Oregon Natural Desert Ass'n v. McDaniel et al, No. 3:2009cv00369 - Document 283 (D. Or. 2016)

Court Description: OPINION & ORDER: ONDA's Motion to Compel 272 is Denied in Part as it applies to Documents 1 (AR 14219-21); 2 (AR 14222-23); 6 (AR 14405-06); 9 (AR 14513-14); 10 (AR 14515-17); 12 (AR 14520-22); 13 (AR 14523-25); 17 (AR 14859-60); a nd 18 (AR 14861-65). ONDA's Motion is Granted in Part as it applies to the following documents: BLM is ordered to produce the following in their entirety for completion of the ARCRP: Documents 11 (AR 14518-19) and 14 (AR 14526-29). BLM is o rdered to produce all reasonably segregable information from the following for completion of the AR-CRP: Documents 4 (AR 14225-14354); 5 (AR 14355-14404); 7 (AR 14407-61); 8 (AR 14465-14512); 15 (AR 14530-14723); and 16 (AR 14724-14858). Signed on 12/5/16 by Magistrate Judge Paul Papak. (gm)

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Oregon Natural Desert Ass'n v. McDaniel et al Doc. 283 IN THE UNITED STATES D.ISTRICT COURT FOR THE DISTRICT OF OREGON OREGON NATURAL DESERT ASS'N, 3:09-cv-00369-PK OPINION AND ORDER Plaintiff, v. BRENDAN CAIN, Burns District Manager, Bureau of Land Management, et al., Defendants, and HARL'!EY COUNTY, Defendant-IntervenorCross-Claimaint. PAP AK, J.: Plaintiff Oregon Natural Desert Association ("ONDA") brings this action arising from the travel management planning process for the Steens Mountain. Now before this Court is ONDA's Motion to Compel Completion of Administrative Record, ECF No. 272. I have 1 - OPINION AND ORDER Dockets.Justia.com reviewed in camera the documents submitted by the BLM pursuant to my Order of September 23, 2016. ECF No. 280. For the following reasons, ONDA's Motion is granted in part and denied in part. BACKGROUND In 2009, ONDA filed this action challenging the Bureau of Land Management's ("BLM") decision to authorize the Steens Mountain Travel Management Plan ("TMP"), which designated vehicle routes as open to motorized travel within the Steens Mountain Cooperative Management and Protection Area. In September 2014, on remand from this Court, the U.S. Department of the Interior's ("DOI") Interior Board of Land Appeals ("IBLA") issued a decision amending the TMP and designating additional routes. In April 2015, BLM issued a decision approving the Steens Mountain Comprehensive Recreation Plan ("CRP"), which further amends the TMP. Now, ONDA challenges BLM's decision to adopt the interconnected TMP and CRP, contending these plans violate the Steens Mountain Cooperative Management and Protection Act of2000 ("Steens Act"), 16 U.S.C. § 460nnn et seq.; the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701-87; the Wilderness Act of 1964, 16 U.S.C. §§ 113136; and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-61. BLM has produced the administrative record in installments, and in September 2015, BLM filed the Administrative Record of the Comprehensive Recreation Plan for Steens Mountain (AR-CRP). See Notice Of Lodging of Administrative R., ECF No. 250. In June 2016, ONDA filed a Motion to Compel Completion of Administrative Record or for In Camera Review, ECF No. 272, arguing BLM improperly withheld 17 documents. 1 The documents at issue are: 1 BLM withheld 18 documents total, but the privileged nature of Document 3 (AR 14224) is not disputed. 2 - OPINION AND ORDER • Emails, which include conespondence among BLM employees as well as from attorneys at DOI's Office of Regional Solicitor and the U.S. Attorney's Office. These are characterized as Documents 1 (AR 14219-21), 2 (AR 14222-23), 6 (AR 14405-06), 9 (AR 14513-14), 10 (AR 14515-17), 11(AR14518-19), 12(AR14520-22), 13 (AR 14523-25), 14 (AR 14526-29), 17 (AR 14859-60), and 18 (AR 14861-65). Additionally, the emails make up p01iions of Documents 4 (AR 14225-26), 5 (AR 14355-56), 7 (AR 14407-13), 8 (AR 14465-67), and 15 (AR 14530). • March 2015 drafts of the CRP Decision Record, which contain comments from BLM employees and a DOI attorney. These drafts make up the majority of Documents 4 (AR 14227-14354), 5 (AR 14357-14404), and 7(AR14414-61). • A November 2014 