Center for Biological Diversity v. Bernhardt et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CENTER FOR
BIOLOGICAL DIVERSITY,
Plaintiff,
v.
RYAN ZINKE, et al.,
Defendants.
Case No. 3:18-cv-00064-SLG
ORDER RE MOTION TO COMPEL COMPLETION OF THE ADMINISTRATIVE
RECORD
Before the Court at Docket 17 is Plaintiff Center for Biological Diversity’s (“CBD”)
Motion to Compel Completion of the Administrative Record Pursuant to Local Rule 16.3.
Defendants filed their Opposition at Docket 20, to which Plaintiff replied at Docket 23.
Oral argument was not requested and was not necessary to the Court’s determination.
BACKGROUND
On March 8, 2018, CBD filed a complaint “challeng[ing] the decision of the U.S.
Fish and Wildlife Service [(“FWS”)] that the Pacific walrus does not warrant listing as a
threatened or endangered species under the Endangered Species Act (‘ESA’).”1 On July
9, 2018, Defendants filed a Notice of Filing the Administrative Record pursuant to the
Court’s scheduling order.2 On August 6, 2018, CBD filed the instant motion seeking to
1 Docket 1 (Complaint) at 2, ¶ 1 (citing 16 U.S.C. §§ 1531–44; 82 Fed. Reg. 46,618 (Oct. 5,
2017)).
2 See generally Docket 14 (Notice of Filing the Administrative Record); see also Docket 13
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supplement the administrative record and require Defendants to produce a privilege log.3
CBD’s motion seeks inclusion in the administrative record of three categories of
documents: (1) comments and studies submitted in advance of a previous FWS listing
decision, in 2011, relating to the Pacific walrus; (2) 2017 listing decision-related
documents that had previously been released under FOIA; and (3) internal and external
communications relating to the listing decision.4 Defendants noted in their opposition that
they agree to supplement the record with the first category of documents—comments and
studies submitted prior to the 2011 listing decision—as well as more recent studies.5
LEGAL STANDARD
I. Completeness of the Record
When reviewing agency action under § 706 of the Administrative Procedure Act
(“APA”), “the court shall review the whole record or such portions thereof as may be cited
by any party . . . .”6 “The ‘whole’ administrative record, therefore, consists of all
documents and materials directly or indirectly considered by agency decision-makers and
includes evidence contrary to the agency’s position.”7 “‘The whole record’ includes
(Scheduling Order) at 1.
3 See Docket 17 at 7.
4 See Docket 17 at 11–13 (characterizing the documents as consisting of two categories: “public
comments and scientific studies” and “internal and external communications”); Docket 23 at 5–6
(characterizing the documents as consisting of the three categories described above).
5 See Docket 20 at 8–10. Defendants also stated that when they submitted their opposition,
they were in the process of “re-examining the record.” Docket 20 at 8.
6 5 U.S.C. § 706.
7 Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (emphasis in original)
(quoting Exxon Corp. v. Dep’t of Energy, 91 F.R.D. 26, 33 (N.D. Tex.1981)).
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everything that was before the agency pertaining to the merits of its decision.”8 “An
incomplete record must be viewed as a ‘fictional account of the actual decisionmaking
process.’”9 “A satisfactory explanation of agency action is essential for adequate judicial
review, because the focus of judicial review is not on the wisdom of the agency’s decision,
but on whether the process employed by the agency to reach its decision took into
consideration all the relevant factors.”10
“An agency’s designation and certification of the administrative record is entitled
to a ‘presumption of administrative regularity,’”11 which “requires courts to presume that
public officials have discharged properly their official duties.”12 “[T]o rebut the
presumption of regularity, plaintiffs ‘must put forth concrete evidence’ to show that the
record is incomplete.”13 “Plaintiffs cannot meet their burden ‘simply by asserting that the
documents are relevant, were before or in front of the [agency] at the time it made its
decision, and were inadequately considered[.]’”14 “[I]nstead, plaintiffs ‘must identify
8 Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993)
(quoting Thompson, 885 F.2d at 555–56).
9 Id. (quoting Home Box Office, Inc. v. Federal Communications Comm’n, 567 F.2d 9, 54 (D.C.
Cir.1977)).
10 Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1159 (9th Cir. 1980).
11 Golden Gate Salmon Ass’n v. Ross, No. 1:17-CV-01172 LJO-EPG, 2018 WL 3129849, at *4
(E.D. Cal. June 22, 2018) (quoting McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal.
