sir good morning and may it please the court thomas poland for appellants united states fish and wildlife service and the national marine fisheries service i'd like to reserve four minutes for a bottle please the deliberative process privilege exists to protect the quality of agency decisionmaking by allowing agency personnel to engage in frank discussions and to freely explore possibilities without fear that their deliberations will be publicly disclosed sierra club here seeks the disclosure of draft opinions written in the course of an interagency consultation process documents whose proposed conclusions were never adopted by the services these documents lie at the heart of the deliberative process privilege the district court's analysis which turned on whether the documents had highlighting or notes in the margin finds no support in this court's case law well that wasn't the only thing that the court relied on didn't the court also apply some of the same standards that you're referring to well i don't believe so the courts set out a few statements of law but when it actually conducted its analysis for each document it simply stated whether the document was a relatively polished draft and whether it had highlighting or comments in the margin that revealed subjective views what i think that an important aspect whether or not the internal deliberat process is being revealed by the document through the expression of internal views so that could be one aspect of it but it's not a sufficient analysis a document doesn't need to have highlighting or notes on its face indicating  that something is a subjective view in order to fall within the privilege as this court explained in the national wildlife federation documents he was disclosure of allows a reader to reconstruct the agenc decision making process this is as in the middle to the purposes of the privilege as the release of documents that on their face say i believe this or this that's my source i understand what happened here there were biological evaluations  expressly said so in their declarations mr fraser specifically said that as the deadline approached for when the services and the e p a had agreed drafts would be shared when it has that deadline approached all three agencies agreed that more work needed to be done to understand the elements of the e p a s rule which were to say will change in the role he said i think two things one the services didn't understand the elements of the rule and the elements of the rule were still under consideration at e p a so this was not the kind of like clearly delineated step by step process the nature of this consultation was that the three providing a draft transmission to another agency the service is not providing a final decision the document remains a draft in the subject to change until it final signature in the fraser declaration fish and wildlife service this is that your fifty nine sixty fish and wildlife service concluded that additional consultation was needed to better understand and consider the operation of key elements of b p s rule the elements of which were still being to liberated within about the then proposed rule the service preliminary determined that the regulation as then written may be unlikely to jeopardize it so they wrote a draft our p well again on your fifty nine to sixty so this would be paragraph six fish and wildlife service concluded that additional consultation was needed to better understand and consider the operation of what about whether or not these reports that are the only thing that the court is saying should be disclosed were final or very very very close to being final i mean isn't if they were final doesn't isn't that something that makes them more close to the kind of thing that could be disclosed because it's no longer and it's no longer a decisional issue it's no longer a deliberative issue this report is done regarding what the possible biological jeopardy is this really this recommended reasonable or prudent alternative is done we're going to give it to you now how is that revealing some kind of internal decisional process for several reasons one these drafts were never approved by the relevant decision makers for transmission to e p a as kind of official e mails that the sierra club points to which are a little ambiguous as to exactly what is contemplated and who's doing it i mean some of those people are in larger faires not actually the authors of the document but the decision was regardless of whether certain people in the services thought that it was possible that something might be disclosed the relevant decision makers decided not to disclose it publicly or even and the guidance that sierra club points to and that's probably because it was about it different regulation that was the actual ultimate right here life well i guess what makes that final as to what was wouldn't prevent the privilege from attaching to the drafts as syria club acknowledges these were published when they were created and that privilege is maintained well  report well i appreciate you bringing that up first it's not true as your club suggests that the deliberative process privilege only affects only covers policy decisions  second and these documents were full even if we are looking at whether it's a policy decision they were full of policy considerations the very kind of the whole enterprise is to determine whether an action that has not occurred yet is likely to jeopardize the continued existence of threatened species this is the kind of predictive judgment that the deliberative process privilege protects their definitions in the right not i say an action agency is not going to make a decision to do x or y right the decision is in the opinion on whether to the relevant decision is whether something will jeopardize or  not as the supreme court explained in bennett b spear these opinions have legal consequences once they're finally adopted because they change the legal regime that the agency is subject to and returning back to the kind of policy and deliberative elements of these opinions the regulation defines jeopardy as something that is when an action is reasonably likely to significantly or to  appreciably reduce the likelihood of survival so far as of the at the very beginning you have to consider the amount of risk that the services are willing to tolerate second they have to look at the cumulative effects of not just the actions of the action agency but state and private actors so that requires consideration of as the handbook explains the economic administrative and legal hurdles that would be faced by such actors then  we even turn to what sierra club says is the kind of science nature