Petition for Writ of Certiorari — Blue Mountains Biodiversity Project, Petitioner v. Shane Jeffries, in His Official Capacity as Ochoco National Forest Supervisor, et al.

No. _____

IN THE

Supreme Court of the United States

_________

BLUE MOUNTAINS BIODIVERSITY PROJECT,

Petitioner,

v.

SHANE JEFFRIES, IN HIS OFFICIAL CAPACITY AS

OCHOCO NATIONAL FOREST SUPERVISOR, ET AL.,

Respondents.

________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________

PETITION FOR A WRIT OF CERTIORARI

________

David A. Strauss

Sarah M. Konsky

JENNER & BLOCK SUPREME

COURT AND APPELLATE

CLINIC

1111 E. 60th Street

Chicago, IL 60637

Matthew S. Hellman

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave. NW

Washington, DC 20016

(202) 639-6000

mhellman@jenner.com

Thomas C. Buchele

EARTHRISE LAW CENTER

10101 S. Terwilliger Blvd.

Portland, OR 97219

Michael T. Brody

Andrew L. Osborne

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

Jesse A. Buss

Bridgett A. Chevalier

WILLAMETTE LAW GROUP, PC

411 Fifth Street

Oregon City, OR 97045

i

QUESTION PRESENTED

The Administrative Procedure Act provides that

courts “shall review the whole record” in adjudicating

agency action. 5 U.S.C. § 706. Lower courts are divided

over whether an agency’s allegedly deliberative

materials—memoranda and other iterative documents

that an agency creates and considers in undertaking

agency action—are a part of the “whole record” on

judicial review. Most courts have concluded that the

“whole record” means what it says: deliberative

materials are a part of the administrative record, and the

agency must produce a privilege log if it seeks to

withhold deliberative documents.

In the decision below, the Ninth Circuit joined the

D.C. Circuit in holding that materials an agency deems

“deliberative” are categorically excluded from the

administrative record. The Court of Appeals further

held that because, in its view, deliberative materials are

not part of the administrative record, the agency need

not produce a privilege log identifying the withheld

materials absent a showing the agency acted in bad faith

or engaged in other misconduct in classifying the

documents as deliberative.

The question presented is:

Whether the Administrative Procedure Act, which

requires an agency to produce its “whole record” for

judicial review, permits an agency to categorically and

unilaterally exclude from the administrative record

materials that the agency deems deliberative.

ii

PARTIES TO THE PROCEEDING

Petitioner is the Blue Mountains Biodiversity Project.

Respondents are Shane Jeffries, in his official capacity

as Ochoco National Forest Supervisor, and the United

States Forest Service, an agency of the United States

Department of Agriculture.

RELATED PROCEEDINGS

Blue Mountains Biodiversity Project v. Jefferies, No.

2:20-CV-02158-SU, 2021 WL 3683879 (D. Or. Aug. 19,

2021)

Blue Mountains Biodiversity Project v. Jeffries, No.

2:20-CV-2158-MO, 2021 WL 5150659 (D. Or. Sept. 29,

2021)

Blue Mountains Biodiversity Project v. Jeffries, No.

2:20-CV-02158-MO, 2022 WL 4466928 (D. Or. Sept. 26,

2022)

Blue Mountains Biodiversity Project v. Jeffries, 72

F.4th 991 (9th Cir. 2023)

Blue Mountains Biodiversity Project v. Jeffries, 99

F.4th 438 (9th Cir. 2024)

iii

TABLE OF CONTENTS

QUESTION PRESENTED .............................................. i

PARTIES TO THE PROCEEDING ............................. ii

RELATED PROCEEDINGS.......................................... ii

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

OPINIONS BELOW ......................................................... 1

JURISDICTION ................................................................ 1

STATUTORY PROVISION INVOLVED .................... 1

INTRODUCTION ............................................................. 2

STATEMENT OF THE CASE ....................................... 5

REASONS

FOR

GRANTING

THE

PETITION ........................................................................ 10

I.

The Question Presented Has Divided

The Lower Courts. ............................................... 10

II.

The Ninth Circuit’s Decision Is Wrong............. 14

III.

The Question Presented Is Important

And Recurring. ..................................................... 22

CONCLUSION ................................................................ 24

Appendix A

Blue Mountains Biodiversity Project v.

Jeffries, 99 F.4th 438 (9th Cir. 2024) ........................ 1a

Appendix B

Blue Mountains Biodiversity Project v.

Jeffries, 72 F.4th 991 (9th Cir. 2023) ...................... 41a

iv

Appendix C

Blue Mountains Biodiversity Project v.

Jeffries, No. 20-cv-02158, 2022 WL 4466928

(D. Or. Sept. 26, 2022) .............................................. 59a

Appendix D

Minutes of Proceedings, Blue Mountains

Biodiversity Project v. Jeffries, No. 20-cv02158, 2021 WL 5150659 (D. Or. Sept. 29,

2021)............................................................................ 80a

Appendix E

Blue Mountains Biodiversity Project v.

Jeffries, No. 20-cv-02158, 2021 WL 3683879

(D. Or. Aug. 19, 2021) ............................................... 82a

v

TABLE OF AUTHORITIES

CASES

American Farm Bureau Federation v.

United States EPA, No. 1:11-CV-0067,

2011 WL 6826539 (M.D. Pa. Dec. 28,

2011) .......................................................................... 15

Armament Services International Inc. v.

Attorney General United States, 760 F.

App’x 114 (3d Cir. 2019) ......................................... 15

Bar MK Ranches v. Yuetter, 994 F.2d 735

(10th Cir. 1993) ........................................................ 18

Bartell Ranch LLC v. McCullough, No.

321CV00080, 2022 WL 2093053 (D. Nev.

June 10, 2022) .......................................................... 23

Brotherhood of Locomotive Engineers &

Trainmen

v.

Federal

Railroad

Administration, 972 F.3d 83 (D.C. Cir.

2020) .......................................................................... 15

Burlington Northern Railroad Co. v.

Oklahoma Tax Commission, 481 U.S.

454 (1987) ................................................................. 13

Camp v. Pitts, 411 U.S. 138 (1973) ............................. 19

Casa De Maryland v. United States

Department of Homeland Security, 924

F.3d 684 (4th Cir. 2019) .......................................... 15

Casey v. Berryhill, 853 F.3d 322 (7th Cir.

2017) .......................................................................... 15

vi

Center for Biological Diversity v. United

States Fish & Wildlife Service, No. 2:19CV-14243, 2020 WL 2732340 (S.D. Fla.

May 26, 2020) ..................................................... 11, 12

Chen v. Mayor & City Council of Baltimore,

574 U.S. 988 (2014) .................................................. 13

Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402 (1971) ................. 2, 9, 14, 17, 19

Clinch Coalition v. United States Forest

Service, 597 F. Supp. 3d 916 (W.D. Va.

2022) .................................................................... 10, 12

Defenders of Wildlife v. Department of the

Interior, No. 18-2090, Order (4th Cir.

Feb. 5, 2019), ECF No. 70 ..................................... 12

Eastern Associated Coal Corp. v. United

Mine Workers of America, 531 U.S. 57

(2000) ........................................................................ 13

Exxon Mobil Corp. v. Mnuchin, No. 3:17CV-1930-B, 2018 WL 4103724 (N.D. Tex.

Aug. 29, 2018) .......................................................... 11

Friends of the Clearwater v. Higgins, 523 F.

Supp. 3d 1213 (D. Idaho 2021) ......................... 15, 21

Gillum v. Commissioner, 676 F.3d 633 (8th

Cir. 2012) .................................................................. 16

Inland

Empire-Immigrant

Youth

Collective v. Nielsen, No. 17-CV-2048,

2019 WL 13240629 (C.D. Cal. Apr. 8,

2019) .......................................................................... 22

vii

Lamps Plus, Inc. v. Varela, 587 U.S. 176

(2019) ........................................................................ 13

Loper Bright Enterprises v. Raimondo, 144

S. Ct. 2244 (2024)................................................. 4, 24

Lynce v. Mathis, 519 U.S. 433 (1997) ......................... 13

Majali v. United States Department of

Labor, 294 F. App’x 562 (11th Cir. 2008) ............. 16

Medina County Environmental Action

Ass’n v. Surface Transportation Board,

602 F.3d 687 (5th Cir. 2010)................................... 16

Meister v. United States Department of

Agriculture, 623 F.3d 363 (6th Cir.

2010) .......................................................................... 15

Miami Nation of Indians of Indiana v.

Babbitt, 979 F. Supp. 771 (N.D. Ind.

1996) .......................................................................... 11

Morgan v. United States, 304 U.S. 1 (1938) ................ 9

Motor Vehicle Manufacturers Ass’n of

United States, Inc. v. State Farm

Mutual Automobile Insurance Co., 463

U.S. 29 (1983) ....................................................... 3, 15

National Council of Negro Women v.

Buttigieg, No. 1:22-CV-314, 2024 WL

1287611 (S.D. Miss. Mar. 26, 2024) ................. 11, 12

New York v. Wolf, No. 20-CV-1127, 2020

WL 2049187 (S.D.N.Y. Apr. 29, 2020) ................. 12

In re Nielsen, No. 17-3345, slip op. (2d Cir.

Dec. 27, 2017), ECF No. 171 ............................ 11, 12

viii

Oak Grove Technologies, LLC v. United

States, 156 Fed. Cl. 594 (2021), aff’d in

part, rev’d in part on other grounds, __

F.4th __, No. 22-1557, 2024 WL 4138392

(Fed. Cir. Sept. 11, 2024) ....................................... 11

Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir.

2019) ................................................................ 9, 12, 13

Ranchers Cattlemen Action Legal Fund

United Stockgrowers of America v.

United

States

Department

of

Agriculture, 35 F.4th 1225 (10th Cir.

2022), cert. denied, 143 S. Ct. 1000

(2023) ........................................................................ 16

Save the Colorado v. Spellmon, No. 18-CV03258, 2023 WL 2402923 (D. Colo. Mar. 7,

2023) .......................................................... 2, 10, 11, 12

Sierra Club v. United States Army Corps of

Engineers, No. 2:20-CV-00396, 2022 WL

2953075 (D. Me. July 26, 2022) .............................. 12

Sierra Club v. United States Fish &

Wildlife Service, No. 2:20-CV-13, 2021

WL 5634131 (M.D. Fla. Dec. 1, 2021) ................... 13

Sierra Club v. Zinke, No. 17-CV-7187, 2018

WL 3126401 (N.D. Cal. June 26, 2018) ................. 22

South Carolina Coastal Conservation

League v. Ross, 431 F. Supp. 3d 719

(D.S.C. 2020) ...................................................... 11, 12

ix

State v. United States Immigration &

Customs Enforcement, 438 F. Supp. 3d

216 (S.D.N.Y. 2020) .......................................... 11, 12

Texas General Land Office v. Biden, No.

7:21-CV-00272, 2023 WL 2733388 (S.D.

Tex. Mar. 31, 2023).................................................. 13

In re United States, 583 U.S. 29 (2017).. 4, 8, 14, 18, 23

United States Fish & Wildlife Service v.

Sierra Club, Inc., 592 U.S. 261 (2021) .................. 21

United States v. Morgan, 313 U.S. 409

(1941) ........................................................................ 19

Utahns for Better Transportation v. United

States Department of Transportation,

305 F.3d 1152 (10th Cir. 2002),

modification on reh’g, 319 F.3d 1207

(10th Cir. 2003) ........................................................ 16

Veterans Contracting Group, Inc. v. United

States, 920 F.3d 801 (Fed. Cir. 2019).................... 15

STATUTES

5 U.S.C. § 552(a)(4)(B).................................................. 20

5 U.S.C. § 552(a)(8)(A)(i)(I) ......................................... 20

5 U.S.C. § 552(b)(5) ....................................................... 20

5 U.S.C. § 706 ........................................................ 1, 2, 14

28 U.S.C. § 1254(1) .......................................................... 1

1

OPINIONS BELOW

The Magistrate Judge for the United States District

Court for the District of Oregon’s opinion is not

published but is reproduced in the Appendix hereto at

Pet. App. 82a.

The district court’s Minutes of

Proceedings is not published but is reproduced in the

Appendix hereto at Pet. App. 80a. The district court’s

opinion is not published but is reproduced in the

Appendix hereto at Pet. App. 59a. The Ninth Circuit’s

opinion is reported at 72 F.4th 991 and reproduced in the

Appendix hereto at Pet. App. 41a. The Ninth Circuit’s

amended opinion and divided order denying rehearing

en banc is reported at 99 F.4th 438 and reproduced in the

Appendix hereto at Pet. App. 1a.

JURISDICTION

The Ninth Circuit entered judgment on July 3, 2023,

and denied a petition for rehearing en banc on April 16,

2024. Pet. App. 41a. On July 10, 2024, this Court

extended the deadline to file a petition for writ of

certiorari to September 13, 2024. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

This case involves Section 706 of Title 5 of the U.S.

Code, which states in relevant part:

In making the foregoing determinations,

the court shall review the whole record or

those parts of it cited by a party, and due

account shall be taken of the rule of

prejudicial error..

2

INTRODUCTION

Judicial review under the Administrative Procedure

Act (“APA”) requires courts to “review the whole

record,” 5 U.S.C. § 706, meaning “the full administrative

record that was before the Secretary at the time he

made his decision,” Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 420 (1971).

This case presents a straightforward and recurring

question of statutory interpretation that has divided

lower courts: whether materials the agency deems

“deliberative” are categorically excluded from the

“whole record” under the APA. In the decision below,

the Ninth Circuit joined the D.C. Circuit in answering

yes. But the “growing consensus” in the lower courts is

that the whole record means the whole record, including

deliberative documents that were before the agency

when it took action. Save the Colo. v. Spellmon, No. 18CV-03258, 2023 WL 2402923, at *4 (D. Colo. Mar. 7, 2023)

(cataloging authority).

Under the APA and this Court’s precedent, the

Ninth and D.C. Circuits are wrong. Deliberative

materials—such as memoranda, drafts, emails, letters,

and other materials considered by the agency in

reaching a decision—are documents before the agency

at the time it makes a decision. There is no basis for

treating these materials as outside the “full” and

“whole” administrative record. Indeed, their very

name—deliberative documents—bespeaks that they are

documents that were before the agency and informed its

decision-making.

These documents can and do

illuminate the issues that are at the core of judicial

3

review of administrative action: whether the agency

acted arbitrarily, whether it took a hard look at the

problem before it, or whether it provided an explanation

for its decision that, in fact, ran counter to the evidence

before the agency. See Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983).

A rule that allows agencies to unilaterally excise

documents from the record because they are

deliberative, however, creates a one-way ratchet that

undermines effective judicial review. When deliberative

documents support agency action, the agency may

include such documents in the administrative record

while leaving out others that call into question the

quality of its reasoning. But when deliberative materials

call into question the legality of agency action, the

agency has unilateral discretion to shield those

documents from a court. Judicial review of the “whole

record” does not mean the record that the agency

selects.

The decision below emphasized that deliberative

documents may be subject to privilege. But the answer

for privileged documents is a privilege log subject to

judicial oversight, not silent exclusion. If an agency

believes that documents that it relied upon are

privileged, it can log those documents and make an

assertion of privilege that can be tested by the opposing

party and assessed by the reviewing court. Under the

rule adopted below, the agency may simply withhold

documents altogether without any mechanism to

challenge such exclusions, essentially self-adjudicating

4

the validity of its own assertion of privilege. To be sure,

the courts adopting this rule have left open exceptions

for when the agency withholds documents in bad faith.

But litigants will have little ability to challenge the

exclusion of documents they do not know about,

regardless of whether the agency acts in bad or good

faith.

What the “whole record” means is a question that

implicates nearly every case under the APA. It strikes

at the core of judicial review of agency action, which

“cannot function if the agency is permitted to decide

unilaterally what documents it submits to the reviewing

court as the administrative record.” In re United States,

583 U.S. 1029, 1030 (2017) (Breyer, J., dissenting from

the grant of stay). By permitting agencies to designate

materials “deliberative” with no meaningful review of

those decisions, the decision below “place[s] a finger on

the scales of justice in favor of the most powerful of

litigants, the federal government.” Loper Bright Enters.

v. Raimondo, 144 S. Ct. 2244, 2285 (2024) (Gorsuch, J.,

concurring) (quotation marks omitted).

This Court should grant the petition to address this

disputed, recurring, and important question, and

reverse because the decision below is inconsistent with

the text of the APA and this Court’s precedent.

5

STATEMENT OF THE CASE

In 2015, the National Forest Service (“Service”)

approved the Walton Lake Restoration Project—a

logging project sited within a 218-acre recreation area in

an Oregon forest. The project included replacing the

site’s trees—which were infested with laminated root

rot and bark beetles—with disease-resistant ones. The

Blue

Mountains

Biodiversity

Project

(“Blue

Mountains”) sued and sought a preliminary injunction to

enjoin the Service’s 2015 decision.

The district court entered Blue Mountains’

requested injunction, and the next day, the Service

withdrew its 2015 decision “to allow additional analysis

of the proposed activities.” Pet. App. 45a (quotation

marks omitted). A few days later, the Service stated

that it would undertake “[a]dditional planning and

analysis . . . with the goal of releasing an Environmental

[Assessment (“EA”)].” Pet. App. 45a (alterations in

original) (quotation marks omitted).

The Service released two EAs and accompanying

decision notices in 2017 and 2020, respectively. After the

Service issued the 2017 EA, it withdrew it later that

same year, citing a need for “additional dialogue and

analysis.” Pet. App. 46a (quotation marks omitted). The

Service then issued a 2020 revised EA that analyzed four

action alternatives, including a no-action alternative.