2007)).
12 Id. (citing McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007)).
13 Id. (quoting Pac. Shores Subdivision, California Water Dist. v. U.S. Army Corps of Eng’rs, 448
F. Supp. 2d 1, 6 (D.D.C. 2006)).
14 Id. (quoting Pac. Shores Subdivision, 448 F. Supp. 2d at 6).
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reasonable, non-speculative grounds for [their] belief that the documents were considered
by the agency and not included in the record.’”15
II. Whether Deliberative Documents Are Part of the Record
The Ninth Circuit has “not previously addressed whether assertedly deliberative
documents must be logged and examined or whether the government may exclude them
from the administrative record altogether.”16
15 Id. (quoting Pac. Shores Subdivision, 448 F. Supp. 2d at 6).
16 In re United States, 875 F.3d 1200, 1210 (9th Cir.), cert. granted, judgment vacated on other
grounds, 138 S. Ct. 443 (2017) (finding that district court had not committed clear error by
“requir[ing] a privilege log and evaluat[ing] claims of privilege on an individual basis before
including documents in the record . . . .”). The U.S. Supreme Court, in vacating the judgment,
did “not suggest any view on the merits of respondents’ claims or the Government’s
defenses . . . .” In re United States, 138 S. Ct. 443, 445 (2017). However, the Supreme Court
did note that “[t]he Government makes serious arguments that at least portions of the District
Court’s order are overly broad.” Id. The district court order had “require[d] the Government to
turn over all ‘emails, letters, memoranda, notes, media items, opinions and other materials’ that
fall within the following categories:[]‘(1) all materials actually seen or considered, however
briefly, by Acting Secretary [Elaine] Duke in connection with the potential or actual decision to
rescind DACA . . ., (2) all DACA-related materials considered by persons (anywhere in the
government) who thereafter provided Acting Secretary Duke with written advice or input
regarding the actual or potential rescission of DACA, (3) all DACA-related materials considered
by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with
verbal input regarding the actual or potential rescission of DACA, (4) all comments and
questions propounded by Acting Secretary Duke to advisors or subordinates or others regarding
the actual or potential rescission of DACA and their responses, and (5) all materials directly or
indirectly considered by former Secretary of DHS John Kelly leading to his February 2017
memorandum not to rescind DACA.’” Id. at 444–45 (quoting Regents of Univ. of California v.
United States Dep’t of Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324, at *8 (N.D.
Cal. Oct. 17, 2017)). The district court order had rejected plaintiffs’ request “that defendants
scour the Department of Justice and the White House for documents for inclusion in the
administrative record . . . except to the limited extent that DOJ or White House personnel fall
within the category described . . . above as someone who gave verbal or written input to the
Acting Secretary. Nor do defendants have to search for DACA materials below the agency
levels indicated in the first paragraph above. These are intended as practical limits on what
would otherwise be a bone-crushing expedition to locate needles in haystacks.” Regents, 2017
WL 4642324, at *8.
The Ninth Circuit has also, in an unpublished opinion, denied a “motion to supplement, along
with the accompanying motion to require preparation of a privilege log,” because the agency
“denie[d] that it [had] considered the documents at issue, and [the plaintiff had] not presented
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A split of authority exists on this issue, including among the district courts of this
Circuit. The D.C. Circuit has held that “[a]gency deliberations not part of the record are
deemed immaterial.”17 The Circuit Court reasoned “the actual subjective motivation of
agency decisionmakers is immaterial as a matter of law—unless there is a showing of
bad faith or improper behavior.”18 In San Luis Obispo Mothers for Peace v. U.S. Nuclear
Regulatory Commission, the D.C. Circuit rejected the plaintiffs’ request “to supplement
the record to consider transcripts of a closed meeting of the Nuclear Regulatory
Commission.”19 The court determined that “[j]udicial examination of these transcripts
would represent an extraordinary intrusion into the realm of the agency. These transcripts
record the frank deliberations of Commission members engaged in the collective mental
processes of the agency.”20
The D.C. District Court has elaborated on this reasoning. It held in Oceana, Inc.
v. Pritzker that “[t]he presumed exemption from the administrative record of deliberative
clear evidence that the [agency had] consider[ed] those documents.” Cook Inletkeeper v. U.S.
E.P.A., 400 F. App’x 239, 240 (9th Cir. 2010).
