Blue Mountains Biodiversity Project v. Jeffries

99 F.4th 438

BLUE MOUNTAINS BIODIVERSITY PROJECT,an Oregon non-profit corporation, Plaintiff-Appellant, v. Shane JEFFRIES, in his official capacity as Ochoco National Forest Supervisor;United States Forest Service, an agency of the United States Department of Agriculture, Defendants-Appellees.

No. 22-35857

United States Court of Appeals, Ninth Circuit

Argued and Submitted March 30, 2023 Seattle, Washington

Amended April 16, 2024

Filed July 3, 2023

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding, D.C. No. 2:20-cv-02158-MO

Jesse A. Buss (argued) and Bridgett A. Chevallier, Willamette Law Group, Oregon City, Oregon; Thomas C. Buchele, Earthrise

Law Center, Lewis & Clark Law School, Portland, Oregon; for Plaintiff-Appellant.

Robert P. Stockman (argued) and Joan M. Pepin, Attorneys; Sean C. Duffy, Trial Attorney; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Rick Grisel, Attorney, Office of the General Counsel, United States Department of Agriculture, Portland, Oregon; Rebecca Harrison, Senior Counsel; Todd Kim, Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Kelly K. Simon, American Civil Liberties Union Foundation of Oregon, Portland, Oregon; Cody Wofsy, Katrina Eiland, and Hannah Schoen, American Civil Liberties Union Foundation, San Francisco, California; for Amici Curiae American Civil Liberties Union, Immigrants' Rights Project, and American Civil Liberties Union of Oregon.

J. Patrick Hunter, Southern Environmental Law Center, Asheville, North Carolina, for Amici Curiae South Carolina Coastal Conservation League, Charleston Waterkeeper, Chattooga Conservancy, MountainTrue, Wild Virginia, Conservation Law Foundation, Clinch Coalition, Virginia Wilderness Committee, Cherokee Forest Voices, and Defenders of Wildlife.

Amy van Saun, Center for Food Safety, Portland, Oregon; Andrew R. Missel, Advocates for the West, Portland, Oregon; Jennifer Best, Director, Wildlife Law Program Friends of Animals, Centennial, Colorado; for Amici Curiae Environmental Organizations and Law Professors.

Before: Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit Judges, and Dean D. Pregerson,^* District Judge.

ORDER

The opinion filed on July 3, 2023, and appearing at 72 F.4th 991, is AMENDED as follows:

At 72 F.4th at 997, add the following footnote immediately after the sentence beginning with "Deliberative documents, which are prepared to aid the decision-maker in arriving at a decision":

"[T]he deliberative process privilege shields from disclosure documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." United States Fish and Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 267 [141 S.Ct. 777, 209 L.Ed.2d 78] (2021) (cleaned up); see also F.T.C. v. Warner Commc'ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (same). The privilege does not apply, however, to any factual information upon which the agency has relied. In re United States, 875 F.3d 1200, 1211-12 (9th Cir. 2017) (Watford, J., dissenting) (citing Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993)).

At 72 F.4th at 997, delete:

We agree, however, with the D.C. Circuit that "a showing of bad faith or improper behavior" might justify production of a privilege log to allow the district to determine whether excluded documents are actually deliberative.

and replace with:

But whether materials are in fact deliberative is subject to judicial review, and in appropriate circumstances district courts may order a privilege log to aid in that analysis. For example, we agree with the D.C. Circuit that "a showing of bad faith or improper behavior" might justify production of a privilege log to allow the district to determine whether excluded documents are actually deliberative.

With these amendments, the panel unanimously voted to deny the petition for panel rehearing. Judge Nguyen voted to deny the petition for rehearing en banc, and Judges Hurwitz and Pregerson so recommend.

The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc, Dkt. 39, is DENIED. No further petitions for rehearing en banc will be considered. Judges Forrest and Johnstone did not participate in the deliberations or vote in this case.