The Service selected the alternative that authorized

thirty-five acres of sanitation logging and 143 acres of

commercial and noncommercial thinning to reduce the

risk of wildfires and bark beetle infestation. The 2020

decision notice stated that the Project “provides the best

6

opportunity for long-term public enjoyment of this area,

with fewer risks of falling trees, and more longevity in

the large ponderosa pines that provide much of the

scenic quality” and found that there would be no

significant environmental impact.

Pet. App. 46a

(quotation marks omitted).

Blue Mountains then challenged the 2020 decision

notice. The Service filed the administrative record in

early 2021, and Blue Mountains later filed a motion to

compel completion of the administrative record, or, in

the alternative, a privilege log detailing why certain

documents had been withheld. Blue Mountains sought

to compel completion of the administrative record with

certain documents from the Service’s 2016

administrative record that were omitted from its 2021

record, “162 documents produced to [it] pursuant to a

Freedom of Information Act (‘FOIA’) request,” and

other related documents pertinent to its claims. Pet.

App. 85a.

Specifically, Blue Mountains sought the Service’s

past reports, emails, and internal communications. Pls.’

Mot. 12-13, 14-17, ECF No. 10, Blue Mountains

Biodiversity Project v. Jefferies, No. 2:20-CV-02158-SU,

2021 WL 3683879 (D. Or. Aug. 19, 2021). FOIA revealed

documents directly relevant to the administrative

challenge, including documents concerning the logging

contract for the area surrounding the Lake and the

Service’s National Environmental Policy Act analysis.

Alternatively, Blue Mountains requested a privilege log

identifying the documents or information withheld with

specificity. Id. The magistrate judge recommended

7

denying Blue Mountains’ motion to compel and declined

to order the Service to produce a privilege log. Pet. App.

82a-96a. The magistrate judge concluded that the

documents sought were “deliberative materials” “not

properly part of the administrative record.” Pet. App.

95a.

The district judge adopted the magistrate judge’s

reasoning and denied the motion to complete the record

but again preliminarily enjoined any logging for the

Project. Pet. App. 80a-81a. The district court later

granted the Service partial summary judgment and

dissolved the preliminary injunction against the 2020

project. Pet. App. 59a-79a. Blue Mountains appealed.

The Ninth Circuit affirmed the district court’s

judgment. Pet. App. 41a-58a. The court acknowledged

that “[n]o previous Ninth Circuit opinion addresses

whether deliberative materials are part of the ‘whole

record’” and that “[d]istrict courts in this Circuit are

split on the issue.” Pet. App. 48a. But based on two

“well-settled” legal principles, Pet. App. 48a, the court

concluded that deliberative materials were not part of

the administrative record and that the agency need not

produce a privilege log absent “a showing of bad faith or

improper behavior.” Pet. App. 49a (quotation marks

omitted). The court came to that conclusion primarily on

the ground that an agency is entitled to a presumption

of regularity and that the lawfulness of agency action is

based on the reasons offered by the agency. Pet. App.

49a.

A divided Ninth Circuit denied Blue Mountains’

petition for rehearing en banc. Judge Berzon, joined by

8

three other judges, dissented from the denial of

rehearing en banc. Pet. App. 20a-40a. The dissent

argued that the panel decision was “not only wrong but

is likely to reduce APA review in many instances to a

charade.” Pet. App. 24a. The dissent observed that “the

Supreme Court has never ‘limit[ed] the “full

administrative record” to those materials that the

agency unilaterally decides should be considered by the

reviewing court.’” Pet. App. 22a-23a (quoting In re

United States, 583 U.S. at 1030 (Breyer, J., dissenting

from the grant of a stay)). Further, the dissent

reasoned, “for purposes of APA review, ‘[t]he whole

record’ includes everything that was before the agency

pertaining to the merits of its decision.” Pet. App. 26a

(citation omitted). The dissent concluded that the

majority’s decision would be “damaging to judicial

review of agency action,” setting “a new baseline in

which the government need not justify its claims of

privilege except in limited circumstances, as yet

unexplained.” Pet. App. 34a.

The dissent further noted that the panel decision

likely contradicted this Court’s unanimous indication in

In re United States, 583 U.S. 29 (2017), that “district

courts could potentially ‘compel the Government to

disclose [ ] document[s] that the Government believes is

privileged’ so long as the court ‘first provid[es] the

Government with the opportunity to argue the issue.’”

Pet. App. 25a (quoting In re United States, 583 U.S. 29,

32 (2017) (alterations in original)). This Court there

“declined to adopt the government’s view of its

unilateral power to designate the administrative

record.” Pet. App. 25a. “Instead, the Court explained

9

that if the threshold arguments were resolved in favor

of the district court’s jurisdiction, then the district court

‘may consider whether narrower amendments to the

record are necessary and appropriate.’” Pet. App. 25a

(quoting In re United States, 583 U.S. at 32). Therefore,

the dissent noted, this Court did not hold that “the

district court was precluded from expanding the record

at all, absent a showing of some unusual circumstance, or

that the agency could decide for itself which material

was deliberative.” Pet. App. 26a.

Moreover, the dissent reasoned, the two Supreme

Court opinions relied on by the panel opinion, Citizens to

Preserve Overton Park, Inc., 401 U.S. at 420, and

Morgan v. United States, 304 U.S. 1, 18 (1938), are both

inapposite.

Neither concerned the scope of an

administrative record or whether a privilege log is

required. And the panel’s reliance on the D.C. Circuit’s

decision in Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir.

2019), was misplaced because that court relied on the

same Supreme Court cases. Separately, the D.C.

Circuit’s

emphasis

on

deliberative

materials’

discoverability was incorrect because “the concept of

discoverability has no bearing on the meaning of the

‘whole record’ for APA cases.” Pet. App. 33a.

Finally, the dissent concluded that the panel’s

decision was “damaging to judicial review of agency

action” in three distinct ways. Pet. App. 34a. First, the

decision will make “governmental mistakes or

misconduct … unlikely to come to light” because “[t]he

opinion sets a new baseline in which the government

need not justify its claims of privilege except in limited

10

circumstances, as yet unexplained.” Pet. App. 34a.

Second, the decision “creates a tension with [] FOIA case

law, which requires the government to supply a

privilege log to justify withholding of documents claimed

to be deliberative.” Pet. App. 34a (internal quotations

omitted). And third, “the decision fails to acknowledge

that deliberative materials are central in cases in which

the decisionmaker’s subjective intent is properly at

issue.” Pet. App. 34a.

Blue Mountains timely filed this petition for

certiorari.

REASONS FOR GRANTING THE PETITION

I. The Question Presented Has Divided The Lower

Courts.

The lower courts acknowledge that they are sharply

divided on the question of whether deliberative

documents are part of the administrative record.

On one side of the divide are the courts that have

joined the “growing consensus” that deliberative

materials are a part of the administrative record. Save

the Colo., 2023 WL 2402923, at *4. These courts hold

that the administrative record consists of the “‘full

administrative record that was before [the agency] at

the time [it] made [the] decision,’” and that to exclude

deliberative materials as categorically irrelevant “leads

to the strange result wherein the agency may claim

documents are relevant for purposes of developing its

final rule but irrelevant for purposes of the court’s

review of that final rule.” Clinch Coal. v. U.S. Forest

Serv., 597 F. Supp. 3d 916, 921, 923 (W.D. Va. 2022)

11

(quoting Citizens to Pres. Overton Park, Inc., 401 U.S.

at 419-20).

Accordingly, these courts require agencies to

“submit a log if they withhold privileged materials from

an [administrative record].” Save the Colo., 2023 WL

2402923, at *4. See, e.g., State v. U.S. Immigr. &

Customs Enf’t, 438 F. Supp. 3d 216, 220 (S.D.N.Y. 2020);

S.C. Coastal Conservation League v. Ross, 431 F. Supp.

3d 719, 725 (D.S.C. 2020); Oak Grove Techs., LLC v.

United States, 156 Fed. Cl. 594, 600-01 (2021), aff’d in

part, rev’d in part on other grounds, __ F.4th __, No. 221557, 2024 WL 4138392 (Fed. Cir. Sept. 11, 2024); Ctr. for

Biological Diversity v. U.S. Fish & Wildlife Serv., No.

2:19-CV-14243, 2020 WL 2732340, at *5 (S.D. Fla. May

26, 2020); Exxon Mobil Corp. v. Mnuchin, No. 3:17-CV1930-B, 2018 WL 4103724, at *2 (N.D. Tex. Aug. 29,

2018); Miami Nation of Indians of Ind. v. Babbitt, 979 F.

Supp. 771, 778 (N.D. Ind. 1996); Nat’l Council of Negro

Women v. Buttigieg, No. 1:22-CV-314, 2024 WL 1287611,

at *5-6 (S.D. Miss. Mar. 26, 2024).

Although no circuit has issued a precedential decision

holding that deliberative materials are part of the

administrative record, the Second and Fourth Circuits

have each issued influential nonprecedential decisions

adopting that rule. The Second Circuit found that “the

possibility that some documents not included in the

record may be deliberative does not necessarily mean

that they were properly excluded.” In re Nielsen, No.

17-3345, slip op. at 3 (2d Cir. Dec. 27, 2017), ECF No. 171.

And it emphasized that “without a privilege log, the

District Court would be unable to evaluate the

12

Government’s assertions of privilege.” Id. The Fourth

Circuit reached an analogous conclusion in its order in

Defenders of Wildlife v. Dep’t of the Interior, No. 182090, Order (4th Cir. Feb. 5, 2019), ECF No. 70,

requiring that the Government submit a privilege log to

identify documents it withheld under the guise of the

deliberative-process privilege.

Many lower courts, both within and without the

Second and Fourth Circuits, have relied on these

opinions in holding that deliberative documents are part

of the administrative record. See, e.g., U.S. Immigr. &

Customs Enf’t, 438 F. Supp. 3d at 218 (looking to 2d Cir.

holding in In re Nielsen); New York v. Wolf, No. 20-CV1127, 2020 WL 2049187, at *2 (S.D.N.Y. Apr. 29, 2020)

(same); Clinch Coal., 597 F. Supp. 3d at 925 (looking to

4th Cir. holding in Defenders of Wildlife); Nat’l Council

of Negro Women v. Buttigieg, 2024 WL 1287611, at *4

(looking to both the 2nd Cir. and 4th Cir. holdings); Save

the Colo., 2023 WL 2402923, at *4 (same); Sierra Club v.

U.S. Army Corps of Eng’rs, No. 2:20-CV-00396, 2022

WL 2953075, at *3 (D. Me. July 26, 2022) (same); Ctr. for

Biological Diversity, 2020 WL 2732340, at *4; S.C.

Coastal Conservation League v. Ross, 431 F. Supp. 3d at

725 (same).

On the other side of the divide are the courts, now

joined by the Ninth Circuit, which hold that deliberative

materials are not part of the administrative record, and

further, that the agency has no obligation to log such

materials. The D.C. Circuit adopted that rule in Oceana,

Inc. v. Ross, 920 F.3d 855 (D.C. Cir. 2019), where it held

that “predecisional and deliberative documents ‘are not

13

part of the administrative record to begin with,’ so they

‘do not need to be logged as withheld from the

administrative record.’” Id. at 865 (citation omitted).

Far fewer lower courts have also adopted that rule. See,

e.g., Tex. Gen. Land Off. v. Biden, No. 7:21-CV-00272,

2023 WL 2733388, at *6 (S.D. Tex. Mar. 31, 2023)

(“[P]rivileged materials are not proper for inclusion in

the administrative record and thus Defendants are not

required to produce a privilege log.”); Sierra Club v. U.S.

Fish & Wildlife Serv., No. 2:20-CV-13, 2021 WL 5634131,

at *3 (M.D. Fla. Dec. 1, 2021) (“Defendants did not have

to produce a privilege log detailing the documents

protected by deliberative process privilege[.]”).

Given the number of lower court decisions

addressing the question presented, further percolation

is unlikely to yield significant insight. 1 The lower courts

are divided on this question, and only this Court can

authoritatively answer it. Review is warranted.

1

This Court will grant certiorari where a nonprecedential opinion

or order supplies the basis for a circuit divide. See, e.g., Lamps Plus,

Inc. v. Varela, 587 U.S. 176, 180 (2019) (granting certiorari with a

single unpublished decision on one side of a circuit disagreement);

Chen v. Mayor & City Council of Balt., 574 U.S. 988, 988 (2014)

(same); E. Associated Coal Corp. v. United Mine Workers of Am.,

531 U.S. 57, 61 (2000) (same); Burlington N. R.R. Co. v. Okla. Tax

Comm’n, 481 U.S. 454, 460 (1987) (same); Lynce v. Mathis, 519 U.S.

433, 436 (1997) (same but with an “unpublished order” from the

Eleventh Circuit).

14

II. The Ninth Circuit’s Decision Is Wrong.

Review is also warranted because the decision below

is inconsistent with the APA’s text and this Court’s

precedent.

A. The APA provides that, in judicial review of

agency action, the court “shall review the whole

record[.]” 5 U.S.C. § 706. The “whole record,” this Court

has held, means “the full administrative record that was

before the Secretary at the time he made his decision.”

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

Otherwise, “judicial review cannot function if the agency

is permitted to decide unilaterally what documents it

submits to the reviewing court as the administrative

record.” In re United States, 583 U.S. at 1030 (Breyer,

J., dissenting from the grant of a stay). Meaningful

judicial oversight depends upon the review of “all

relevant materials presented to the agency, including

not only materials supportive of the government’s

decision but also materials contrary to the government’s

decision.” Id. at 1030-31.

Drafts, letters, emails, and other materials that the

agency considered in taking action are materials

“before” the agency. Indeed, it is inherent in the very

label “deliberative” that these are documents that the

agency considered. Such materials may shed light on

core questions of judicial review. For example, a

deliberative memorandum or email may reveal that the

agency has “failed to consider an important aspect of the

problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference

15

in view or the product of agency expertise.” State Farm,

463 U.S. at 43. See also, e.g., Friends of the Clearwater

v. Higgins, 523 F. Supp. 3d 1213, 1227 (D. Idaho 2021)

(“There can be no doubt that under some circumstances,

pre-decisional deliberative communications may go to

the heart of the question of whether an agency action

was arbitrary and capricious, an abuse of discretion or

otherwise inconsistent with the law under Section 706(2)

of the APA.” (quotation marks omitted)).

And in practice, courts regularly consider such

materials in reviewing agency action. See, e.g., Pet. App.

28a (Berzon, J., dissenting) (collecting cases where

courts have “routinely reviewed letters, drafts, emails,

and other nonfinal materials in the course of evaluating

the lawfulness of agency action”); Bhd. of Locomotive

Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83,

98-115 (D.C. Cir. 2020) (relying on emails, letters, and

drafts to vacate agency action); Meister v. U.S. Dep’t of

Agric., 623 F.3d 363, 375 (6th Cir. 2010) (relying on

emails in the administrative record to find agency action

unlawful); Am. Farm Bureau Fed’n v. U.S. EPA, No.

1:11-CV-0067, 2011 WL 6826539, at *9 (M.D. Pa. Dec. 28,

2011) (holding that “email chain[s] should be included” in

the administrative record, even though “they related

only to draft[s]”). 2

2

See also Armament Servs. Int’l Inc. v. Att’y Gen. U.S., 760 F.

App’x 114, 118-20 (3d Cir. 2019); Veterans Contracting Grp., Inc. v.

United States, 920 F.3d 801, 803-05 (Fed. Cir. 2019); Casa De

Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 705 (4th

Cir. 2019); Casey v. Berryhill, 853 F.3d 322, 326-28 (7th Cir. 2017);

16

For example, in Ranchers Cattleman Action Legal

Fund United Stockgrowers of America, the United

States Department of Agriculture did not contest that

deliberative materials should be part of the

administrative record.

There, after the plaintiff

reviewed past FOIA requests and notified the agency

via a status report that deliberative emails were

potentially excluded from the record, the agency agreed

to supplement the record without claiming that the

documents were privileged.

Ranchers Cattlemen

Action Legal Fund United Stockgrowers of Am.,

Ranchers Cattlemen Action Legal Fund United

Stockgrowers of Am. v. U.S. Dep’t of Agric., 35 F.4th

1225, 1235 (10th Cir. 2022), cert. denied, 143 S. Ct. 1000

(2023). The emails, in turn, aided the court in its review

of the lawfulness of the agency’s action. Id. at 1242-48.

B. The Ninth Circuit based its contrary holding on

two “principles governing judicial review of agency

action under the APA.” Pet. App. 48a. First, it

concluded that “the whole record,” under the APA “is

ordinarily ‘the record the agency presents,’” Pet. App.

48a (quoting Fla. Power & Light Co. v. Lorion, 470 U.S.

729, 743-44 (1985)). Thus, according to the Ninth Circuit,

the record an agency submits for review is “subject to a

presumption of regularity” and “barring clear evidence

Gillum v. Commissioner, 676 F.3d 633, 644-45 (8th Cir. 2012);

Medina Cnty. Env’t Action Ass’n v. Surface Transp. Bd., 602 F.3d

687, 690-99 (5th Cir. 2010); Majali v. U.S. Dep’t of Lab., 294 F. App’x

562, 568 (11th Cir. 2008); Utahns for Better Transp. v. U.S. Dep’t of

Transp., 305 F.3d 1152, 1166-68, 1170-72 (10th Cir. 2002),

modification on reh’g, 319 F.3d 1207 (10th Cir. 2003).

17

to the contrary,” a court will “presume that an agency

properly designated the Administrative Record.” Pet.

App. 48a (quotation marks omitted). Second, the Ninth

Circuit determined that a reviewing court must “assess

the lawfulness of agency action based on the reasons

offered by the agency,” and therefore, “[d]eliberative

documents, which are prepared to aid the decisionmaker

in arriving at a decision, are ordinarily not relevant.”

Pet. App. 48a.

Neither rationale withstands scrutiny. As to the first

rationale, a “presumption of regularity” has no bearing

on whether material belongs in the “whole record” in the

first place. As this Court has held, the presumption of

regularity “is not to shield [agency] action from a

thorough, probing, in-depth review.”