17 In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279,
1279 (D.C. Cir. 1998) (citing Camp v. Pitts, 411 U.S. 138 (1973); United States v. Morgan, 313
U.S. 409 (1941)).
18 Id. at 1279–80 (citing Saratoga Dev. Corp. v. United States, 21 F.3d 445, 457–58 (D.C.
Cir.1994); Overton Park, 401 U.S. at 420).
19 San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 44
(D.C. Cir. 1986).
20 Id. The Ninth Circuit in In re United States distinguished Mothers for Peace from cases
involving a single agency head: “Where—as in Mothers for Peace—an agency is headed by a
multi-member board, the deliberations among those members are analogous to the internal
mental processes of the sole head of an agency, and thus are generally not within the scope of
the administrative record. No such deliberations among a multi-member agency are at issue
here.” In re United States, 875 F.3d at 1210 (citing Portland Audubon Soc’y, 984 F.2d at 1549).
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process materials makes good sense. The deliberative process privilege is aimed at
‘enhanc[ing] the quality of agency decisions by protecting open and frank discussion
among those who make them within the Government.’”21 The Oceana court also
expressed its concern that requiring agencies to develop a privilege log would “transform
the process of judicial review of administration decisions” and burden agencies with FOIA-
like discovery.22
The Central District of California in ASSE International, Inc. v. Kerry, taking note
of “the great weight of cases from the D.C. Circuit honoring the Government’s
determination of what documents are privileged absent a rebuttal of the presumption of
regularity,” determined that “the documents over which Defendants claim privilege are not
part of the administrative record and Defendants are not required to produce a privilege
log for those documents.”23
Similarly, the Eastern District of California in Golden Gate Salmon Association v.
Ross “declin[ed] to require [that] deliberative materials be included in an administrative
record as a matter of course because doing so contravenes ‘the standard presumption
that the agency properly designated the Administrative Record.’”24 However, the Golden
21 Oceana, Inc. v. Pritzker, 217 F. Supp. 3d 310, 319 (D.D.C. 2016) (quoting Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001)).
22 Id. at 320 (internal quotation marks omitted) (quoting Blue Ocean Institute, et al. v. Gutierrez
et al., 503 F.Supp.2d 366, 371 (D.D.C. 2007)).
23 ASSE Int’l, Inc. v. Kerry, No. SACV 14-00534-CJC(JPRx), 2018 WL 3326687, at *4 (C.D. Cal.
Jan. 3, 2018).
24 Golden Gate Salmon, 2018 WL 3129849, at *5 (emphasis omitted) (quoting San Luis & Delta-
Mendota Water Auth. v. Jewell, No. 1:15-CV-01290 LJO GSA, 2016 WL 3543203, at *19 (E.D.
Cal. June 23, 2016)).
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Gate Salmon court did grant in part plaintiffs’ motion to supplement the administrative
record as to those documents where the plaintiffs had provided “clear evidence” that a
deliberative process privilege was not warranted.25
In contrast, the Northern District of California has stated that “[t]here 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.”26 “Therefore, the government is wrong to assert that these types of materials, as
a categorical matter, should be excluded from the universe of materials directly or
indirectly considered by agency decision-makers.”27 “[T]he scope of the [deliberative
process] privilege doesn’t define the scope of the material directly or indirectly considered.
If a privilege applies, the proper strategy isn’t pretending the protected material wasn’t
25 Id. at *5–7, *9–13 (granting plaintiffs’ motion as to certain predecisional meeting notes and
comment letter; but denying it as to comments and other materials that predated the agency’s
consideration of the project at issue, to categories of documents for which plaintiffs had made
vague assertions, to deliberative emails sent by a government official whom the agency had
deemed not crucial to the decisionmaking process, and to other deliberative communications).
26 Desert Survivors v. U.S. Dep’t of the Interior, 231 F. Supp. 3d 368, 382 (N.D. Cal. 2017).
27 Inst. for Fisheries Res. v. Burwell, No. 16-CV-01574-VC, 2017 WL 89003, at *1 (N.D. Cal.
Jan. 10, 2017).
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considered, but withholding or redacting the protected material and then logging the
privilege.”28 The Districts of Montana29 and Utah30 have reached a similar conclusion.