draft of the CRP Response to Public Comments, which contains comments from BLM employees and a DOI attorney. This draft makes up the majority of Document 8 (AR 14468-14512). • A February 2013 draft and December 2013 draft of the CRP Environmental Assessment, which contain comments from BLM employees and a DOI attorney. The December 2013 draft makes up the majority of Document 15 (AR 14531-14723), and the February 2013 draft is characterized as Document 16 (AR 14724-14858). On September 23, 2016, this Comi ordered the production of the documents for in camera review to independently determine whether they are properly withheld. Order on Mot. to Compel, ECF No. 280. LEGAL STANDARDS "The statute known as the [Freedom of Info1mation Act] is actually a part of the Administrative Procedure Act." United States Dep 't ofJustice v. Reporters Comm. for Freedom 3 - OPINION AND ORDER ofPress, 489 U.S. 749, 754 (1989). "In 1966 Congress amended Section 3 of the APA [hereafter, "FOIA"] to implement 'a general philosophy of full agency disclosure."' Id. (quoting Dep 't ofAir Force v. Rose, 425 U.S. 352, 360 (1976)). FOIA "requires every agency upon any request for records ... to make such records promptly available to any person." Id. at 754-55 (internal quotation marks and citation omitted). Congress specifically exempted nine categories of documents from FOIA's disclosure requirements. See 5 U.S.C. § 552(b). Agencies may withhold documents responsive to a FOIA request from production only if they fall into one of those nine categories. See id.; see also, e.g., Carter v. United States Dep't of Commerce, 307 F.3d 1084, 1088 (9th Cir. 2002). Moreover, "[b]ecause FOIA's purpose is to encourage disclosure, its exemptions are to be na11'owly construed." Carter, 307 F.3d at 1088 (citing United States Dep 't ofJustice v. Julian, 486 U.S. 1, 8 (1988)). Here, the only statutory exemption from FOIA's disclosure requirements at issue is "Exemption 5," codified at 5 U.S.C. § 552(b)(5). Section 552(b)(5) exempts from FOIA disclosure only "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency," 5 U.S.C. § 552(b)(5), shielding from public scrutiny "those documents, and only those documents, nonnally privileged in the civil discovery context." Nat 'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). In addition to the standard civil discovery exemptions from production, Exemption 5 also encompasses "a 'deliberative process' privilege." Carter, 307 F.3d at 1088 (quoting United States Dep 't of the Interior v. Klamath Water Users Protective Assoc., 532 U.S. 1, 8 (2001)). "Thus, Exemption 5 covers 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which 4 - OPINION AND ORDER governmental decisions and policies are fo1mulated. "' Id. at 1089 (quoting Klamath, 532 U.S. at 8). "If an agency improperly withholds any documents, the district court has jurisdiction to order their production." Reporters Comm. for Freedom of Press, 489 U.S. at 755. After performing in camera review, this Court has required a party asserting privilege to reevaluate documents to determine the information that may be segregated and produced. See Riverkeeper v. US. Army Corps ofEng'rs, 38 F.Supp.3d 1207, 1223 (D. Or. 2014) (ordering production of reasonably segregable information "in a manner consistent with the [opinion]"); Nw. Envt 'l Advocates v. United States Envt'l Prof. Agency, Civ. No. 05-1876-HA, 2009 WL 349732, at *9 (D. Or. Feb. 11, 2009) (ordering defendants to reconsider use of privilege and produce documents that "do not meet the standards set forth in [the opinion]"). DISCUSSION The withheld documents can be described in two broad categories: (1) emails, and (2) draft documents. BLM argues all 17 documents are covered by attorney-client privilege. BLM fmiher argues Documents 5, 7, 8, 12, 14, 15, 16, and 17 are also covered by the deliberative . process pnv1·1 ege. 2 I. Attorney-Client Privilege "The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney's advice in response to such disclosures." United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal ellipsis 2 BLM also argues that Document !,which consists of May 2015 emails,should not be reviewed because it post-dates the challenged April 2015 CRP Decision Record. See Tri-Valley CAREs v. United States Dep 't of Energy, 671 F.3d 1113, 1130-31 (9th Cir. 2012) (post-decision information inappropriate for APA judicial review). However, the CRP Decision Record did not become final for purposes of judicial review until June 24, 2015, when the IBLA denied petitions for stay filed by ONDA and Harney County. See 43 C.F.R. § 4.2l(a); see also Joint Status Rep011, ECF No. 240, at 2 (IBLA denial of petitions for stay rendered "CRP effective and final for purposes of judicial review."). Therefore, I have included Document 1 in my review. 5 - OPINION AND ORDER omitted) (quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997)). "The fact that a person is a lawyer does not make all communications with that person privileged." Id. (quoting United States v. ivfartin, 278 F.3d 988, 999 (9th Cir. 2002)). Moreover, "[b]ecause it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed." Id. (quoting lvfartin, 278 F.3d at 999). The following test determines whether information is covered by the attorney-client privilege: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (quoting Ruehle, 548 F.3d at 607). a. Emails After performing in camera review of the withheld emails, I find the attorney-client privilege does not apply to all the emails as BLM posits. However, the privilege does apply in certain instances. The emails in Documents 1, 2, 6, 9, 10, 12, 13, and 18 are covered entirely by the privilege. These communications concern BLM seeking confidential legal advice from a DOI attorney or an Assistant U.S. Attorney, and no non-privileged communication can be reasonably redacted from the correspondence. Regarding Documents 4 and 7, portions of the emails are privileged for the same reason, but these po1tions are segregable from the larger chain of correspondence. Finally, the emails in Documents 5, 8, 11, 14, and 17 are not covered by the privilege. These communications appear to be internal correspondence among BLM employees, and at most, they acknowledge that an attorney's comments regarding a draft are ready for review. Therefore, BLM shall produce all of 6 - OPINION AND ORDER the emails in Documents 5, 8, 11, and 14;3 and those non-privileged portions of emails in Documents 4 and 7. b. Draft Documents After performing in camera review of the draft documents, I find the attorney-client privilege applies to comments by attorneys in the drafts' margins. Only those comments, however, that are related to providing legal advice to BLM are privileged. Therefore, BLM determine which of these comments are privileged, and some are ce1iainly not, and redact those privileged comments from Documents 4, 5, 8, 15, and 16. II. Deliberative Process Privilege "To fall within the deliberative process privilege, a document must be both 'predecisional' and 'deliberative."' Carter, 307 F.3d at 1089 (quoting Assembly of Calif. v. United States Dep't of Commerce, 986 F.2d 916, 920 (9th Cir. 1992)). "A 'predecisional' document is one 'prepared in order to assist an agency decisionmaker in aniving at his decision,' and may include 'recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency."' Id. (quoting Assembly, 986 F.2d at 920). "A predecisional document is ['deliberative'] if 'the disclosure of [the] materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby unde1mine the agency's ability to perfo1m its functions."' Id. (quoting Assembly, 986 F.2d at 920). "The deliberative process privilege is a qualified one. A litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the 3 As discussed infi'a § 2.a, Document 17 remains covered by the deliberative process privilege. 7 - OPINION AND ORDER government's interest in non-disclosure." 