Bmbp v. Shane Jeffries

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BLUE MOUNTAINS No. 22-35857
BIODIVERSITY PROJECT, an
Oregon non-profit corporation, D.C. No. 2:20-
cv-02158-MO
Plaintiff-Appellant,
ORDER AND
v. AMENDED
OPINION
SHANE JEFFRIES, in his official
capacity as Ochoco National Forest
Supervisor; UNITED STATES
FOREST SERVICE, an agency of the
United States Department of
Agriculture,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding

Argued and Submitted March 30, 2023
Seattle, Washington

Filed July 3, 2023
Amended April 16, 2024
2 BMBP V. JEFFRIES

Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges, and Dean D. Pregerson, * District Judge.

Order;
Opinion by Judge Hurwitz;
Statement Respecting Denial of Rehearing En Banc by
Judge Berzon

SUMMARY **

Environmental Law

The panel filed (1) an order denying a petition for panel
rehearing, denying a petition for rehearing en banc, and
amending the opinion filed on July 3, 2023; and (2) an
amended opinion affirming the district court’s summary
judgment in favor of the U.S. Forest Service in an action
brought by Blue Mountains Biodiversity Project (“BMBP”)
alleging that the Service’s approval of the Walton Lake
Restoration Project violated the National Environmental
Policy Act (“NEPA”), the National Forest Management Act,
and the Administrative Procedure Act (“APA”).
The Forest Service developed the Project to replace trees
infested with laminated root rot and bark beetles with
disease-resistant trees. In May 2016, the Service contracted

*
The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 BMBP V. JEFFRIES 3

with T2, a private company, for logging to implement the
decision. The Service issued a revised Environmental
Assessment (“EA”) in July 2020 and a revised decision
notice in December 2020. BMBP filed this action
challenging the 2020 decision notice. The Service filed an
administrative record (“AR”) in 2021.
The panel first addressed BMBP’s argument that the AR
was incomplete. First, BMBP argued that deliberative
materials were part of the “whole record” and that a privilege
log was required if they were not included in the AR. The
panel held that deliberative materials are generally not part
of the AR absent impropriety or bad faith by the
agency. Because deliberative materials are not part of the
administrative record to begin with, they are not required to
be placed on a privilege log. The district court did not abuse
its discretion by declining to order the production of a
privilege log. Second, BMBP argued that all documents in
the 2016 AR should be in the AR for this case. BMBP
contended that the documents in the 2016 AR were
necessarily before the agency in the 2020 process because
the Project was a continuation of the withdrawn one. The
panel held that BMBP’s arguments failed to overcome the
presumption of regularity. The 2020 decision notice
expressly stated that the Forest Service began the NEPA
process again in 2019. The record also supported the
Service’s contention that it included only documents from
previous NEPA analyses that were considered in the 2020
decision. The panel concluded that the district court acted
within its discretion in denying the motion to supplement the
AR.
The panel next addressed whether the Service violated
NEPA by approving the Project. First, the panel held that
BMBP failed to establish that the logging contract with T2
4 BMBP V. JEFFRIES

improperly committed resources under any standard. There
is also no evidence that the agency merely engaged in post
hoc rationalization in the 2020 decision. Second, the panel
rejected BMBP’s contention that the EA diluted the
significance of some impacts by analyzing them on too large
a scale. The BMBP did not show why the choice of a
broader context in the challenged instances was arbitrary or
capricious. Also, the regulations list ten non-exhaustive
relevant factors for consideration. The panel held that
whether the factors were assessed individually or
cumulatively, the record did not establish a clear error of
judgment in the Service’s intensity findings, which “refers
to the severity of impact” within the selected context. 40
C.F.R. § 1508.27(b).
The panel affirmed the judgment of the district court and
lifted the previous stay of its order dissolving the preliminary
injunction.
In a statement respecting the denial of rehearing en banc,
Judge Berzon, joined by Wardlaw, Paez, and Koh, wrote that
the panel’s holding permits government agencies to sanitize
the record available to reviewing courts, thereby severely
curtailing meaningful judicial review of administrative
action. The panel’s opinion conflicts with case law by
holding that materials protected by the deliberative process
privilege were not part of the “whole record” for purposes of
judicial review under the APA. Judge Berzon would hold
that if government agencies wish to withhold documents in
APA cases based on a privilege, they should have to provide
a privilege log with justification for each document for
which they assert a privilege, as they must do under Freedom
of Information Act precedent.
 BMBP V. JEFFRIES 5

COUNSEL

Jesse A. Buss (argued) and Bridgett A. Chevallier,
Willamette Law Group, Oregon City, Oregon; Thomas C.
Buchele, Earthrise Law Center, Lewis & Clark Law School,
Portland, Oregon; for Plaintiff-Appellant.
Robert P. Stockman (argued) and Joan M. Pepin, Attorneys;
Sean C. Duffy, Trial Attorney; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Rick Grisel, Attorney, Office of the
General Counsel, United States Department of Agriculture,
Portland, Oregon; Rebecca Harrison, Senior Counsel; Todd
Kim, Assistant Attorney General; United States Department
of Justice, Washington, D.C.; for Defendants-Appellees.
Kelly K. Simon, American Civil Liberties Union Foundation
of Oregon, Portland, Oregon; Cody Wofsy, Katrina Eiland,
and Hannah Schoen, American Civil Liberties Union
Foundation, San Francisco, California; for Amici Curiae
American Civil Liberties Union, Immigrants’ Rights
Project, and American Civil Liberties Union of Oregon.
J. Patrick Hunter, Southern Environmental Law Center,
Asheville, North Carolina, for Amici Curiae South Carolina
Coastal Conservation League, Charleston Waterkeeper,
Chattooga Conservancy, MountainTrue, Wild Virginia,
Conservation Law Foundation, Clinch Coalition, Virginia
Wilderness Committee, Cherokee Forest Voices, and
Defenders of Wildlife.
Amy van Saun, Center for Food Safety, Portland, Oregon;
Andrew R. Missel, Advocates for the West, Portland,
Oregon; Jennifer Best, Director, Wildlife Law Program
Friends of Animals, Centennial, Colorado; for Amici Curiae
Environmental Organizations and Law Professors.
6 BMBP V. JEFFRIES

ORDER

The opinion filed on July 3, 2023, and appearing at 72
F.4th 991, is AMENDED as follows:
At 72 F.4th at 997, add the following footnote
immediately after the sentence beginning with “Deliberative
documents, which are prepared to aid the decision-maker in
arriving at a decision”:

“[T]he deliberative process privilege shields
from disclosure documents reflecting
advisory opinions, recommendations and
deliberations comprising part of a process by
which governmental decisions and policies
are formulated.” United States Fish and
Wildlife Serv. v. Sierra Club, Inc., 592 U.S.
261, 267 (2021) (cleaned up); see also F.T.C.
v. Warner Commc’ns, Inc., 742 F.2d 1156,
1161 (9th Cir. 1984) (same). The privilege
does not apply, however, to any factual
information upon which the agency has
relied. In re United States, 875 F.3d 1200,
1211-12 (9th Cir. 2017) (Watford, J.,
dissenting) (citing Portland Audubon Soc’y
v. Endangered Species Comm., 984 F.2d
1534, 1548 (9th Cir. 1993)).

