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CENTER FOR BIOLOGICAL DIVERSITY v. UNITED STATES MARINE CORPS.

September 15, 2005.

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
UNITED STATES MARINE CORPS, Defendant.



The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District

MEMORANDUM OPINION

Pending before the Court are renewed cross-motions for summary judgement by Plaintiff, Center for Biological Diversity and Defendant, United States Marine Corps. This dispute arises out of Center for Biological Diversity's ("Plaintiff") request pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks the release of documents from United States Marine Corps ("Defendant") regarding the impact of ongoing operations and future activities in upland habitats occupied by threatened or endangered species at Marine Corps Base Camp Pendleton in San Diego County, California. TFH Mem. Op. 8/21/03 at 3. On August 21, 2003, this Court ordered Defendant to turn over certain withheld documents for in camera inspection to determine whether they were privileged materials. This resulted in Defendant turning over five documents to the Court, including what was labeled as Exhibits 1, 5, 6, and 7 of the Vaughn Index and the Biological Assessment of Upland Habitats, Marine Corps Base Camp Pendleton, dated March 2000 ("Biological Assessment").

In the parties' renewed summary judgment pleadings, both Plaintiff and Defendant requested that the Court review in camera the remaining documents in dispute as the most efficient means of resolving the issue. Def.'s Reply to Pl.'s Opp'n to Def.'s Renewed Mot. for Summ. J. at 7; Pl.'s Reply in Supp. of Renewed Cross-Mot. for Summ. J. at 8. The remaining documents concern Defendant's responses to additional information requested by the United States Fish and Wildlife Service ("FWS") after its review of the Biological Assessment submitted by Defendant. On July 8, 2005, this Court ordered Defendant to turn over for in camera review the remaining disputed documents. TFH Order 7/8/05. These fourteen documents are referred to as documents numbered 1, 4, 6, 11, 16, 27, 32, 36, 42, 48, 49, 50, 51, and 52 as described in the Base Responses Administrative Record matrix Table dated November 2003 attached to Defendant's Renewed Motion for Summary Judgment, Exhibit B ("Base Responses").

  The facts surrounding this case as well as the relevant legal standard to be applied are discussed at length in pages 1-8 of this Court's Memorandum Opinion issued August 21, 2003. This Memorandum Opinion incorporates the legal discussion contained in the Memorandum Opinion of August 21, 2003 by reference and attaches that Memorandum Opinion in its entirety as attachment 1. Below, the Court puts forth its findings following the in camera inspection of the documents submitted and addresses whether each of the remaining nineteen documents should be released to Plaintiff and whether any portions of exempt documents can be segregated and released.

  DISCUSSION

  I. Biological Assessment of Uplands Habitats

  The Biological Assessment is almost an exclusively factual document. It contains a significant amount of scientific data, research, and statistical figures about Camp Pendleton and Defendant's activities on base. Such compilations of data include information about the ongoing military activities for which Defendant uses Camp Pendleton, detailed descriptions of the base's topography and the critical habitat areas, information about the endangered and threatened species of animals and plants that are at issue, and projected effects of ongoing military training and other base activities on the species in question. None of this information is advisory or deliberative in any way, but a plain account of factual information. Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977) (indicating that only subjective, advisory material falls under the protection of Exemption 5, and that factual material must be released).

  Regarding any statements in the Biological Assessment that are not a pure recitation of scientific data, the Court rejects Defendant's assertion that the ongoing consultation with FWS constitutes one long deliberative process with Defendant making its final decision after it receives the biological opinion from FWS. Def's Reply to Pl.'s Opp'n to Def.'s Renewed Cross-Mot. for Summ. J. at 2. Such a broad interpretation of the scope of the deliberative process is inconsistent with case law. See Mead Data, 566 F.2d at 248, 250 (D.C. Cir. 1977) (holding that the district court had applied an impermissibly broad scope to Exemption 5 when it protected documents merely because they reflected ongoing developments in a negotiating process and predated a final decision); Vaughn v. Rosen, 523 F.2d 1136, 1145 (D.C. Cir. 1975) (rejecting the government's argument that the "entire process of management appraisal, evaluation, and recommendations for improvement is a seamless whole, that is in its entirety a deliberative process" as too broad of an interpretation of the scope of Exemption 5). Accepting Defendant's interpretation of the scope of the deliberative process would virtually foreclose all public knowledge regarding agency decisions and undermine the principles of FOIA. See id. at 1145 (expressing the concern that accepting the government's broad interpretation of deliberative process would allow the policy development phase to swallow up the administrative process and would protect far more under Exemption 5 than it originally intended); see also Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980) (reiterating that an agency is not allowed to develop a body of "secret law" that it uses to discharge its regulatory duties, but hides from the public behind a "veil of privilege because it has not designated a decision as . . . `final'").

