Friends Earth v. U.S. Army Corps of Eng'rs

• Decision Date: 20 January 2019
• Docket Number: C18-677 TSZ
• Citation: 374 F.Supp.3d 1045
• Parties: FRIENDS OF THE EARTH, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS, Defendant.
• Court: U.S. District Court — Western District of Washington

374 F.Supp.3d 1045

FRIENDS OF THE EARTH, Plaintiff,

v.U.S. ARMY CORPS OF ENGINEERS, Defendant.

C18-677 TSZ

United States District Court, W.D. Washington, at Seattle.

Signed January 20, 2019

Paul August Kampmeier, Kampmeier & Knutsen, Seattle, WA, Brian Alan Knutsen, Kampmeier & Knutsen, PLLC, Portland, OR, for Plaintiff.

Michelle R. Lambert, US Attorney's Office, Seattle, WA, for Defendant.

ORDER

Thomas S. Zilly, United States District Judge

THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment, docket no. 13, and Plaintiff's Response and Cross-Motion for Summary Judgment, docket no. 18. Having reviewed all papers filed in support of, and in opposition to, the motions, the Court enters the following order.

Issue Presented

This dispute arises out of Plaintiff's request, pursuant to the Freedom of Information Act ("FOIA"), to the U.S. Army Corps of Engineers ("the Corps") for a copy of the March 2017 Biological Evaluation (the "March 2017 BE") regarding the effect of new or revised permits for the construction and operation of a second dock for crude oil deliveries at the Cherry Point Terminal operated by British Petroleum ("BP"). The issue presented is whether the March 2017 BE must be produced pursuant to Plaintiff's FOIA request or whether it is exempt from disclosure.

Background

BP currently holds a permit from the Corps to construct and operate a second dock, known as the "North Wing dock," at the Cherry Point Refinery Marine Terminal. Declaration of David J. Martin ("Martin Decl."), docket no. 15, ¶ 4. As a result of earlier litigation, the Corps is in the process of preparing an after-the-fact Environmental Impact Statement ("EIS") regarding the permit and its compliance with, among other things, the Endangered Species Act ("ESA"). See Ocean Advocates v. U.S. Army Corps of Eng'rs , 402 F.3d 846, 875 (9th Cir. 2005).

BP's effort to construct and operate a second dock at the Cherry Point facility has spanned more than four decades. Id. at 855 (describing BP's request to develop the second dock in 1977). In 1996, the Corps concluded that construction of the North Wing dock would not result in significant adverse environmental impacts and granted the permit without preparing an EIS. Various organizations publicly disputed the Corps' conclusions, expressing concerns over increased tanker traffic, the risk of oil spills, and harm to fish, wildlife, and the environment. Id. at 856-57. Ultimately the Ninth Circuit Court of Appeals ordered the preparation of an EIS even though BP has since completed construction of the dock. Id. at 871-72.

The ESA was enacted to preserve and protect threatened and endangered species and the ecosystems upon which they depend. 16 U.S.C. § 1531. The ESA requires a federal agency to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered or threatened species...." Id. § 1536(a)(2). This statutory mandate—commonly referred to as a Section 7 consultation—requires agencies to "consult" with the National Marine Fisheries Service ("NMFS") and/or the U.S. Fish and Wildlife Service ("USFWS") (together, the "Services"). 50 C.F.R. § 402.14(a). Consultation is accomplished by the initiating agency or the project proponent drafting a biological assessment¹ and sharing that document with one or more Services for their review. If a Service determines the proposed action is likely to adversely affect endangered or threatened species, the Service conducts a "formal" consultation and drafts a biological opinion. 50 C.F.R. § 402.14. Depending on the outcome of the consultation, a Service may identify "reasonable and prudent alternatives" to the proposed action. 16 U.S.C. § 1536(b)(3)(A).

The Corps initiated Section 7 consultation with the Services in connection with preparing the EIS for the Cherry Point Terminal. Martin Decl. ¶ 7. In order to begin consultation, the Corps requested that BP prepare the BE, and BP retained an outside consultant to prepare the BE. Answer, docket no. 8, ¶ 26; Martin Decl. ¶ 5. The Corps "furnished BP and its contractor guidance and supervision and independently reviewed and evaluated the scope and contents of this BE." Martin Decl. ¶ 5. The Corps also requested that the contractor make certain edits to several drafts of the BE in 2014, and the Corps also made unilateral edits to the BE around the same time. Id. ¶ 7. As a result of feedback from the Services between 2014 and 2016, the Corps "directed BP's contractor on June 8, 2016 to revise the BE...." Id. Thereafter,

On April 6, 2017, the Corps received from the applicant [BP] a revised version of the BE, labeled with the date "March 2017," and initiated a review of the revised version. After meeting with the Services on May 26, 2017, the Corps completed its review of the BE, adopted the updated version and, on June 16, 2017, submitted it to the Services to continue the ongoing ESA Section 7 consultation.