At 72 F.4th at 997, delete:

We agree, however, with the D.C. Circuit that
“a showing of bad faith or improper
behavior” might justify production of a
privilege log to allow the district to determine
 BMBP V. JEFFRIES 7

whether excluded documents are actually
deliberative.

and replace with:

But whether materials are in fact deliberative
is subject to judicial review, and in
appropriate circumstances district courts may
order a privilege log to aid in that analysis.
For example, we agree with the D.C. Circuit
that “a showing of bad faith or improper
behavior” might justify production of a
privilege log to allow the district to determine
whether excluded documents are actually
deliberative.

With these amendments, the panel unanimously voted to
deny the petition for panel rehearing. Judge Nguyen voted
to deny the petition for rehearing en banc, and Judges
Hurwitz and Pregerson so recommend.
The full court was advised of the petition for rehearing
en banc. A judge of the court requested a vote on whether
to rehear the matter en banc. The matter failed to receive a
majority of the votes of the non-recused active judges in
favor of en banc consideration. Fed. R. App. P. 35. The
petition for panel rehearing and rehearing en banc, Dkt. 39,
is DENIED. No further petitions for rehearing en banc will
be considered. Judges Forrest and Johnstone did not
participate in the deliberations or vote in this case.
8 BMBP V. JEFFRIES

OPINION

HURWITZ, Circuit Judge:

This case involves claims by the Blue Mountains
Biodiversity Project (“BMBP”) that the approval of the
Walton Lake Restoration Project by the U.S. Forest Service
violated the National Environmental Policy Act, the
National Forest Management Act, and the Administrative
Procedure Act. The district court granted summary
judgment against BMBP on all claims relevant to this appeal.
We affirm.
BACKGROUND
Walton Lake is a 218-acre recreation site in the Ochoco
National Forest in Oregon. The Forest Service developed
the Walton Lake Restoration Project (“Project”) to replace
trees infested with laminated root rot and bark beetles with
disease-resistant ones. In 2015, relying on a regulation that
excludes the sanitation harvest of trees to control disease and
insects from some National Environmental Policy Act
(“NEPA”) requirements, 36 C.F.R. § 220.6(e)(14) (2015),
the Service issued a decision memorandum approving the
Project. In May 2016, the Service contracted with T2, a
private company, for logging to implement that decision.
Although no logging has yet occurred, the T2 contract
remains in place.
BMBP sued, challenging the 2015 decision, and the
district court preliminarily enjoined the logging on October
18, 2016. The next day, the Service withdrew its decision
“to allow additional analysis of the proposed activities.” On
October 21, 2016, the Service stated that it would undertake
 BMBP V. JEFFRIES 9

“[a]dditional planning and analysis . . . with the goal of
releasing an Environmental [Assessment (“EA”)].” 1
The Service issued an EA and a decision notice
approving the Project in 2017 but withdrew the decision
notice later that year, citing a need for “additional dialogue
and analysis.” The Service issued a revised EA in July 2020
and a revised decision notice in December 2020. The
revised EA analyzed four alternatives, including a no-action
alternative. The selected alternative authorizes thirty-five
acres of sanitation logging and 143 acres of commercial and
noncommercial thinning to reduce the risk of wildfires and
bark beetle infestation. The 2020 decision notice stated that
the Project “provides the best opportunity for long-term
public enjoyment of this area, with fewer risks of falling
trees, and more longevity in the large ponderosa pines that
provide much of the scenic quality”; found that there would
be no significant environmental impact; and made four
Project-specific amendments to the Ochoco National Forest
Plan.
BMBP then filed this action challenging the 2020
decision notice. The Service filed an administrative record
(“AR”) in early 2021. A magistrate judge recommended
denial of BMBP’s motion to compel completion of the AR
and declined to order the Service to produce a privilege log,
concluding that certain documents sought by BMBP were
deliberative materials, and BMBP did not establish that
some documents in the AR filed in response to the 2016 suit
were “before the agency” in its 2020 decision. The district
judge adopted the magistrate judge’s reasoning and denied

1
The district court granted BMBP’s motion to dismiss the 2016 suit on
June 19, 2017.
10 BMBP V. JEFFRIES

the motion, but again preliminarily enjoined any logging for
the Project.
The district court later granted the Service summary
judgment on all but one of BMBP’s claims. It concluded
that the logging contract with T2 was not an “irreversible and
irretrievable commitment” of resources because it could be
unilaterally modified or terminated. It also held that the
Service reasonably found that the Project would not have a
significant environmental impact and thus reasonably
declined to prepare an environmental impact statement
(“EIS”). The court entered a final judgment and dissolved
the preliminary injunction. 2 BMBP timely appealed, and we
have jurisdiction under 28 U.S.C. § 1291. 3
DISCUSSION
I.
We first address BMBP’s argument that the AR is
incomplete. The Administrative Procedure Act (“APA”)
requires us to “review the whole record,” 5 U.S.C. § 706,
including “all documents and materials directly or indirectly
considered by agency decision-makers,” Thompson v. U.S.
Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (cleaned
up). BMBP argues that deliberative materials are part of the
“whole record” and that a privilege log is required if they are
not included in the AR. It also contends that all documents
in the 2016 AR should be in the AR for this case.

2
The district court stayed its order dissolving the preliminary injunction,
however, pending our decision on a motion for a stay pending appeal.
We granted that stay and expedited this appeal.
3
The Service has not appealed the district court’s grant of summary
judgment to BMBP on one of its NEPA claims.
 BMBP V. JEFFRIES 11

A.
No previous Ninth Circuit opinion addresses whether
deliberative materials are part of the “whole record.”
District courts in this Circuit are split on the issue. See Save
the Colorado v. U.S. Dep’t of the Interior, 517 F. Supp. 3d
890, 896–97 (D. Ariz. 2021) (collecting cases). The District
of Columbia Circuit, however, has held that deliberative
materials are generally not part of the AR absent impropriety
or bad faith by the agency. See Oceana, Inc. v. Ross, 920
F.3d 855, 865 (D.C. Cir. 2019). We agree.
Our holding rests on two well-settled principles
governing judicial review of agency action under the APA.
First, “the whole record,” 5 U.S.C. § 706, is ordinarily “the
record the agency presents,” Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 743–44 (1985). “[L]ike other official
agency actions, an agency’s statement of what is in the
record is subject to a presumption of regularity.” Goffney v.
Becerra, 995 F.3d 737, 748 (9th Cir. 2021). Thus, barring
“clear evidence to the contrary,” we “presume that an agency
properly designated the Administrative Record.” Id.
(cleaned up).
Second, we assess the lawfulness of agency action based
on the reasons offered by the agency. See Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 50 (1983). Deliberative documents, which
are prepared to aid the decision-maker in arriving at a
decision, are ordinarily not relevant to that analysis. 4 See