Citizens to

Preserve Overton Park, Inc., 401 U.S. at 415. The

question is thus not in the first instance whether the

agency can be trusted to identify deliberative

documents, but whether the rule should be that

deliberative documents can be categorically excluded

based on agency say-so. As Judge Berzon correctly

noted, “[T]he presumption of regularity is a presumption

that the agency has done what it is supposed to do; it

does not tell us what the agency is supposed to do …

[nor] describe the breadth of the record that should be

produced and so does not explain to what the

presumption attaches.” Pet. App. 29a-30a. (Berzon, J.,

dissenting).

Moreover, the APA’s judicial review framework does

not give the agency unilateral discretion to determine

what the record is. As Justice Breyer put it, this Court

18

has never “read Overton Park to limit the ‘full

administrative record’ to those materials that the

agency unilaterally decides should be considered by the

reviewing court.” In re United States, 583 U.S. at 1030

(Breyer, J., dissenting from grant of stay); Bar MK

Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993)

(agency “may not unilaterally determine what

constitutes” the record). The Ninth Circuit’s holding,

however, does just that, giving agencies unilateral and

unreviewable discretion to determine the scope of the

“whole record.”

But if the agency’s unilateral

determination were all that mattered, there would be no

point in invoking a “presumption of regularity” in the

first place.

Nor are such documents properly excluded on the

ground that only the agency’s stated reasons matter or

that its “subjective” views are irrelevant. True, agency

action is judged by the agency’s stated reasons, but the

adequacy of those reasons is measured against the

information that was before the agency. A reviewing

court cannot conduct that assessment without looking at

all the materials that were before the agency. If internal

memoranda show that certain agency actions will create

a redressable injury, and the final action does not

account for that issue, then that could demonstrate the

agency’s decision to move forward with the action is

arbitrary and capricious. The Ninth Circuit’s position

makes that review impossible. The result is that

reviewing courts will be unable to discharge their

judicial review responsibilities under the APA.

19

Similarly, the Ninth Circuit’s reliance on the general

limitation against probing “mental processes of

administrative decisionmakers” is inapposite. Pet. App.

31a (quotation marks omitted) (Berzon, J., dissenting).

That principle concerns the generation of new material,

such as deposing an agency decisionmaker, which goes

beyond the record before the agency. See Citizens to

Preserve Overton Park, Inc., 401 U.S. at 420; United

States v. Morgan, 313 U.S. 409, 422 (1941). Seeking

extrinsic, after-the-fact evidence is generally not

appropriate because agency decisions are judged by the

material in front of the agency at the time it made its

decision. See Camp v. Pitts, 411 U.S. 138, 142 (1973)

(“[T]he focal point for judicial review should be the

administrative record already in existence, not some

new record made initially in the reviewing court.”). The

principle announced in those cases does not apply to predecisional deliberative documents because it “concern[s]

the propriety of post-decisional testimony of

administrative decisionmakers, which obviously was not

part of the administrative record because it did not exist

at the time the agency made its decision.” Pet. App. 32a

(Berzon, J., dissenting).

Deliberative materials,

however, are before the agency at the time a decision is

made, and their inclusion would not require the

production of any post-decisional evidence.

C. The decision below also creates tension between

Section 706 and another part of the APA—FOIA. FOIA

expressly permits agencies to withhold from disclosure

certain documents, including “inter-agency or intraagency memorandums or letters that would not be

available by law to a party other than an agency in

20

litigation with the agency.” 5 U.S.C. § 552(b)(5). In the

FOIA context, the burden is on the government to claim

the deliberative privilege, withheld documents must

generally be logged, and the privilege is not categorical

or absolute. See id. § 552(a)(4)(B), (a)(8)(A)(i)(I). As the

dissent below explained:

There is no basis in the APA for providing

litigants challenging agency action with

less access to public documents than is

available to interested members of the

public under FOIA. Notably, APA review

requires consideration of the “whole

record,” with no express exceptions, 5

U.S.C. § 706, whereas FOIA includes

several express exemptions to public

access, 5 U.S.C. § 552(b).

Pet. App. 38a (Berzon, J., dissenting). By failing to

require agencies to even produce a privilege log,

withheld documents are acknowledged under FOIA but

remain a mystery under Section 706. There is no

statutory warrant for that irrational outcome.

Nor does the APA require a plaintiff to go through

the FOIA process to obtain documents that should be

included in the administrative record in the first place.

As this case demonstrates, even when a litigant

fortuitously goes through the separate FOIA process,

any documents received will not automatically become

part of the administrative record. If the agency refuses

to supplement the record, APA plaintiffs must engage in

additional litigation to supplement the administrative

record on a case-by-case basis. The APA does not

21

require plaintiffs to jump through so many loops to

secure meaningful judicial review.

D. The Ninth Circuit was also wrong to grant

agencies a blanket presumption in favor of deliberative

process privilege. The deliberative process privilege is

a form of executive privilege that “shields from

disclosure documents reflecting advisory opinions,

recommendations and deliberations comprising part of a

process by which governmental decisions and policies

are formulated.” United States Fish & Wildlife Serv. v.

Sierra Club, Inc., 592 U.S. 261, 267 (2021) (internal

quotation marks omitted). But like any other litigant, if

an agency has a valid privilege claim, it cannot

unilaterally withhold responsive documents without

providing a privilege log that accounts for the whole

record. “[T]he correct way to address the tension

between APA review and deliberative process privilege

is for [the agency] either to file a privilege log or submit

allegedly privileged documents for in camera review.”

Friends of the Clearwater, 523 F. Supp. 3d at 1227 (citing

authority).

Nor is it any answer to say that a plaintiff can seek

relief if it can show agency malfeasance or the agency

has excluded materials that are not deliberative. Pet.

App. 11a-12a.

First, the APA’s “whole record”

requirement means that these materials should be

included in the first place—the statute places no burden

on a litigant to make a separate showing to trigger that

obligation. Yet under the Ninth Circuit’s approach, the

agency is permitted to exclude altogether documents

that it deems deliberative. In other words, it is not

22

malfeasance that keeps the material out; it is the wrong

rule.

Finally, even if malfeasance were relevant, there

would be no consistent and workable way for a litigant

or a court to discover such malfeasance given the

demanding bar for discovery in APA cases, the agency’s

unilateral control of the administrative record, and the

Ninth Circuit’s holding that deliberative documents

need not be accounted for in a privilege log. Pet. App.

34a (Berzon, J., dissenting) (“Without a privilege log …

governmental mistakes or misconduct are unlikely to

come to light.”); Inland Empire-Immigrant Youth

Collective v. Nielsen, No. 17-CV-2048, 2019 WL

13240629, at *6 (C.D. Cal. Apr. 8, 2019) (“[I]t would be

very difficult, if not impossible, for an APA plaintiff to

challenge a claim of deliberative process privilege or to

make the required showing of need necessary to

overcome the privilege without at least some description

of the document over which privilege is asserted.”);

Sierra Club v. Zinke, No. 17-CV-7187, 2018 WL 3126401,

at *5 (N.D. Cal. June 26, 2018) (“The only way to know if

privilege applies is to review the deliberative documents

in a privilege log.”).

III. The Question

Recurring.

Presented

Is

Important

And

The question in this case—regarding the scope of the

“whole record” to support judicial review—arises in

almost every APA challenge. The Ninth Circuit’s

holding sharply hampers judicial review under the APA

by permitting agencies, in every case, to secretly

23

designate materials as “deliberative” materials to shield

them from litigants and reviewing courts.

The rule below thus permits, if not encourages,

perverse outcomes. An agency can present a “whole

record” by excluding unhelpful deliberative materials

while including those that bolster its reasoning and

manufacture a favorable record. Without a privilege log,

there is no realistic way to know that the agency has

done so. Even if the agency is acting in good faith, it may

erroneously exclude documents that a court would

conclude are not deliberative, let alone not subject to a

privilege. Or an agency may exclude broad swaths of

documents it has not even reviewed for any valid

privilege. See, e.g., Bartell Ranch LLC v. McCullough,

No. 321CV00080, 2022 WL 2093053, at *2, *4 (D. Nev.

June 10, 2022) (court-ordered privilege log revealed that

an agency “had not reviewed between six and eight

thousand of those documents before withholding them as

deliberative”). The rule shields such errors from judicial

review entirely. The APA’s “whole record” requirement

exists to check exactly this: unreviewable agency

authority.

Judicial review under the APA “cannot function if

the agency is permitted to decide unilaterally what

documents it submits to the reviewing court as the

administrative record.” In re United States, 583 U.S. at

1030 (Breyer, J., dissenting from the grant of stay). The

rule below gives license to agencies to introduce

deliberative documents when they are favorable, yet

omit them when they undercut its reasoning, regardless

of the role the document may have played in the agency’s

24

decision-making process. And without a privilege log, it

is nearly impossible to know that the agency is doing so.

The upshot of the decision below, therefore, is that the

agency enjoys a degree of unilateral discretion over the

scope of discoverable material that would be unthinkable

for any other litigant. In effect, the Ninth Circuit’s

holding “place[s] a finger on the scales of justice in favor

of the most powerful of litigants, the federal

government.” Loper Bright Enters., 144 S. Ct. at 2285

(Gorsuch, J., concurring).

CONCLUSION

The Court should grant the petition for certiorari.

25

Respectfully submitted,

David A. Strauss

Sarah M. Konsky

JENNER & BLOCK SUPREME

COURT AND APPELLATE

CLINIC

1111 E. 60th Street

Chicago, IL 60637

Matthew S. Hellman

Counsel of Record

JENNER & BLOCK LLP

1099 New York Ave. NW

Washington, DC 20016

(202) 639-6000

mhellman@jenner.com

Thomas C. Buchele

EARTHRISE LAW CENTER

10101 S. Terwilliger Blvd.

Portland, OR 97219

Michael T. Brody

Andrew L. Osborne

JENNER & BLOCK LLP

353 N. Clark Street

Chicago, IL 60654

Jesse A. Buss

Bridgett A. Chevalier

WILLAMETTE LAW

GROUP, PC

411 Fifth Street

Oregon City, OR 97045

APPENDIX

ia

TABLE OF CONTENTS

Appendix A

Blue Mountains Biodiversity Project v.

Jeffries, 99 F.4th 438 (9th Cir. 2024) ........................ 1a

Appendix B

Blue Mountains Biodiversity Project v.

Jeffries, 72 F.4th 991 (9th Cir. 2023) ...................... 41a

Appendix C

Blue Mountains Biodiversity Project v.

Jeffries, No. 20-cv-02158, 2022 WL 4466928

(D. Or. Sept. 26, 2022) .............................................. 59a

Appendix D

Minutes of Proceedings, Blue Mountains

Biodiversity Project v. Jeffries, No. 20-cv02158, 2021 WL 5150659 (D. Or. Sept. 29,

2021)............................................................................ 80a

Appendix E

Blue Mountains Biodiversity Project v.

Jeffries, No. 20-cv-02158, 2021 WL 3683879

(D. Or. Aug. 19, 2021) ............................................... 82a

1a

Appendix A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BLUE MOUNTAINS

BIODIVERSITY PROJECT, an

Oregon non-profit corporation,

Plaintiff-Appellant,

v.

SHANE JEFFRIES, in his official

capacity as Ochoco National Forest

Supervisor; UNITED STATES

FOREST SERVICE, an agency of the

United States Department of

Agriculture,

No. 22-35857

D.C. No. 2:20cv-02158-MO

ORDER AND

AMENDED

OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted March 30, 2023

Seattle, Washington

Filed July 3, 2023

Amended April 16, 2024

2a

Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,

Circuit Judges, and Dean D. Pregerson, District

Judge.

Order;

Opinion by Judge Hurwitz;

Statement Respecting Denial of Rehearing En Banc by

Judge Berzon

SUMMARY

Environmental Law

The panel filed (1) an order denying a petition for

panel rehearing, denying a petition for rehearing en

banc, and amending the opinion filed on July 3, 2023; and

(2) an amended opinion affirming the district court’s

summary judgment in favor of the U.S. Forest Service

in an action brought by Blue Mountains Biodiversity

Project (“BMBP”) alleging that the Service’s approval of

the Walton Lake Restoration Project violated the

National Environmental Policy Act (“NEPA”), the

National Forest Management Act, and the

Administrative Procedure Act (“APA”).

The Forest Service developed the Project to replace

trees infested with laminated root rot and bark beetles

with disease-resistant trees. In May 2016, the Service

contracted with T2, a private company, for logging to

The Honorable Dean D. Pregerson, United States District Judge

for the Central District of California, sitting by designation.

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

3a

implement the decision. The Service issued a revised

Environmental Assessment (“EA”) in July 2020 and a

revised decision notice in December 2020. BMBP filed

this action challenging the 2020 decision notice. The

Service filed an administrative record (“AR”) in 2021.

The panel first addressed BMBP’s argument that

the AR was incomplete. First, BMBP argued that

deliberative materials were part of the “whole record”

and that a privilege log was required if they were not

included in the AR. The panel held that deliberative

materials are generally not part of the AR absent

impropriety or bad faith by the agency. Because

deliberative materials are not part of the administrative

record to begin with, they are not required to be placed

on a privilege log. The district court did not abuse its

discretion by declining to order the production of a

privilege log. Second, BMBP argued that all documents

in the 2016 AR should be in the AR for this case. BMBP

contended that the documents in the 2016 AR were

necessarily before the agency in the 2020 process

because the Project was a continuation of the withdrawn

one. The panel held that BMBP’s arguments failed to

overcome the presumption of regularity. The 2020

decision notice expressly stated that the Forest Service

began the NEPA process again in 2019. The record also

supported the Service’s contention that it included only

documents from previous NEPA analyses that were

considered in the 2020 decision. The panel concluded

that the district court acted within its discretion in

denying the motion to supplement the AR.

The panel next addressed whether the Service

violated NEPA by approving the Project. First, the

4a

panel held that BMBP failed to establish that the logging

contract with T2 improperly committed resources under

any standard. There is also no evidence that the agency

merely engaged in post hoc rationalization in the 2020

decision. Second, the panel rejected BMBP’s contention

that the EA diluted the significance of some impacts by

analyzing them on too large a scale. The BMBP did not

show why the choice of a broader context in the

challenged instances was arbitrary or capricious. Also,

the regulations list ten non-exhaustive relevant factors

for consideration. The panel held that whether the

factors were assessed individually or cumulatively, the

record did not establish a clear error of judgment in the

Service’s intensity findings, which “refers to the

severity of impact” within the selected context. 40

C.F.R. § 1508.27(b).

The panel affirmed the judgment of the district

court and lifted the previous stay of its order dissolving

the preliminary injunction.

In a statement respecting the denial of rehearing en

banc, Judge Berzon, joined by Wardlaw, Paez, and Koh,

wrote that the panel’s holding permits government

agencies to sanitize the record available to reviewing

courts, thereby severely curtailing meaningful judicial

review of administrative action. The panel’s opinion

conflicts with case law by holding that materials

protected by the deliberative process privilege were not

part of the “whole record” for purposes of judicial review

under the APA. Judge Berzon would hold that if

government agencies wish to withhold documents in

APA cases based on a privilege, they should have to

provide a privilege log with justification for each

5a

document for which they assert a privilege, as they must

do under Freedom of Information Act precedent.

COUNSEL

Jesse A. Buss (argued) and Bridgett A. Chevallier,

Willamette Law Group, Oregon City, Oregon; Thomas

C. Buchele, Earthrise Law Center, Lewis & Clark Law

School, Portland, Oregon; for Plaintiff-Appellant.

Robert P. Stockman (argued) and Joan M. Pepin,

Attorneys; Sean C. Duffy, Trial Attorney; Environment

and Natural Resources Division, United States

Department of Justice, Washington, D.C.; Rick Grisel,

Attorney, Office of the General Counsel, United States

Department of Agriculture, Portland, Oregon; Rebecca

Harrison, Senior Counsel; Todd Kim, Assistant

Attorney General; United States Department of Justice,

Washington, D.C.; for Defendants-Appellees.

Kelly K. Simon, American Civil Liberties Union

Foundation of Oregon, Portland, Oregon; Cody Wofsy,

Katrina Eiland, and Hannah Schoen, American Civil

Liberties Union Foundation, San Francisco, California;

for Amici Curiae American Civil Liberties Union,

Immigrants’ Rights Project, and American Civil

Liberties Union of Oregon.

J. Patrick Hunter, Southern Environmental Law

Center, Asheville, North Carolina, for Amici Curiae

South Carolina Coastal Conservation League,

Charleston Waterkeeper, Chattooga Conservancy,

MountainTrue, Wild Virginia, Conservation Law

Foundation, Clinch Coalition, Virginia Wilderness

Committee, Cherokee Forest Voices, and Defenders of

Wildlife.

6a

Amy van Saun, Center for Food Safety, Portland,

Oregon; Andrew R. Missel, Advocates for the West,

Portland, Oregon; Jennifer Best, Director, Wildlife Law

Program Friends of Animals, Centennial, Colorado; for

Amici Curiae Environmental Organizations and Law

Professors.

ORDER

The opinion filed on July 3, 2023, and appearing at 72

F.4th 991, is AMENDED as follows:

At 72 F.4th at 997, add the following footnote

immediately after the sentence beginning with

“Deliberative documents, which are prepared to aid the

decision-maker in arriving at a decision”:

“[T]he deliberative process privilege shields from

disclosure documents reflecting advisory

opinions, recommendations and deliberations

comprising part of a process by which

governmental decisions and policies are

formulated.” United States Fish and Wildlife

Serv. v. Sierra Club, Inc., 592 U.S. 261, 267 (2021)

(cleaned up); see also F.T.C. v. Warner

Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir.

