Survivors v. U.S. Dep't of the Interior

• Decision Date: 06 February 2017
• Docket Number: Case No. 16–cv–01165–JCS
• Citation: 231 F.Supp.3d 368
• Court: U.S. District Court — Northern District of California
• Parties: DESERT SURVIVORS, et al., Plaintiffs, v. US DEPARTMENT OF THE INTERIOR, et al., Defendants.

231 F.Supp.3d 368

DESERT SURVIVORS, et al., Plaintiffs,

v.US DEPARTMENT OF THE INTERIOR, et al., Defendants.

Case No. 16–cv–01165–JCS

United States District Court, N.D. California.

Signed February 6, 2017

Deborah Ann Sivas, Alicia Ellen Thesing, Environmental Law Clinic Mills Legal Clinic at Stanford Law School, Stanford, CA, Lisa T. Belenky, Oakland, CA, for Plaintiffs.

H. Hubert Yang, U.S. Dept. of Justice, Washington, DC, for Defendants.

ORDER RE MOTION TO COMPLETE THE ADMINISTRATIVE RECORD

JOSEPH C. SPERO, Chief Magistrate Judge

I. INTRODUCTION

In this case, Plaintiffs challenge (1) the decision of the U.S. Fish and Wildlife Service ("Service" or "FWS") to withdraw the proposed listing of the Bi–State Sage–Grouse as "threatened" under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 –1544, and (2) the new listing policy on which that reversal was based, namely, the Service's "Final Policy on Interpretation of the Phrase ‘Significant Portion of its Range’ in the Endangered Species Act" (the "SPR Policy"). The Service provided two separate administrative records, one for its final listing determination for the bi-state distinct population segment of greater sage-grouse in California and Nevada ("bi-state DPS AR") and another for the SPR Policy (the "SPR Policy AR"). The dispute that is presently before the Court involves the Service's withholding of documents from the SPR Policy AR on the basis that they are protected by the deliberative process privilege.

In their Motion to Complete the Administrative Record ("Motion"), Plaintiffs asked the Court to compel production of all of the documents listed on Defendants' SPR Policy AR privilege log that were withheld only on the basis of the deliberative process privilege, a total of 301 documents. Based on Defendants' subsequent representation that none of these documents reflects "the agency's consideration of political, economic, or other non-statutory factors in its development of the SPR Policy," see Docket No. 79, Plaintiffs have now limited their request to the 55 documents that Defendants have identified as "Regional office comments on the SPR Policy."

A hearing on the Motion was held on January 13, 2017 and the Court held a further status conference in connection with the dispute on January 27, 2016. For the reasons stated below, the Court concludes that the balancing test set forth in F.T.C. v. Warner Communications Inc. , 742 F.2d 1156, 1159 (9th Cir. 1984) governs the question of whether the 55 documents Plaintiffs seek are protected under the deliberative process privilege. As the Court explained at the January 27, 2017 status conference, the Court intends to conduct an in camera review of ten sample documents (selected by Plaintiffs after Defendants have provided a more detailed privilege log) and will solicit briefs from the parties as to the specific factors the Court should consider in conducting its review. The purpose of this Order is to rule on certain general arguments raised by the parties and to set forth the principles that will guide the Court in conducting its in camera review and ultimately, in making its determinations as to whether the sample documents must be produced.¹

II. BACKGROUND

A. The SPR Policy and the Withdrawal of the Proposed Listing of the Bi–State Sage Grouse

The ESA requires the Service to list a species as endangered or threatened if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. §§ 1532(6), 1533. In Defenders of Wildlife v. Norton , the Ninth Circuit found that this language is "inherently ambiguous." 258 F.3d 1136, 1141 (9th Cir. 2001). In particular, the court found that "to speak of a species that is ‘in danger of extinction’ throughout ‘a significant portion of its range’ may seem internally inconsistent, since ‘extinction’ suggests total rather than partial disappearance." Id. In that case, the court rejected the Secretary of the Interior's assertion that the "significant portion of its range" language means that "a species is eligible for protection under the ESA if it faces threats in enough key portions of its range that the entire species is in danger of extinction, or will be within the foreseeable future." Id. at 1141 (internal quotation omitted) (emphasis in original). The court reasoned,

If ... the effect of extinction throughout "a significant portion of its range" is the threat of extinction everywhere, then the threat of extinction throughout "a significant portion of its range" is equivalent to the threat of extinction throughout all its range. Because the statute already defines "endangered species" as those that are "in danger of extinction throughout all ... of [their] range," the Secretary's interpretation of "a significant portion of its range" has the effect of rendering the phrase superfluous.

