biological opinions are privileged free decisional delivered of material it were written by staff at the services as a recommendation agency decision makers about the position that there was there should a doctor in the ongoing consultation with the p a when  relevant decision makers were presented with these draft they did not adopt them it did not find them and they did not even transmit them in full to the v a instead they decided that more work needed to be done before making a final decision  word on the version of the e p a will under consideration in december two thousand and thirteen but the e p a modified its approach and the service has never had any occasion to make a final decision about the abandoned version of the e in the d c circuit memorable words the december rd team draft opinion died on the vine without ever blossoming into a final decision that can the th circuit these drastic as final document because the trask largely don't contain redlining marginal comments or other obvious times still being in flux that reasoning is on around no one would confuse a law clerks draft with a final decision by a judge even if the draft is p the key point is that the decision makers at the services had not yet made up their mind their deliberations had not yet come to an end when there was this did make a final decision in may th teen they released an eighty five page drawing opinion explaining their reasoning to the public on and seeks to compel the disclosure of earlier drafts which recommended reasoning that the services never adopted a version of the e p a role that never saw the light of day the court should reject response effort into the material mr carney airing before you can decide whether something is pretty decisional you have to know what the decision is and what why isn't the decision here e p a s final rule on the cooling water intake structures and the services opinion simply is pretty decisional from the perspective of that final rule mr chief justice we think the final decision here is respect to whether e p a s proposed action would cause jeopardy to endangered species but that doesn't do i mean that that itself doesn't rep represent any action by the service with respect to anything other than the e a decision i mean it is pretty disillusioned with respect to that decision that's right your honor but we think the deliberative process that should be the focus of the court's attention here is the deliberations that were occurring within the services  whether or not e p a action would cause jeopardy you know i know that's what you think i'm trying to figure out figure out why i mean you talk about it within a an agency the different steps in the process and you say well none of those steps is actually you know final and decisional but here all of a sudden you get to the end of the services role and it's final and not predisposition all even though it's just part of another ongoing process in other words i'm not sure that your position doesn't prove too much requesting agency well you know certainly we think it's helpful here that there is the regulations clearly contemplate that there would be sharing drafts in some circumstances between the services did not adopt these trask when the drafts were presented to them in december rd team and we really think that it's positive here of the fact that the deliberations were ongoing at that time so what if you were right i'm trying to figure out that you're about to send in the in five minutes would you make the same argument indeed anything short of actually sending it that's what i'm getting at yes justice thomas and now of course we're quite far from that point in this particular case but i think in general the principle that we're advocating here is that until there is a until there is actually a final decision the agency decision makers are free to change their mind in  well i'm not one i'd like any comment you have about the test i mean the object is will this document in fact diminish agency decision making quality by deliberative ok so that's one in the back of my mind anything you want to say and the other thing at least in some of these documents or we'll have to look through the record it seems to have reached a final stage i mean people say when you make these final changes which they made to the draft i can email the assistant director and we have an auto pen with his signature we can use to send it out and they'll send it to the e p a and in fact that's what they normally do i mean normally what they do is i send these things over before they're absolutely final the e p a makes changes and then it never appears that happened apparent thousands of times and only twice they actually publish it so so those who do you get what i'm driving at and if so i'd appreciate your your thought sure well with respect to your nd set of questions opinions are relatively rare but we don't really see any particular problem with that and i think that could be simply a sign that the consultation process required by the endangered species act is working as intended at all agencies are incorporating situations in which a jeopardy biological opinion has been issued by the action agency has then gone ahead with the action in the face of that  the services final word on the subject unless it can be persuaded by the action agency to change its opinion or of the action agency makes and adjustment and what  previously proposing to do isn't that the case i think the draft aspect of opinion i mean from our perspective a key point here at the agent pete decision makers that services had not yet actually made up their mind about whether the version of the rule that was that under consideration in december rd would cause jeopardy ok well maybe that maybe that's true but i'm interested in where your argument goes where we should draw the line you want to draw a line between those draft biological opinions that do not well flak reflect all