1984) (same). The privilege does not apply,

however, to any factual information upon which

the agency has relied. In re United States, 875

F.3d 1200, 1211-12 (9th Cir. 2017) (Watford, J.,

dissenting) (citing Portland Audubon Soc’y v.

Endangered Species Comm., 984 F.2d 1534, 1548

(9th Cir. 1993)).

At 72 F.4th at 997, delete:

7a

We agree, however, with the D.C. Circuit

that “a showing of bad faith or improper

behavior” might justify production of a

privilege log to allow the district to

determine whether excluded documents

are actually deliberative.

and replace with:

But whether materials are in fact

deliberative is subject to judicial review,

and in appropriate circumstances district

courts may order a privilege log to aid in

that analysis. For example, we agree with

the D.C. Circuit that “a showing of bad

faith or improper behavior” might justify

production of a privilege log to allow the

district to determine whether excluded

documents are actually deliberative.

With these amendments, the panel unanimously

voted to deny the petition for panel rehearing. Judge

Nguyen voted to deny the petition for rehearing en banc,

and Judges Hurwitz and Pregerson so recommend.

The full court was advised of the petition for

rehearing en banc. A judge of the court requested a vote

on whether to rehear the matter en banc. The matter

failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.

Fed. R. App. P. 35. The petition for panel rehearing and

rehearing en banc, Dkt. 39, is DENIED. No further

petitions for rehearing en banc will be considered.

Judges Forrest and Johnstone did not participate in the

deliberations or vote in this case.

8a

OPINION

HURWITZ, Circuit Judge:

This case involves claims by the Blue Mountains

Biodiversity Project (“BMBP”) that the approval of the

Walton Lake Restoration Project by the U.S. Forest

Service violated the National Environmental Policy Act,

the National Forest Management Act, and the

Administrative Procedure Act. The district court

granted summary judgment against BMBP on all claims

relevant to this appeal. We affirm.

BACKGROUND

Walton Lake is a 218-acre recreation site in the

Ochoco National Forest in Oregon. The Forest Service

developed the Walton Lake Restoration Project

(“Project”) to replace trees infested with laminated root

rot and bark beetles with disease-resistant ones. In

2015, relying on a regulation that excludes the sanitation

harvest of trees to control disease and insects from some

National Environmental Policy Act (“NEPA”)

requirements, 36 C.F.R. § 220.6(e)(14) (2015), the

Service issued a decision memorandum approving the

Project. In May 2016, the Service contracted with T2, a

private company, for logging to implement that decision.

Although no logging has yet occurred, the T2 contract

remains in place.

BMBP sued, challenging the 2015 decision, and the

district court preliminarily enjoined the logging on

October 18, 2016. The next day, the Service withdrew

its decision “to allow additional analysis of the proposed

activities.” On October 21, 2016, the Service stated that

it would undertake “[a]dditional planning and

9a

analysis . . . with the goal of releasing an Environmental

[Assessment (“EA”)].” 1

The Service issued an EA and a decision notice

approving the Project in 2017 but withdrew the decision

notice later that year, citing a need for “additional

dialogue and analysis.” The Service issued a revised EA

in July 2020 and a revised decision notice in December

2020. The revised EA analyzed four alternatives,

including a no-action alternative.

The selected

alternative authorizes thirty-five acres of sanitation

logging and 143 acres of commercial and noncommercial

thinning to reduce the risk of wildfires and bark beetle

infestation. The 2020 decision notice stated that the

Project “provides the best opportunity for long-term

public enjoyment of this area, with fewer risks of falling

trees, and more longevity in the large ponderosa pines

that provide much of the scenic quality”; found that

there would be no significant environmental impact; and

made four Project-specific amendments to the Ochoco

National Forest Plan.

BMBP then filed this action challenging the 2020

decision notice. The Service filed an administrative

record (“AR”) in early 2021. A magistrate judge

recommended denial of BMBP’s motion to compel

completion of the AR and declined to order the Service

to produce a privilege log, concluding that certain

documents sought by BMBP were deliberative

materials, and BMBP did not establish that some

documents in the AR filed in response to the 2016 suit

1

The district court granted BMBP’s motion to dismiss the 2016 suit

on June 19, 2017.

10a

were “before the agency” in its 2020 decision. The

district judge adopted the magistrate judge’s reasoning

and denied the motion, but again preliminarily enjoined

any logging for the Project.

The district court later granted the Service summary

judgment on all but one of BMBP’s claims. It concluded

that the logging contract with T2 was not an

“irreversible and irretrievable commitment” of

resources because it could be unilaterally modified or

terminated. It also held that the Service reasonably

found that the Project would not have a significant

environmental impact and thus reasonably declined to

prepare an environmental impact statement (“EIS”).

The court entered a final judgment and dissolved the

preliminary injunction. 2 BMBP timely appealed, and we

have jurisdiction under 28 U.S.C. § 1291. 3

DISCUSSION

I.

We first address BMBP’s argument that the AR is

incomplete. The Administrative Procedure Act (“APA”)

requires us to “review the whole record,” 5 U.S.C. § 706,

including “all documents and materials directly or

indirectly considered by agency decision-makers,”

Thompson v. U.S. Dep’t of Lab., 885 F.2d 551, 555 (9th

Cir. 1989) (cleaned up). BMBP argues that deliberative

2

The district court stayed its order dissolving the preliminary

injunction, however, pending our decision on a motion for a stay

pending appeal. We granted that stay and expedited this appeal.

3

The Service has not appealed the district court’s grant of summary

judgment to BMBP on one of its NEPA claims.

11a

materials are part of the “whole record” and that a

privilege log is required if they are not included in the

AR. It also contends that all documents in the 2016 AR

should be in the AR for this case.

A.

No previous Ninth Circuit opinion addresses

whether deliberative materials are part of the “whole

record.” District courts in this Circuit are split on the

issue. See Save the Colorado v. U.S. Dep’t of the Interior,

517 F. Supp. 3d 890, 896–97 (D. Ariz. 2021) (collecting

cases). The District of Columbia Circuit, however, has

held that deliberative materials are generally not part of

the AR absent impropriety or bad faith by the agency.

See Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir.

2019). We agree.

Our holding rests on two well-settled principles

governing judicial review of agency action under the

APA. First, “the whole record,” 5 U.S.C. § 706, is

ordinarily “the record the agency presents,” Fla. Power

& Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985).

“[L]ike other official agency actions, an agency’s

statement of what is in the record is subject to a

presumption of regularity.” Goffney v. Becerra, 995 F.3d

737, 748 (9th Cir. 2021). Thus, barring “clear evidence to

the contrary,” we “presume that an agency properly

designated the Administrative Record.” Id. (cleaned

up).

Second, we assess the lawfulness of agency action

based on the reasons offered by the agency. See Motor

Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 50 (1983). Deliberative

12a

documents, which are prepared to aid the decisionmaker in arriving at a decision, are ordinarily not

relevant to that analysis. 4 See Oceana, 920 F.3d at 865;

see also Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 420 (1971) (“[I]nquiry into the mental

processes of administrative decisionmakers is usually to

be avoided.”), abrogated on other grounds by Califano v.

Sanders, 430 U.S. 99, 105 (1977); Morgan v. United

States, 304 U.S. 1, 18 (1938) (noting it is “not the function

of the court to probe the mental processes of the

Secretary in reaching his conclusions”).

Because

deliberative materials are “not part of the

administrative record to begin with,” they are “not

required to be placed on a privilege log.” Oceana, 920

F.3d at 865 (cleaned up). But whether materials are in

fact deliberative is subject to judicial review, and in

appropriate circumstances district courts may order a

privilege log to aid in that analysis. For example, we

agree with the D.C. Circuit that “a showing of bad faith

or improper behavior” might justify production of a

privilege log to allow the district to determine whether

excluded documents are actually deliberative. Id.; see

4

“[T]he deliberative process privilege shields from disclosure

documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental

decisions and policies are formulated.” United States Fish and

Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 267 (2021) (cleaned

up); see also F.T.C. v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161

(9th Cir. 1984) (same). The privilege does not apply, however, to

any factual information upon which the agency has relied. In re

United States, 875 F.3d 1200, 1211-12 (9th Cir. 2017) (Watford, J.,

dissenting) (citing Portland Audubon Soc’y v. Endangered Species

Comm., 984 F.2d 1534, 1548 (9th Cir. 1993)).

13a

also In re United States, 875 F.3d 1200, 1211–12 (9th Cir.

2017) (Watford, J., dissenting) (discussing potential

circumstances justifying expansion of the AR), vacated,

138 S. Ct. 443, 445 (2017).

But, BMBP does not assert any misconduct by the

Service, nor does it contend that specific documents

were improperly classified as deliberative. Although we

leave for another day a detailed exploration of the

precise circumstances under which a district court can

order the production of a privilege log, the court here did

not abuse its discretion by declining to do so in this case.

B.

BMBP also contends that the documents in the 2016

AR were necessarily before the agency in the 2020

process because the Project is a continuation of the

withdrawn one. In so arguing, BMBP cites statements

by the Service suggesting that the 2020 decision relied

on an “additional” NEPA analysis, a District Ranger’s

description of that analysis as a “continuation of the

Walton Lake Restoration analysis and documentation,”

and the Service’s reliance on a 2015 Forest Health

Report before the district court and an appellate

motions panel.

BMBP’s arguments, however, fail to overcome the

presumption of regularity. See Goffney, 995 F.3d at 748.

The 2020 decision notice expressly stated that “[t]he

Forest Service began the NEPA process again in 2019

with a scoping letter dated August 7, 2019.” The phrase

“additional analysis” is not inconsistent with preparing a

new AR to support a new NEPA analysis. Nor do the

views of a single Service employee necessarily reflect

14a

those of the agency or its ultimate decision-maker. See

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551

U.S. 644, 659 (2007). The record also supports the

Service’s contention that it included only documents

from previous NEPA analyses that were considered in

the 2020 decision. For example, the Service did not cite

the 2015 Forest Health Report in its 2020 decision,

relying instead on a new 2019 Forest Health Report.

And, the Service’s citations to the 2015 Report in prior

court proceedings did not involve the validity of the 2020

decision but rather a separate 2017 decision to close

sections of the recreation site because of safety concerns.

We place a thumb on the scale against

supplementation of the AR, see Goffney, 995 F.3d at 747–

48, and BMBP has not demonstrated how the inclusion

of “over two thousand pages that the Service had

included in the 2016 AR,” would “identify and plug holes

in the administrative record,” Fence Creek Cattle Co. v.

U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010)

(cleaned up). Because BMBP “has not met its heavy

burden to show that the additional materials sought are

necessary to adequately review the Forest Service’s

decision,” id., the district court acted within its

discretion in denying the motion to supplement the AR.

II.

We next address whether the Service violated

NEPA by approving the Project. NEPA imposes “a set

of action-forcing procedures that require that agencies

take a hard look at [the] environmental consequences” of

their actions. Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350 (1989) (cleaned up).

“Although these procedures are almost certain to affect

15a

the agency’s substantive decision, . . . NEPA itself does

not mandate particular results, but simply prescribes

the necessary process.” Id.

A.

The Council on Environmental Quality (“CEQ”)

issues regulations to guide agencies in determining what

actions are subject to NEPA requirements. See 40

C.F.R. § 1500.3. 5 Those regulations prohibit an agency

from “commit[ting] resources prejudicing selection of

alternatives” or taking actions that would “[l]imit the

choice of reasonable alternatives.” Id. §§ 1502.2(f),

1506.1(a)(2). BMBP contends that the logging contract

with T2 violated these regulations. The parties dispute

whether an improper commitment of resources must be

“irreversible and irretrievable,” Metcalf v. Daley, 214

F.3d 1135, 1143 (9th Cir. 2000) (cleaned up), or something

less. We need not decide that issue, however, because

BMBP has failed to establish that the contract

improperly committed resources under any standard.

Under the contract, T2 will receive $78,262 to

remove non-commercial timber and about $36,000 worth

of harvested commercial timber. Critically, the Service

reserved the right to “terminate this contract, or any

part hereof, for its sole convenience,” at which point T2

“shall immediately stop all work.” 48 C.F.R. § 52.2124(l); see WildWest Inst. v. Bull, 547 F.3d 1162, 1169 (9th

Cir. 2008) (stressing that the Service “clearly retained

the authority to change course or to alter the plan it was

5

Unless otherwise indicated, all citations are to the 2019 version of

the Code of Federal Regulations.

16a

considering implementing”); see also Nat’l Audubon

Soc’y v. Dep’t of the Navy, 422 F.3d 174, 206 (4th Cir.

2005) (holding that preparatory activities did not violate

NEPA in part because that they did not “include cutting

even a single blade of grass in preparation for

construction”). T2 has not conducted any logging under

the contract because the Service has not issued a notice

to proceed. And, given the district court’s preliminary

injunction against logging, which has been stayed

pending appeal, no logging can occur until this case is

resolved. See supra note 2. Nor has the Service made

any payments to T2.

There is also no evidence that the agency “merely

engaged” in “post hoc rationalization” in the 2020

decision. Nat’l Audubon Soc’y, 422 F.3d at 199. BMBP

argues that an internal email by a Service employee

suggests that termination of the contract would cost the

Service appropriated dollars and prevent funding of a

new project. But, another Service employee explained

in the same email chain that any future work under the

contract “must adhere to what is in the new NEPA

decision” and that pending the outcome of that decision,

the Service might need to “terminate[ ] and resolicit[ ]”

the contract.

Rather than rely on “the alleged subjective intent of

agency personnel divined through selective quotations

from email trails,” we “look to . . . the environmental

analysis itself.” Id. The EA contains no indication that

the T2 contract prejudiced or limited the consideration

of alternatives. After analyzing the effects of no action

and several alternatives that reduced or eliminated

commercial logging, the Service chose the Project

17a

because it “best meets the Purpose and Need of Action,”

would “better meet the management objectives of the

area,” and “provides the best opportunity for long-term

public enjoyment of this area.” The Service also stated

that it “considered all reasonable alternatives and would

not be limited in choice because the final service

agreement or other tool of implementation would be

written to align with the final decision.”

B.

NEPA mandates an EIS for “major Federal actions

significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(C). An agency need not,

however, prepare an EIS if it prepares an EA that

“briefly presents the reasons why the proposed agency

action will not have a significant impact on the human

environment.” Dep’t of Transp. v. Pub. Citizen, 541 U.S.

752, 757–58 (2004). Significance depends on an action’s

“context” and “intensity.”

40 C.F.R. § 1508.27.

“Although . . . review under the arbitrary and capricious

standard is deferential,” an agency’s finding of no

significant impact is arbitrary or capricious if the

petitioner has raised “substantial questions whether a

project may have a significant effect on the

environment.” Blue Mountains Biodiversity Project v.

Blackwood, 161 F.3d 1208, 1212–14, 1216 (9th Cir. 1998)

(cleaned up).

1.

“Context simply delimits the scope of the agency’s

action, including the interests affected.” In Defense of

Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1068

(9th Cir. 2014) (cleaned up); see 40 C.F.R. § 1508.27(a)

18a

(listing potential contexts). Although the agency should

be mindful “that use of a larger analysis area can dilute

the apparent magnitude of environmental impacts,”

“[i]dentifying the appropriate geographic scope is a task

assigned to the special competency of the appropriate

agency.” Friends of the Wild Swan v. Weber, 767 F.3d

936, 943 (9th Cir. 2014) (cleaned up).

BMBP contends that the EA diluted the significance

of some impacts by analyzing them on too large a scale.

However, “[a]lthough 40 C.F.R. § 1508.27(a) suggests

that site-specific actions are generally evaluated in the

context of a project locale, nothing in the regulation

prohibits the [Service] from exercising its discretion to

apply a [larger] analysis when appropriate.” Tri-Valley

CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1127 (9th

Cir. 2012). And BMBP has not shown why the choice of

a broader context in the challenged instances was

arbitrary or capricious. See Ctr. for Cmty. Action &

Env’t Just. v. FAA, 18 F.4th 592, 599 (9th Cir. 2021)

(noting that the petitioner bears the burden of

persuasion); cf. Anderson v. Evans, 371 F.3d 475, 489–92

(9th Cir. 2004) (explaining why the local context was

especially relevant for assessing whether the project’s

effects would be controversial).

Indeed, BMBP concedes in its briefing that the 2020

decision “acknowledges the highly-localized nature of

the Project’s effects” and that the EA contains a

“disclosure of local impacts.” The Service extensively

analyzed various local impacts—including those on

scenic integrity, on late and old structure stands, and on

threatened and endangered species. And, the EA

explained why it chose certain broader contexts for

19a

analysis in other instances. The record fails to establish

that the agency’s decisions about context were

“arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A).

2.

Intensity “refers to the severity of impact” within

the selected context. 40 C.F.R. § 1508.27(b). The

regulations list ten non-exhaustive relevant factors for

consideration, including the “[u]nique characteristics of

the geographic area”; the “degree to which the

effects . . . are likely to be highly controversial”; the

“degree to which the action may establish a precedent

for future actions with significant effects”; and whether

the action “threatens a violation of Federal, State, or

local law or requirements imposed for the protection of

the environment.” Id. Whether the factors are assessed

individually or cumulatively, the record does not

establish a “clear error of judgment” in the Service’s

intensity findings.

Blue Mountains Biodiversity

Project, 161 F.3d at 1211 (cleaned up).

Although the EA described Walton Lake as “unique”

because it boasts a high number of visitors and is “the

only Developed Recreation Management Area that has

a lake with the combination of moist mixed conifer and

dry mixed conifer forest surrounding it,” the Service

reasonably found that the Project would affect neither

the lake itself, nor “the diversity of tree species in the

project area around Walton Lake.” The Service also

reasonably concluded that the Project “would not

substantially affect the use of the area as a recreation

site” because the infested area was already closed to

20a

recreational uses for safety reasons. And BMBP does

not challenge the Service’s conclusion that the Project

would not affect any of the “unique” characteristics

listed in the regulation. See 40 C.F.R. § 1508.27(b)(3).