D.C. courts have held that courts should not consider those communications that
were entirely within the agency.31 The Ninth Circuit has suggested it agrees with such an
approach.32 The Court finds persuasive the D.C. Circuit’s reasoning that “the actual
subjective motivation of agency decisionmakers is immaterial as a matter of law—unless
28 Id.
29 See Indigenous Envtl. Network v. United States Dep’t of State, No. CV-17-29-GF-BMM, 2018
WL 1796217, at *2–3 (D. Mont. Apr. 16, 2018) (internal quotation marks omitted) (ordering
Department of State and FWS to produce internal agency communications and drafts, stating
these documents “are part of the universe of material directly or indirectly considered by agency
decision-makers”).
30 See Pitman v. United States Citizenship & Immigration Servs., No. 2:17-CV-00166-CW-EJF,
2018 WL 3232355, at *3 (D. Utah July 2, 2018) (“The USCIS Defendants have not pointed to
any binding authority in the Tenth Circuit holding that the administrative record does not include
privileged documents. Therefore, consistent with other courts facing similar circumstances, the
Court declines to follow the district court cases from the Districts of Columbia and Virginia and
hold that privileged documents do not form part of the administrative record and therefore not
require a privilege log in APA cases.”).
31 See Mothers for Peace, 789 F.2d at 44 (noting that “the frank deliberations of [Nuclear
Regulatory] Commission members” constituted part of “the collective mental processes of the
agency”); Stand Up for California! v. United States Dep’t of Interior, 71 F. Supp. 3d 109, 122
(D.D.C. 2014) (quoting In re Subpoena Duces Tecum, 156 F.3d at 1279–80) (“[P]rivileged and
deliberative documents reflecting internal agency deliberations are ‘immaterial as a matter of
law—unless there is a showing of bad faith or improper behavior . . . .’”). The D.C. Circuit has
similarly singled out intra-agency communications for protection in the context of the deliberative
process privilege. See Checkosky v. SEC, 23 F.3d 452, 489 (D.C. Cir. 1994) (quoting Kansas
State Network, Inc. v. FCC, 720 F.2d 185, 191 (D.C. Cir. 1983)), superseded on other grounds
as recognized by Marrie v. SEC, 374 F.3d 1196 (D.C. Cir. 2004) (“In passing on final agency
action, we therefore have refused to consider transcripts of closed agency meetings or ‘intra-
agency memoranda and documents recording the deliberative process leading to’ the agency’s
decision.”).
32 See Portland Audubon Soc’y, 984 F.2d at 1549 (distinguishing unprotected materials in that
case from “the internal deliberative processes of the agency [and from] the mental processes of
individual agency members”).
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there is a showing of bad faith or improper behavior.”33 “Just as a judge cannot be
subjected to . . . scrutiny [over which documents the judge considers in making decisions
and the weight that the judge gives each document], . . . so the integrity of the
administrative process must be equally respected.”34 The Ninth Circuit has recognized
that the deliberative process privilege benefits the public insofar as it “allow[s] agencies
freely to explore possibilities, engage in internal debates, or play devil’s advocate without
fear of public scrutiny.”35 But the privilege extends only to those communications entirely
within the particular agency. When an agency obtains and considers materials from
outside of that agency, or shares the agency’s documents with others outside the agency,
including other governmental agencies, the deliberative process privilege does not apply.
All such materials should be included within the administrative record.
DISCUSSION
I. Scope of the Dispute
Plaintiff’s motion refers to a number of documents that it seeks to have included in
33 In re Subpoena Duces Tecum, 156 F.3d at 1279–80 (citing Saratoga Dev. Corp. v. United
States, 21 F.3d 445, 457–58 (D.C.Cir.1994); Overton Park, 401 U.S. at 420).
34 United States v. Morgan, 313 U.S. 409, 422 (1941) (internal citation omitted) (holding that the
Secretary of Agriculture should not have been ordered to testify “regarding the process by which
he reached the conclusions of his [stockyard market rate-setting] order, including the manner
and extent of his study of the record and his consultation with subordinates”). The Court also
stated: “It will bear repeating that although the administrative process has had a different
development and pursues somewhat different ways from those of courts, they are to be deemed
collaborative instrumentalities of justice and the appropriate independence of each should be
respected by the other.” Id. (citation omitted).
35 Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009) (internal quotation marks
omitted) (quoting Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th
Cir.1992)).
