Case Detail

FOIA Project Annotation: A federal court in Washington has ruled that the U.S. Army Corps of Engineers properly withheld the current draft of its Programmatic Biological Assessment for Shellfish Activities in Washington State Inland Marine Waters from the Pacific Coast Shellfish Growers Association under Exemption 5 (privileges). The PBA was required by both the Clean Water Act and the Endangered Species Act and included consultation with other agencies like the EPA and the Fish and Wildlife Service. The Shellfish Growers Association requested the draft, which the agency withheld because it had not yet been completed. While there was no argument that the PBA was predecisional, the Shellfish Growers Association questioned whether it was deliberative, arguing that two earlier district court rulings had found that Endangered Species Act consultations were not always deliberative. In this case, however, the court disagreed, noting that "the Shellfish PBA at issue relates to the programmatic biological assessment by the Corps. Rather than making specific scientific findings related to a single permit application, the Shellfish PBA covers general categories of future work activities. In this sense, even discussing specific facts or scientific findings may reveal internal deliberative processes (and policy judgments) that reflect the categories of conduct the Corps seeks to regulate and how it proposes to do so in accord with the ESA. In other words. . .the Shellfish PBA here is 'open to discretionary decisionmaking.'" The court added that "the inclusion or exclusion of activity categories necessarily entails some give and take as to what types of activities may be accommodated in a programmatic manner, especially when paired with the informal participation of the Services. In fact, comparing earlier drafts of the Corps' Shellfish PBA and the Corps' pronouncements on the subject matter of the Shellfish PBA suggests that priorities may have shifted during the course of internal deliberations." The Shellfish Growers Association argued the process contemplated input from groups like it. But the court explained that "whether the Pacific Growers or its members have other rights of access to the Shellfish PBA is irrelevant to the Court's FOIA inquiry." The Shellfish Growers argued the agency had waived the privilege by disclosing portions to Indian tribes. The court responded that "waiver of a FOIA exemption as to one document does not extend to other documents. It is undisputed that the Corps has never revealed the [most recent] draft of the Shellfish PBA to any non-governmental entity."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2016-02-09	1	COMPLAINT for Declaratory and Injunctive Relief against defendant(s) United States Army Corps of Engineers (Receipt # 0981-4332964), filed by Pacific Coast Shellfish Growers Association. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Summons, # 4 Summons)(Plauche, Samuel) (Entered: 02/09/2016)
2016-02-09	2	CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Pacific Coast Shellfish Growers Association (Plauche, Samuel) (Entered: 02/09/2016)
2016-02-10		NOTICE to Filer: SIGNATURE(S) IMPROPER : The Complaint was improperly signed by attorneys Amanda M. Carr, Jessica F. Anderson . Pursuant to FRCP Rule 11 and LCR 5(d), signatures must comply with Section III(L) of the Electronic Filing Procedures, which states, "An electronically filed pleading or other document which requires an attorney's signature must have the signer's name printed or typed on the line and under all signature lines." You do not have to re-file this document, but please be sure all future documents are properly signed. Thank you.(DJ) (Entered: 02/10/2016)
2016-02-10		Judge Richard A. Jones added. (DJ) (Entered: 02/10/2016)
2016-02-10	3	Summons(es) electronically issued as to defendant(s) United States Army Corps of Engineers. (Attachments: # 1 Summons)(DJ) (Entered: 02/10/2016)
2016-02-16	4	MOTION for Summary Judgment and Request for Expedited Consideration by Plaintiff Pacific Coast Shellfish Growers Association. (Attachments: # 1 Exhibit PCSGA Mtn for SJ Ex 1) Noting Date 3/11/2016, (Plauche, Samuel) (Entered: 02/16/2016)
2016-02-16	5	DECLARATION of Margaret Barrette in support of Pacific Coast Shellfish Growers Association's Motion for Summary Judgment filed by Plaintiff Pacific Coast Shellfish Growers Association re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Attachments: # 1 Exhibit Decl M Barrette Ex 1)(Plauche, Samuel) (Entered: 02/16/2016)
2016-02-16	6	DECLARATION of Amanda M. Carr in support of Pacific Coast Shellfish Growers Association's Motion for Summary Judgment filed by Plaintiff Pacific Coast Shellfish Growers Association re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Attachments: # 1 Exhibit Decl A. Carr Exhibits 1-7)(Plauche, Samuel) (Entered: 02/16/2016)
2016-02-16	7	PROPOSED ORDER (Unsigned) re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Plauche, Samuel) (Entered: 02/16/2016)
