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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 WILD FISH CONSERVANCY, 9 Plaintiff, Case No. C20-417-RAJ-MLP 10 v. ORDER 11 BARRY THOM, et al., 12 Defendants, 13 and
14 ALASKA TROLLERS ASSOCIATION,
15 Defendant-Intervenor.
16 This matter is before the Court on the parties’ Joint Statement on a Proposed Briefing 17 Schedule (“Joint Statement”). (Dkt. # 56.) On June 12, 2020, pursuant to this Court’s Order 18 Granting Defendants’ Motion for Extension and Leave to Lodge the Administrative Record 19 (“AR”) Outside of CM/ECF (dkt. # 52), Defendants submitted the AR in this matter. (Dkt. # 53.) 20 Based on the parties’ Joint Statement, it is clear the parties disagree as to the sufficiency of the 21 AR provided by Defendants and what briefing schedule for dispositive motions should issue. 22 Plaintiff argues that Defendants’ submitted AR omits all National Marine Fisheries 23 Service (“NMFS”) internal communications, regardless of whether they are deliberative or 1 strictly factual, as well as all draft biological opinions. (Dkt. # 56 at 2.) Plaintiff contends that 2 this information should have been included in the AR submission pursuant to Department of 3 Justice (“DOJ”) guidance on compiling ARs. (Id. at 3 (citing Env’t and Natural Res. Div., U.S. 4 Dep’t of Justice, Guidance to Federal Agencies on Compiling the Administrative Record, at 2
5 (Jan. 1999).) Plaintiff argues that under this District’s precedent, as well as other courts in the 6 Ninth Circuit, any issues regarding whether internal communications and drafts must be included 7 in an AR requires the production of a privilege log by Defendants and, if necessary, in camera 8 review. (Dkt. # 56 at 3 (citing Washington v. United States Dep’t of State, 2019 WL 1254876, at 9 *1-2 (W.D. Wash. Mar. 19, 2019); E.g., Ctr. for Envtl. Health v. Perdue, 2019 WL 3852493, at 10 *2 (N.D. Cal. May 6, 2019); Ctr. for Biological Diversity v. Bernhardt, 2020 WL 1130365, at 11 *1-3 (D. Mont. Mar. 9, 2020); Kalispel Tribe of Indians & Spokane County v. U.S. Dep’t of 12 Interior, 2018 WL 9391703, at *1-2 (E.D. Wash. Mar. 18, 2018).) 13 Consequently, Plaintiff requests that the Court require Defendants to provide a privilege 14 log within 14 days from the issuance of this Order: (1) identifying all materials directly or
15 indirectly considered by NMFS in preparing the biological opinion, including internal and 16 external communications and draft biological opinions; (2) explaining the grounds for 17 withholding any such materials; and (3) including sufficient information to justify the 18 withholding. (Dkt. # 56 at 5.) Additionally, Plaintiff requests that, within 14 days of NMFS’s 19 production of a privilege log, that the parties confer and submit either a proposed deadline for 20 motions involving disputes over the AR or, if no such disputes exist, proposed schedules for 21 dispositive motion practice. (Id.) 22 Defendants’ counter that Plaintiff improperly conflates the scope of the AR with 23 assertions regarding privilege, and that because no privileged documents are being “withheld” 1 from the AR, a privilege log is inappropriate. (Dkt. # 56 at 6-7.) Defendants argue that the AR 2 need only “consist of non-privileged, non-deliberative documents relating to the challenged final 3 agency action” and that this approach is consistent with that taken in several courts within the 4 Ninth Circuit. (Id. (citing e.g., Golden Gate Salmon Ass’n v. Ross, 2018 WL 3129849, at *5