4
“[T]he deliberative process privilege shields from disclosure
documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated.” United States Fish and Wildlife
Serv. v. Sierra Club, Inc., 592 U.S. 261, 267 (2021) (cleaned up); see
12 BMBP V. JEFFRIES

Oceana, 920 F.3d at 865; see also Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)
(“[I]nquiry into the mental processes of administrative
decisionmakers is usually to be avoided.”), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977); Morgan v. United States, 304 U.S. 1, 18 (1938)
(noting it is “not the function of the court to probe the mental
processes of the Secretary in reaching his conclusions”).
Because deliberative materials are “not part of the
administrative record to begin with,” they are “not required
to be placed on a privilege log.” Oceana, 920 F.3d at 865
(cleaned up). But whether materials are in fact deliberative
is subject to judicial review, and in appropriate
circumstances district courts may order a privilege log to aid
in that analysis. For example, we agree with the D.C. Circuit
that “a showing of bad faith or improper behavior” might
justify production of a privilege log to allow the district to
determine whether excluded documents are actually
deliberative. Id.; see also In re United States, 875 F.3d 1200,
1211–12 (9th Cir. 2017) (Watford, J., dissenting) (discussing
potential circumstances justifying expansion of the AR),
vacated, 138 S. Ct. 443, 445 (2017).
But, BMBP does not assert any misconduct by the
Service, nor does it contend that specific documents were
improperly classified as deliberative. Although we leave for
another day a detailed exploration of the precise
circumstances under which a district court can order the

also F.T.C. v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir.
1984) (same). The privilege does not apply, however, to any factual
information upon which the agency has relied. In re United States, 875
F.3d 1200, 1211-12 (9th Cir. 2017) (Watford, J., dissenting) (citing
Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534,
1548 (9th Cir. 1993)).
 BMBP V. JEFFRIES 13

production of a privilege log, the court here did not abuse its
discretion by declining to do so in this case.
B.
BMBP also contends that the documents in the 2016 AR
were necessarily before the agency in the 2020 process
because the Project is a continuation of the withdrawn one.
In so arguing, BMBP cites statements by the Service
suggesting that the 2020 decision relied on an “additional”
NEPA analysis, a District Ranger’s description of that
analysis as a “continuation of the Walton Lake Restoration
analysis and documentation,” and the Service’s reliance on
a 2015 Forest Health Report before the district court and an
appellate motions panel.
BMBP’s arguments, however, fail to overcome the
presumption of regularity. See Goffney, 995 F.3d at 748.
The 2020 decision notice expressly stated that “[t]he Forest
Service began the NEPA process again in 2019 with a
scoping letter dated August 7, 2019.” The phrase “additional
analysis” is not inconsistent with preparing a new AR to
support a new NEPA analysis. Nor do the views of a single
Service employee necessarily reflect those of the agency or
its ultimate decision-maker. See Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007). The
record also supports the Service’s contention that it included
only documents from previous NEPA analyses that were
considered in the 2020 decision. For example, the Service
did not cite the 2015 Forest Health Report in its 2020
decision, relying instead on a new 2019 Forest Health
Report. And, the Service’s citations to the 2015 Report in
prior court proceedings did not involve the validity of the
2020 decision but rather a separate 2017 decision to close
sections of the recreation site because of safety concerns.
14 BMBP V. JEFFRIES

We place a thumb on the scale against supplementation
of the AR, see Goffney, 995 F.3d at 747–48, and BMBP has
not demonstrated how the inclusion of “over two thousand
pages that the Service had included in the 2016 AR,” would
“identify and plug holes in the administrative record,” Fence
Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131
(9th Cir. 2010) (cleaned up). Because BMBP “has not met
its heavy burden to show that the additional materials sought
are necessary to adequately review the Forest Service’s
decision,” id., the district court acted within its discretion in
denying the motion to supplement the AR.
II.
We next address whether the Service violated NEPA by
approving the Project. NEPA imposes “a set of action-
forcing procedures that require that agencies take a hard look
at [the] environmental consequences” of their actions.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989) (cleaned up). “Although these procedures are
almost certain to affect the agency’s substantive decision,
. . . NEPA itself does not mandate particular results, but
simply prescribes the necessary process.” Id.
A.
The Council on Environmental Quality (“CEQ”) issues
regulations to guide agencies in determining what actions are
subject to NEPA requirements. See 40 C.F.R. § 1500.3. 5
Those regulations prohibit an agency from “commit[ting]
resources prejudicing selection of alternatives” or taking
actions that would “[l]imit the choice of reasonable
alternatives.” Id. §§ 1502.2(f), 1506.1(a)(2). BMBP

5
Unless otherwise indicated, all citations are to the 2019 version of the
Code of Federal Regulations.
 BMBP V. JEFFRIES 15

contends that the logging contract with T2 violated these
regulations. The parties dispute whether an improper
commitment of resources must be “irreversible and
irretrievable,” Metcalf v. Daley, 214 F.3d 1135, 1143 (9th
Cir. 2000) (cleaned up), or something less. We need not
decide that issue, however, because BMBP has failed to
establish that the contract improperly committed resources
under any standard.
Under the contract, T2 will receive $78,262 to remove
non-commercial timber and about $36,000 worth of
harvested commercial timber. Critically, the Service
reserved the right to “terminate this contract, or any part
hereof, for its sole convenience,” at which point T2 “shall
immediately stop all work.” 48 C.F.R. § 52.212-4(l); see
WildWest Inst. v. Bull, 547 F.3d 1162, 1169 (9th Cir. 2008)
(stressing that the Service “clearly retained the authority to
change course or to alter the plan it was considering
implementing”); see also Nat’l Audubon Soc’y v. Dep’t of
the Navy, 422 F.3d 174, 206 (4th Cir. 2005) (holding that
preparatory activities did not violate NEPA in part because
that they did not “include cutting even a single blade of grass
in preparation for construction”). T2 has not conducted any
logging under the contract because the Service has not issued
a notice to proceed. And, given the district court’s
preliminary injunction against logging, which has been
stayed pending appeal, no logging can occur until this case
is resolved. See supra note 2. Nor has the Service made any
payments to T2.
There is also no evidence that the agency “merely
engaged” in “post hoc rationalization” in the 2020 decision.
Nat’l Audubon Soc’y, 422 F.3d at 199. BMBP argues that
an internal email by a Service employee suggests that
termination of the contract would cost the Service
16 BMBP V. JEFFRIES