of the deliberations that the service intends to conduct internally and those that do not reflect all of the deliberations that the service wants to conduct internally or does your argument logically lead to the conclusion that no draft biological opinion can ever be final i think it's the latter justice alito i know draft biological opinion by  little bit on justice alito is questioning and then it we have that biological opinions while technically advisory have quote a powerful course of the fact on the action of the agency why is it that attracts jeopardy opinion doesn't have the same code coercive effect as i think the th circuit pointed out what was at issue was the november rule that the e p a was proposing and the trap that was sent to the e p a made them change their mind they did something completely different with respect to the decision relating to that november action contract opinion did exactly what the final opinion is intended to do so i understand your basic argument that it wasn't clear in the agency a final decision maker had accepted that that was the  monday i don't want to go into the office on sunday it would be your argument that that wouldn't be a final opinion worthy of disclosure i just sort of merit it to sort of take those questions in consequences none of those consequences attached to a draft biological engine and the regulation attach no legal consequences whatsoever to a draft biological pinyin of the kind that are at issue here counsel i have one question i want to get then would an agency determine whether or not withstanding the fact that the document qualifies for an exception there are portions of it that could be aggregated and released so that did occur after the th circuit decision that did occur with relevant decision makers and he looked at it and he realized that it was going to cause a big problem for the e p a and so he said you know i'm not going to send this over a little line to give the e p a head of coal and courts addressing circumstances in which meetings he has been with that we've made a final decision on those principles might be might be brought to bear on the hypothetical that your honour's thing but here there's really nothing in the record to suggest that the agencies had said we made a final decision even if they had not memorialized that by for example assigning and publicly issuing the biological community and in fact here the evidence is really all to the contrary there are declarations officials including for the fish and wildlife service there is a declaration from assistant director fraser who was himself the agency decision maker for fish and wildlife and he says that he was presented with these draft declaration and turn it not to make a decision at that time because he felt that more work was needed in the consultation it's a very general statement do you have any sense of what more work needed to be done because one way to understand what happened here is that everybody really responded and acted as if there were a completed draft opinion you know there was sending the reasonable alternatives over the counsel let's say he had decided at the end of it to just withdraw its rule and and give up at least for the time being maybe come back to it in five or ten years would that be a final decision and if so would that have made the last draft of the service gave the e p a a discoverable or not in your view i just started as i was trying to articulate earlier we think the certainly there the services union would impel not be privileged and and actually as a matter of age practice i got that counts i guess i'm so with the e p a decision itself not to proceed  final no i don't think that would be final and in fact i would be reminiscent of the situation that we're contemplated in but note eighteen if it isn't yours which is you know you're you're going to have privileged internal deliberation that you're not result in any final decision because you know you could have a degree of kind of agency brainstorming that doesn't ultimately lead to any final agency action and inadvertent and each of these deliberations are privileged even though they do not call minute in any specific on view on the draft of e p a and they signed it then was then then that that would be a decision that would we could not withhold under the deliberative process privilege because the services has ever reached a final decision they have exercised their already his questions it's possible i think in your view that even a final agency or opinion or memo could still be pre disposition all as part of a broader deliber and to follow up on something that justice kagan asked does the motive of the agency official with respect to boyer play a role in determining how a co kagan i think there are existing doctrines nd address any concerns along those lines including doctrines under which an agency may be determined to have been with that we reach a final decision even though a document might be notionally labeled a recommendation case that executive branch officials might just stamp drafts on everything and therefore of of eighty four can you respond to that concern i substance of this court case law with respect to stiffly to whether or not a document is labeled draft we do think that it's important and i mean it has a significant meaning within the executive branch when a document is labeled draft it's a signal to or the consequences that were attached to the document within the agency's administrative process but you know here those factors if decisively in our favor we have the declarations making clear that the age the decision makers didn't reach a final decision the sense of being final maybe even the benefit here the sense of the word you're not asking for a rule that's that right but we think that those considerations for this particular scheme the line is very easy to draw because so clear that the disposing of the case on those grounds might