Order;

Opinion by Judge Hurwitz;

Statement Respecting Denial of Rehearing En Banc by Judge Berzon

OPINION

HURWITZ, Circuit Judge:

This case involves claims by the Blue Mountains Biodiversity Project ("BMBP") that the approval of the Walton Lake Restoration Project by the U.S. Forest Service violated the National Environmental Policy Act, the National Forest Management Act, and the Administrative Procedure Act. The district court granted summary judgment against BMBP on all claims relevant to this appeal. We affirm.

BACKGROUND

Walton Lake is a 218-acre recreation site in the Ochoco National Forest in Oregon. The Forest Service developed the Walton Lake Restoration Project ("Project") to replace trees infested with laminated root rot and bark beetles with disease-resistant ones. In 2015, relying on a regulation that excludes the sanitation harvest of trees to control disease and insects from some National Environmental Policy Act ("NEPA") requirements, 36 C.F.R. § 220.6(e)(14) (2015), the Service issued a decision memorandum approving the Project. In May 2016, the Service contracted with T2, a private company, for logging to implement that decision. Although no logging has yet occurred, the T2 contract remains in place.

BMBP sued, challenging the 2015 decision, and the district court preliminarily enjoined the logging on October 18, 2016. The next day, the Service withdrew its decision "to allow additional analysis of the proposed activities." On October 21, 2016, the Service stated that it would undertake "[a]dditional planning and analysis . . . with the goal of releasing an Environmental [Assessment ("EA")]."¹

The Service issued an EA and a decision notice approving the Project in 2017 but withdrew the decision notice later that year, citing a need for "additional dialogue and analysis." The Service issued a revised EA in July 2020 and a revised decision notice in December 2020. The revised EA analyzed four alternatives, including a no-action alternative. The selected alternative authorizes thirty-five acres of sanitation logging and 143 acres of commercial and noncommercial thinning to reduce the risk of wildfires and bark beetle infestation. The 2020 decision notice stated that the Project "provides the best opportunity for long-term public enjoyment of this area, with fewer risks of falling trees, and more longevity in the large ponderosa pines that provide much of the scenic quality"; found that there would be no significant environmental impact; and made four Project-specific amendments to the Ochoco National Forest Plan.

BMBP then filed this action challenging the 2020 decision notice. The Service filed an administrative record ("AR") in early 2021. A magistrate judge recommended denial of BMBP's motion to compel completion of the AR and declined to order the Service to produce a privilege log, concluding that certain documents sought by BMBP were deliberative materials, and BMBP did not establish that some documents in the AR filed in response to the 2016 suit were "before the agency" in its 2020 decision. The district judge adopted the magistrate judge's reasoning and denied the motion, but again preliminarily enjoined any logging for the Project.

The district court later granted the Service summary judgment on all but one of BMBP's claims. It concluded that the logging contract with T2 was not an "irreversible and irretrievable commitment" of resources because it could be unilaterally modified or terminated. It also held that the Service reasonably found that the Project would not have a significant environmental impact and thus reasonably declined to prepare an environmental impact statement ("EIS"). The court entered a final judgment and dissolved the preliminary injunction.² BMBP timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.³

DISCUSSION

I.

We first address BMBP's argument that the AR is incomplete. The Administrative Procedure Act ("APA") requires us to "review the whole record," 5 U.S.C. § 706, including "all documents and materials directly or indirectly considered by agency decision-makers," Thompson v. U.S. Dep't of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (cleaned up). BMBP argues that deliberative materials are part of the "whole record" and that a privilege log is required if they are not included in the AR. It also contends that all documents in the 2016 AR should be in the AR for this case.

A.

No previous Ninth Circuit opinion addresses whether deliberative materials are part of the "whole record." District courts in this Circuit are split on the issue. See Save the Colorado v. U.S. Dep't of the Interior, 517 F. Supp. 3d 890, 896-97 (D. Ariz. 2021) (collecting cases). The District of Columbia Circuit, however, has held that deliberative materials are generally not part of the AR absent impropriety or bad faith by the agency. See Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019). We agree.

Our holding rests on two well-settled principles governing judicial review of agency action under the APA. First, "the whole record," 5 U.S.C. § 706, is ordinarily "the record the agency presents," Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). "[L]ike other official agency actions, an agency's statement of what is in the...