we have policy considerations there the services have to evaluate what factors to consider how t weigh them how to address the gaps or inconsistency is in the evidence and then specific portions of these opinions are very explain clearly and expressively policy based we have for example the incident will take statements where the service has to say whether the planned action will result in an incidental take of protected species and set out reasonable and prudent measures that would minimize incidental take and terms and conditions that the agency has to comply with those terms and conditions as this court has said the relative relevant legal regime and therefore our policy decisions that something  good morning may please the court my name is read super and i represent the sierra club as the supreme court has court of said many times in exemption five cases the court should focus on the effect of the materials release a document must be decisional and deliberative to be exempt from foil yesterday might as well get to the question right away the problem i have is the opinion we're reviewing the magistrate judge had a very brief opinion and that the she selected whether or not it was a polish draft and in nearly all of her decisions she s focused on civil polish draft we have no case no one thurgood nor have i found one in any other circuit or the supreme court that says that is the way that we review it was in an unpublished district court opinion and she chose to use that i'm not being critical of you and this is what she did what we ordinarily do is if a person has the wrong standard they're using their opinion isn't worth much to us to review and it's clear from grumman and from sears that the issue is real operative effect i saw nothing in her opinion that she reviewed on that basis now usually when the lower court has failed to use the proper review we vacated and send it back to them to do it right and it struck me that we're not getting any help out of the district court and why wouldn't we do that in this case that is we haven't don't have anything to review well your honor i would say two things in response to that first i believe the court took the proper approach but before i get into that and the the court which court district court  understanding that it's an review so but i would say that the judge laporte did take the proper approach judge report cited the national wildlife federation and the other assembly the other presidents from this court i know that going through all twelve got all sixteen documents because there were sixteen documents submitted to her for interview in camera view she used the shorthand as she went through each document and she referred to whether there were she were not only polished draft but she looked to see whether there were subjective comments recommendations or opinions but the entirety of judge reports opinion she started off by setting out the standard and noting the court's focus on the effect of the materials release and that from assembly we have that but if we conclude that polish drafts has nothing to do with the proper review would we have to send it back for her to appropriately  the polish draft is i would contend the opposite of a rough draft of a working draft and national wildlife federation this court said that the documents at issue there were working drafts and actually i think very similar took a very similar approach in in that case the national wildlife federation this court said these are working drafts prepared by quote lower level forest service personnel whose opinions and recommendations serve in the decision making calculus they constitute the given take of the forest service and represent the mental processes of the agency in considering alternative courses of action and if we if we follow that all we do is have the government never do anything in final form i mean it seems it seems clear that they could hide the football if we're going to use polish draft is even a part of what we're going to talk about oh you do is all you do is make a lot of suggestions and make sure the typos are in there and everything and you can say it's not a polished draft well your honor what the supreme court has said in a play there's obviously a tension undoubtedly between the purpose of foil on the one hand and the purpose of exemption five on the other and what the supreme court has said is that courts should apply a flexible commonsense approach not would not categorical to find a workable balance between the public's right to know and the agency's ability to function so it wouldn't be a you know a scribble keeping a label that says it's traffic would never carry the day because it's not a categorical approach it's commonsense workable pro choice with the exemption to be narrowly construed because that the objective the dominant objective of the act is disclosure not secrecy and the burden is on the government to prove both elements of the test so it's not only whether there is a polished raft or not that's certainly one factor a case cited as the it's one factor you're honored in why is it my understanding is that it was relevant at least what i thought she meant by polish draft was it was really the final draft with regard to what was then on the table there was nothing more to be done what happened was the circumstances change because change the regulation or the regulation so with regard to what it was addressing which was the regulation at the time there was it was done at accept for signature there was nobody suggested there was anything that more could be said about what was then on the table that's exactly right your honor that's exactly right and the facts tell that story and the these statements in the declarations from two of the services officials are simply not credible and not consistent with the facts that i'll point the court with to a couple of those facts as c e o are seventy two to seventy four the services told d p a we need your final rule revisions moved by your administrators in order for us to render our biological pinion and they said we needed by november first so we can deliver to you the draft by december sixth and the final by december twentieth the so that what was provided was at that point the it was all but signature gary frazier who is the summit of the declaration here we have the e mails that his assistant told the main drafter of the biological pinion gary frazier's edits have been incorporated into the strafford i have an auto pen where i can add his signature that was on the the day was do actually the day after it was due is a little bit late the the the other services the national in fishery service was preparing a roll out of