Citizens Progressive v. U.S. Bur. of Ind. Affairs, CIV.01-1044 LCS/DJS.

• Decision Date: 03 December 2002
• Docket Number: No. CIV.01-1044 LCS/DJS.,CIV.01-1044 LCS/DJS.
• Citation: 241 F.Supp.2d 1342
• Parties: CITIZENS PROGRESSIVE ALLIANCE and Steve Cone Plaintiffs, v. UNITED STATES BUREAU OF INDIAN AFFAIRS, et al. Defendants.
• Court: U.S. District Court — District of New Mexico

241 F.Supp.2d 1342

CITIZENS PROGRESSIVE ALLIANCE and Steve Cone Plaintiffs, v. UNITED STATES BUREAU OF INDIAN AFFAIRS, et al. Defendants.

No. CIV.01-1044 LCS/DJS.

United States District Court, D. New Mexico.

December 3, 2002.

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Richard J. Mietz, Santa Fe, NM, for Plaintiff.

Manuel Lucero, for U.S.

Scott B. McElroy, for Southern Ute Indian Tribe.

MEMORANDUM OPINION AND ORDER

SMITH, United States Magistrate Judge

THIS MATTER is before the Court upon the parties' cross-motions for summary judgment. The Plaintiffs Steve Cone and Citizens' Progressive Alliance have each filed for summary judgment against Defendants Bureau of Indian Affairs and Department of Interior. Defendants have filed for summary judgment against Plaintiffs Steve Cone and Citizens' Progressive Alliance. Intervenors Southern Ute Indian Tribe and Ute Mountain Tribe have filed for summary judgment against Plaintiff Steve Cone.¹ The parties have filed, in addition to their various cross-motions, memoranda, exhibits, and declarations in support of their positions, as well as various responses and replies. Defendants filed a Vaughn Index² on April 12, 2002 (Doc. 30). Pursuant to the Order Requiring In Camera Review filed October 16, 2002 (Doc. 7k), Defendants submitted the documents at issue for in camera review by the Court³. This Court has jurisdiction over this matter pursuant to U.S.C. § 552(a)(4)(B)⁴. The parties have each consented to having the United States Magistrate Judge to conduct all further proceedings in this case pursuant to 28 U.S.C. § 636(c). This Court, having considered the motions, the responses, the replies, the memoranda, the exhibits, and other supporting material, the applicable law, and the interests of justice, and having examined the documents at issue in camera, finds that the summary judgment motions of Defendants BIA and DOI and Intervenors Southern Ute Indian Tribe and Ute Mountain Tribe against Plaintiff Steve Cone should be GRANTED; in addition, Defendants' Motion for Summary Judgment against Plaintiff CPA should be GRANTED; the motions for summary judgment of Plaintiffs Steve Cone and Citizens' Progressive Alliance as to Defendants BIA and DOI should be DENIED.

I. FACTUAL BACKGROUND

Plaintiff Steve Cone, a resident of San Juan County, New Mexico, is the Animas-La Plata Project Coordinator for Plaintiff Citizens' Progressive Alliance, a Colorado non-profit organization with offices in both Colorado and New Mexico. Compl. ¶ 6-7. Cone has expressed opposition to the Animas-La Plata project at public meetings. Answer ¶ 6. Cone is affiliated with a website located at http:/www. angelfire. com/al/alpcentral. Answer ¶ 6.

The United States Bureau of Indian Affairs (hereinafter, "BIA") is an agency of the Department of Interior (hereinafter, "DOI"). Answer ¶8. Defendant BIA is responsible for the Freedom of Information Act⁵ ("FOIA") requests of Plaintiffs which are the subject of this action. Answer H 8. The DOI makes determinations of FOIA administrative appeals, and made such determinations regarding administrative appeals related to Plaintiffs' FOIA requests. Answer ¶ 9.