4 FTC v. Warner Commc 'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). In conducting in camera review, I adhere to the "process-oriented" approach set out in Nat'! Wildlife Fed'n v. United States Forest Serv. See 861 F.2d 1114, 1118-20 (9th Cir. 1988). "[T]he scope of the deliberative process privilege should not tum on whether we label the contents ofa document 'factual' as opposed to 'deliberative."' Id. at 1119. Instead, "documents containing nonbinding recommendations on law or policy," as well as factual materials that "reveal the mental processes of decisionmakers," are exempt from disclosure. Id. "Those documents that do not express subjective opinions or whose release is unlikely to expose an agency's decisionmaking process such as to discourage 'frank and open discussions of ideas' must be released." Nw. Envt'l Advocates, 2009 WL 349732, at *6 (quoting Nat'! Wildlife Fed'n, 861 F.2d at 1117). Further, those non-privileged "portions of documents covered by the deliberative process privilege must be segregated and disclosed unless they are 'so inte1woven with the deliberative material that [they are] not [segregable]." Pacific Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (quoting United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000)) (alterations in original). a. Emails After perfonning in camera review of the emails in Documents 5, 7, 8, 12, 14, 15, and 17, !find the deliberative process privilege applies only to the emails within Documents 12 and 17. These communications represent the "give-and-take of [BLM's] internal deliberations, and their disclosure would discourage such deliberations." Nw. Envt'l Advocates, 2009 WL 349732, '"Among the factors to be considered in making this determination are: I) the relevance of the evidence; 2) the availability of other evidence; 3) the government's role in the litigation; and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions." Warner Commc'ns Inc., 742 F.2d at 1161. 8 - OPINION AND ORDER at *8; see also id ("emails requesting clarification on issues before the agency, or discussing the manner in which the agency plans to move forward," are covered by the deliberative process privilege). I also find no information can be reasonably segregated from either document, and I conclude the balance of the Warner factors weigh against the disclosure of Document 17. 5 b. Draft Documents After performing in camera review of the draft documents, I find the deliberative process privilege applies to ce1iain comments in the drafts' margins. These comments "contain the personal views of agency staff or contain questions concerning the accuracy of the info1mation or analysis contained within the draft," as well as "internal discussions concerning the method by which info1mation is to be analyzed or how the law is to be applied to that information." Nw. Envt'l Advocates, 2009 WL 349732, at *8. I also conclude that the Warner factors weigh against disclosure of these comments; however, these comments are segregable from both "mundane" commentary and the drafts themselves. See Nat 'l Wildlife Fed'n, 861 F.2d at 1123 ("mundane editorial comments relating to organization, clarity, and precision of language" not covered by deliberative process privilege). Therefore, BLM shall determine which comments are privileged, redact those from the drafts' margins, and produce the remaining po1iions of Documents 5, 7, 8, 15, and 16. I II I I II I I II I II II II II 5 As discussed supra§ I.a, Document 12 is already covered by the attorney-client privilege. 9 - OPINION AND ORDER CONCLUSION ONDA's Motion, ECF No. 272, is denied in part as it applies to Documents 1 (AR 14219-21); 2(AR14222-23); 6(AR14405-06); 9(AR14513-14); 10 (AR 14515-17); 12 (AR 14520-22); 13(AR14523-25); 17 (AR 14859-60); and 18 (AR 14861-65). ONDA's Motion is granted in part as it applies to the documents listed below. 1. BLM is ordered to produce the following in their entirety for completion of the ARCRP: Documents 11(AR14518-19) and 14 (AR 14526-29). 2. BLM is ordered to produce all reasonably segregable information from the following for completion of the AR-CRP: Documents 4 (AR 14225-14354); 5 (AR 14355-14404); 7 (AR 14407-61); 8 (AR 14465-14512); 15 (AR 14530-14723); and 16(AR14724-14858). IT IS SO ORDERED. Dated this 5-t.\ay of December, 2016. 10- OPINION AND ORDER

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