas, J., dissenting from denial of certiorari) (2015) (quoting U.S. Dep’t of Def. v.

Fed. Lab. Relats. Auth., 510 U.S. 487, 494 (1994)). And

the Court has “rejected interpretations of other FOIA

exemptions that diverge from the text.” Id. (citing

Milner v. Dep’t of Navy, 562 U.S. 562, 573 (2011)).

31

“Would not” is an absolute rather than an expectation. A traveler told that there “would not” be room

at an inn on Christmas Eve would understand the

need to find other options. Thus, although “would” is

conditional, “would not” denies any such conditions

and becomes mandatory and absolute. Cf. Commw. v.

Dalton, 467 Mass. 555, 558, 5 N.E.3d 1206, 1209 (2014).

Contrary to this text, Sears “accepted,” 421 U.S. at

149 n.16, and Grolier held, 462 U.S. at 27, that Exemption 5 applies to any document that would not “routinely” be available in litigation. This turned a

traditionally qualified privilege into an absolute one.

FOIA’s text does not exempt materials that would be

“ordinarily” or “routinely” unavailable; it extends the

exemption only to materials which “would not be available by law to a party. . . .” Id. at 21. Thus, this Court

has done something it usually does not, which is to

“read into statutes words that aren’t there.” Romag

Fasteners, Inc v. Fossil, Inc., 140 S. Ct. 1492, 1495

(2020).

The Court disfavors taking a “red pen” to any statute, Milner, 562 U.S. at 573, but that disfavor is pronounced in FOIA cases. The Court stalwartly

maintains that in interpreting FOIA, “a court’s proper

starting point lies in a careful examination of the ordinary meaning and structure of the law itself.” Food

Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356,

2364 (2019). Because legislative history cannot be

used “to ‘muddy’ the meaning of ‘clear statutory language,’ ” this Court “has repeatedly refused to alter

FOIA’s plain terms on the strength only of arguments

32

from legislative history.” Id. at 2364 (quoting Milner,

562 U.S. at 572). Food Marketing is one of a series of

cases where the Court has overturned atextual FOIA

exemptions, regardless of their entrenchment in the

Courts of Appeals. 139 S. Ct. at 2364 (overruling interpretation of Exemption 4 by lower courts); United

States v. Weber Aircraft Corp., 465 U.S. 792, 804 (1984)

(holding “[w]e therefore simply interpret Exemption 5

to mean what it says”); Dep’t of Interior v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 12 (2001) (rejecting

expansive reading of Exemption 5 that lacked “textual

justification”); Milner, 562 U.S. at 573 (2011) (overruling so-called “High-2” Exemption created by lower

courts). An absolute deliberative exemption neither

squares with the statute nor with this Court’s decisions.

C. A qualified privilege will better serve

the purpose of Exemption 5 and keep up

with rapid changes in discovery practice.

Sears described the “ultimate purpose” of deliberative process privilege as preventing “injury to the

quality of agency decisions.” Sears, 421 U.S. at 151. The

Services assert the privilege therefore serves important “governmental” purposes. Pet. 16–17. Perhaps.

But the true purpose of quality decisions is to serve the

public, and to ensure agencies follow the law. This is

true of any executive privilege. United States v. Nixon,

418 U.S. 683, 708 (1974) (recognizing “necessity for protection of the public interest in candid, objective, and

33

even blunt or harsh opinions in Presidential decisionmaking”) (emphasis added); Cheney v. U.S. Dist.

Court for D.C., 542 U.S. 367, 382 (2004). The Services’

institutional interests must take a back seat to the

public interest in knowing what its Government is up

to. See Dep’t of Justice v. Reporters Cmte. for the Freedom of the Press, 489 U.S. 749, 772 (1989). The danger

of executive privilege claims lies in paternalism, the

paradox that “so as to enable the government more effectively to implement the will of the people, the people

are kept in ignorance of the workings of their government.” Herbert v. Lando, 441 U.S. 153, 196 (1979)

(Brennan, J., dissenting).