lead to asians or protection will be the protection of use of the label draft of the future and i was just trying to give the court some comfort that there are other considerations that also be brought to bear to make sure that that a kind of multifactor fact the specific test you know maybe to say what the agency holding this out as a file opinion yes your honor yes i think that captures the way that we think the case ought to be resolved want to begin with the standard that follows from sears and which should resolve this case and dr explain the decision made by the agency with a personal legal consequences have been filed not apply government decision making often involves several different layers you know the issues addressed by the section and then it turned over to the bureau then it goes to the division and eventually say to the final decision maker what it what is that decision maker looking at all this says you know i think i think the bureau got it right i don't think the division didn't much at all i'd like what they did does that mean in other words and that's why i'm good at making the decision i am because i think the bureau analysis was right does that mean that the euro analysis is disclosable because it is the one that had operative effect steps certainly prien decisional i mean it goes up to the division and then only then to the the agency director i mean the agency did not adopt the final recommendation from the division but rather something that certainly was picks one in the middle east says that's what it's going to affect that's best what i'm going with is that even though it's pretty decisional in the sense that there were several other layers before it got to him i think i facts here but it doesn't seem to be very helpful in most cases in most cases you can pick a particular item in the decisional process and say this is the one that drove the decision so how would your affect your test work in the typical case it was complete and reached a conclusion i don't think it goes much further past that that it analysis is not complete and they haven't and they're still working on it  don't we take them at their word well i mean i think the reason not to take them at their word that that enhanced control of water to the government based on how they choose to characterize documents trying to get about a rule that's no longer in place well in this whole what they've said that they're going to make by permit the terminations to what is required to avoid jeopardy and complicated because i think there are several documents here so i'm going to ask you just to check me and don't say i'm right if i'm not right for us we are talking about the animal in the history of this that document once they publish it will force e p a to change it basically and that document has been actually issued never i mean let me not exaggerate in seven thousand cases in seven years they issued one exactly twice the reason is there is a different document called a draft biological opinion and what happens when they write that draft is they send it to e p a and they negotiate and e t a of eventually ends up probably doing what they find they agree to do so we're talking about that draft biological opinion and it has two things about final enough that somebody can get it under for it now the question here is well what about the drafts leading up to that draft and that's what we're trying to get or not get is that right ask myself is this in effect a draft my logical opinion or is this a document that is part of the debate within the agency that will lead up to the draft biological opinion that will serve as a basis for a discussion with the e p a have i got that right along with the rest of the record ok ok now i know what to do that to extremely helpful thank you justice alito well i really don't know what to one possibility is for us to say that if it's a draft it's its privilege the other is to try to draw a distinction between out to be what the service will ultimately issue ninety percent of the time what the emergence from step two is what it will issue ninety seven percent of the time and  so i think the answer is going to depend on the particular process system and process that actually occurs because there are you can tell if a lot of flexibility on a case like the one where he chose not to interpret it there dare germination here and then if you normally do well you know which respects counsel i don't know how satisfactory that answer is because if a service is determined not to have this released under for all they need to do at every step is simply to say this is what we think up to this point but of course this isn't our final word we're open to hearing other  information about this so that it's made explicitly non final subject to further internal deliberations until it's finally issued well now by the fact that they could change know what i'm saying is that you have to asia in which you know they had a process that offer the name of we're giving you a draft and we want your opinion and we intend to respond to it if any real the literal process set off within the rule making and not a different kind of pressure well to help me could you just say as simply and precisely as possible what you think the test is we should apply in distinguishing among so i'm i guess i'm getting bogged down in the details but i do want to a little bit in this case what is clear is that all we know is that portions of the trac that there was a final draft jeopardy opinion that was signed off if the e p a never story and that they never saw it and were working in a collaborative process thereafter to change their rules how could how can it help you to look at that draft when the e p a in following whatever it's doing collaborative process within the services and i want to and then with the e p a at one point is the draft biological opinion articulate the rule that when you want us to write  here says well