  The Biological Assessment does not reflect the personal views of individuals employed by Defendant, but instead is Defendant's official position on the impact of military and other base activities on listed threatened and endangered species, which indicates that the assessment is not predecisional. Costal States, 617 F.2d at 866 (indicating that documents can lose their status as predecisional documents if the agency adopts them, formally or informally, as its position on an issue).

  Defendant's Biological Assessment is the consummation of its decision making process up to the time it submitted the assessment to FWS to initiate a formal consultation. Defendant engaged in a deliberative process to determine to what extent base activities impacted threatened and endangered species, making the assessment itself the culmination of that decision making process. The fact that the policy may change as a result of FWS's biological opinion does not affect the biological assessment from being Defendant's final decision at the time the assessment was given to FWS. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 159 n. 25 (1975) (reiterating that the finality of a decision is unaffected by the fact that it may be overturned on appeal). Defendant even implies that the Biological Assessment is Defendant's final evaluation of the environmental impact in Base Response 6 when it notifies FWS to disregard previous draft biological assessments that were considered "`draft only" for discussion purposes only" and to use the final information available in the Biological Assessment dated March 2000. Base Response 6.

  This Court determines that the release of the Biological Assessment will in no way risk stifling "honest and frank communication within the agency" nor will its release "inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position." Coastal States, 617 F.2d at 866. Defendant's Biological Assessment constitutes a final agency opinion and is, therefore, releasable to the public under the principles of the FOIA. Because the Court determines that the Biological Assessment contains no material that would be protected by the Exemption 5 deliberative process privilege, there is no need for a segregability determination. Defendant must release the Biological Assessment in its entirety.

  II. Documents Titled "Exhibits 1, 5, 6, and 7 of the Vaughn Index"

  According to Defendant's corrected Vaughn Index, Exhibit 1 is Upland Biological Assessment consultation notes of April 2000, which Defendant describes as an "[i]nternal Camp Pendleton document listing and discussing the Base's position and strategy on several aspects of the Upland BA [biological assessment] formal consultation. Prepared in advance of and as preparation for interagency discussions with the USFWS." Def.'s Notice of Filing of Corrected Vaughn Index 3/30/01, Corrected Vaughn Index at 1. The document includes four sections of Defendant's programmatic scheme for addressing the endangered and threatened species on Camp Pendleton. These four areas include Temporary Impacts: Avoidance and Minimization; Temporary Impacts: Compensation; Permanent Impacts: Avoidance and Minimization; and Permanent Impacts: Mitigation. These four sections include largely factual descriptions of Defendant's scheme and tables with factual data regarding the occupied habitat on base.

  Exhibit 1 is not entirely protected by Exemption 5 because it contains largely factual material that does not express an individual's personal and subjective opinion about Defendant's policy for addressing environmental concerns. Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1997) (holding that factual material is not privileged under Exemption 5). There are portions of Exhibit 1, however, that express the author's opinion as to ways in which Defendant's approach could be improved or reconsidered. These portions, labeled within the document as "Issues to consider," are exempt under Exemption 5 because they are predecisional and express the writer's personal opinion and recommendations about ways to improve the factual explanation contained in each section of the document. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (explaining that documents which express a personal position, rather than the view of the agency, are protected under Exemption 5). Additionally, the portion of page 1 labeled "Note on thresholds" also appears to express the writer's opinion regarding the give-and-take of the consultative process and does not reflect a final view of the agency. If ...


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