Club v. U.S. Fish & Wildlife Serv.

ORDER^[1]

SHERI POLSTER CHAPPEELL, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs Sierra Club and Environmental Confederation of Southwest Florida's Objections (Doc. 89) to Magistrate Judge Nicholas P. Mizell's Order (the “Order”) (Doc. 87). Defendants U.S. Fish and Wildlife Service, Martha Williams, U.S. Army Corps of Engineers, and Lt. Gen.

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Scott Spellmon responded. (Doc. 94). The Court overrules Plaintiffs' objections.

BACKGROUND

This is an environmental dispute. The Florida Department of Transportation (“FDOT”) approved plans to expand certain state roads. The expansion will be in Florida panther habitat. So the project must comply with the Endangered Species Act (“ESA”), the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).

The Corps issued an Environmental Assessment (“EA”) and a Section 404 Clean Water Act (“CWA”) permit. The Corps then consulted Fish and Wildlife, who produced a 2018 Biological Opinion. (Doc. 65 at 10-11, 22). Fish and Wildlife's Opinion concluded the expansion was “not likely to jeopardize the continued existence of the panther.” (Doc. 62-14 at 16). Two years later, Fish and Wildlife amended its Opinion, but again concluded that expansion did not threaten the panther's existence. (Doc. 65 at 11; Doc. 66-7 at 16).

Plaintiffs sued, claiming Defendants violated the ESA, NEPA, and APA in making the decision to expand the roadways. Defendants furnished a draft administrative record to Plaintiffs. (Doc. 30). But Defendants refused to provide a privilege log for their deliberative-process documents, despite Plaintiffs' request. So Plaintiffs moved to compel the privilege log. (Doc. 62). Plaintiffs also sought to admit into evidence seven reports or studies relating

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to development, traffic, and conservation (collectively, the “Extra-Record Documents”). Plaintiffs alternatively requested judicial notice of the Extra-Record Documents. The Order denied Plaintiffs' motion for a privilege log and request to consider extra-record materials. Plaintiffs now object.

LEGAL STANDARD

Federal Rule of Civil Procedure 72 governs issues referred to a magistrate judge. When reviewing a magistrate judge's nondispositive ruling, a district court “must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). A “finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (citation omitted). An order “is contrary to the law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Malibu Media, LLC v. Doe, 923 F.Supp.2d 1339, 1347 (M.D. Fla. 2013).

While the parties agree that the clear error standard applies to factual objections, they disagree on the standard governing legal holdings. Plaintiffs contend that the Court must apply a de novo standard. Defendants push for contrary to law review. Largely, the answer is irrelevant because “there is no practical difference between” these types of review.

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E.g., PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010); see also 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3069 (3d ed. 2021 update) (collecting cases).

DISCUSSION

Plaintiffs loft objections to the Order: it (1) allows federal agencies to unilaterally withhold unidentified documents relevant to a challenged agency action based on blanket privilege claims; (2) applies the incorrect legal standard for considering extra-record evidence when reviewing an agency action; and (3) fails to apply the judicial notice standard. The Court addresses each in turn.

A. Privilege Log

First, Plaintiffs object to Defendants' using the deliberative process privilege without identifying documents withheld in a privilege log. By allowing Defendants to do so, Plaintiffs say the Order adopted a minority, out-of-circuit position. They contend the deliberative process privilege is limited and qualified, while the agency must specifically justify applying the privilege.

As everyone recognized, the Eleventh Circuit has not decided whether a federal agency must provide a privilege log when it withholds documents based on a blanket claim of deliberative process privilege in APA cases. Plaintiffs focus on some district court cases requiring a privilege log. As the argument goes, because the Order relied on a different line of nonbinding cases, it was

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legal error. Not so. The Order was well-reasoned and properly determined a privilege log was unnecessary-consistent with the only circuit to directly address this issue. See Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019) (finding privilege log unnecessary for deliberative process documents).

Plaintiffs recognize the deliberative process privilege might apply. But they want a privilege log delineating the documents subject to that privilege. Defendants parry that agencies need not produce a privilege log since the subject documents are not part of the administrative record (i.e., they're irrelevant). So Defendants say disclosure in a privilege log is unnecessary and might reveal information to chill future deliberative processes. To address whether a log is required, it helps to briefly examine the privilege itself.

The deliberative process privilege “protect[s] the quality of the agency's decision-making process.” Miccosukee Tribe of Indians of Fla. v. U.S., 516 F.3d 1235, 1263 (11th Cir. 2008). It “covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated by protecting open and frank discussion among those who make them within the Government.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (cleaned up). This privilege applies when material is (1) pre-decisional or “prepared in order to assist an agency decisionmaker in arriving at his decision, ” and (2) deliberative or “a direct part of the deliberative process in

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that it makes recommendations or expresses opinions on legal or policy matters.” Miccosukee, 516 F.3d at 1263 (cleaned up).

Generally, judicial review of administrative action in APA cases does not extend to an agency's deliberative process; it is limited to the administrative record.^[2] See Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers (“PEACH”), 87 F.3d 1242, 1246 (11th Cir. 1996). Documents that would be protected by deliberative process privilege are therefore not relevant to the inquiry at hand absent some other showing of relevance. See Coastal Conservation Ass'n v. Locke, No. 2:09-cv-641-FtM-29SPC, 2010 WL 1439071, at *4 (M.D. Fla. Apr. 12, 2010) (“[T]he case law in this Circuit has found that deliberative documents and documents used by the agency during its internal discussions should not be included in the Administrative Record because it would chill the agency's decision making process.” (citing Moye, O'Brien, O'Rourke, Hogan, & Prickert v. Nat'l R.R. Passenger Corp., 376 F.3d 1270, 1278 (11th Cir. 2004))).

Because there is an interest in protecting that process from disclosure, the process need not be detailed in a privilege log for outsiders to scrutinize as

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part of a fishing expedition. See Moye, 376 F.3d at 1278. Requiring agencies to operate within a fishbowl throughout their decision-making process would likely damage the deliberative process. See id.What's more, demanding that an agency produce a privilege log and defend its designation of the record would eviscerate the presumption of regularity. See, e.g., Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); Transp. Div. of the Int'l Ass'n of Sheet Metal, Air, Rail, and Transp. Workers v. Fed. R.R. Admin., 10 F.4th 869, 878 (D.C. Cir. 2021). At bottom, “Since deliberative documents are not part of the administrative record, an agency that withholds these privileged documents is not required to produce a privilege log to describe the documents that have been withheld.” Donjon-SMIT, LLC v. Schultz, No. 2:20-cv-011, 2020 WL 1666073, *7 (S.D. Ga. Apr. 3, 2020) (quoting Nat'l Ass'n of Chain Drug Stores v. U.S. Dep't of Health & Human Servs., 631 F.Supp.2d 23, 27 (D.D.C. 2009)).

The Order, therefore, did not err in concluding that Plaintiffs must show bad faith or improper behavior in the decision-making process to make the deliberative-process documents material and discoverable....