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the administrative record.36 In their opposition, Defendants indicated they had agreed to
supplement the administrative record with the following documents:
• Comments from CBD to FWS on the agency’s 90-day finding that listing
the Pacific walrus may be warranted submitted on November 9, 2009
[Exhibit 1 (Docket 18-1 at 2–30)];
• Comments from CBD to FWS to inform its status review of the Pacific
walrus submitted in 2010 [Exhibit 3 (Docket 18-3 at 2-14)];
• Comments from the Marine Mammal Commission to FWS regarding
whether to list the Pacific walrus submitted on January 1, 2011 [Exhibit
6 (Docket 18-6)];
• Scientific studies and other documents referenced in the FWS’s 2009
comment letter, copies of which were submitted to the agency along with
the comment letter [Exhibits 1 and 1-A (Docket 18-1 at 31–41)];
• Scientific studies and other documents referenced in FWS’s 2010
comment letter, copies of which were submitted to the agency along with
the comment letter [Exhibit 3 (Docket 18-3 at 15–19)];
• Scientific studies and other documents referenced in FWS’s comment
letter submitted on December 21, 2016, copies of which were submitted
to the agency along with the comment letter [Exhibit 7 (Docket 18-7);
PW0000254–58];
• Studies referenced in FWS’s comment letter submitted on July 28, 2017,
copies of which were submitted to the agency along with the comment
letter [Exhibit 8 (Docket 18-8); PW0000731]; and
• A study entitled: Taylor, Rebecca L. et al., Demography of the Pacific
walrus (Odobenus rosmarus divergens) in a changing Arctic, Marie [sic]
Mammal Science, first published: 02 September 2017 [Exhibit 9 (Docket
18-9)].37
36 Docket 17 at 12–13; see also Docket 20 at 8–9.
37 Docket 17 at 12 (internal citation omitted); see also Docket 20 at 8–9; Docket 21 (Declaration
of Patrick Lemons) at 1–5, ¶¶ 3–14 (“The documents that Center for Biological Diversity has
requested (the 2009 comments, 2010 comments, and studies cited in those comments) were
directly or indirectly considered but not included in the Final Species Status Assessment or the
2017 12-month finding because the FWS determined that the documents were not the best
available scientific or commercial information available. For example, some of the documents
were not the best available scientific or commercial information because more recent studies
had been completed on the issues presented in previous work. Only the best available scientific
and commercial information was used in the 2017 12-month finding and Final Species Status
Assessment.”).
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The following documents remain in dispute:
• Peer reviewers’ comments on FWS’s draft status assessment [Exhibit
10 (Docket 18-10)];
• Comments from the Marine Mammal Commission on FWS’s draft status
assessment [Exhibit 12 (Docket 18-12)];
• Comments from the U.S. Geological Survey on FWS’s draft status
assessment [Exhibit 11 (Docket 18-11)];
• Notes from meetings of the team FWS assembled to recommend
whether it should list the walrus;
• Drafts of FWS’s status assessment and decision documents [Exhibit 14
(Docket 18-14)]; and
• Emails and other internal and external communications relating to the
listing of the Pacific walrus.38
II. Analysis of Each Document or Category of Documents
A. Exhibit 10
Exhibit 10 is titled “PEER REVIEW: DRAFT SPECIES STATUS ASSESSMENT
FOR THE PACIFIC WALRUS (Odobenus rosmarus divergens) December 2016 (Version
3.0).”39 CBD argues that it “has done more than imply that the records at issue[, including
Exhibit 10,] were in the agency’s possession; it has actually obtained them from the
agency in the course of a FOIA request.”40 However, “[a]n agency’s possession of certain
records, as confirmed by their disclosure in response to a FOIA request, is not sufficient
to show that the same records were considered by the agency in connection with a
decision subject to an APA challenge . . . .”41
38 Docket 17 at 13; see also Docket 20 at 9–10. This bullet point appears to include Exhibit 13,
which CBD describes as “a summary report of peer review comments on the draft status
assessment . . . .” Docket 17 at 26 (citing Docket 18-13 (Exhibit 13)).
39 Docket 18-10 at 2.
40 Docket 23 at 10 (internal citations and quotation marks omitted).
41 Stand Up for California!, 71 F. Supp. 3d at 117; see also Pac. Shores Subdivision, 448 F.
Supp. 2d at 6–7 (“Although Plaintiffs imply that the Corps possessed some of the documents
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Patrick Lemons—the FWS person “ultimately responsible for determining which
publications and documents were relevant and constituted the best available science for
consideration in [FWS’s Pacific walrus listing] decision making process in 2017”42—states
in his declaration that “FWS sent the technical sections from the Draft Species Status
Assessment to [six] subject matter[] experts and the Final Species Status Assessment to
three anonymous reviewers for independent third party review, in part, to ensure that
FWS had incorporated the best available scientific and commercial data.”43 Exhibit 10
appears to be one of the three anonymous and independent third party peer reviews.
