Sierra Club v. United States Fish and Wildlife Service, No. 17-16560 (9th Cir. 2018)
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Sierra Club filed suit under the Freedom of Information Act (FOIA), seeking records generated during the EPA's rule-making process concerning cooling water intake structures. The panel affirmed in part the district court's summary judgment order requiring the production of certain documents, holding that the December 2013 draft jeopardy biological opinions and related documents, as well as the March 2014 reasonable and prudent alternative (RPA), were not both predecisional and deliberative.
However, the panel reversed in part and held that there was sufficient support to conclude that the December 2013 RPAs and the April 2014 draft jeopardy opinion were pre-decisional and deliberative. Therefore, these records were exempt under FOIA Exemption 5. The panel remanded for a segregability analysis.
Court Description: Freedom of Information Act The panel affirmed in part and reversed in part the district court’s decision that ordered the U.S. Department of Fish and Wildlife Services and the National Marine Fisheries Service to turn over 12 of 16 requested records in a Freedom of Information Act (“FOIA”) action brought by the Sierra Club challenging the Services’ denial of their request for records generated during the Environmental Protection Agency’s rule-making process concerning cooling water intake structures. Exemption 5 of FOIA shields documents subject to the “deliberative process privilege” from disclosure. The panel held the December 2013 draft jeopardy biological opinions, the accompanying statistical table, the accompanying instructional documents, and the March 2014 reasonable and prudent alternative (RPA) were not both pre- decisional and deliberative. The panel therefore affirmed in part the district court’s summary judgment order requiring the production of these records. The panel held that there was sufficient support to conclude that the December 2013 RPAs and the April 2014 draft jeopardy opinion were pre-decisional and deliberative. Because these records satisfied the standard for non-
The court issued a subsequent related opinion or order on May 30, 2019.
The court issued a subsequent related opinion or order on April 26, 2021.