appropriated dollars and prevent funding of a new project.
But, another Service employee explained in the same email
chain that any future work under the contract “must adhere
to what is in the new NEPA decision” and that pending the
outcome of that decision, the Service might need to
“terminate[ ] and resolicit[ ]” the contract.
Rather than rely on “the alleged subjective intent of
agency personnel divined through selective quotations from
email trails,” we “look to . . . the environmental analysis
itself.” Id. The EA contains no indication that the T2
contract prejudiced or limited the consideration of
alternatives. After analyzing the effects of no action and
several alternatives that reduced or eliminated commercial
logging, the Service chose the Project because it “best meets
the Purpose and Need of Action,” would “better meet the
management objectives of the area,” and “provides the best
opportunity for long-term public enjoyment of this area.”
The Service also stated that it “considered all reasonable
alternatives and would not be limited in choice because the
final service agreement or other tool of implementation
would be written to align with the final decision.”
B.
NEPA mandates an EIS for “major Federal actions
significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). An agency need not,
however, prepare an EIS if it prepares an EA that “briefly
presents the reasons why the proposed agency action will not
have a significant impact on the human environment.” Dep’t
of Transp. v. Pub. Citizen, 541 U.S. 752, 757–58 (2004).
Significance depends on an action’s “context” and
“intensity.” 40 C.F.R. § 1508.27. “Although . . . review
under the arbitrary and capricious standard is deferential,”
 BMBP V. JEFFRIES 17

an agency’s finding of no significant impact is arbitrary or
capricious if the petitioner has raised “substantial questions
whether a project may have a significant effect on the
environment.” Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1212–14, 1216 (9th Cir. 1998)
(cleaned up).
1.
“Context simply delimits the scope of the agency’s
action, including the interests affected.” In Defense of
Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1068
(9th Cir. 2014) (cleaned up); see 40 C.F.R. § 1508.27(a)
(listing potential contexts). Although the agency should be
mindful “that use of a larger analysis area can dilute the
apparent magnitude of environmental impacts,”
“[i]dentifying the appropriate geographic scope is a task
assigned to the special competency of the appropriate
agency.” Friends of the Wild Swan v. Weber, 767 F.3d 936,
943 (9th Cir. 2014) (cleaned up).
BMBP contends that the EA diluted the significance of
some impacts by analyzing them on too large a scale.
However, “[a]lthough 40 C.F.R. § 1508.27(a) suggests that
site-specific actions are generally evaluated in the context of
a project locale, nothing in the regulation prohibits the
[Service] from exercising its discretion to apply a [larger]
analysis when appropriate.” Tri-Valley CAREs v. U.S. Dep’t
of Energy, 671 F.3d 1113, 1127 (9th Cir. 2012). And BMBP
has not shown why the choice of a broader context in the
challenged instances was arbitrary or capricious. See Ctr.
for Cmty. Action & Env’t Just. v. FAA, 18 F.4th 592, 599
(9th Cir. 2021) (noting that the petitioner bears the burden of
persuasion); cf. Anderson v. Evans, 371 F.3d 475, 489–92
(9th Cir. 2004) (explaining why the local context was
18 BMBP V. JEFFRIES

especially relevant for assessing whether the project’s
effects would be controversial).
Indeed, BMBP concedes in its briefing that the 2020
decision “acknowledges the highly-localized nature of the
Project’s effects” and that the EA contains a “disclosure of
local impacts.” The Service extensively analyzed various
local impacts—including those on scenic integrity, on late
and old structure stands, and on threatened and endangered
species. And, the EA explained why it chose certain broader
contexts for analysis in other instances. The record fails to
establish that the agency’s decisions about context were
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).
2.
Intensity “refers to the severity of impact” within the
selected context. 40 C.F.R. § 1508.27(b). The regulations
list ten non-exhaustive relevant factors for consideration,
including the “[u]nique characteristics of the geographic
area”; the “degree to which the effects . . . are likely to be
highly controversial”; the “degree to which the action may
establish a precedent for future actions with significant
effects”; and whether the action “threatens a violation of
Federal, State, or local law or requirements imposed for the
protection of the environment.” Id. Whether the factors are
assessed individually or cumulatively, the record does not
establish a “clear error of judgment” in the Service’s
intensity findings. Blue Mountains Biodiversity Project, 161
F.3d at 1211 (cleaned up).
Although the EA described Walton Lake as “unique”
because it boasts a high number of visitors and is “the only
Developed Recreation Management Area that has a lake
with the combination of moist mixed conifer and dry mixed
 BMBP V. JEFFRIES 19

conifer forest surrounding it,” the Service reasonably found
that the Project would affect neither the lake itself, nor “the
diversity of tree species in the project area around Walton
Lake.” The Service also reasonably concluded that the
Project “would not substantially affect the use of the area as
a recreation site” because the infested area was already
closed to recreational uses for safety reasons. And BMBP
does not challenge the Service’s conclusion that the Project
would not affect any of the “unique” characteristics listed in
the regulation. See 40 C.F.R. § 1508.27(b)(3).
The record also does not suggest that the Project is highly
controversial. See id. § 1508.27(b)(4). “A project is highly
controversial if there is a substantial dispute about the size,
nature, or effect of the major Federal action,” which “exists
when evidence . . . casts serious doubt upon the
reasonableness of an agency’s conclusions.” WildEarth
Guardians v. Provencio, 923 F.3d 655, 673 (9th Cir. 2019)
(cleaned up). But, a project is not rendered highly
controversial simply because “qualified experts disagree.”
Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir.
1992). Rather, “[w]hen specialists express conflicting
views, an agency must have discretion to rely on the
reasonable opinions of its own qualified experts.” Marsh v.
Or. Nat. Res. Council, 490 U.S. 360, 378 (1989).
The Service concluded that the Project was not highly
controversial because its potential effects were well-
established or supported by the best available science.
Citing a range of research, the Service found “no evidence
that the proposed treatments would exacerbate” laminated
root rot. It also decided against stump removal because of
“soil disturbance” and “the high cost of removing stumps.”
20 BMBP V. JEFFRIES