The record also does not suggest that the Project is

highly controversial. See id. § 1508.27(b)(4). “A project

is highly controversial if there is a substantial dispute

about the size, nature, or effect of the major Federal

action,” which “exists when evidence . . . casts serious

doubt upon the reasonableness of an agency’s

conclusions.” WildEarth Guardians v. Provencio, 923

F.3d 655, 673 (9th Cir. 2019) (cleaned up). But, a project

is not rendered highly controversial simply because

“qualified experts disagree.” Greenpeace Action v.

Franklin, 14 F.3d 1324, 1335 (9th Cir. 1992). Rather,

“[w]hen specialists express conflicting views, an agency

must have discretion to rely on the reasonable opinions

of its own qualified experts.” Marsh v. Or. Nat. Res.

Council, 490 U.S. 360, 378 (1989).

The Service concluded that the Project was not

highly controversial because its potential effects were

well-established or supported by the best available

science. Citing a range of research, the Service found

“no evidence that the proposed treatments would

exacerbate” laminated root rot. It also decided against

stump removal because of “soil disturbance” and “the

high cost of removing stumps.”

The scientific studies cited by BMBP do not render

these findings arbitrary or capricious.

One

acknowledges that “an appropriate strategy” is “based

on several factors”; another expresses some skepticism

about sanitation harvesting but also notes the potential

21a

effectiveness of “spacing trees through thinning, by

removing stumps, or by planting and managing resistant

and immune trees species”; and a third does not discuss

sanitation harvesting at all. Although BMBP also cites

Dr. Chad Hanson’s opinion that logging would “likely

increase [laminated root rot] occurrence,” the Service

reviewed that opinion but ultimately concluded that the

overall evidence weighed against its conclusions. One

negative comment does not establish high controversy.

See Native Ecosystems Council v. U.S. Forest Serv., 428

F.3d 1233, 1243–44 (9th Cir. 2005).

It was also reasonable for the Service to conclude

that the Project is unlikely to establish a precedent for

future actions. See 40 C.F.R. § 1508.27(b)(6). The

Service explained that “no other known Developed

Recreation Management Areas . . . have a laminated root

rot problem on the Ochoco National Forest.” The

Service found that the Project is “site-specific” and “any

future decision would need to go through the NEPA

process.” Even if other sites might one day develop

similar infestation issues, that does not necessarily make

this Project precedential, “especially since any other

[project] would be subject to its own NEPA analysis.”

WildEarth Guardians, 923 F.3d at 674.

The Service’s decision also reasonably accounted for

federal, state, and local laws.

See 40 C.F.R.

§ 1508.27(b)(10). Although forest plan amendments that

“may create a significant environmental effect” require

an EIS, there is an exception for “every plan amendment

. . . that applies only to one project or activity.” 36 C.F.R.

§ 219.13(b)(3). The amendments to the Ochoco National

Forest Plan at issue are each related to one project.

22a

CONCLUSION

We AFFIRM the judgment of the district court and

lift our previous stay of its order dissolving the

preliminary injunction.

BERZON, Circuit Judge, with whom WARDLAW,

PAEZ, and KOH, Circuit Judges, join, respecting the

denial of rehearing en banc:

The panel’s holding in this case permits government

agencies to sanitize the record available to reviewing

courts, thereby severely curtailing meaningful judicial

review of administrative action. I respectfully disagree

with this court’s refusal to reconsider the panel opinion

en banc.

The Administrative Procedure Act (“APA”)

mandates that, when considering challenges to the

lawfulness of agency action, “the court shall review the

whole record or those parts of it cited by a party.” 5

U.S.C. § 706. This court has long held that the “whole

record” consists of all documents and materials

considered by the agency before making its decision. See

Portland Audubon Soc’y v. Endangered Species Comm.,

984 F.2d 1534, 1548 (9th Cir. 1993); Thompson v. U.S.

Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989); see also,

e.g., Goffney v. Becerra, 995 F.3d 737, 747 (9th Cir. 2021)

(citing Portland Audubon Soc’y, 984 F.2d at 1548); Pac.

Choice Seafood Co. v. Ross, 976 F.3d 932, 942 (9th Cir.

2020) (same).

In keeping with our precedents, the Supreme Court

has never “limit[ed] the ‘full administrative record’ to

23a

those materials that the agency unilaterally decides

should be considered by the reviewing court.” In re

United States, 583 U.S. 1029, 138 S. Ct. 371, 372 (2017)

(Breyer, J., dissenting from the grant of a stay).

“[J]udicial review cannot function if the agency is

permitted to decide unilaterally what documents it

submits to the reviewing court as the administrative

record.” Id. That is because “[e]ffective review depends

upon the administrative record containing all relevant

materials presented to the agency, including not only

materials supportive of the government’s decision but

also materials contrary to the government’s decision.”

Id. 1

In conflict with our case law, the decision here holds

that materials protected by the deliberative process

privilege are not part of the “whole record” for purposes

of judicial review under the APA. Blue Mountains

Biodiversity Project v. Jeffries, 72 F.4th 991, 996–97 (9th

Cir. 2023). The deliberative process privilege applies to

“documents

that

reflect

advisory

opinions,

recommendations and deliberations comprising part of a

process by which government decisions and policies are

formulated,” but does not protect “[p]urely factual

material.” F.T.C. v. Warner Commc’ns Inc., 742 F.2d

1156, 1161 (9th Cir. 1984).

According to the panel opinion, because deliberative

documents are—says the panel—not part of the “whole

1

As I explain later, although in dissent as to the stay, Justice Breyer

later joined the unanimous merits opinion in In re United States, 583

U.S. 29, 31–32 (2017) (per curiam), which was consistent with the

analysis in his stay dissent. See infra at Part I.

24a

record,” the government ordinarily need not prepare a

privilege log indicating the basis for excluding

“deliberative” documents as privileged.

Blue

Mountains, 72 F.4th at 997. Under the opinion, absent

a showing of bad faith or impropriety (or perhaps some

other exception, not articulated), the government may

routinely and unilaterally withhold all documents it

deems “deliberative” without providing any account to

the court or the litigants of the basis for excluding those

documents. That holding is not only wrong but is likely

to reduce APA review in many instances to a charade.

I.

In In re United States, the federal government

advanced in the Supreme Court the same position taken

by the opinion in this case: that review of agency

decisions under the APA “must be based exclusively on

the documents that the Government itself unilaterally

selected for submission to the District Court.” In re

U.S., 138 S. Ct. at 372 (Breyer, J., dissenting from the

grant of a stay). The district court in In re United States

had determined that the record designated by the

government was incomplete, and so ordered the

government to complete the administrative record and

produce a privilege log. See Regents of Univ. of

California v. U.S. Dep’t of Homeland Sec., No. C 1705211 WHA, 2017 WL 4642324, *7–8 (N.D. Cal. Oct. 17,

2017). After we upheld the district court’s decision on

mandamus review, In re United States, 875 F.3d 1200

(9th Cir. 2017), the government sought review in the

Supreme Court. The Supreme Court granted a stay to

consider the government’s mandamus request. In re

U.S., 138 S. Ct. at 371. Joined by three justices in dissent

25a

from the grant of the stay Justice Breyer maintained

that the Supreme Court has never held that the “whole

record” in APA cases is whatever documents the

government

unilaterally

designates

as

the

administrative record. In re U.S., 138 S. Ct. at 372.

The Supreme Court subsequently granted certiorari

and issued a unanimous opinion in In re United States.

583 U.S. 29 (2017) (per curiam). That opinion allowed the

district court’s order to remain in place and declined to

adopt the government’s view of its unilateral power to

designate the administrative record. Id. at 31–32.

More specifically, the Court in In re United States

held that the district court should have first resolved

two threshold jurisdictional arguments that “if accepted,

likely would eliminate the need for the District Court to

examine a complete administrative record.” Id. at 31–

32. But the Court did not disapprove the district court’s

order directing the government to complete the

administrative record and produce a privilege log. See

id. at 32. Instead, the Court explained that if the

threshold arguments were resolved in favor of the

district court’s jurisdiction, then the district court “may

consider whether narrower amendments to the record

are necessary and appropriate.” Id. The Supreme Court

further indicated that the district court could potentially

“compel the Government to disclose [] document[s] that

the Government believes is privileged” so long as the

court “first provid[es] the Government with the

opportunity to argue the issue.” Id.

In other words, consistent with Justice Breyer’s

earlier dissent from the stay order, the Supreme Court’s

unanimous opinion made clear that the district court had

26a

power either to maintain its existing order for

completion of the administrative record and production

of a privilege log, or to “narrow[]” it, as long as the

government had a chance to litigate the question of

privilege. Id. The Supreme Court’s merits opinion did

not hold—as did the panel opinion in this case—that the

district court was precluded from expanding the record

at all, absent a showing of some unusual circumstance, or

that the agency could decide for itself which material

was deliberative.

And Justice Breyer obviously

understood the merits opinion as consistent with the

analysis in his earlier stay dissent—an analysis squarely

contrary to the panel opinion in this case—as he joined

the merits opinion.

II.

In keeping with the view that prevailed in In re

United States, our Circuit has repeatedly held that for

purposes of APA review, “‘[t]he whole record’ includes

everything that was before the agency pertaining to the

merits of its decision.” Portland Audubon Soc’y, 984

F.2d at 1548 (emphasis added). See also, e.g., Pac.

Choice Seafood Co., 976 F.3d at 942 (same); Goffney, 995

F.3d at 747 (same); Thompson, 885 F.2d at 555.

Our requirement that the administrative record be

complete is critical for effective judicial review. In APA

agency review cases, private parties may not introduce

new facts, and discovery is ordinarily not available. As

the Supreme Court has observed, “the focal point for

judicial review” in APA cases “should be the

administrative record already in existence, not some

new record made initially in the reviewing court.” Camp

v. Pitts, 411 U.S. 138, 142 (1973). “[T]he general rule [is]

27a

that agency actions are to be judged on the agency

record alone, without discovery.” Pub. Power Council

v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982).

Our Circuit law is clear that, given that judicial

review is limited to the administrative record, the

administrative record must be complete. “If the record

is not complete, then the requirement that the agency

decision be supported by ‘the record’ becomes almost

meaningless.” Portland Audubon Soc’y, 984 F.2d at

1548; accord In re United States, 138 S. Ct. at 372

(Breyer, J., dissenting from the grant of a stay).

Accordingly, Portland Audubon Society explained that

“a record that does not include all matters on which the

[agency] relied does not constitute the ‘whole record’

required for judicial review,” and “the failure to include

all materials in the record violates the Administrative

Procedure Act.” Id. at 1536–37. Further, “[w]hen it

appears the agency has relied on documents or materials

not included in the record, supplementation is

appropriate.” Id. at 1548.

Thompson similarly held that “[t]he whole

administrative record . . . is not necessarily those

documents that the agency has compiled and submitted

as ‘the’ administrative record.” 885 F.2d at 555; see also

Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.

1993) (“An agency may not unilaterally determine what

constitutes the Administrative Record”). Instead, “[t]he

‘whole’ administrative record . . . consists of all

documents and materials directly or indirectly

considered by agency decision-makers and includes

evidence contrary to the agency’s position.” Thompson,

28a

885 F.2d at 555 (internal quotation marks and citation

omitted).

More recently, in Pacific Choice Seafood Company,

we rejected an argument that in reviewing a National

Marine Fisheries Service decision, we should “examine

only the Service’s [final] decision memoranda while

ignoring” earlier materials, analyses, and reports

produced by a regional fishery management council

during a “years-long deliberative process” that preceded

the Service’s final decision. 976 F.3d at 936, 942.

Emphasizing that the “whole record” includes

“everything that was before the agency,” we noted that

the plaintiff “offer[ed] no authority supporting its

assertion that we should focus exclusively on the

Service’s memoranda from the very end of the

administrative process.” Id. at 942. See also id. at 943

(relying in part on “the extensive discussion of

[applicable] factors presented at each step of the

rulemaking process” in concluding that the agency had

engaged in reasoned decisionmaking).

Consistent with these precedents, we have routinely

reviewed letters, drafts, emails, and other nonfinal

materials in the course of evaluating the lawfulness of

agency action. For example, Barnes v. U.S. Department

of Transportation, 655 F.3d 1124 (9th Cir. 2011),

considered a statement made by a Federal Aviation

Authority (“FAA”) official while commenting on a draft

document related to an environmental assessment of a

new airport runway. Id. at 1133. The government

contended that we should disregard the statement

because it was “made in the early stages of the

administrative process” and “that courts must focus on

29a

the final action by an agency.” Id. We disagreed,

explaining that the Supreme Court has not held that

“such preliminary determinations are irrelevant in any

context . . . or that they may not be considered when

reviewing an agency action.” Id. at 1134. We also

considered “a series of emails in the administrative

record” reflecting concerns raised by FAA employees

about the proposed project. Id. at 1135. See also, e.g.,

Native Village of Point Hope v. Jewell, 740 F.3d 489,

499–501 (9th Cir. 2014) (considering “internal [agency]

emails,” draft tables or charts, and commentary by

agency staff on proposed scenarios); Earth Island

Institute v. Hogarth, 494 F.3d 757, 768–69 (9th Cir. 2007)

(relying on an administrative record that included

“internal memoranda” as well as draft “talking points”).

The holding here that the “whole record” does not

include deliberative material cannot be reconciled with

these precedents. Under our case law, drafts and other

non-final documents may properly be reviewed by the

court as part of the “whole record,” unless the

government justifies its decision to withhold such

documents in a privilege log.

III.

Aside from creating an intracircuit conflict, the

reasons provided in the opinion in support of its holding

on the administrative record issue are seriously flawed.

A.

The opinion “rests” in part on the principle that “an

agency’s statement of what is in the record is subject to

a presumption of regularity.” Blue Mountains, 72 F.4th

at 996–97. But the presumption of regularity is a

30a

presumption that the agency has done what it is

supposed to do; it does not tell us what the agency is

supposed to do. More specifically, the presumption does

not describe the breadth of the record that should be

produced and so does not explain to what the

presumption attaches. That is, if the legal rule is that

the record is everything that was before the agency (as

our precedents have long held), then we can presume—

but not conclusively—that what is presented was

everything before the agency. So the presumption has

nothing to do with what is actually in an appropriate

administrative record in the first instance.

B.

The opinion also reasons that “[d]eliberative

documents, which are prepared to aid the decisionmaker in arriving at a decision, are ordinarily not

relevant” to judicial review of the lawfulness of agency

action. Blue Mountains, 72 F.4th at 997. In support of

this proposition, the opinion relies on Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420

(1971), abrogated on other grounds by Califano v.

Sanders, 430 U.S. 99, 105 (1977), and Morgan v. United

States, 304 U.S. 1, 18 (1938). See Blue Mountains, 72

F.4th at 997. Neither case supports the panel’s

conclusion.

Overton Park involved a challenge to the Secretary

of Transportation’s decision to authorize the

construction of a highway through a public park. 401

U.S. at 406. In announcing his decision, the Secretary

made no formal findings. 401 U.S. at 407–08. The

Supreme Court explained that judicial “review is to be

based on the full administrative record that was before

31a

the Secretary at the time he made his decision.” Id. at

420. But because of the inadequacy of the existing

record in that case, the Court held that post-decisional

fact development was perhaps necessary for effective

judicial review:

The court may require the administrative officials

who participated in the decision to give testimony

explaining their action. Of course, such inquiry

into the mental processes of administrative

decisionmakers is usually to be avoided. . . . And

where there are administrative findings that

were made at the same time as the decision, . . .

there must be a strong showing of bad faith or

improper behavior before such inquiry may be

made. But here there are no such formal findings

and it may be that the only way there can be

effective judicial review is by examining the

decisionmakers themselves.

Id. (emphasis added) (citing United States v. Morgan,

313 U.S. 409, 422 (1941) (hereinafter Morgan II)).

Similarly, in Morgan, after the district court received

testimony from the Secretary of Agriculture about his

decisional process, the Supreme Court observed that “it

was not the function of the court to probe the mental

processes of the Secretary in reaching his conclusions if

he gave the hearing which the law required.” 304 U.S.

at 14, 18; see also Morgan II, 313 U.S. at 422. 2

2

The Supreme Court in Morgan, a case concerning an adjudicative

proceeding, reversed the district court’s decision because the

plaintiffs were not provided with sufficient information about the

32a

Thus, both cases concern the propriety of postdecisional testimony of administrative decisionmakers,

which obviously was not part of the administrative

record because it did not exist at the time the agency

made its decision. See In re United States, 138 S. Ct. at

373 (Breyer, J., dissenting from the grant of a stay).

“Probing a decisionmaker’s subjective mental

reasoning—what was at issue in Morgan and Overton

Park—is distinct from the ordinary judicial task of

evaluating whether the decision itself was objectively

valid, considering all of the materials before the

decisionmaker at the time he made the decision.” Id.

Neither Morgan or Overton Park concerns the scope of

the administrative record reviewed under the APA or

supports the conclusion that deliberative documents

actually before the agency when reaching its decision

are not part of the administrative record. Nor do they

concern the circumstances warranting a privilege log.

C.

The opinion also heavily relies on the D.C. Circuit’s

decision in Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir.

2019). Blue Mountains, 72 F.4th at 996–97. Oceana, in

turn, relied on In re Subpoena Duces Tecum Served on

Off. of Comptroller of Currency, 156 F.3d 1279, 1279–80

(D.C. Cir. 1998) (opinion on petition for rehearing). And

In re Subpoena Duces Tecum relied on Morgan, Overton

Park, and Camp in concluding that “[a]gency

deliberations not part of the record are deemed

immaterial.” Id. at 1279–80 (emphasis added). That

government’s position to satisfy the requirement of a full and fair

hearing. Morgan, 304 U.S. at 18–19, 22.