5 (E.D. Cal. June 22, 2018); ASSE Int’l v. Kerry, 2018 WL 3326687, at *2 (C.D. Cal. Jan. 3, 6 2018).) Defendants argue that the Ninth Circuit has not directly addressed this issue but has 7 indicated that deliberative materials are not properly required in the submission of an AR, which 8 follows an approach consistent with D.C. Circuit precedent. (Dkt. # 56 at 7 (citing Portland 9 Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993); Oceana, 10 Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019).) 11 Defendants additionally argue that Plaintiff improperly relies on a 1999 DOJ 12 memorandum because the DOJ clarified in 2008 that the 1999 memorandum did not control any 13 requirement for assembly of ARs and that those decisions remain within the discretion of each 14 federal agency. (Dkt. # 56, Ex. A at 12-13.) Defendants further argue that the DOJ reaffirmed
15 this position in 2017, and therefore, its agencies are not required to develop privilege logs for 16 ARs. (Id., Ex. B at 15-16.) 17 Defendants request that that any dispute about the record, including whether a privilege 18 log is required, be addressed through motions presented to the Court so that the parties can fully 19 brief their positions rather than being heard solely on the Joint Statement. (Dkt. # 56 at 6-7.) 20 Defendants request that the Court require Plaintiff to notify Defendants of any alleged 21 deficiencies with the AR within 14 days of dispositive resolution of Plaintiff’s Motion for 22 Preliminary Injunction (dkt. # 14). (Dkt. # 56 at 8.) If the parties cannot resolve issues pertaining 23 to the AR at that time, Defendants request that the Plaintiff be required to file a record motion 1 within 28 days of the dispositive resolution of Plaintiff’s Motion for Preliminary Injunction. (Id.) 2 Defendant-Intervenor has no objection to the AR as filed and agrees with the proposed 3 briefing schedule submitted by Defendants. 4 Given the nature of the dispute between the parties concerning the AR and the brief
5 argument submitted in the parties’ Joint Statement, the Court finds it premature to rule on 6 whether a privilege log should be required, or whether the AR will need to be supplemented in 7 this matter, without a record motion properly before the Court and further briefing from the 8 parties. 9 Accordingly, having considered the parties’ positions as identified in the Joint Statement, 10 it is hereby ORDERED that: 11 (1) Plaintiff is required to confer with Defendants regarding any alleged deficiencies 12 with the AR no later than fourteen (14) days from the date on which this Order is 13 signed; 14 (2) Should the parties be unable to resolve the issues pertaining to the AR, Plaintiff
15 will file a Motion to Supplement the AR no later than twenty-eight (28) days from 16 the date on which this Order is signed; 17 (3) Plaintiff’s proposed briefing schedule for dispositive motions is GRANTED and 18 Defendants’ proposed briefing schedule for dispositive motions is DENIED. 19 Should the filing of a Motion to Supplement the AR interfere with the parties’ 20 ability to adhere to this schedule, either party may bring a motion to amend this 21 schedule. The briefing schedule shall be entered as follows: 22 23 1 Motion/Brief Deadline Page Limits 2 Plaintiff’s Motion for Thirty-five (35) days from issuance of the 35 Pages Summary Judgment Honorable Richard A. Jones’ ruling on this 3 Court’s Report and Recommendation (dkt. # 51) 4 Defendants’ Combined Twenty-one (21) days from the filing of 35 Pages Cross-Motion for Plaintiff’s Motion for Summary Judgment 5 Summary Judgment and Response 6 Defendant-Intervenor’s Twenty-one (21) days from the filing of 35 Pages 7 Combined Cross-Motion Plaintiff’s Motion for Summary Judgment for Summary Judgment 8 and Response Plaintiff’s Combined Fourteen (14) days from the filing of 35 Pages 9 Response to Defendants’ Defendants’ Combined Cross-Motion for and Defendant- Summary Judgment and Response or 10 Intervenor’s Cross-Motion Defendant-Intervenor’s Combined for Summary Judgment, Cross-Motion for Summary Judgment and 11 and Reply Response, whichever is later
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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 WILD FISH CONSERVANCY, 9 Plaintiff, Case No. C20-417-RAJ-MLP 10 v. ORDER 11 BARRY THOM, et al., 12 Defendants, 13 and