The scientific studies cited by BMBP do not render these
findings arbitrary or capricious. One acknowledges that “an
appropriate strategy” is “based on several factors”; another
expresses some skepticism about sanitation harvesting but
also notes the potential effectiveness of “spacing trees
through thinning, by removing stumps, or by planting and
managing resistant and immune trees species”; and a third
does not discuss sanitation harvesting at all. Although
BMBP also cites Dr. Chad Hanson’s opinion that logging
would “likely increase [laminated root rot] occurrence,” the
Service reviewed that opinion but ultimately concluded that
the overall evidence weighed against its conclusions. One
negative comment does not establish high controversy. See
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d
1233, 1243–44 (9th Cir. 2005).
It was also reasonable for the Service to conclude that
the Project is unlikely to establish a precedent for future
actions. See 40 C.F.R. § 1508.27(b)(6). The Service
explained that “no other known Developed Recreation
Management Areas . . . have a laminated root rot problem on
the Ochoco National Forest.” The Service found that the
Project is “site-specific” and “any future decision would
need to go through the NEPA process.” Even if other sites
might one day develop similar infestation issues, that does
not necessarily make this Project precedential, “especially
since any other [project] would be subject to its own NEPA
analysis.” WildEarth Guardians, 923 F.3d at 674.
The Service’s decision also reasonably accounted for
federal, state, and local laws. See 40 C.F.R.
§ 1508.27(b)(10). Although forest plan amendments that
“may create a significant environmental effect” require an
EIS, there is an exception for “every plan amendment . . .
that applies only to one project or activity.” 36 C.F.R.
 BMBP V. JEFFRIES 21

§ 219.13(b)(3). The amendments to the Ochoco National
Forest Plan at issue are each related to one project.
CONCLUSION
We AFFIRM the judgment of the district court and lift
our previous stay of its order dissolving the preliminary
injunction.

BERZON, Circuit Judge, with whom WARDLAW, PAEZ,
and KOH, Circuit Judges, join, respecting the denial of
rehearing en banc:

The panel’s holding in this case permits government
agencies to sanitize the record available to reviewing courts,
thereby severely curtailing meaningful judicial review of
administrative action. I respectfully disagree with this
court’s refusal to reconsider the panel opinion en banc.
The Administrative Procedure Act (“APA”) mandates
that, when considering challenges to the lawfulness of
agency action, “the court shall review the whole record or
those parts of it cited by a party.” 5 U.S.C. § 706. This court
has long held that the “whole record” consists of all
documents and materials considered by the agency before
making its decision. See Portland Audubon Soc’y v.
Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir.
1993); Thompson v. U.S. Dep’t of Lab., 885 F.2d 551, 555
(9th Cir. 1989); see also, e.g., Goffney v. Becerra, 995 F.3d
737, 747 (9th Cir. 2021) (citing Portland Audubon Soc’y,
984 F.2d at 1548); Pac. Choice Seafood Co. v. Ross, 976
F.3d 932, 942 (9th Cir. 2020) (same).
In keeping with our precedents, the Supreme Court has
never “limit[ed] the ‘full administrative record’ to those
22 BMBP V. JEFFRIES

materials that the agency unilaterally decides should be
considered by the reviewing court.” In re United States, 583
U.S. 1029, 138 S. Ct. 371, 372 (2017) (Breyer, J., dissenting
from the grant of a stay). “[J]udicial review cannot function
if the agency is permitted to decide unilaterally what
documents it submits to the reviewing court as the
administrative record.” Id. That is because “[e]ffective
review depends upon the administrative record containing
all relevant materials presented to the agency, including not
only materials supportive of the government’s decision but
also materials contrary to the government’s decision.” Id. 1
In conflict with our case law, the decision here holds that
materials protected by the deliberative process privilege are
not part of the “whole record” for purposes of judicial review
under the APA. Blue Mountains Biodiversity Project v.
Jeffries, 72 F.4th 991, 996–97 (9th Cir. 2023). The
deliberative process privilege applies to “documents that
reflect advisory opinions, recommendations and
deliberations comprising part of a process by which
government decisions and policies are formulated,” but does
not protect “[p]urely factual material.” F.T.C. v. Warner
Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).
According to the panel opinion, because deliberative
documents are—says the panel—not part of the “whole
record,” the government ordinarily need not prepare a
privilege log indicating the basis for excluding
“deliberative” documents as privileged. Blue Mountains, 72
F.4th at 997. Under the opinion, absent a showing of bad

1
As I explain later, although in dissent as to the stay, Justice Breyer later
joined the unanimous merits opinion in In re United States, 583 U.S. 29,
31–32 (2017) (per curiam), which was consistent with the analysis in his
stay dissent. See infra at Part I.
 BMBP V. JEFFRIES 23

faith or impropriety (or perhaps some other exception, not
articulated), the government may routinely and unilaterally
withhold all documents it deems “deliberative” without
providing any account to the court or the litigants of the basis
for excluding those documents. That holding is not only
wrong but is likely to reduce APA review in many instances
to a charade.
I.
In In re United States, the federal government advanced
in the Supreme Court the same position taken by the opinion
in this case: that review of agency decisions under the APA
“must be based exclusively on the documents that the
Government itself unilaterally selected for submission to the
District Court.” In re U.S., 138 S. Ct. at 372 (Breyer, J.,
dissenting from the grant of a stay). The district court in In
re United States had determined that the record designated
by the government was incomplete, and so ordered the
government to complete the administrative record and
produce a privilege log. See Regents of Univ. of California
v. U.S. Dep’t of Homeland Sec., No. C 17-05211 WHA,
2017 WL 4642324, *7–8 (N.D. Cal. Oct. 17, 2017). After
we upheld the district court’s decision on mandamus review,
In re United States, 875 F.3d 1200 (9th Cir. 2017), the
government sought review in the Supreme Court. The
Supreme Court granted a stay to consider the government’s
mandamus request. In re U.S., 138 S. Ct. at 371. Joined by
three justices in dissent from the grant of the stay Justice
Breyer maintained that the Supreme Court has never held
that the “whole record” in APA cases is whatever documents
the government unilaterally designates as the administrative
record. In re U.S., 138 S. Ct. at 372.
24 BMBP V. JEFFRIES

The Supreme Court subsequently granted certiorari and
issued a unanimous opinion in In re United States. 583 U.S.
29 (2017) (per curiam). That opinion allowed the district
court’s order to remain in place and declined to adopt the
government’s view of its unilateral power to designate the
administrative record. Id. at 31–32.
More specifically, the Court in In re United States held
that the district court should have first resolved two
threshold jurisdictional arguments that “if accepted, likely
would eliminate the need for the District Court to examine a
complete administrative record.” Id. at 31–32. But the Court
did not disapprove the district court’s order directing the
government to complete the administrative record and
produce a privilege log. See id. at 32. Instead, the Court
explained that if the threshold arguments were resolved in
favor of the district court’s jurisdiction, then the district court
“may consider whether narrower amendments to the record
are necessary and appropriate.” Id. The Supreme Court
further indicated that the district court could potentially
“compel the Government to disclose [] document[s] that the
Government believes is privileged” so long as the court “first
provid[es] the Government with the opportunity to argue the
issue.” Id.
In other words, consistent with Justice Breyer’s earlier
dissent from the stay order, the Supreme Court’s unanimous
opinion made clear that the district court had power either to
maintain its existing order for completion of the
administrative record and production of a privilege log, or to
“narrow[]” it, as long as the government had a chance to
litigate the question of privilege. Id. The Supreme Court’s
merits opinion did not hold—as did the panel opinion in this
case—that the district court was precluded from expanding
the record at all, absent a showing of some unusual
 BMBP V. JEFFRIES 25