33a

statement indicates that agency deliberations can be

“part of the record,” and says nothing about the

treatment of agency deliberations that are part of the

record.

Yet, Oceana seized on this statement—which like the

Supreme Court cases the panel opinion in this case cites,

references

extra-record

discovery

into

the

decisionmaker’s subjective motivations—to conclude

that deliberative documents that were before the agency

are not part of the administrative record. See 920 F.3d

at 865 (citing In re Subpoena Duces Tecum, 156 F.3d at

1279, 1280). As far as I can tell, no other Circuit has

adopted the D.C. Circuit’s wrongheaded approach.

Moreover, as discussed, Oceana’s conclusion conflicts

with our Circuit’s controlling precedents.

Oceana also asserts that “[b]ecause predecisional

documents are ‘immaterial,’ they are not ‘discoverable.’”

920 F.3d at 865 (citation omitted). But the concept of

discoverability has no bearing on the meaning of the

“whole record” for APA cases. Again, discovery is

ordinarily not available in APA review cases. See supra

at Part II. As the “whole record” is not determined

through discovery, the discovery-related concept of

“relevan[ce],” see Fed. R. Civ. Proc. 26(b)(1), is not

helpful for purposes of defining the “whole record.”

Instead, as our case law reflects, the “whole record”

consists of everything that was “directly or indirectly

considered” by the agency. Thompson, 885 F.2d at 555

(emphasis and quotation marks omitted).

34a

IV.

In other key respects as well, the decision in this case

is damaging to judicial review of agency action. The

opinion sets a new baseline in which the government

need not justify its claims of privilege except in limited

circumstances, as yet unexplained. Without a privilege

log, however, governmental mistakes or misconduct are

unlikely to come to light. The panel’s holding also

creates a tension with Freedom of Information Act

(“FOIA”) case law, which requires the government to

supply a privilege log to justify withholding of

documents claimed to be deliberative. And the decision

fails to acknowledge that deliberative materials are

central in cases in which the decisionmaker’s subjective

intent is properly at issue. See, e.g. Dep’t of Com. v. New

York, 139 S. Ct. 2551, 2573–74 (2019).

A.

Although the opinion purports to “leave for another

day a detailed exploration of the precise circumstances

under which a district court can order the production of

a privilege log,” it concludes that the district court

properly declined to order a privilege log here because

Blue Mountains Biodiversity Project “does not assert

any misconduct by the Service, nor does it contend that

specific documents were improperly classified as

deliberative.” Blue Mountains, 72 F.4th at 997.

Absent a privilege log, it is very unlikely—absent

public announcements or a leak by government

officials—that litigants will be able to point to “specific”

documents improperly excluded.

The reason is

obvious—they will be unaware that such documents

35a

exist. See, e.g., Inland Empire-Immigrant Youth

Collective v. Nielsen, No. EDCV 17-2048 PSG SHKx,

2019 WL 13240629, at *6 (C.D. Cal. Apr. 8, 2019) (“[I]t

would be very difficult, if not impossible, for an APA

plaintiff to challenge a claim of deliberative process

privilege or to make the required showing of need

necessary to overcome the privilege without at least

some description of the document over which privilege

is asserted.”); Sierra Club v. Zinke, No. 17-CV-07187WHO, 2018 WL 3126401, at *5 (N.D. Cal. June 26, 2018)

(“The only way to know if privilege applies is to review

the deliberative documents in a privilege log.”).

Importantly, agencies may inadvertently omit

material from the administrative record without acting

in bad faith. In Bartell Ranch LLC v. McCullough, No.

3:21-CV-00080-MMD-CLB, 2022 WL 2093053, at *3 (D.

Nev. June 10, 2022), for example, the Bureau of Land

Management had a practice of assuming that only the

documents that individual agency staff had added to a

case file as they were generated should be produced as

the record, and that all documents not added to the case

file were deliberative. Id. As a result of that practice,

neither the agency nor its counsel looked outside the

case file for record documents, nor did they make any

individualized determinations about whether the six to

eight thousand emails they excluded were actually

deliberative. Id. Had the court not ordered the agency

to provide a privilege log, the agency’s error would

never have come to light. Id.

An agency may also make a legal error in

determining which documents to exclude, such as when

it applies an incorrect legal standard when compiling the

36a

record. See, e.g., Inland Empire-Immigrant Youth

Collective, 2019 WL 13240629, at *4 (recognizing that

“[t]he application of an incorrect standard” provides

reason to believe the record produced by the agency is

incomplete) (quotation marks and citation omitted). The

possibility that the agency may apply an incorrect legal

standard in excluding deliberative material from the

administrative record is far from theoretical. Without

the understanding that the “whole record” includes

deliberative material and may require a privilege log

identifying such material, errors of this kind will remain

hidden from the litigants and the court, and the outcome

of the case could well be affected.

For these reasons, if the government wishes to

exclude from the record material before the agency as

deliberative, it should have to identify those specific

documents and justify their exclusion in a log provided

to the court.

B.

The process just described is the one we have long

followed in cases under another provision of the APA—

the Freedom of Information Act—when the government

claims that deliberative material is exempt from

disclosure. There is no reason the process should be

different here.

“The statute known as the FOIA is actually a part of

the Administrative Procedure Act (APA).” U.S. Dep’t

of Just. v. Reps. Comm. For Freedom of Press, 489 U.S.

749, 754 (1989). FOIA Exemption 5 permits the

government to avoid disclosure of “inter-agency or

intra-agency memorandums or letters that would not be

37a

available by law to a party other than an agency in

litigation with the agency.” 5 U.S.C. § 552(b)(5). This

exemption “allows agencies to withhold privileged

information, including documents revealing an agency’s

deliberative process.” Transgender L. Ctr. v. Immigr. &

Customs Enf’t, 46 F.4th 771, 782 (9th Cir. 2022).

Under FOIA, the government has the burden of

demonstrating that a claimed privilege applies. See id.

at 781; 5 U.S.C. § 552(a)(4)(B). “[O]ur caselaw . . .

demands a careful document-by-document review” to

determine whether the agency has met its burden to

show that the deliberative process privilege applies.

Transgender L. Ctr., 46 F.4th at 786. To aid the court’s

determination, government agencies seeking to avoid

disclosure of public records must submit a “Vaughn

index,” which “‘identif[ies] the documents withheld, the

FOIA exemptions claimed, and a particularized

explanation of why each document falls within the

claimed exemption.’” Id. at 781 (quoting Lahr v. Nat’l

Transp. Safety Bd., 569 F.3d 964, 989 (9th Cir. 2009)); see

Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973).

“[T]he purpose of the index is . . . to afford the requester

an opportunity to intelligently advocate release of the

withheld documents and to afford the court an

opportunity to intelligently judge the contest.”

Transgender L. Ctr., 46 F.4th at 782 (quotation marks

and citation omitted).

In FOIA cases, the deliberative process privilege is

not absolute. Instead, “[w]e have held that ‘[a] litigant

may obtain deliberative materials if his or her need for

the materials and the need for accurate fact-finding

override the government’s interest in non-disclosure.’”

38a

Karnoski, 926 F.3d at 1206 (quoting Warner, 742 F.2d at

1161); see also 5 U.S.C. § 552(a)(8)(A)(i)(I). There is no

basis in the APA for providing litigants challenging

agency action with less access to public documents than

is available to interested members of the public under

FOIA. Notably, APA review requires consideration of

the “whole record,” with no express exceptions, 5 U.S.C.

§ 706, whereas FOIA includes several express

exemptions to public access, 5 U.S.C. § 552(b).

The incongruity between FOIA and the APA, 5

U.S.C. § 706, created by the panel’s decision is seriously

inefficient for litigants, agencies, and the courts. To

obtain access to the complete administrative record or

identify what documents may exist, litigants seeking to

challenge agency action will first have to file FOIA

requests and then litigate the agency’s decision to claim

a FOIA exemption, potentially running into statute of

limitations problems for the APA action while the FOIA

process inches forward. Agencies will have to respond

to and litigate those FOIA requests. And the courts will

have to resolve both FOIA claims and APA challenges.

C.

Finally, but importantly, an agency’s subjective

motivations sometimes are critical in APA cases. In

cases in which the legal claim places the agency’s

subjective intent directly at issue—such as a claim that

plausibly alleges that the decisionmaker’s intent was

discriminatory or retaliatory—deliberative materials

actually considered will be central to judicial review.

Such materials can be identified only if included in the

whole record and, if appropriate, a privilege log.

39a

The opinion does not except such cases from the rule

it establishes about the limited scope of the

administrative record. Yet the D.C. Circuit’s decision In

re Subpoena Duces Tecum, relied on by Oceana, held

that in cases that “directly call into question the agency’s

subjective intent,” the subjective motivation of the

decisionmakers is at issue, and the deliberative process

privilege is inapplicable. See 156 F.3d at 1280; see also

In re Subpoena Duces Tecum Served on Off. of

Comptroller of Currency, 145 F.3d 1422, 1424 (D.C.

Cir.), on reh’g, 156 F.3d 1279 (D.C. Cir. 1998).

Department of Commerce likewise reflects that

inquiry into an administrative agency’s mental

processes is permitted where the decisionmakers’

motives are at issue. There, the Supreme Court held

that inquiry into a decisionmaker’s “mental processes”

was appropriate where there was evidence in the

administrative record that the Secretary of Commerce’s

stated reasons for his decision were pretextual. 139 S.

Ct. at 2573–74. Department of Commerce reflects that

the decisionmaker’s subjective motivations are at issue

when the claim is that the agency’s stated reasons for its

decision were “contrived.” See id. at 2575–76. It follows

that when such claims are alleged, deliberative

documents are directly on point and, for that reason as

well as those generally applicable, may not be excluded

from the administrative record.

The holding in this case that “deliberative materials

are ‘not part of the administrative record to begin with,’”

and that only “the reasons offered by the agency”

matter, Blue Mountains, 72 F.4th at 997, contains no

recognition that this rule would fatally undermine cases

40a

in which the basis for the challenge to the agency’s

decision is that there were other reasons, not expressed

in the official explanation of the agency’s decision, that

were actually determinative. The recognition that there

may be unspecified circumstances in which challengers

may be able to come forward with evidence of bad faith

or impropriety and then have access to deliberative

material does not fill that gap. Without access to the

“whole record,” including a privilege log of assertedly

deliberative material, the only way to begin to make a

showing of illicit motivation or pretext would be through

public statements by decisionmakers or leaks from

government insiders.

***

In sum, if government agencies wish to withhold

documents in APA cases based on a privilege, they

should have to provide a privilege log with a justification

for each document for which they assert a privilege, as

they must do under our FOIA precedents. Without a

complete record or a privilege log to aid in the

determination of whether the record is complete,

government agencies will have the last word on what

information other litigants and the court may see, and

effective judicial review of government action under the

APA will be severely undermined. Our court should

have heard this case en banc to eliminate this serious

threat to meaningful judicial review of agency action.

41a

Appendix B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BLUE MOUNTAINS

BIODIVERSITY PROJECT, an

Oregon non-profit corporation,

No. 22-35857

D.C. No. 2:20cv-02158-MO

Plaintiff-Appellant,

v.

OPINION

SHANE JEFFRIES, in his official

capacity as Ochoco National Forest

Supervisor; UNITED STATES

FOREST SERVICE, an agency of the

United States Department of

Agriculture,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted March 30, 2023

Seattle, Washington

Filed July 3, 2023

42a

Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,

Circuit Judges, and Dean D. Pregerson, District

Judge.

Opinion by Judge Hurwitz

SUMMARY

Environmental Law

The panel affirmed the district court’s summary

judgment in favor of the U.S. Forest Service in an action

brought by Blue Mountains Biodiversity Project

(“BMBP”) alleging that the Service’s approval of the

Walton Lake Restoration Project violated the National

Environmental Policy Act (“NEPA”), the National

Forest Management Act, and the Administrative

Procedure Act.

The Forest Service developed the Project to replace

trees infested with laminated root rot and bark beetles

with disease-resistant ones. In May 2016, the Service

contracted with T2, a private company, for logging to

implement the decision. The Service issued a revised

Environmental Assessment (“EA”) in July 2020 and a

revised decision notice in December 2020. BMBP filed

this action challenging the 2020 decision notice. The

Service filed an administrative record (“AR”) in 2021.

The Honorable Dean D. Pregerson, United States District Judge

for the Central District of California, sitting by designation.

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

43a

The panel first addressed BMBP’s argument that the

AR was incomplete.

First, BMBP argued that

deliberative materials were part of the “whole record”

and that a privilege log was required if they were not

included in the AR. The panel held that deliberative

materials are generally not part of the AR absent

impropriety or bad faith by the agency. Because

deliberative materials are not part of the administrative

record to begin with, they are not required to be placed

on a privilege log. The district court did not abuse its

discretion by declining to order the production of a

privilege log. Second, BMBP argued that all documents

in the 2016 AR should be in the AR for this case. BMBP

contended that the documents in the 2016 AR were

necessarily before the agency in the 2020 process

because the Project was a continuation of the withdrawn

one. The panel held that BMBP’s arguments failed to

overcome the presumption of regularity. The 2020

decision notice expressly stated that the Forest Service

began the NEPA process again in 2019. The record also

supported the Service’s contention that it included only

documents from previous NEPA analyses that were

considered in the 2020 decision. The panel concluded

that the district court acted within its discretion in

denying the motion to supplement the AR.

The panel next addressed whether the Service

violated NEPA by approving the Project. First, the

panel held that BMBP failed to establish that the logging

contract with T2 improperly committed resources under

any standard. There is also no evidence that the agency

merely engaged in post hoc rationalization in the 2020

decision. Second, the panel rejected BMBP’s contention

that the EA diluted the significance of some impacts by

44a

analyzing them on too large a scale. The BMBP did not

show why the choice of a broader context in the

challenged instances was arbitrary or capricious. Also,

the regulations list ten non-exhaustive relevant factors

for consideration. The panel held that whether the

factors were assessed individually or cumulatively, the

record did not establish a clear error of judgment in the

Service’s intensity findings, which “refers to the

severity of impact” within the selected context. 40

C.F.R. § 1508.27(b).

The panel affirmed the judgment of the district court

and lifted the previous stay of its order dissolving the

preliminary injunction.

COUNSEL

Jesse A. Buss (argued) and Bridgett A. Chevallier,

Willamette Law Group PC, Oregon City, Oregon;

Thomas C. Buchele, Earthrise Law Center, Portland,

Oregon; for Plaintiff-Appellant.

Robert P. Stockman (argued), Sean C. Duffy, and Joan

M. Pepin, Attorneys; Todd Kim, Assistant Attorney

General; Environment and Natural Resources Division,

United States Department of Justice; Washington, D.C.;

Rick Grisel, Attorney; Rebecca Harrison, Senior

Counsel; Office of the General Counsel; Washington,

D.C.; for Defendants-Appellees.

OPINION

HURWITZ, Circuit Judge:

This case involves claims by the Blue Mountains

Biodiversity Project (“BMBP”) that the approval of the

Walton Lake Restoration Project by the U.S. Forest

45a

Service violated the National Environmental Policy Act,

the National Forest Management Act, and the

Administrative Procedure Act. The district court

granted summary judgment against BMBP on all claims

relevant to this appeal. We affirm.

BACKGROUND

Walton Lake is a 218-acre recreation site in the

Ochoco National Forest in Oregon. The Forest Service

developed the Walton Lake Restoration Project

(“Project”) to replace trees infested with laminated root

rot and bark beetles with disease-resistant ones. In

2015, relying on a regulation that excludes the sanitation

harvest of trees to control disease and insects from some

National Environmental Policy Act (“NEPA”)

requirements, 36 C.F.R. § 220.6(e)(14) (2015), the

Service issued a decision memorandum approving the

Project. In May 2016, the Service contracted with T2, a

private company, for logging to implement that decision.

Although no logging has yet occurred, the T2 contract

remains in place.

BMBP sued, challenging the 2015 decision, and the

district court preliminarily enjoined the logging on

October 18, 2016. The next day, the Service withdrew

its decision “to allow additional analysis of the proposed

activities.” On October 21, 2016, the Service stated that

it would undertake “[a]dditional planning and

analysis . . . with the goal of releasing an Environmental

[Assessment (“EA”)].” 1

1

The district court granted BMBP’s motion to dismiss the 2016 suit

on June 19, 2017.

46a

The Service issued an EA and a decision notice

approving the Project in 2017 but withdrew the decision

notice later that year, citing a need for “additional

dialogue and analysis.” The Service issued a revised EA

in July 2020 and a revised decision notice in December

2020. The revised EA analyzed four alternatives,

including a no-action alternative.

The selected

alternative authorizes thirty-five acres of sanitation

logging and 143 acres of commercial and noncommercial

thinning to reduce the risk of wildfires and bark beetle

infestation. The 2020 decision notice stated that the

Project “provides the best opportunity for long-term

public enjoyment of this area, with fewer risks of falling

trees, and more longevity in the large ponderosa pines

that provide much of the scenic quality”; found that

there would be no significant environmental impact; and

made four Project-specific amendments to the Ochoco

National Forest Plan.

BMBP then filed this action challenging the 2020

decision notice. The Service filed an administrative

record (“AR”) in early 2021. A magistrate judge

recommended denial of BMBP’s motion to compel

completion of the AR and declined to order the Service

to produce a privilege log, concluding that certain

documents sought by BMBP were deliberative

materials, and BMBP did not establish that some

documents in the AR filed in response to the 2016 suit

were “before the agency” in its 2020 decision. The

district judge adopted the magistrate judge’s reasoning

and denied the motion, but again preliminarily enjoined

any logging for the Project.