14 ALASKA TROLLERS ASSOCIATION,
15 Defendant-Intervenor.
16 This matter is before the Court on the parties’ Joint Statement on a Proposed Briefing 17 Schedule (“Joint Statement”). (Dkt. # 56.) On June 12, 2020, pursuant to this Court’s Order 18 Granting Defendants’ Motion for Extension and Leave to Lodge the Administrative Record 19 (“AR”) Outside of CM/ECF (dkt. # 52), Defendants submitted the AR in this matter. (Dkt. # 53.) 20 Based on the parties’ Joint Statement, it is clear the parties disagree as to the sufficiency of the 21 AR provided by Defendants and what briefing schedule for dispositive motions should issue. 22 Plaintiff argues that Defendants’ submitted AR omits all National Marine Fisheries 23 Service (“NMFS”) internal communications, regardless of whether they are deliberative or 1 strictly factual, as well as all draft biological opinions. (Dkt. # 56 at 2.) Plaintiff contends that 2 this information should have been included in the AR submission pursuant to Department of 3 Justice (“DOJ”) guidance on compiling ARs. (Id. at 3 (citing Env’t and Natural Res. Div., U.S. 4 Dep’t of Justice, Guidance to Federal Agencies on Compiling the Administrative Record, at 2
5 (Jan. 1999).) Plaintiff argues that under this District’s precedent, as well as other courts in the 6 Ninth Circuit, any issues regarding whether internal communications and drafts must be included 7 in an AR requires the production of a privilege log by Defendants and, if necessary, in camera 8 review. (Dkt. # 56 at 3 (citing Washington v. United States Dep’t of State, 2019 WL 1254876, at 9 *1-2 (W.D. Wash. Mar. 19, 2019); E.g., Ctr. for Envtl. Health v. Perdue, 2019 WL 3852493, at 10 *2 (N.D. Cal. May 6, 2019); Ctr. for Biological Diversity v. Bernhardt, 2020 WL 1130365, at 11 *1-3 (D. Mont. Mar. 9, 2020); Kalispel Tribe of Indians & Spokane County v. U.S. Dep’t of 12 Interior, 2018 WL 9391703, at *1-2 (E.D. Wash. Mar. 18, 2018).) 13 Consequently, Plaintiff requests that the Court require Defendants to provide a privilege 14 log within 14 days from the issuance of this Order: (1) identifying all materials directly or
15 indirectly considered by NMFS in preparing the biological opinion, including internal and 16 external communications and draft biological opinions; (2) explaining the grounds for 17 withholding any such materials; and (3) including sufficient information to justify the 18 withholding. (Dkt. # 56 at 5.) Additionally, Plaintiff requests that, within 14 days of NMFS’s 19 production of a privilege log, that the parties confer and submit either a proposed deadline for 20 motions involving disputes over the AR or, if no such disputes exist, proposed schedules for 21 dispositive motion practice. (Id.) 22 Defendants’ counter that Plaintiff improperly conflates the scope of the AR with 23 assertions regarding privilege, and that because no privileged documents are being “withheld” 1 from the AR, a privilege log is inappropriate. (Dkt. # 56 at 6-7.) Defendants argue that the AR 2 need only “consist of non-privileged, non-deliberative documents relating to the challenged final 3 agency action” and that this approach is consistent with that taken in several courts within the 4 Ninth Circuit. (Id. (citing e.g., Golden Gate Salmon Ass’n v. Ross, 2018 WL 3129849, at *5
5 (E.D. Cal. June 22, 2018); ASSE Int’l v. Kerry, 2018 WL 3326687, at *2 (C.D. Cal. Jan. 3, 6 2018).) Defendants argue that the Ninth Circuit has not directly addressed this issue but has 7 indicated that deliberative materials are not properly required in the submission of an AR, which 8 follows an approach consistent with D.C. Circuit precedent. (Dkt. # 56 at 7 (citing Portland 9 Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993); Oceana, 10 Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019).) 11 Defendants additionally argue that Plaintiff improperly relies on a 1999 DOJ 12 memorandum because the DOJ clarified in 2008 that the 1999 memorandum did not control any 13 requirement for assembly of ARs and that those decisions remain within the discretion of each 14 federal agency. (Dkt. # 56, Ex. A at 12-13.) Defendants further argue that the DOJ reaffirmed
