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Missouri v. Corps of Eng'rs

ELR Citation: 28 ELR 21376
Nos. 97-3774, 147 F.3d 708/(8th Cir., 06/18/1998)

The court holds that an intraagency memorandum discussing the U.S. Army Corps of Engineers' proposal to protect the pallid sturgeon in Missouri is exempt from Freedom of Information Act (FOIA) disclosure under the deliberative process privilege. The court first holds that the sturgeon memo is protected from disclosure by the 5 U.S.C. §552(b)(5) exemption for deliberative process. The sturgeon memo is the frank reaction of an individual with significant responsibility to a U.S. Fish and Wildlife Service (FWS) draft biological opinion that states that the Corps' proposal would actually imperil the pallid sturgeon. The memo is designed to assist agency decisionmakers in formulating final agency policy by candidly critiquing the development of the proposed policy. Premature disclosure of critical comments while policy is being formulated would discourage free-ranging criticism and consideration of alternatives within an agency and would not be in the public interest. The court next holds that disclosure of the memo is not required by the National Environmental Policy Act (NEPA), by a regulation from the Council on Environmental Quality (CEQ), or by fundamental fairness. NEPA's statutory language specifically indicates that disclosure to the public is to be in accord with FOIA, which includes 5 U.S.C. §552(b)(5). The CEQ regulation does not control, as it applies only to interagency memoranda. And nondisclosure would not hinder fundamental fairness by precluding Missouri from commenting on the Corps' draft environmental impact statement or the FWS opinion.

Counsel for Plaintiff
William J. Bryan
Law Offices of William J. Bryan
17926 Dixie Hwy., Homewood IL 60430
(708) 957-2574

Counsel for Defendant
J. Lindsey Short Jr.
Short & Jenkins
Phoenix Tower
3200 Southwest Freeway, Ste. 3150, Houston TX 77027
(713) 626-0208

Before Beam and Melloy,1 JJ.