47a

The district court later granted the Service summary

judgment on all but one of BMBP’s claims. It concluded

that the logging contract with T2 was not an

“irreversible and irretrievable commitment” of

resources because it could be unilaterally modified or

terminated. It also held that the Service reasonably

found that the Project would not have a significant

environmental impact and thus reasonably declined to

prepare an environmental impact statement (“EIS”).

The court entered a final judgment and dissolved the

preliminary injunction. 2 BMBP timely appealed, and we

have jurisdiction under 28 U.S.C. § 1291. 3

DISCUSSION

I.

We first address BMBP’s argument that the AR is

incomplete. The Administrative Procedure Act (“APA”)

requires us to “review the whole record,” 5 U.S.C. § 706,

including “all documents and materials directly or

indirectly considered by agency decision-makers,”

Thompson v. U.S. Dep’t of Lab., 885 F.2d 551, 555 (9th

Cir. 1989) (cleaned up). BMBP argues that deliberative

materials are part of the “whole record” and that a

privilege log is required if they are not included in the

AR. It also contends that all documents in the 2016 AR

should be in the AR for this case.

2

The district court stayed its order dissolving the preliminary

injunction, however, pending our decision on a motion for a stay

pending appeal. We granted that stay and expedited this appeal.

3

The Service has not appealed the district court’s grant of summary

judgment to BMBP on one of its NEPA claims.

48a

A.

No previous Ninth Circuit opinion addresses

whether deliberative materials are part of the “whole

record.” District courts in this Circuit are split on the

issue. See Save the Colorado v. U.S. Dep’t of the Interior,

517 F. Supp. 3d 890, 896–97 (D. Ariz. 2021) (collecting

cases). The District of Columbia Circuit, however, has

held that deliberative materials are generally not part of

the AR absent impropriety or bad faith by the agency.

See Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir.

2019). We agree.

Our holding rests on two well-settled principles

governing judicial review of agency action under the

APA. First, “the whole record,” 5 U.S.C. § 706, is

ordinarily “the record the agency presents,” Fla. Power

& Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985).

“[L]ike other official agency actions, an agency’s

statement of what is in the record is subject to a

presumption of regularity.” Goffney v. Becerra, 995 F.3d

737, 748 (9th Cir. 2021). Thus, barring “clear evidence to

the contrary,” we “presume that an agency properly

designated the Administrative Record.” Id. (cleaned

up).

Second, we assess the lawfulness of agency action

based on the reasons offered by the agency. See Motor

Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 50 (1983). Deliberative

documents, which are prepared to aid the decisionmaker in arriving at a decision, are ordinarily not

relevant to that analysis. See Oceana, 920 F.3d at 865;

see also Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 420 (1971) (“[I]nquiry into the mental

49a

processes of administrative decisionmakers is usually to

be avoided.”), abrogated on other grounds by Califano v.

Sanders, 430 U.S. 99, 105 (1977); Morgan v. United

States, 304 U.S. 1, 18 (1938) (noting it is “not the function

of the court to probe the mental processes of the

Secretary in reaching his conclusions”).

Because

deliberative materials are “not part of the

administrative record to begin with,” they are “not

required to be placed on a privilege log.” Oceana, 920

F.3d at 865 (cleaned up). We agree, however, with the

D.C. Circuit that “a showing of bad faith or improper

behavior” might justify production of a privilege log to

allow the district to determine whether excluded

documents are actually deliberative. Id.; see also In re

United States, 875 F.3d 1200, 1211–12 (9th Cir. 2017)

(Watford, J., dissenting) (discussing potential

circumstances justifying expansion of the AR), vacated,

138 S. Ct. 443, 445 (2017).

But, BMBP does not assert any misconduct by the

Service, nor does it contend that specific documents

were improperly classified as deliberative. Although we

leave for another day a detailed exploration of the

precise circumstances under which a district court can

order the production of a privilege log, the court here did

not abuse its discretion by declining to do so in this case.

B.

BMBP also contends that the documents in the 2016

AR were necessarily before the agency in the 2020

process because the Project is a continuation of the

withdrawn one. In so arguing, BMBP cites statements

by the Service suggesting that the 2020 decision relied

on an “additional” NEPA analysis, a District Ranger’s

50a

description of that analysis as a “continuation of the

Walton Lake Restoration analysis and documentation,”

and the Service’s reliance on a 2015 Forest Health

Report before the district court and an appellate

motions panel.

BMBP’s arguments, however, fail to overcome the

presumption of regularity. See Goffney, 995 F.3d at 748.

The 2020 decision notice expressly stated that “[t]he

Forest Service began the NEPA process again in 2019

with a scoping letter dated August 7, 2019.” The phrase

“additional analysis” is not inconsistent with preparing a

new AR to support a new NEPA analysis. Nor do the

views of a single Service employee necessarily reflect

those of the agency or its ultimate decision-maker. See

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551

U.S. 644, 659 (2007). The record also supports the

Service’s contention that it included only documents

from previous NEPA analyses that were considered in

the 2020 decision. For example, the Service did not cite

the 2015 Forest Health Report in its 2020 decision,

relying instead on a new 2019 Forest Health Report.

And, the Service’s citations to the 2015 Report in prior

court proceedings did not involve the validity of the 2020

decision but rather a separate 2017 decision to close

sections of the recreation site because of safety concerns.

We place a thumb on the scale against

supplementation of the AR, see Goffney, 995 F.3d at 747–

48, and BMBP has not demonstrated how the inclusion

of “over two thousand pages that the Service had

included in the 2016 AR,” would “identify and plug holes

in the administrative record,” Fence Creek Cattle Co. v.

U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010)

51a

(cleaned up). Because BMBP “has not met its heavy

burden to show that the additional materials sought are

necessary to adequately review the Forest Service’s

decision,” id., the district court acted within its

discretion in denying the motion to supplement the AR.

II.

We next address whether the Service violated

NEPA by approving the Project. NEPA imposes “a set

of action-forcing procedures that require that agencies

take a hard look at [the] environmental consequences” of

their actions. Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350 (1989) (cleaned up).

“Although these procedures are almost certain to affect

the agency’s substantive decision, . . . NEPA itself does

not mandate particular results, but simply prescribes

the necessary process.” Id.

A.

The Council on Environmental Quality (“CEQ”)

issues regulations to guide agencies in determining what

actions are subject to NEPA requirements. See 40

C.F.R. § 1500.3. 4 Those regulations prohibit an agency

from “commit[ting] resources prejudicing selection of

alternatives” or taking actions that would “[l]imit the

choice of reasonable alternatives.” Id. §§ 1502.2(f),

1506.1(a)(2). BMBP contends that the logging contract

with T2 violated these regulations. The parties dispute

whether an improper commitment of resources must be

“irreversible and irretrievable,” Metcalf v. Daley, 214

4

Unless otherwise indicated, all citations are to the 2019 version of

the Code of Federal Regulations.

52a

F.3d 1135, 1143 (9th Cir. 2000) (cleaned up), or something

less. We need not decide that issue, however, because

BMBP has failed to establish that the contract

improperly committed resources under any standard.

Under the contract, T2 will receive $78,262 to

remove non-commercial timber and about $36,000 worth

of harvested commercial timber. Critically, the Service

reserved the right to “terminate this contract, or any

part hereof, for its sole convenience,” at which point T2

“shall immediately stop all work.” 48 C.F.R. § 52.2124(l); see WildWest Inst. v. Bull, 547 F.3d 1162, 1169 (9th

Cir. 2008) (stressing that the Service “clearly retained

the authority to change course or to alter the plan it was

considering implementing”); see also Nat’l Audubon

Soc’y v. Dep’t of the Navy, 422 F.3d 174, 206 (4th Cir.

2005) (holding that preparatory activities did not violate

NEPA in part because that they did not “include cutting

even a single blade of grass in preparation for

construction”). T2 has not conducted any logging under

the contract because the Service has not issued a notice

to proceed. And, given the district court’s preliminary

injunction against logging, which has been stayed

pending appeal, no logging can occur until this case is

resolved. See supra note 2. Nor has the Service made

any payments to T2.

There is also no evidence that the agency “merely

engaged” in “post hoc rationalization” in the 2020

decision. Nat’l Audubon Soc’y, 422 F.3d at 199. BMBP

argues that an internal email by a Service employee

suggests that termination of the contract would cost the

Service appropriated dollars and prevent funding of a

new project. But, another Service employee explained

53a

in the same email chain that any future work under the

contract “must adhere to what is in the new NEPA

decision” and that pending the outcome of that decision,

the Service might need to “terminate[ ] and resolicit[ ]”

the contract.

Rather than rely on “the alleged subjective intent of

agency personnel divined through selective quotations

from email trails,” we “look to . . . the environmental

analysis itself.” Id. The EA contains no indication that

the T2 contract prejudiced or limited the consideration

of alternatives. After analyzing the effects of no action

and several alternatives that reduced or eliminated

commercial logging, the Service chose the Project

because it “best meets the Purpose and Need of Action,”

would “better meet the management objectives of the

area,” and “provides the best opportunity for long-term

public enjoyment of this area.” The Service also stated

that it “considered all reasonable alternatives and would

not be limited in choice because the final service

agreement or other tool of implementation would be

written to align with the final decision.”

B.

NEPA mandates an EIS for “major Federal actions

significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(C). An agency need not,

however, prepare an EIS if it prepares an EA that

“briefly presents the reasons why the proposed agency

action will not have a significant impact on the human

environment.” Dep’t of Transp. v. Pub. Citizen, 541 U.S.

752, 757–58 (2004). Significance depends on an action’s

“context” and “intensity.”

40 C.F.R. § 1508.27.

“Although . . . review under the arbitrary and capricious

54a

standard is deferential,” an agency’s finding of no

significant impact is arbitrary or capricious if the

petitioner has raised “substantial questions whether a

project may have a significant effect on the

environment.” Blue Mountains Biodiversity Project v.

Blackwood, 161 F.3d 1208, 1212–14, 1216 (9th Cir. 1998)

(cleaned up).

1.

“Context simply delimits the scope of the agency’s

action, including the interests affected.” In Defense of

Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1068

(9th Cir. 2014) (cleaned up); see 40 C.F.R. § 1508.27(a)

(listing potential contexts). Although the agency should

be mindful “that use of a larger analysis area can dilute

the apparent magnitude of environmental impacts,”

“[i]dentifying the appropriate geographic scope is a task

assigned to the special competency of the appropriate

agency.” Friends of the Wild Swan v. Weber, 767 F.3d

936, 943 (9th Cir. 2014) (cleaned up).

BMBP contends that the EA diluted the significance

of some impacts by analyzing them on too large a scale.

However, “[a]lthough 40 C.F.R. § 1508.27(a) suggests

that site-specific actions are generally evaluated in the

context of a project locale, nothing in the regulation

prohibits the [Service] from exercising its discretion to

apply a [larger] analysis when appropriate.” Tri-Valley

CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1127 (9th

Cir. 2012). And BMBP has not shown why the choice of

a broader context in the challenged instances was

arbitrary or capricious. See Ctr. for Cmty. Action &

Env’t Just. v. FAA, 18 F.4th 592, 599 (9th Cir. 2021)

(noting that the petitioner bears the burden of

55a

persuasion); cf. Anderson v. Evans, 371 F.3d 475, 489–92

(9th Cir. 2004) (explaining why the local context was

especially relevant for assessing whether the project’s

effects would be controversial).

Indeed, BMBP concedes in its briefing that the 2020

decision “acknowledges the highly-localized nature of

the Project’s effects” and that the EA contains a

“disclosure of local impacts.” The Service extensively

analyzed various local impacts—including those on

scenic integrity, on late and old structure stands, and on

threatened and endangered species. And, the EA

explained why it chose certain broader contexts for

analysis in other instances. The record fails to establish

that the agency’s decisions about context were

“arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A).

2.

Intensity “refers to the severity of impact” within

the selected context. 40 C.F.R. § 1508.27(b). The

regulations list ten non-exhaustive relevant factors for

consideration, including the “[u]nique characteristics of

the geographic area”; the “degree to which the

effects . . . are likely to be highly controversial”; the

“degree to which the action may establish a precedent

for future actions with significant effects”; and whether

the action “threatens a violation of Federal, State, or

local law or requirements imposed for the protection of

the environment.” Id. Whether the factors are assessed

individually or cumulatively, the record does not

establish a “clear error of judgment” in the Service’s

56a

intensity findings.

Blue Mountains Biodiversity

Project, 161 F.3d at 1211 (cleaned up).

Although the EA described Walton Lake as “unique”

because it boasts a high number of visitors and is “the

only Developed Recreation Management Area that has

a lake with the combination of moist mixed conifer and

dry mixed conifer forest surrounding it,” the Service

reasonably found that the Project would affect neither

the lake itself, nor “the diversity of tree species in the

project area around Walton Lake.” The Service also

reasonably concluded that the Project “would not

substantially affect the use of the area as a recreation

site” because the infested area was already closed to

recreational uses for safety reasons. And BMBP does

not challenge the Service’s conclusion that the Project

would not affect any of the “unique” characteristics

listed in the regulation. See 40 C.F.R. § 1508.27(b)(3).

The record also does not suggest that the Project is

highly controversial. See id. § 1508.27(b)(4). “A project

is highly controversial if there is a substantial dispute

about the size, nature, or effect of the major Federal

action,” which “exists when evidence . . . casts serious

doubt upon the reasonableness of an agency’s

conclusions.” WildEarth Guardians v. Provencio, 923

F.3d 655, 673 (9th Cir. 2019) (cleaned up). But, a project

is not rendered highly controversial simply because

“qualified experts disagree.” Greenpeace Action v.

Franklin, 14 F.3d 1324, 1335 (9th Cir. 1992). Rather,

“[w]hen specialists express conflicting views, an agency

must have discretion to rely on the reasonable opinions

of its own qualified experts.” Marsh v. Or. Nat. Res.

Council, 490 U.S. 360, 378 (1989).

57a

The Service concluded that the Project was not

highly controversial because its potential effects were

well-established or supported by the best available

science. Citing a range of research, the Service found

“no evidence that the proposed treatments would

exacerbate” laminated root rot. I t also decided against

stump removal because of “soil disturbance” and “the

high cost of removing stumps.”

The scientific studies cited by BMBP do not render

these findings arbitrary or capricious.

One

acknowledges that “an appropriate strategy” is “based

on several factors”; another expresses some skepticism

about sanitation harvesting but also notes the potential

effectiveness of “spacing trees through thinning, by

removing stumps, or by planting and managing resistant

and immune trees species”; and a third does not discuss

sanitation harvesting at all. Although BMBP also cites

Dr. Chad Hanson’s opinion that logging would “likely

increase [laminated root rot] occurrence,” the Service

reviewed that opinion but ultimately concluded that the

overall evidence weighed against its conclusions. One

negative comment does not establish high controversy.

See Native Ecosystems Council v. U.S. Forest Serv., 428

F.3d 1233, 1243–44 (9th Cir. 2005).

It was also reasonable for the Service to conclude

that the Project is unlikely to establish a precedent for

future actions. See 40 C.F.R. § 1508.27(b)(6). The

Service explained that “no other known Developed

Recreation Management Areas . . . have a laminated root

rot problem on the Ochoco National Forest.” The

Service found that the Project is “site-specific” and “any

future decision would need to go through the NEPA

58a

process.” Even if other sites might one day develop

similar infestation issues, that does not necessarily make

this Project precedential, “especially since any other

[project] would be subject to its own NEPA analysis.”

WildEarth Guardians, 923 F.3d at 674.

The Service’s decision also reasonably accounted for

federal, state, and local laws.

See 40 C.F.R.

§ 1508.27(b)(10). Although forest plan amendments that

“may create a significant environmental effect” require

an EIS, there is an exception for “every plan amendment

. . . that applies only to one project or activity.” 36 C.F.R.

§ 219.13(b)(3). The amendments to the Ochoco National

Forest Plan at issue are each related to one project.

CONCLUSION

We AFFIRM the judgment of the district court and

lift our previous stay of its order dissolving the

preliminary injunction.

59a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

BLUE MOUNTAINS

BIODIVERSITY PROJECT,

Plaintiff,

v.

No. 2:20-cv-02158-MO

OPINION AND

ORDER

SHANE JEFFRIES, et al.,

Defendants.

MOSMAN, J.,

This matter comes before me on Plaintiff’s Motion for

Summary Judgment [ECF 66] and Defendants’ Cross

Motion for Summary Judgment [ECF 67].

Oral

Argument was held on July 25, 2022, at which I

GRANTED IN PART and DENIED IN PART both

parties’ Motions, for the reasons stated on the record.

Minutes of Proceedings [ECF 80]. I also TOOK

UNDER ADVISEMENT various claims and asked

Plaintiff for a supplemental statement of authorities.

See Statement of Supplemental Authority [ECF 81].

For the reasons below, I GRANT Defendants’ motion

and DENY Plaintiff’s motion on all claims taken under

advisement.

BACKGROUND

Plaintiff Blue Mountains Biodiversity Project

(“BMBP”) seeks vacatur of a United States Forest

60a

Service (“Defendant” or the “Forest Service” or the

“Service”) decision, as well as declaratory and injunctive

relief under the Administrative Procedure Act (“APA”).

BMBP challenges the Decision Notice (“DN”), including

the Finding of No Significant Impact (“FONSI”), and

underlying Environmental Assessment (“EA”) issued

by Defendant approving the Walton Lake Restoration

Project (“the project”), which is a logging proposal in the

Ochoco National Forest (“ONF”). Am. Compl. [ECF 12]

¶ 1. The Amended Complaint alleges seven violations of

the National Environmental Policy Act (“NEPA”) and

four violations of the National Forest Management Act

(“NFMA”). Am. Compl. [ECF 12] ¶¶ 60–90. After

various proceedings, Plaintiff moved for summary

judgment; Defendants did likewise shortly thereafter.

Pl.’s Mot. for Summ. J. [ECF 66]; Defs.’ Cross Mot. for

Summ. J. [ECF 67]. For those claims which I took under

advisement after Oral Argument on July 25, 2022, I

provide my decision and reasons below.