The broad scope of the privilege and its underlying

rationales have generated substantial criticism. Bureaucracies “have inherent in them a drive to enhance

their power by keeping secrets.” Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege, 65 Ind. L.J. 845, 885 (1990) (citing Max

Weber: Essays in Sociology 233 (Gerth & Mills eds.

1946)). This drive is borne out in the context of ESA

consultation. By keeping action agencies, and especially public stakeholders, guessing about the line between jeopardy and no-jeopardy, the Services increase

their already significant regulatory powers.

The Court has recognized the existence of other

qualified privileges under Exemption 5. Fed. Open Mkt.

Cmte. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 360

(1979) (holding “Exemption 5 incorporates a qualified

privilege for confidential commercial information”).

And the Court has ample experience in balancing the

34

needs of the public (as opposed to the requester)

against the needs of the government. See, e.g., U.S.

Dep’t of Def. v. Fed. Lab. Relats. Auth., 510 U.S. at 495

(holding “a court must balance the public interest in

disclosure against the interest Congress intended the

[e]xemption to protect”) (quoting Reporters Cmte., 489

U.S. at 776 (Exemption 6) (brackets in original); Bibles

v. Or. Nat. Desert Ass’n, 519 U.S. 355, 355–56 (1997)

(Exemption 6) (“[T]he extent to which disclosure of the

information sought would she[d] light on an agency’s

performance of its statutory duties or otherwise let citizens know what their government is up to.”) (internal

quotation marks omitted). A similar balancing of the

public’s need for the information, and for understanding the workings of government, against the interest of

the government in avoiding deliberations in a “fishbowl,”

will better implement the text of FOIA as well as its “intent” as characterized by Sears and Grolier.

A further complication is the evolving scope of discovery to account for the surfeit of electronically stored

information. Parties may now “obtain discovery regarding any nonprivileged matter that is relevant to

any party’s claim or defense and proportional to the

needs of the case, considering the importance of the issues at stake in the action, the amount in controversy,

the parties’ relative access to relevant information, the

parties’ resources, the importance of the discovery in

resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely

benefit.” Fed. R. Civ. P. 26(b)(1) (emphasis added). The

2015 Advisory Notes reflect an intent to “restore” proportionality to the place initially given it in 1983,

35

coincidentally or not the same year as Grolier. Does the

“routinely” test now include a proportionality requirement? Presumably not. But the logic of Grolier would

require imposing a proportionality test, showing Grolier’s obsolescence.

Congress enacted FOIA “in response to a persistent problem of legislators and citizens, the problem of

obtaining adequate information to evaluate federal

programs and formulate wise policies.” Soucie v. David,

448 F.2d 1067, 1080 (D.C. Cir. 1971). Moreover, “Congress recognized that the public cannot make intelligent decisions without such information.” Id. Members

of the regulated community rely on the information

sought here to make reasoned decisions about their

businesses, programs, and livelihoods. Disclosure furthers this purpose.

---------------------------------♦---------------------------------

36

CONCLUSION

For the reasons above, Amici respectfully request

that the Court affirm the judgment of the court of appeals.

August 3, 2020

Respectfully submitted.

AMY CHAI

THOMAS J. WARD

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15th Street, N.W.

Washington, D.C. 20005

(202) 266-8230

LAWSON E. FITE

Counsel of Record

SARA GHAFOURI

AMERICAN FOREST

RESOURCE COUNCIL

700 N.E. Multnomah Street,

Suite 320

Portland, OR 97232

(503) 222-9505

lfite@amforest.org

KAREN R. HARNED

NFIB SMALL BUSINESS

LEGAL CENTER

555 12th Street, N.W.

10th Floor

Washington, D.C. 20004

(202) 314-2061

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Avenue, S.W.

Suite 1000W

Washington, D.C. 20024

(202) 406-3600

Counsel for Amici Curiae