Id. at 1142.

The court in Defenders of Wildlife v. Norton went on to examine the legislative history of the Endangered Species Act, concluding that Congress intended to provide broader protections to species in danger of extinction than had been afforded under two previous laws enacted in the 1960s to protect endangered species, the Endangered Species Conservation Act, Pub.L. 91–135 § 3(a), 83 Stat. 275 (Dec. 5, 1969), and the Endangered Species Preservation Act, Pub.L. 89–669 § 1(c), 80 Stat. 926 (Oct. 15, 1966). Id. The court explained that those laws defined endangered species narrowly to include "only those species facing total extinction." Id. The "significant portion of its range" language in the ESA was thus a major change in the law, the court found, and allows a species to be listed when "there are major geographical areas in which it is no longer viable but once was" even if the entire species is not in danger of extinction. Id. at 1145.

In 2007, the Department of the Interior's Office of the Solicitor issued a memorandum opinion ("2007 Memorandum Opinion" or "Memorandum") regarding the "significant portion of its range" language in order to assist the Service in developing a policy on this question in the wake of Defender's of Wildlife v. Norton and other decisions in which courts had struggled with this question. SPR AR at SPR000427–62. In the Memorandum, the Solicitor agreed with the Ninth Circuit that this language should not be interpreted to require that a species' viability as a whole must be threatened in order for it to be found endangered in a significant portion of its range, though it disagreed with certain aspects of the court's analysis. Id. at SPR00429–32.

On December 9, 2011, the Department of the Interior published a notice of a draft policy in the Federal Register regarding the interpretation and application of the phrase "significant portion of its range" in the ESA. Draft Policy on Interpretation of the Phrase "Significant Portion of Its Range" in the Endangered Species Act's Definitions of "Endangered Species" and "Threatened Species," 76 FR 76987–01. The Service noted that "[d]espite the fact that the definitions of ‘endangered species' and ‘threatened species' have been part of the Act since its enactment in 1973, prior to 2007, neither [FWS nor NMFS] had adopted a regulation or binding policy defining or explaining the application of the phrase ‘significant portion of its range,’ an element common to both definitions." Id.

In July 2014, after receiving comments from the public, the Service announced its final policy interpretation (the SPR Policy), which provides as follows:

A portion of the range of a species is "significant" if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range.

Final Policy on Interpretation of the Phrase "Significant Portion of Its Range" in the Endangered Species Act's Definitions of "Endangered Species" and "Threatened Species," 79 FR 37578–01.

On April 23, 2015, the Service withdrew a proposed listing of the Bi–State Sage Grouse as threatened or endangered, applying the SPR Policy and finding that "threats identified in the proposed rule have been reduced such that listing is not necessary for this [Distinct Population Segment]." Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule To List the Bi–State Distinct Population Segment of Greater Sage–Grouse and Designate Critical Habitat, 80 FR at 22829, 22852–53 ("Withdrawal Decision"). The proposed listing had been published in October 2013 and the public comment period ended on September 4, 2014. Id. at 22828–29.

B. The Withheld Documents

The documents requested by Plaintiffs in the Motion were withheld solely on the grounds of the deliberative process privilege. See Declaration of Alicia Thesing in Support of Plaintiffs' Motion to Complete the Administrative Record ("Thesing Decl."), Ex. B (privilege log listing withheld documents at issue); Declaration of Gina Schultz, Docket No. 31–4 ("Schultz Decl. I"). According to the Service's Deputy Assistant Director, Gina M. Schultz, these documents fall into four categories: "(1) discussions and deliberations of the core FWS and [National Marine Fisheries Service (‘NMFS') ] ‘SPR Team’ ...; (2) FWS Regional Office comments on the Final SPR Policy (including FWS and NMFS Regional Offices), and internal FWS and NMFS discussions regarding the same; (3) interagency discussions arising out of the federal interagency review process coordinated by OMB for the Final SPR Policy; and (4) additional internal deliberative discussions amongst FWS, [U.S. Department of the Interior ("DOI") ], and/or NMFS employees (some of whom were not part of the SPR Team)." Declaration of Gina M. Schultz, Docket No. 60–2 ("Schultz Decl. II") ¶ 6.

As noted above, Plaintiffs have now limited their Motion to the documents in the second category, consisting of...