LEGAL STANDARD

Summary judgment is proper “if the movant shows

that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The initial burden for a

motion for summary judgment is on the moving party to

identify the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once

that burden is satisfied, the burden shifts to the nonmoving party to demonstrate, through the production of

evidence listed in Fed. R. Civ. P. 56(c)(1), that there

remains a “genuine issue for trial.” Celotex, 477 U.S. at

324. The non-moving party may not rely upon the

61a

pleading allegations, Brinson v. Linda Rose Joint

Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) (citing Fed.

R. Civ. P 56(e)), or “unsupported conjecture or

conclusory statements,” Hernandez v. Spacelabs Med.

Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). All reasonable

doubts and inferences to be drawn from the facts are to

be viewed in the light most favorable to the nonmoving

party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

Because BMBP’s claims allege the Service violated

NEPA and NFMA, they are governed by the APA.

Native Ecosystems Council v. Dombeck, 304 F.3d 886,

891 (9th Cir. 2002). “When reviewing an agency’s final

decision, the court’s duty on summary judgment is to

determine whether the evidence in the administrative

record permitted the agency to make that decision as a

matter of law.” Nw. Envtl. Advocates v. U.S. Envtl.

Prot. Agency, 855 F. Supp. 2d 1199, 1204 (D. Or. 2012).

“This review is governed by the [APA’s] arbitrary and

capricious standard.” Id. (citing 5 U.S.C. § 706(2)(A)).

“To determine whether an agency decision is

arbitrary and capricious, the court should ‘consider

whether the decision was based on a consideration of the

relevant factors and whether there has been a clear

error of judgment.’” Id. at 1204 (citing Marsh v. Or. Nat.

Res. Council, 490 U.S. 360, 378 (1989)).

“After

considering the relevant factors, the agency must

articulate a satisfactory explanation for its action,

including a rational connection between the facts found

and the agency’s conclusions.” Id. (citing Ctr. for

Biological Diversity v. Nat’l Highway Traffic Safety

Admin., 538 F.3d 1172, 1193 (9th Cir. 2008)).

62a

“An arbitrary and capricious finding is necessary if

the agency ‘relied on factors Congress did not intent it

to consider, entirely failed to consider an important

aspect of the problem, or offered an explanation that

runs counter to the evidence before the agency or is so

implausible that it could not be ascribed to a difference

in view or the product of agency expertise.’” Id. (citing

Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir.

2010)). “Review under this standard is narrow, and the

court may not substitute its judgment for the judgment

of the agency.” Id. “The court must be ‘at its most

deferential’ when reviewing an agency’s scientific

determinations.” Id. (citing Balt. Gas & Elec. Co. v. Nat.

Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).

DISCUSSION

I. Claim 1, Count 2

BMBP argues that the Service violated NEPA by

having an unreasonably narrow purpose and need

statements in its EA. Pl.’s Mot. for Summ. J. [ECF 66]

at 16. According to BMBP, the first and fourth

statements unreasonably defined the purpose and need

for the project too narrowly such that they ignore the

Walton Lake area’s ONF Plan management objectives

and exclude reasonable alternatives that should be

considered. Id.

NEPA requires agencies to “briefly specify the

underlying purpose and need to which the agency is

responding in proposing the alternatives including the

proposed action.” 40 C.F.R. § 1502.13. An agency “may

not define the objectives of its actions in terms so

unreasonably narrow that only one alternative ... would

accomplish the goals of the agency’s action.” Nat’l Parks

63a

Conservation Ass’n v. BLM, 606 F.3d 1058, 1070 (9th

Cir. 2010). An agency enjoys “considerable discretion”

to define the purpose and need statement. Id. Further,

the statement of purpose and need is evaluated under a

“reasonableness” standard on appeal. Id.

A. First Purpose and Need Statement

The ONF Plan (the “Plan”) designates the Walton

Lake recreation area as a “Developed Recreation

Management Area” with two sub-areas—a “Developed

Site” and a “Visual Influence Area.” Mot. for Summ. J.

[ECF 66] at 18. The Plan provides for different

restrictions on the two sub-areas. Id. For the

Developed Site, the plan says, “[h]arvest only for the

purpose of maintaining safe and attractive recreational

sites.” AR 1629. For the Visual Influence Area, the plan

says, “[e]mphasize maintenance of large, ponderosa pine

and western larch.”

Id.

It goes on to state,

“[p]recommercial thinning and commercial thinning may

be done to meet the visual quality objectives and

maintain healthy stands.” Id.

BMBP contends that the first purpose and need

statement—”[t]here is a need to curb the laminated root

rot infestation where it occurs within the Developed

Recreation Management Area around Walton Lake, to

develop a healthy stand of vegetation, and provide for

public safety,” AR 7573—impermissible lumps together

these two areas and “preordain[s]” the chosen

alternative. Mot. for Summ. J. [ECF 66] at 18–19. By

describing the issue as a “need” to curb laminated root

rot (“LRR”) in all areas of the Recreation Management

Area, the statement makes it seem as if the Service’s

outcome would be the only one that would “curb” LRR

64a

everywhere, according to BMBP. Id. Instead, each subarea should have been considered on its own. Id.

The Service responds that the first purpose and need

statement is consistent with the Plan’s mandatory

direction to prevent and suppress insect and disease

outbreaks. Defs. Mot. for Summ. J. [ECF 67] at 31. The

Plan contains forest health standards and guidelines that

direct the Service to “[u]tilize all methods to prevent or

suppress insect and disease outbreaks” and to

“[e]mphasize detection and treatment of bark beetle and

root disease occurrences, as these relate to providing a

safe environment....” AR 1569. The Service argues that

this standard applies to the entire Developed Recreation

Area (that contains the two sub-areas) as a whole. Defs.

Reply in Supp. of Mot. for Summ. J. [ECF 72] at 19. The

EA confirms that these standards from the Plan apply

to the entire Developed Recreation Area. Id. (citing AR

7575).

I find the Service’s argument persuasive on this

point. The purpose and need statement in the EA says

that the LRR needs to be curbed in the larger Developed

Recreation Management Area. When one reads the Plan

and what it says should be done for the two sub-areas

within the broader Developed Recreation Management

Area, the EA and the Plan are not inconsistent.

Generally speaking, to curb something means to

restrain, or keep in check; alternatively, to check or

control.

See Curb, Merriam-Webster’s Collegiate

Dictionary (11th ed. 2005). I do not think that “curbing”

LRR in some way violates the plan’s requirement to

“harvest only for the purpose of maintaining safe and

attractive recreational sites” or thinning “done to ...

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maintain healthy stands.” In sum, I find neither the

language nor the Service’s reading and use of the

purpose and need statement to be too narrow; nor are

they arbitrary or capricious.

B. Fourth Purpose and Need Statement

The fourth purpose and need statement states:

“There is a need to amend the Ochoco Land and

Resource Management Plan.” AR 7574. BMBP argues

that “[b]y using elements of the preferred alternative to

define the ‘need’ of the action, the Service put the cart

before the horse, violating NEPA’s requirement that

the purpose and need be used to identify the

alternatives.” Pl.’s Mot. for Summ. J. [ECF 66] at 20. By

including a need to amend the plan, any alternative that

does not include a plan amendment is eliminated. Id. at

19. The Service counters that its regulations require the

Service to “base a plan amendment on a preliminary

identification of the need to change the plan.” Defs.’

Reply ISO Mot. for Summ. J. [ECF 72] at 18 (citing 36

C.F.R. § 219.13) (“When a plan amendment is made

together with, and only applies to, a project or activity

decision, the analysis prepared for the project or activity

may serve as the documentation for the preliminary

identification of the need to change the plan.”)

The Service has the winning argument here. As

noted, the Forest Service’s regulations state that the

Service must preliminarily identify the need to change

the plan—and that is precisely what it did here. The

Service’s actions were therefore not arbitrary and

capricious.

In light of the discussion and reasons given above, I

GRANT the Service’s motion and DENY BMBP’s

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motion as to both the first and the fourth purpose and

need statements under Claim 1, Count 2.

II. Claim 1, Count 3

In determining whether a purpose and need

statement is reasonable, the Ninth Circuit “first

determine[s] whether the statement of purpose and

need was reasonable, and then whether the range of

alternatives considered was reasonable in light of that

purpose and need.” League of Wilderness Def. v. U.S.

Forest Serv., 689 F.3d 1060, 1069 (9th Cir. 2012). As

noted above regarding Claim 1, Count 2, I find the

purpose and need statements reasonable, so I must next

consider BMBP’s contentions about the range of

alternatives considered. Under NEPA and applicable

case law, the Forest Service has to include a brief

discussion of “appropriate” and “reasonable”

alternatives, but there is no correct number of

alternatives required or proscribed.

36 C.F.R.

§ 220.7(b)(2) (Forest Service regulations implementing

NEPA); 40 C.F.R. § 1508.9; Native Ecosystems Council

v. U.S. Forest Serv., 428 F.3d 1232, 1246 (9th Cir. 2005).

The Forest Service’s obligations under an EA are less

than under an Environmental Impact Study (“EIS”).

Native Ecosystems, 428 F.3d at 1246.

BMBP argues that the Service violated NEPA by

failing to meaningfully consider an adequate range of

alternatives in its EA. To BMBP, this failure is shown

by the fact that the Service framed the Plan

amendments and LRR elimination as project “needs,”

thereby spurning other choices that did not involve a

Plan amendment or which would not entirely curb LRR

in all areas. Pl.’s Mot. for Summ. J. [ECF 66] at 21.

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Additionally, BMBP argues that the Forest Service

should have considered an alternative that limited the

logging to within 150 feet of the road. Id. at 23.

However, the Service did consider four alternatives,

including the proposed action, and discussed them in

detail. Defs.’ Mot. for Summ. J. [ECF 67] at 33. It also

considered six others but did not discuss them in detail.

Id. No alternative was rejected based on whether or not

the alternative required plan amendments. Id. One

alternative, alternative three, did in fact limit logging to

within 150’ of the road; the Forest Service considered,

but did not ultimately adopt, this alternative. Id.

In short, the Service did what it was required to do

in its analysis of the alternatives.

Its briefing

thoroughly explains why, among the options, the Service

made the choice it did. See, e.g., Defs.’ Mot. for Summ. J.

[ECF 67] at 34. That the Service chose the alternative

BMBP disliked is not actionable. I find the Walton Lake

EA adequate and the Service’s consideration of

alternatives reasonable.

I therefore GRANT the

Service’s motion and DENY BMBP’s motion on Claim 1,

Count 3.

III. Claim 1, Count 4

BMBP next alleges that the Forest Service’s ongoing

contract with T2 violates NEPA as an irretrievable

commitment. The parties dispute both the applicable

standard and its application to the facts of this case.

A. Applicable Standard

The Parties dispute what the applicable standard is

for considering this claim. BMBP argues that an

agency’s action violates NEPA when it takes any pre-

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NEPA action that commits resources in a way that

“prejudice[s] [the] selection of alternatives before

making a final decision,” 40 C.F.R. § 1502.2(f), or may

“limit the choice of reasonable alternatives.” Id.

§ 1506.1(a)(2). On the other hand, the Service contends

that the question to ask is whether there was an

“irreversible and irretrievable commitment of

resources.” Metcalf v. Daley, 214 F.3d 1135, 1143 (9th

Cir. 2000). After discussion at Oral Argument, Counsel

for Plaintiff submitted a Supplemental Statement of

Authority regarding this issue. Pl.’s Statement of Suppl.

Authority [ECF 81].

Metcalf’s

“irreversible

and

irretrievable

commitment of resources” standard originates from

NEPA. See 42 U.S.C. § 4332. This statute requires all

government agencies to include in “every report or

recommendation on proposals for ... major Federal

actions significantly affecting the quality of the human

environment” various assessments of the environmental

impact of that action, including a statement of “any

irreversible and irretrievable commitments of resources

which would be involved in the proposed action should it

be implemented.” Id. § 4332(C)(v). Implicit in this

requirement is the idea that resources for a project

should not be irreversibly and irretrievably committed

prior to taking the proposed action—or even assessing

the proposed action. Conner v. Burford, 848 F.2d 1441,

1446 n.13 (9th Cir. 1988).

NEPA also created the Council on Environmental

Quality (“CEQ”), which later was tasked with creating

regulations to implement NEPA. Id. §§ 4342–4347;

Andrus v. Sierra Club, 442 U.S. 347, 357 (1979). These

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regulations are found at 40 C.F.R. §§ 1500.1–1508.2. The

regulations’ standards for the commitment of resources

prior to an EA or an EIS are lower than what the

statutory text requires, as the regulations preclude any

“prejudicing selection of alternatives before making a

final decision” (EISs) and “limit[ing] the choice of

reasonable alternatives” (EAs and EISs).

Id.

§§ 1502.2(f), 1506.1(a)(2).

Given this area of contradiction between the statute

and the regulations—it is much easier for a commitment

to prejudice or limit alternatives than for it to be

considered irreversible and irretrievable—the Ninth

Circuit appears to have focused on the statutory

language. Usually, it is the regulations that provide

specificity, but here, the statutory text is a bit clearer

and more workable than the broader, more uncertain

regulations. As such, the Ninth Circuit has applied the

“irreversible and irretrievable” standard to both preEIS and pre-EA resource commitments. “This court has

interpreted [the NEPA] regulations as requiring

agencies to prepare NEPA documents, such as an EA or

an EIS, ‘before any irreversible and irretrievable

commitment of resources.’” Metcalf v. Daley, 214 F.3d

1135, 1143 (9th Cir. 2000). Similarly, WildWest Inst. v.

Bull, 547 F.3d 1162 (9th Cir. 2008), notes that this

standard comes not directly from the regulations, but

from the court’s “[c]onstruing” of them. Id. at 1168. In

any event, the “irreversible and irretrievable” standard

is precedent in the Ninth Circuit, and I will apply it.

Metcalf goes on to talk about the “point of

commitment” to a particular proposal and states that if

a contract amounts to a “surrender of the Government’s

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right to prevent activity in the area” then there was an

irretrievable and irreversible commitment of resources.

Metcalf, 214 F.3d at 1144. Alternatively, if the agency

was free to follow a schedule or alter it as conditions

warranted, there was no problematic commitment. Id.

B. Application

Here, the Forest Service entered into a contract with

a company called T2 in 2016 for a logging contract it had

tried and failed to implement at that time. Pl.’s Mot. for

Summ. J. [ECF 66] at 11. BMBP argues that this act by

the Service committed both natural resources (the old

growth trees it has contracted with T2 for T2 to log) as

well as financial resources (appropriated dollars) before

the NEPA process was complete. Id. at 12–16. In

support of its argument, BMBP cites an email from a

Forest Service Contracting officer. The officer wrote,

“[i]f the treatment prescription changes drastically or

wood product value continues to decline[,] that contract

awarded years ago will be terminated without

performance[,] and we will lose those appropriated

dollars and likely not have the funds to compete and

complete a new project.” Id. at 14–15 (citing AR 7897).

The Service responds by saying that the contract did

not in any way bind or commit the Forest Service. Defs.’

Mot. for Summ. J. [ECF 67] at 27, 29. As such, the

Service argues the contract did not prejudice or limit the

Forest Service’s alternatives during the NEPA process;

any other contentions are “conjecture.” Id. at 29. To

support its argument that no resources were

irreversibly or irretrievably committed, the Service

points to the fact that the Service could sign a new

contract and terminate the existing contract, and the

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amount paid to T2 was a relatively modest sum. Id. at

28–29.

Furthermore, according to the Service,

unappropriated funds are not a natural resource and

therefore not subject to the “irreversible and

irretrievable” standard. Id. at 29 n.13. At bottom,

BMBP’s claim rests on single, speculative email about

annual appropriations, and it is uncertain if the email

was ever seen by the Forest Supervisor or informed any

decision-making whatsoever. Defs.’ Reply in Supp.

[ECF 72] at 16; Defs.’ Resp. to Sur-Reply [ECF 79] at 2.

One email describing one contract does not transform

that contract into an irreversible and irretrievable

commitment. The Government did not surrender its

rights; as the Service points out, it was free to sign a new

contract or terminate the existing one as conditions

warranted. The government maintained control over

activity in the area at issue. I therefore GRANT the

Service’s motion and DENY BMBP’s motion as to Claim

1, Count 4.

IV. Claim 1, Count 5 & Claim 2, Count 2

Under NEPA, agencies are required to prepare an

EIS for all “major federal actions significantly affecting

the quality of the human environment.” 42 U.S.C.

§ 4332(C). The burden is on the agency to demonstrate

why an action is not significant and no EIS is required.

Metcalf, 214 F.3d at 1142. Plaintiff’s next argument is

that the Service did not carry this burden of showing the

project to be insignificant; according to Plaintiff, the

FONSI in the DN inadequately describes why the

project should be considered insignificant. Mot. for

Summ. J. [ECF 66] at 26. Therefore, Plaintiff contends,

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the project is significant under NEPA, and an EIS is

required. Id.

The significance of an action is determined by looking

at its (i) context and (ii) intensity. Natl’ Parks &

Conserv. Ass’n v. Babbit, 241 F.3d 722, 730 (9th Cir.

2001). I address these two factors in turn.

A. Context

Determining the relevant context boils down to two

dispositive issues. First, I must consider the proper

roles of the EA and the FONSI. Second, I must ensure

the Service looked at the project’s environmental

impacts at the level required by regulation.

BMBP’s argument as to the first issue is that the text

of the FONSI does not consider the project’s impacts

within the local context of the Walton Lake Recreation

Area. Pl.’s Mot. for Summ. J. [ECF 66] at 26. The

Service’s response is that the EA, which the FONSI

explicitly relies upon, considers the impact in several

contexts—including the locality, as required by the

regulation—and provides a convincing statement of

re

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