15 this position in 2017, and therefore, its agencies are not required to develop privilege logs for 16 ARs. (Id., Ex. B at 15-16.) 17 Defendants request that that any dispute about the record, including whether a privilege 18 log is required, be addressed through motions presented to the Court so that the parties can fully 19 brief their positions rather than being heard solely on the Joint Statement. (Dkt. # 56 at 6-7.) 20 Defendants request that the Court require Plaintiff to notify Defendants of any alleged 21 deficiencies with the AR within 14 days of dispositive resolution of Plaintiff’s Motion for 22 Preliminary Injunction (dkt. # 14). (Dkt. # 56 at 8.) If the parties cannot resolve issues pertaining 23 to the AR at that time, Defendants request that the Plaintiff be required to file a record motion 1 within 28 days of the dispositive resolution of Plaintiff’s Motion for Preliminary Injunction. (Id.) 2 Defendant-Intervenor has no objection to the AR as filed and agrees with the proposed 3 briefing schedule submitted by Defendants. 4 Given the nature of the dispute between the parties concerning the AR and the brief
5 argument submitted in the parties’ Joint Statement, the Court finds it premature to rule on 6 whether a privilege log should be required, or whether the AR will need to be supplemented in 7 this matter, without a record motion properly before the Court and further briefing from the 8 parties. 9 Accordingly, having considered the parties’ positions as identified in the Joint Statement, 10 it is hereby ORDERED that: 11 (1) Plaintiff is required to confer with Defendants regarding any alleged deficiencies 12 with the AR no later than fourteen (14) days from the date on which this Order is 13 signed; 14 (2) Should the parties be unable to resolve the issues pertaining to the AR, Plaintiff
15 will file a Motion to Supplement the AR no later than twenty-eight (28) days from 16 the date on which this Order is signed; 17 (3) Plaintiff’s proposed briefing schedule for dispositive motions is GRANTED and 18 Defendants’ proposed briefing schedule for dispositive motions is DENIED. 19 Should the filing of a Motion to Supplement the AR interfere with the parties’ 20 ability to adhere to this schedule, either party may bring a motion to amend this 21 schedule. The briefing schedule shall be entered as follows: 22 23 1 Motion/Brief Deadline Page Limits 2 Plaintiff’s Motion for Thirty-five (35) days from issuance of the 35 Pages Summary Judgment Honorable Richard A. Jones’ ruling on this 3 Court’s Report and Recommendation (dkt. # 51) 4 Defendants’ Combined Twenty-one (21) days from the filing of 35 Pages Cross-Motion for Plaintiff’s Motion for Summary Judgment 5 Summary Judgment and Response 6 Defendant-Intervenor’s Twenty-one (21) days from the filing of 35 Pages 7 Combined Cross-Motion Plaintiff’s Motion for Summary Judgment for Summary Judgment 8 and Response Plaintiff’s Combined Fourteen (14) days from the filing of 35 Pages 9 Response to Defendants’ Defendants’ Combined Cross-Motion for and Defendant- Summary Judgment and Response or 10 Intervenor’s Cross-Motion Defendant-Intervenor’s Combined for Summary Judgment, Cross-Motion for Summary Judgment and 11 and Reply Response, whichever is later
12 Defendants’ Reply in Seven (7) days from the filing of Plaintiff’s 12 Pages Support of Defendants’ Combined Response to Defendants’ and 13 Cross-Motion for Defendant-Intervenor’s Cross-Motion for Summary Judgment Summary Judgment, and Reply 14 Defendant-Intervenor’s Seven (7) days from the filing of Plaintiff’s 12 Pages 15 Reply in Support of Combined Response to Defendants’ and Defendant-Intervenor’s Defendant-Intervenor’s Cross-Motion for 16 Cross-Motion for Summary Judgment, and Reply Summary Judgment 17
18 Dated this 7th day of July, 2020. 19 A 20 MICHELLE L. PETERSON 21 United States Magistrate Judge