circumstance, or that the agency could decide for itself
which material was deliberative. And Justice Breyer
obviously understood the merits opinion as consistent with
the analysis in his earlier stay dissent—an analysis squarely
contrary to the panel opinion in this case—as he joined the
merits opinion.
II.
In keeping with the view that prevailed in In re United
States, our Circuit has repeatedly held that for purposes of
APA review, “‘[t]he whole record’ includes everything that
was before the agency pertaining to the merits of its
decision.” Portland Audubon Soc’y, 984 F.2d at 1548
(emphasis added). See also, e.g., Pac. Choice Seafood Co.,
976 F.3d at 942 (same); Goffney, 995 F.3d at 747 (same);
Thompson, 885 F.2d at 555.
Our requirement that the administrative record be
complete is critical for effective judicial review. In APA
agency review cases, private parties may not introduce new
facts, and discovery is ordinarily not available. As the
Supreme Court has observed, “the focal point for judicial
review” in APA cases “should be the administrative record
already in existence, not some new record made initially in
the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142
(1973). “[T]he general rule [is] that agency actions are to be
judged on the agency record alone, without discovery.” Pub.
Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir.
1982).
Our Circuit law is clear that, given that judicial review is
limited to the administrative record, the administrative
record must be complete. “If the record is not complete, then
the requirement that the agency decision be supported by
‘the record’ becomes almost meaningless.” Portland
26 BMBP V. JEFFRIES

Audubon Soc’y, 984 F.2d at 1548; accord In re United
States, 138 S. Ct. at 372 (Breyer, J., dissenting from the grant
of a stay). Accordingly, Portland Audubon Society
explained that “a record that does not include all matters on
which the [agency] relied does not constitute the ‘whole
record’ required for judicial review,” and “the failure to
include all materials in the record violates the Administrative
Procedure Act.” Id. at 1536–37. Further, “[w]hen it appears
the agency has relied on documents or materials not included
in the record, supplementation is appropriate.” Id. at 1548.
Thompson similarly held that “[t]he whole
administrative record . . . is not necessarily those documents
that the agency has compiled and submitted as ‘the’
administrative record.” 885 F.2d at 555; see also Bar MK
Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (“An
agency may not unilaterally determine what constitutes the
Administrative Record”). Instead, “[t]he ‘whole’
administrative record . . . consists of all documents and
materials directly or indirectly considered by agency
decision-makers and includes evidence contrary to the
agency’s position.” Thompson, 885 F.2d at 555 (internal
quotation marks and citation omitted).
More recently, in Pacific Choice Seafood Company, we
rejected an argument that in reviewing a National Marine
Fisheries Service decision, we should “examine only the
Service’s [final] decision memoranda while ignoring”
earlier materials, analyses, and reports produced by a
regional fishery management council during a “years-long
deliberative process” that preceded the Service’s final
decision. 976 F.3d at 936, 942. Emphasizing that the
“whole record” includes “everything that was before the
agency,” we noted that the plaintiff “offer[ed] no authority
supporting its assertion that we should focus exclusively on
 BMBP V. JEFFRIES 27

the Service’s memoranda from the very end of the
administrative process.” Id. at 942. See also id. at 943
(relying in part on “the extensive discussion of [applicable]
factors presented at each step of the rulemaking process” in
concluding that the agency had engaged in reasoned
decisionmaking).
Consistent with these precedents, we have routinely
reviewed letters, drafts, emails, and other nonfinal materials
in the course of evaluating the lawfulness of agency action.
For example, Barnes v. U.S. Department of Transportation,
655 F.3d 1124 (9th Cir. 2011), considered a statement made
by a Federal Aviation Authority (“FAA”) official while
commenting on a draft document related to an environmental
assessment of a new airport runway. Id. at 1133. The
government contended that we should disregard the
statement because it was “made in the early stages of the
administrative process” and “that courts must focus on the
final action by an agency.” Id. We disagreed, explaining
that the Supreme Court has not held that “such preliminary
determinations are irrelevant in any context . . . or that they
may not be considered when reviewing an agency action.”
Id. at 1134. We also considered “a series of emails in the
administrative record” reflecting concerns raised by FAA
employees about the proposed project. Id. at 1135. See also,
e.g., Native Village of Point Hope v. Jewell, 740 F.3d 489,
499–501 (9th Cir. 2014) (considering “internal [agency]
emails,” draft tables or charts, and commentary by agency
staff on proposed scenarios); Earth Island Institute v.
Hogarth, 494 F.3d 757, 768–69 (9th Cir. 2007) (relying on
an administrative record that included “internal memoranda”
as well as draft “talking points”).
The holding here that the “whole record” does not
include deliberative material cannot be reconciled with these
28 BMBP V. JEFFRIES

precedents. Under our case law, drafts and other non-final
documents may properly be reviewed by the court as part of
the “whole record,” unless the government justifies its
decision to withhold such documents in a privilege log.
III.
Aside from creating an intracircuit conflict, the reasons
provided in the opinion in support of its holding on the
administrative record issue are seriously flawed.
A.
The opinion “rests” in part on the principle that “an
agency’s statement of what is in the record is subject to a
presumption of regularity.” Blue Mountains, 72 F.4th at
996–97. But the presumption of regularity is a presumption
that the agency has done what it is supposed to do; it does
not tell us what the agency is supposed to do. More
specifically, the presumption does not describe the breadth
of the record that should be produced and so does not explain
to what the presumption attaches. That is, if the legal rule is
that the record is everything that was before the agency (as
our precedents have long held), then we can presume—but
not conclusively—that what is presented was everything
before the agency. So the presumption has nothing to do
with what is actually in an appropriate administrative record
in the first instance.
B.
The opinion also reasons that “[d]eliberative documents,
which are prepared to aid the decision-maker in arriving at a
decision, are ordinarily not relevant” to judicial review of the
lawfulness of agency action. Blue Mountains, 72 F.4th at
997. In support of this proposition, the opinion relies on
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
 BMBP V. JEFFRIES 29

402, 420 (1971), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99, 105 (1977), and Morgan v. United
States, 304 U.S. 1, 18 (1938). See Blue Mountains, 72 F.4th
at 997. Neither case supports the panel’s conclusion.
Overton Park involved a challenge to the Secretary of
Transportation’s decision to authorize the construction of a
highway through a public park. 401 U.S. at 406. In
announcing his decision, the Secretary made no formal
findings. 401 U.S. at 407–08. The Supreme Court explained
that judicial “review is to be based on the full administrative
record that was before the Secretary at the time he made his
decision.” Id. at 420. But because of the inadequacy of the
existing record in that case, the Court held that post-
decisional fact development was perhaps necessary for
effective judicial review:

The court may require the administrative
officials who participated in the decision to
give testimony explaining their action. Of
course, such inquiry into the mental
processes of administrative decisionmakers
is usually to be avoided. . . . And where there
are administrative findings that were made at
the same time as the decision, . . . there must
be a strong showing of bad faith or improper
behavior before such inquiry may be made.
But here there are no such formal findings
and it may be that the only way there can be
effective judicial review is by examining the
decisionmakers themselves.