Defendants provide no support for their allegation that “peer review comments on FWS’s
draft status assessment” are deliberative.44 Including these comments in the
administrative record would not undermine the public’s interest in “allow[ing] agencies
freely to explore possibilities, engage in internal debates, or play devil’s advocate without
fear of public scrutiny.”45 And CBD has “identif[ied] reasonable, non-speculative grounds
for [its] belief that [this] document[ was] considered by the agency and not included in the
because Plaintiffs obtained them through a Freedom of Information Act request, see Pls’ Mot. at
4, there is no evidence that the Corps’ decisionmaker(s) were actually aware of the fourteen
documents Plaintiffs seek to include.”); see also TOMAC v. Norton, 193 F. Supp. 2d 182, 195
(D.D.C. 2002), aff’d sub nom. TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433
F.3d 852 (D.C. Cir. 2006) (holding party seeking to supplement with FOIA materials “confused
the administrative record—the record the agency relied upon in its final action—with FOIA’s
emphasis on every scrap of paper that could or might have been created.”).
42 Docket 21 at 1.
43 Docket 21 at 4.
44 Docket 20 at 18.
45 Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009) (internal quotation marks
omitted) (quoting Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th
Cir.1992)).
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record.’”46 Based on the foregoing, the Court will grant CBD’s motion to supplement as
to Exhibit 10.
B. Exhibit 12
Exhibit 12 is the Marine Mammal Commission’s “review [of the] the Draft Species
Status Assessment (SSA) of the Pacific Walrus . . . .”47 This communication from the
Marine Mammal Commission does not reveal of “the collective mental processes of the
[FWS] agency.”48 Rather, it is commentary from an independent government agency
established under the Marine Mammal Protection Act.49 Based on the foregoing, the
Court will grant CBD’s motion to supplement as to Exhibit 12.
C. Exhibit 11
Exhibit 11 is a memorandum from the U.S. Geological Survey to FWS’s Dr. James
G. MacCracken.50 Its subject matter is “USGS review of the USFWS Draft Species Status
Assessment of the Pacific Walrus.”51 Dr. MacCracken is the lead author of FWS’s May
2017 Final Species Status Assessment for the Pacific Walrus.52 For much the same
46 Golden Gate Salmon, 2018 WL 3129849, at *4 (quoting Pac. Shores Subdivision, 448 F.
Supp. 2d at 6).
47 Docket 18-12 at 2.
48 Mothers for Peace, 789 F.2d at 44.
49 16 U.S.C. §§ 1361, 1401.
50 See Docket 18-11 at 2.
51 Docket 18-11 at 2.
52 See Docket 21-2 (Final Species Status Assessment for the Pacific Walrus (Odobenus
rosmarus divergens)) at 1.
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reasoning that the Court will grant CBD’s motion as to Exhibit 12, the Court will grant
CBD’s motion as to Exhibit 11.
D. “Notes from meetings of the team the Service assembled to recommend whether
it should list the walrus[.]”53
CBD notes in its motion that “a document in the record refers to a meeting of the
‘listing decision team,’ but the record contains no notes, minutes, or transcripts from that
meeting.”54 Defendants argue that CBD’s request is “pure speculation as [CBD] does not
even know whether such documents exist.”55 Documents regarding meetings attended
solely by FWS personnel would constitute “the collective mental processes of the agency”
and do not need to be included in the administrative record.56 But documents regarding
meetings that were attended by individuals outside of FWS (even if FWS were also at the
meetings) are not protected by the deliberative process privilege. Accordingly, the Court
will grant CBD’s motion on this topic as follows: the record shall be supplemented with all
documents related to meetings regarding the listing decision at which any person outside
of the FWS was in attendance.
E. Exhibit 14 and Other Drafts
Exhibit 14 is a two-paragraph document with the heading, “Draft Pacific Walrus
Status Assessment.”57 CBD identifies it as a “copy of Version 1.1 of the Executive
53 Docket 17 at 13.
54 Docket 17 at 25–26 (quoting PW0000387).
55 Docket 20 at 18.
56 Mothers for Peace, 789 F.2d at 44.
57 Docket 18-14 at 2.
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Summary from the U.S. Fish and Wildlife Service’s Species Status Assessment for the
Pacific Walrus dated September 2016.”58 FWS evidently shared earlier versions of the
Species Status Assessment with other entities.59 Therefore, Exhibit 14 is not an internal
FWS document; rather, it appears to be a building block of an external communication.