2016-02-17	8	CERTIFICATE OF SERVICE by Plaintiff Pacific Coast Shellfish Growers Association re 7 Proposed Order (Unsigned), 6 Declaration, 4 MOTION for Summary Judgment and Request for Expedited Consideration , 5 Declaration, (Plauche, Samuel) (Entered: 02/17/2016)
2016-02-17	9	AFFIDAVIT of Service of Summons and Complaint on Sandra Bowers, designee for Annette L. Hayes, U.S. Attorney, designee for U.S. Army Corps of Engineers on 2/11/2016, filed by Plaintiff Pacific Coast Shellfish Growers Association. (Plauche, Samuel) (Entered: 02/17/2016)
2016-02-18	10	AFFIDAVIT of Mailing of Summons and Complaint to U.S. Army Corps of Engineers Seattle District, U.S. Army Corps of Engineers (Headquarters), and The Honorable Loretta E. Lynch, Attorney General of the United States on 2/10/2016, filed by Plaintiff Pacific Coast Shellfish Growers Association. (Plauche, Samuel) (Entered: 02/18/2016)
2016-03-03	11	ANSWER to 1 Complaint, Attorney Peter Angus Winn added to party United States Army Corps of Engineers(pty:dft) by United States Army Corps of Engineers.(Winn, Peter) (Entered: 03/03/2016)
2016-03-03	12	STIPULATION AND PROPOSED ORDER ESTABLISHING BRIEFING SCHEDULE by parties re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Winn, Peter) (Entered: 03/03/2016)
2016-03-04		Pursuant to the parties' 12 STIPULATION AND PROPOSED ORDER ESTABLISHING BRIEFING SCHEDULE, the Court sets the following briefing schedule as it pertains to Plaintiff's 4 MOTION for Summary Judgment and Request for Expedited Consideration : By 3/24/2016, Defendant shall file its Response to Plaintiff's Summary Judgment Motion and Cross-Motion for Summary Judgment in a single brief of no more than 24 pages; By 4/1/2016, Plaintiff shall file its Reply to Defendant's Response and its Response to Defendant's Cross-Motion for Summary Judgment in a single brief of no more than 24 pages; By 4/8/2016, Defendant shall file its Reply to Plaintiff's Response to its Cross-Motion for Summary Judgment in brief of no more than 12 pages. Both the Plaintiff's Motion for Summary Judgment and the Defendant's Cross-Motion for Summary Judgment shall be noted for 4/8/2016. (VE) (Entered: 03/04/2016)
2016-03-24	13	RESPONSE, by Defendant United States Army Corps of Engineers, to 4 MOTION for Summary Judgment and Request for Expedited Consideration . (Winn, Peter) (Entered: 03/24/2016)
2016-03-24	14	DECLARATION of Richard Hynes filed by Defendant United States Army Corps of Engineers re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Winn, Peter) (Entered: 03/24/2016)
2016-03-24	15	DECLARATION of Matthew Bennett filed by Defendant United States Army Corps of Engineers re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Attachments: # 1 Exhibit, # 2 Exhibit)(Winn, Peter) (Entered: 03/24/2016)
2016-03-29		The Court notifies the parties that it will defer entering an initial case scheduling order pending the Court's ruling on Plaintiff's 4 MOTION For Summary Judgment. (VE) (Entered: 03/29/2016)
2016-04-01	16	REPLY, filed by Plaintiff Pacific Coast Shellfish Growers Association, TO RESPONSE to 4 MOTION for Summary Judgment and Request for Expedited Consideration (Anderson, Jessica) (Entered: 04/01/2016)
2016-04-01	17	DECLARATION of Jesse G. DeNike filed by Plaintiff Pacific Coast Shellfish Growers Association re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Attachments: # 1 Exhibit)(Anderson, Jessica) (Entered: 04/01/2016)
2016-04-01	18	Second DECLARATION of Amanda M. Carr filed by Plaintiff Pacific Coast Shellfish Growers Association re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Anderson, Jessica) (Entered: 04/01/2016)
2016-04-08	19	REPLY, filed by Defendant United States Army Corps of Engineers, TO RESPONSE to 4 MOTION for Summary Judgment and Request for Expedited Consideration (Winn, Peter) (Entered: 04/08/2016)
2016-04-08	20	Supplemental DECLARATION of Matthew Bennett filed by Defendant United States Army Corps of Engineers re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Winn, Peter) (Entered: 04/08/2016)
2016-04-11	21	NOTICE of Intent to File a Surreply re 19 Reply to Response to Motion ; filed by Plaintiff Pacific Coast Shellfish Growers Association. (Anderson, Jessica) (Entered: 04/11/2016)
2016-04-13	22	SURREPLY filed by Plaintiff Pacific Coast Shellfish Growers Association re 4 MOTION for Summary Judgment and Request for Expedited Consideration AND MOTION TO STRIKE (Anderson, Jessica) (Entered: 04/13/2016)
2016-04-13	23	Second DECLARATION of Margaret P. Barrette filed by Plaintiff Pacific Coast Shellfish Growers Association re 4 MOTION for Summary Judgment and Request for Expedited Consideration (Anderson, Jessica) (Entered: 04/13/2016)
2016-04-18	24	RESPONSIVE BRIEF re 22 Surreply, 23 Declaration by Defendant United States Army Corps of Engineers. (Winn, Peter) (Entered: 04/18/2016)
2016-05-25	25	ORDER denying the Pacific Growers' 4 Cross Motion for Summary Judgment and granting the Corps' 13 Cross Motion for Summary Judgment by Judge Richard A Jones.(RS) (Entered: 05/25/2016)
2016-05-26	26	JUDGMENT BY COURT in favor of Defendant United States Army Corps of Engineers against Plaintiff Pacific Coast Shellfish Growers Association (VE) (Entered: 05/26/2016)
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