Id. (emphasis added) (citing United States v. Morgan, 313
U.S. 409, 422 (1941) (hereinafter Morgan II)).
30 BMBP V. JEFFRIES

Similarly, in Morgan, after the district court received
testimony from the Secretary of Agriculture about his
decisional process, the Supreme Court observed that “it was
not the function of the court to probe the mental processes of
the Secretary in reaching his conclusions if he gave the
hearing which the law required.” 304 U.S. at 14, 18; see also
Morgan II, 313 U.S. at 422. 2
Thus, both cases concern the propriety of post-decisional
testimony of administrative decisionmakers, which
obviously was not part of the administrative record because
it did not exist at the time the agency made its decision. See
In re United States, 138 S. Ct. at 373 (Breyer, J., dissenting
from the grant of a stay). “Probing a decisionmaker’s
subjective mental reasoning—what was at issue in Morgan
and Overton Park—is distinct from the ordinary judicial task
of evaluating whether the decision itself was objectively
valid, considering all of the materials before the
decisionmaker at the time he made the decision.” Id.
Neither Morgan or Overton Park concerns the scope of the
administrative record reviewed under the APA or supports
the conclusion that deliberative documents actually before
the agency when reaching its decision are not part of the
administrative record. Nor do they concern the
circumstances warranting a privilege log.
C.
The opinion also heavily relies on the D.C. Circuit’s
decision in Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir.

2
The Supreme Court in Morgan, a case concerning an adjudicative
proceeding, reversed the district court’s decision because the plaintiffs
were not provided with sufficient information about the government’s
position to satisfy the requirement of a full and fair hearing. Morgan,
304 U.S. at 18–19, 22.
 BMBP V. JEFFRIES 31

2019). Blue Mountains, 72 F.4th at 996–97. Oceana, in
turn, relied on In re Subpoena Duces Tecum Served on Off.
of Comptroller of Currency, 156 F.3d 1279, 1279–80 (D.C.
Cir. 1998) (opinion on petition for rehearing). And In re
Subpoena Duces Tecum relied on Morgan, Overton Park,
and Camp in concluding that “[a]gency deliberations not
part of the record are deemed immaterial.” Id. at 1279–80
(emphasis added). That statement indicates that agency
deliberations can be “part of the record,” and says nothing
about the treatment of agency deliberations that are part of
the record.
Yet, Oceana seized on this statement—which like the
Supreme Court cases the panel opinion in this case cites,
references extra-record discovery into the decisionmaker’s
subjective motivations—to conclude that deliberative
documents that were before the agency are not part of the
administrative record. See 920 F.3d at 865 (citing In re
Subpoena Duces Tecum, 156 F.3d at 1279, 1280). As far as
I can tell, no other Circuit has adopted the D.C. Circuit’s
wrongheaded approach. Moreover, as discussed, Oceana’s
conclusion conflicts with our Circuit’s controlling
precedents.
Oceana also asserts that “[b]ecause predecisional
documents are ‘immaterial,’ they are not ‘discoverable.’”
920 F.3d at 865 (citation omitted). But the concept of
discoverability has no bearing on the meaning of the “whole
record” for APA cases. Again, discovery is ordinarily not
available in APA review cases. See supra at Part II. As the
“whole record” is not determined through discovery, the
discovery-related concept of “relevan[ce],” see Fed. R. Civ.
Proc. 26(b)(1), is not helpful for purposes of defining the
“whole record.” Instead, as our case law reflects, the “whole
record” consists of everything that was “directly or indirectly
32 BMBP V. JEFFRIES

considered” by the agency. Thompson, 885 F.2d at 555
(emphasis and quotation marks omitted).
IV.
In other key respects as well, the decision in this case is
damaging to judicial review of agency action. The opinion
sets a new baseline in which the government need not justify
its claims of privilege except in limited circumstances, as yet
unexplained. Without a privilege log, however,
governmental mistakes or misconduct are unlikely to come
to light. The panel’s holding also creates a tension with
Freedom of Information Act (“FOIA”) case law, which
requires the government to supply a privilege log to justify
withholding of documents claimed to be deliberative. And
the decision fails to acknowledge that deliberative materials
are central in cases in which the decisionmaker’s subjective
intent is properly at issue. See, e.g. Dep’t of Com. v. New
York, 139 S. Ct. 2551, 2573–74 (2019).
A.
Although the opinion purports to “leave for another day
a detailed exploration of the precise circumstances under
which a district court can order the production of a privilege
log,” it concludes that the district court properly declined to
order a privilege log here because Blue Mountains
Biodiversity Project “does not assert any misconduct by the
Service, nor does it contend that specific documents were
improperly classified as deliberative.” Blue Mountains, 72
F.4th at 997.
Absent a privilege log, it is very unlikely—absent public
announcements or a leak by government officials—that
litigants will be able to point to “specific” documents
improperly excluded. The reason is obvious—they will be
 BMBP V. JEFFRIES 33

unaware that such documents exist. See, e.g., Inland
Empire-Immigrant Youth Collective v. Nielsen, No. EDCV
17-2048 PSG SHKx, 2019 WL 13240629, at *6 (C.D. Cal.
Apr. 8, 2019) (“[I]t would be very difficult, if not impossible,
for an APA plaintiff to challenge a claim of deliberative
process privilege or to make the required showing of need
necessary to overcome the privilege without at least some
description of the document over which privilege is
asserted.”); Sierra Club v. Zinke, No. 17-CV-07187-WHO,
2018 WL 3126401, at *5 (N.D. Cal. June 26, 2018) (“The
only way to know if privilege applies is to review the
deliberative documents in a privilege log.”).
Importantly, agencies may inadvertently omit material
from the administrative record without acting in bad faith.
In Bartell Ranch LLC v. McCullough, No. 3:21-CV-00080-
MMD-CLB, 2022 WL 2093053, at *3 (D. Nev. June 10,
2022), for example, the Bureau of Land Management had a
practice of assuming that only the documents that individual
agency staff had added to a case file as they were generated
should be produced as the record, and that all documents not
added to the case file were deliberative. Id. As a result of
that practice, neither the agency nor its counsel looked
outside the case file for record documents, nor did they make
any individualized determinations about whether the six to
eight thousand emails they excluded were actually
deliberative. Id. Had the court not ordered the agency to
provide a privilege log, the agency’s error would never have
come to light. Id.
An agency may also make a legal error in determining
which documents to exclude, such as when it applies an
incorrect legal standard when compiling the record. See,
e.g., Inland Empire-Immigrant Youth Collective, 2019 WL
13240629, at *4 (recognizing that “[t]he application of an
34 BMBP V. JEFFRIES