the document they were preparing to talk to capitol hill to o reports doesn't that make them pre decisional in other words the p a used them while they were in the confidential rulemaking process and then they change their mind and so doesn't that they were intent they were prepared to convey the services decision on whether the rule would cause jeopardy convey that decision that decision had been made and conveyed to the p a we do not have in the record any affidavits from e p a saying that it page with me but they say the decision was the jeopardy call the biological opinion is the decision here they don't say thank you yes that's consistent with that in first a spear in the fact that you can refuse a biological opinion as a final this clearly was the services had a statutory decision to make it was their decision and with respect to the p a s rule as it existed at that time the declarations from the services both of them say that the service is concluded not that some individual this was ever there was true as you say and then the minute the ultimate i don't know who the head of the agency says wait a minute i have a big problem with this i'm not signing it then what i said that there would be deliberative process still going on but there's no evidence of that what happened here is learned that they were jeopardy opinions and we don't know why they weren't sent they were ready the administrative assistant said i've got the auto pen these are ready on december services are the ones that have to make this decision they made the decision where is the evidence the white house was involved in the case iran has no answer and that i but i would getting pretty far afield when we start a conspiracy and when i hear about it on the news every night  it's an endangered species act requirement to decide whether the rule will jeopardize or not it's clearly the services decision but even if it was previous is not it's not deliberative the effect would not be to impair the services ability to carry out consultations in the future they didn't put any trial balloons any internal debates into the document that was ready to go we haven't seen the document the court didn't find the lower court didn't find anything in there this was not only a polished document it was final it was ready to go releasing that document would not impair the ability to consult to talk consultations you said the lower court made a finding i let me say that we asked that the court as my time is running down here affirm the judgment of the district court in the alternative if the court were to reverse at valid point we believe in the government has conceded this what the court should do is remand for the segregate belittling analysis which has never been done the lower court and this is at s c are three said i'm not convinced of these documents are entirely not separable from the declarations so she allowed twelve documents to be  well i think it's kind of relevant for two two reasons one sierra club seems to think that the transmission under the regulation is what makes this draft have some special final the declarations and the one from fish and wildlife service says that the services didn't understand elements of the rules as they are now changing and that's well because they were still under consideration but i think this gets to a fundamental issue which  issuance under the regulation the reason why the draft a shared with the action agency is so that the action agency can provide comment and then the services can go back and revise the draft of the regulation in fact prohibits the services from issuing the opinion before that process has been completed so that regulation is part of this deliberative consultation process but when the sierra club refers to looking at the effect of the disclosure the effect as this court explained in the assembly of california case is whether it reveals the deliberative process and it does here because it allows a reader to compare the draft that's been disclosed with the final version and see what stayed in and what change he's made when you say with the final version is there a final version here yes there is a final version  it's about the final regulation issued is there are you saying there's a difference between a final version of these jeopardy reports and the jeopardy reports that are at issue here are you talking about final versions of rules no the final the final opinion that emerged from the consultation process by a logical jeopardy opinion well they were no jeopardy opinions but it was the the final opinion to come out of this is what would the effect be and how would it impair the services ability to make their decisions if these particular biological opinions were to be revealed don't you have to show us how that would be impaired no the relevant inquiry is whether this would reveal the deliberative process and it would show a couple of things one the service this point in the consultation process the consultation process began when the e p a requested a formal consultation and it ended when the services issued their final opinions in may of two thousand and fourteen these were drafts  the address primarily sought by syria club were from december many months before second it would reveal how the agency changed this court said in the national wildlife federation that were before your request seeks to disclose discrepancies between a draft and the final version that is probing the editorial and policy judgments of the agency in a history that was going through the internal review process and the d c circuit in a series of opinions dudman and national security archive and the third whose name escapes me right now said these drafts can't be disclosed because they revealed the deliberative process someone could compare the draft with the final released history and see what decision makers thought was appropriate to keep in and what and didn't issue that opinion right so they said roll change well i mean if you're writing about yes but that wouldn't be if you do agency if you do this that's going to hurt some analysts and the these are themselves final agency's decisions once they're done and you can't mix them up with what the a p e p a is doing in response to them no but i think to return again to the nature of the consultation process this wasn't something where this wasn't a process where e p a has a regulation and then the services look at it and ham something back this is an ongoing iterative continuous process they're talking every week sometimes once a week having emails and conference calls so the consultation process did not finish until the final issuance of the opinion there wasn't a kind of final agency