this was not such a final draft opinion you know it characterizes aside as a draft of a draft and it points to various decision makers declaration so what evidence do you to not do not look at it very closely you know i hadn't decided whether he was ready to sign off on it but he didn't realize that they were shown issues here and he calls up the e p a and he says look i haven't gotten all the way through this i haven't made a final decision yet but i think that there might be a problem here and i want to get you to talk to my guys and to try to work this out informally with would you say that there is a foible of documents there no i wouldn't i see something to the contrary that basically is the head of the service looked at this and said i don't know if i'm ready to sign off on this i think maybe more work would need to be done but the sun final form i think that there's probably an issue here i good morning counsel i think we all understand the problem of the government effectively stamping everything draft and and the concerns that attach to that but i just  explore the concerns on the other side of the coin too and that is you know without adequate room to kind of back down privately the government sometimes winds up making worse decisions rather than better ones and here it does seem like that because of the back and forth privately thanks to the services intervention e p a came up with a rule that might be better from your perspective what what how do we balance that concern and allow for that kind of private negotiation don't you think yes be clear we're not complaining about the services making him and his regulation more in that circumstance i think yes there is some balancing but it is really important to know why the services are saying what they're saying every jew i may find a way for close a proposed regulation that from e p a purposes they ha  justice thomas and pryor and alito and others have talked about what is the agency decision i would i would have thought the way to do this is to start by figuring out what is the decision capital the decision and then everything that led up to that decision is is pretty disillusioned and that would be a pretty simple formula and obviously very bleak a to questions in some cases about what  is here theoretically you could argue e p a s decision but the government acknowledges that the services opinions are the decision what's wrong with that framework i don't think and the nd question i wanted to ask is the need for clear rules in the foyer context so that the need for that i think is a multi pronged st the agency officials to an gauged in deliberations need to be able to speak with candor is just discourse so to is just saying nd for the officers who are rampant throughout the executive branch spend an enormous amount of time and resources on forehead could use clarity and then district court or looking at the effects of the memo could become so fact intensive and could really blur the longstanding predisposition will principle of the deliberative process privilege because a lot of question following up on justice prior when he gave you the hierarchy of documents that might be at stake here i want to be sure that i understand the consequences that flow from each so you know in your conversation i just aspire you identified the biological opinion which is almost never issued the draft biological opinion which is available by regulation and then the draft of a draft which the government says this was is it true that the draft biological opinion that nd one in the hierarchy is always foi characterize as the legal effect of the stock human why was it legal effect as opposed to simply a practical effect when having this document cause the e p a to abandon the two thousand and thirteen regulation and then move on to the tw services were thinking and said well it doesn't look like this is going to be on a good track for us with respect to jeopardy and so abandoned that that seems to me a practical consequence and that might be the same kind of consequence that flows from a draft opinion as opposed to a process really requires that degree of certainty and the exception should be rare in that respect it is really no different the biological opinion here is really no different than i judge it or court's opinion which is not actually final until it's adopted by the judge and issued as an official opinion now turning to respondents alternative for st respondent really this morning has made no effort to defend the actual reasoning consequences test which i don't think works for a number of reasons st of all as a justice parents questioning illustrated there there is no appreciable legal consequence to a draft biological opinion legal consequences attached only to the final biological opinion that can as justice kagan's hypothetical illustrated the appreciable legal consequences test that respondent has proposed here really prove too much because the same the same consequences that responding is relying on here could have flowed from for example an informal recommendation made by a subordinate staff member of one of the services we use this example in our library if they tune your staffer at one of the services and send an email to think very outset of the consultation saying well in my view my supervisors might make a jeopardy determination here unless you change the following things about your proposed rule no one would confuse that with a final decision it's clear that the agency decision makers at the service never adopted the december rd in draft as an official agency ition they never signed them they never publicly issued those documents and they never even transmitted them  what respondent is speaking to the team here is not an explanation of that is in the agency's actually made as responded confirmed respondent would like the strasse in order to impeach the decision that each piece made in future challenges to the application of