incorrect standard” provides reason to believe the record
produced by the agency is incomplete) (quotation marks and
citation omitted). The possibility that the agency may apply
an incorrect legal standard in excluding deliberative material
from the administrative record is far from theoretical.
Without the understanding that the “whole record” includes
deliberative material and may require a privilege log
identifying such material, errors of this kind will remain
hidden from the litigants and the court, and the outcome of
the case could well be affected.
For these reasons, if the government wishes to exclude
from the record material before the agency as deliberative, it
should have to identify those specific documents and justify
their exclusion in a log provided to the court.
B.
The process just described is the one we have long
followed in cases under another provision of the APA—the
Freedom of Information Act—when the government claims
that deliberative material is exempt from disclosure. There
is no reason the process should be different here.
“The statute known as the FOIA is actually a part of the
Administrative Procedure Act (APA).” U.S. Dep’t of Just.
v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 754
(1989). FOIA Exemption 5 permits the government to avoid
disclosure of “inter-agency or intra-agency memorandums
or letters that would not be available by law to a party other
than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). This exemption “allows agencies to withhold
privileged information, including documents revealing an
agency’s deliberative process.” Transgender L. Ctr. v.
Immigr. & Customs Enf’t, 46 F.4th 771, 782 (9th Cir. 2022).
 BMBP V. JEFFRIES 35

Under FOIA, the government has the burden of
demonstrating that a claimed privilege applies. See id. at
781; 5 U.S.C. § 552(a)(4)(B). “[O]ur caselaw . . . demands
a careful document-by-document review” to determine
whether the agency has met its burden to show that the
deliberative process privilege applies. Transgender L. Ctr.,
46 F.4th at 786. To aid the court’s determination,
government agencies seeking to avoid disclosure of public
records must submit a “Vaughn index,” which “‘identif[ies]
the documents withheld, the FOIA exemptions claimed, and
a particularized explanation of why each document falls
within the claimed exemption.’” Id. at 781 (quoting Lahr v.
Nat’l Transp. Safety Bd., 569 F.3d 964, 989 (9th Cir. 2009));
see Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir.
1973). “[T]he purpose of the index is . . . to afford the
requester an opportunity to intelligently advocate release of
the withheld documents and to afford the court an
opportunity to intelligently judge the contest.” Transgender
L. Ctr., 46 F.4th at 782 (quotation marks and citation
omitted).
In FOIA cases, the deliberative process privilege is not
absolute. Instead, “[w]e have held that ‘[a] litigant may
obtain deliberative materials if his or her need for the
materials and the need for accurate fact-finding override the
government’s interest in non-disclosure.’” Karnoski, 926
F.3d at 1206 (quoting Warner, 742 F.2d at 1161); see also 5
U.S.C. § 552(a)(8)(A)(i)(I). There is no basis in the APA for
providing litigants challenging agency action with less
access to public documents than is available to interested
members of the public under FOIA. Notably, APA review
requires consideration of the “whole record,” with no
express exceptions, 5 U.S.C. § 706, whereas FOIA includes
36 BMBP V. JEFFRIES

several express exemptions to public access, 5 U.S.C.
§ 552(b).
The incongruity between FOIA and the APA, 5 U.S.C.
§ 706, created by the panel’s decision is seriously inefficient
for litigants, agencies, and the courts. To obtain access to
the complete administrative record or identify what
documents may exist, litigants seeking to challenge agency
action will first have to file FOIA requests and then litigate
the agency’s decision to claim a FOIA exemption,
potentially running into statute of limitations problems for
the APA action while the FOIA process inches forward.
Agencies will have to respond to and litigate those FOIA
requests. And the courts will have to resolve both FOIA
claims and APA challenges.
C.
Finally, but importantly, an agency’s subjective
motivations sometimes are critical in APA cases. In cases
in which the legal claim places the agency’s subjective intent
directly at issue—such as a claim that plausibly alleges that
the decisionmaker’s intent was discriminatory or
retaliatory—deliberative materials actually considered will
be central to judicial review. Such materials can be
identified only if included in the whole record and, if
appropriate, a privilege log.
The opinion does not except such cases from the rule it
establishes about the limited scope of the administrative
record. Yet the D.C. Circuit’s decision In re Subpoena
Duces Tecum, relied on by Oceana, held that in cases that
“directly call into question the agency’s subjective intent,”
the subjective motivation of the decisionmakers is at issue,
and the deliberative process privilege is inapplicable. See
156 F.3d at 1280; see also In re Subpoena Duces Tecum
 BMBP V. JEFFRIES 37

Served on Off. of Comptroller of Currency, 145 F.3d 1422,
1424 (D.C. Cir.), on reh’g, 156 F.3d 1279 (D.C. Cir. 1998).
Department of Commerce likewise reflects that inquiry
into an administrative agency’s mental processes is
permitted where the decisionmakers’ motives are at issue.
There, the Supreme Court held that inquiry into a
decisionmaker’s “mental processes” was appropriate where
there was evidence in the administrative record that the
Secretary of Commerce’s stated reasons for his decision
were pretextual. 139 S. Ct. at 2573–74. Department of
Commerce reflects that the decisionmaker’s subjective
motivations are at issue when the claim is that the agency’s
stated reasons for its decision were “contrived.” See id. at
2575–76. It follows that when such claims are alleged,
deliberative documents are directly on point and, for that
reason as well as those generally applicable, may not be
excluded from the administrative record.
The holding in this case that “deliberative materials are
‘not part of the administrative record to begin with,’” and
that only “the reasons offered by the agency” matter, Blue
Mountains, 72 F.4th at 997, contains no recognition that this
rule would fatally undermine cases in which the basis for the
challenge to the agency’s decision is that there were other
reasons, not expressed in the official explanation of the
agency’s decision, that were actually determinative. The
recognition that there may be unspecified circumstances in
which challengers may be able to come forward with
evidence of bad faith or impropriety and then have access to
deliberative material does not fill that gap. Without access
to the “whole record,” including a privilege log of assertedly
deliberative material, the only way to begin to make a
showing of illicit motivation or pretext would be through
38 BMBP V. JEFFRIES

public statements by decisionmakers or leaks from
government insiders.
***
In sum, if government agencies wish to withhold
documents in APA cases based on a privilege, they should
have to provide a privilege log with a justification for each
document for which they assert a privilege, as they must do
under our FOIA precedents. Without a complete record or a
privilege log to aid in the determination of whether the
record is complete, government agencies will have the last
word on what information other litigants and the court may
see, and effective judicial review of government action
under the APA will be severely undermined. Our court
should have heard this case en banc to eliminate this serious
threat to meaningful judicial review of agency action.