Id. ; see also Supplemental Declaration of David J. Martin ("Martin Supplemental Decl."), docket no. 23, ¶¶ 3, 4 (describing the two rounds of review in 2014 and 2017, including edits made by the Corps to earlier versions before the March 2017 BE). The USFWS subsequently engaged in informal consultation, which has concluded. NMFS, however, is proceeding with formal consultation, which will be concluded with the issuance of a Biological Opinion under 50 C.F.R. section 402.14. Martin Decl. ¶ 8.

On July 10, 2017, Plaintiff submitted a FOIA request to the Corps asking for the updated biological assessment that BP submitted to the Corps. Declaration of Richard M. Hynes ("Hynes Decl."), docket no. 14, ¶¶ 2, 3. The FOIA requires federal agencies to release records upon request to any person unless the record falls within an express statutory exemption. 5 U.S.C. § 552(a), (b)(1)-(9) ; see also Dep't of the Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (purpose of FOIA is to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny"). "Because FOIA is meant to promote disclosure, its exemptions are interpreted narrowly." Sierra Club v. U.S. Fish and Wildlife Serv. , 911 F.3d 967, 978 (9th Cir. 2018) (citing Assembly of Cal. v. U.S. Dep't of Commerce , 968 F.2d 916 (9th Cir. 1992) ). Although the public's right to information under the FOIA is not absolute, the burden is always on the government to prove that withholding is authorized. 5 U.S.C. § 552(a)(4)(B). The government may meet that burden through the submission of affidavits containing "reasonably detailed descriptions of the documents and alleg[ing] facts sufficient to establish an exemption...." Lewis v. I.R.S. , 823 F.2d 375, 378 (9th Cir. 1987).

The statutory exemption at issue in this case—commonly referred to as "Exemption 5"—permits agencies to withhold documents that are pre-decisional and part of the deliberative process. 5 U.S.C. § 552(b)(5). The FOIA also sets specific deadlines by which agencies must respond to appeals of agency decisions. E.g. , 5 U.S.C. § 552(a)(6)(A)(ii) (agency must make a determination with respect to any appeal within twenty days of receipt).

In a letter response dated July 26, 2017, the Corps denied Plaintiff's FOIA request on the grounds that the document is "a pre-decisional deliberative document" and exempt from disclosure under Exemption 5. Hynes Decl. ¶ 6. Plaintiff's appeal of the Corps' denial was received on September 7, 2017. Id. ¶ 7. On December 12, 2017, the Corps informed Plaintiff that it received the appeal, id. at 9, but the Corps did not further communicate with Plaintiff regarding any resolution of the appeal.

Plaintiff filed its complaint on May 10, 2018. Complaint, docket no. 1. The Complaint alleges four claims. The first claim alleges that the Corps failed to resolve Plaintiff's administrative appeal within the deadlines established by the FOIA. The second claim alleges a violation of the FOIA for unlawfully withholding the March 2017 BE. The third claim, which Plaintiff has abandoned,² alleges FOIA violations related to the Corps' failure to provide estimated completion dates. Plaintiff's fourth claim alleges violations of the Administrative Procedure Act as an alternative basis for liability.

Discussion

Plaintiff moves for summary judgment on its first and second claims, contending that the Corps violated the FOIA by failing to resolve Plaintiff's appeal within the twenty-day deadline mandated by the FOIA, and that the Corps is unlawfully withholding the March 2017 BE by invoking FOIA Exemption 5 to withhold the document as a pre-decisional and deliberative federal agency document. Docket no. 18 at 2. The Corps has filed a cross-motion for summary judgment on the grounds that the Corps properly invoked Exemption 5 and that the March 2017 BE is exempt from disclosure. Docket no. 13.³ The parties agree that there are no contested material facts that would preclude the entry of summary judgment.

I. Standard of Review

FOIA disputes may be—and often are—resolved via motions for summary judgment. Lane v. Dep't of Interior , 523 F.3d 1128, 1134 (9th Cir. 2008) ; Shannahan v. I.R.S. , 637 F.Supp.2d 902, 912 (W.D. Wash. 2009). The Court shall grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Alternatively, a movant must show that the plaintiff lacks competent evidence to support an essential element of his or her claim. Id. at 322, 106 S.Ct. 2548 ; Luttrell v. Novartis Pharms. Corp. , 894 F.Supp.2d 1324, 1340 (E.D. Wash. 2012). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,...