Therefore, the Court will grant CBD’s motion to supplement on this topics as follows:
Defendants shall supplement the record to include any and all drafts of Pacific Walrus
Status Assessments and decision documents that were shared with individuals outside
of the FWS for comment or otherwise.
F. “Emails and other internal and external communications relating to the listing of
the Pacific walrus,”60 including Exhibit 13 61
Exhibit 13 is titled, “Summary Report of Independent Peer Reviews of U.S. Fish
and Wildlife Service Draft Species Status Assessment for the Pacific Walrus (Odobenus
rosmarus divergens).”62 The document is dated June 2017.63 The forward states that
“Atkins North America (Atkins), was retained by the U.S. Fish and Wildlife Service
(Service) to facilitate an independent scientific review of the Draft Species Status
58 Docket 18 (Declaration of Kristen Monsell) at 4.
59 See Docket 18-10 (Exhibit 10) at 2.
60 Docket 17 at 13; see also Docket 20 at 9–10; Docket 18-10 (Exhibit 10); Docket 18-11 (Exhibit
11); Docket 18-12 (Exhibit 12); Docket 18-14 (Exhibit 14).
61 See Docket 17 at 26 (citing Docket 18-13 (Exhibit 13)) (referring to “a summary report of peer
review comments on the draft status assessment”).
62 Docket 18-13 at 2.
63 Docket 18-13 at 2.
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Assessment . . . .”64 The Court will grant CBD’s motion to supplement as to Exhibit 13.
In addition, the Court will grant the motion as to any documents that FWS decisionmakers
solicited or received from other agencies or other organizations outside FWS relating to
the listing status of the Pacific walrus.
CBD also seeks to supplement the record with emails and other internal and
external communications. CBD points out that “[t]he record contains only two emails, one
of which consists of [an FWS] employee forwarding a copy of a letter from the [CBD] to
other [FWS] employees, the other of which consists of a brief discussion regarding
whether a formal response to a letter from the [CBD] is needed.”65 CBD also points to
the large swath of emails and internal communications in another listing decision.66 The
Court will grant CBD’s motion as to email exchanges and other communications as
follows: Defendants shall supplement the record with all email exchanges and other
communications relating to the Pacific walrus listing decision with other agencies and
other organizations outside of FWS.
CONCLUSION
In light of the foregoing, IT IS ORDERED that CBD’s Motion to Compel Completion
of the Administrative Record Pursuant to Local Rule 16.3 at Docket 17 is DENIED in part
and GRANTED in part as follows:
CBD’s unopposed Motion as to the comments and studies at Exhibits 1 and 1-A
64 Docket 18-13 at 3.
65 Docket 17 at 11–12 (citing PW0000152; PW0000259).
66 See generally Docket 18-5 (Certified List of the Administrative Record in Alaska Oil & Gas
Ass’n v. Pritzker, No. 4:13‐cv‐00018‐RRB (D. Alaska)).
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(Docket 18-1), Exhibit 3 (Docket 18-3), Exhibit 7 (Docket 18-7), Exhibit 8 (Docket 18-8),
Exhibit 9 (Docket 18-9), PW0000254–58, and PW0000731 is GRANTED.
CBD’s Motion as to Exhibit 10 (Docket 18-10), Exhibit 11 (Docket 18-11), Exhibit
12 (Docket 18-12), Exhibit 13 (Docket 18-13), and Exhibit 14 (18-14) is GRANTED.
CBD’s Motion to Supplement as to FWS’s strictly internal documents, including
FWS’s records of entirely internal meetings relating to the listing of the Pacific walrus is
DENIED. Defendants need not submit a privilege log for FWS’s intra-agency documents
relating to the listing of the Pacific walrus.
CBD’s Motion as to emails and all other documents shared or received from other
agencies or other organizations outside FWS relating to the listing of the Pacific walrus is
GRANTED. To the extent FWS believes any such externally shared documents may be
subject to a deliberative process privilege, it shall provide a privilege log with respect to
each such external document.
Defendants shall fully comply with this order within 30 days.
DATED this 15th day of November, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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