The United States and Intervenors Ute Mountain Ute Tribe and the Southern Ute Indian Tribe (hereinafter, "the Tribes") are co-parties in In the Matter of the Application for Water Rights of the United States of America (Bureau of Indian Affairs, Southern Ute and Ute Mountain Ute Tribes) for Claims in Water Division No. 7, San Juan River Drainage Colorado, Case Nos. W-1603-76 (hereinafter, "Colorado No. 7 adjudication"). Second Declaration of John Cawley (hereinafter, "Second Cawley Decl.") ¶4. The Colorado No. 7 adjudication was settled with some contingencies by a 1988 federal Settlement Act and a 1991 Decree; however, because some contingencies were not satisfied, a revised settlement with new contingencies was enacted in 2001. Id. If the contingencies are not fulfilled, full-scale litigation of the Tribes' water rights may ensue in the Colorado No. 7 adjudication regarding the Tribes' claims for Animas and La Plata River water. Id.

A. Plaintiff Steve Cone's FOIA Request

Plaintiffs Citizens' Progressive Alliance (hereafter "CPA) and Steve Cone filed a Complaint for Declaratory and Injunctive Relieve on September 10, 2001 (Doc. 1)." Compl. ¶¶ 6-7. Plaintiffs CPA and Cone seek a declaratory judgment that Defendants BIA and DOI violated the Freedom of Information Act, 5 U.S.C. § 522, "by failing to provide all non-exempt portions of agency records sought in two separate FOIA requests submitted by Plaintiffs" to the Albuquerque Area Office of the BIA on July 26, 1999 and August 10, 1999. Compl. ¶ 1. Plaintiffs further seek an order compelling Defendants "to immediately provide all non-exempt records and all non-exempt portions of the agency records sought in Plaintiffs' FOIA requests." Id Plaintiff CPA seeks an Order compelling Defendant BIA to grant a fee waiver made in conjunction with a FOIA request. Plaintiffs seeks additional declaratory and injunctive relief, as well as attorneys fees and costs.

Plaintiff Cone's July 26, 1999 FOIA request to Defendant BIA sought a preliminary assessment of the Southern Ute Tribe's water rights claims prepared for the BIA by Keller-Bliesner Engineering (hereafter, "Keller-Bliesner Report") as well as "all documents including memos, letters, reports, approval memoranda, agency policy, [and] agency evaluations" related to the Keller-Bliesner Report. Compl. ¶10; Answer ¶10; Cone Memo. Ex. A. This FOIA request also included a request for a waiver of fees, as well as information intended to demonstrate eligibility for a fee waiver. Id.

The BIA sent Cone an initial response to the July 26, 1999 FOIA request, stating that Cone's request was "broad and nonspecific" and requested clarification as to the scope of Cone's FOIA request. Compl. ¶11; Answer ¶ 11. This same response further indicated that the information provided by Cone in support of his fee waiver request was insufficient. Compl. ¶ 11; Answer ¶ 11 By letter, Cone replied to BIA's initial response, indicating that the scope of his FOIA request included the "Keller-Bliesner Report and all BIA records associated with the Report." Compl. ¶ 12.

On September 17, 1999, BIA issued a letter denying Plaintiff Cone's FOIA request for the Keller-Bliesner Report, stating that "the information you have requested, the 1985 Keller-Bliesner Report quantifying water rights for the Southern Ute Tribe and all associated office memoranda discussing or adopting the report, was specifically developed in preparation for litigation and litigation is still a consideration for resolving outstanding issues." Compl. ¶ 13. The BIA claimed that the requested information was protected from disclosure under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5)⁶. Id. The BIA further indicated in its letter that the agency was searching its records and would create a list of records associated with the Keller-Bliesner Report which were also being withheld.⁷ Id. The letter stated that "[t]his list will be released to you ... as soon as completed, but in any case no later than 14 days from today's date." Cone Memo. Ex. B.

Thereafter, the BIA notified Cone by letter that it would not release the list of other agency records associated with the Keller-Bliesner Report, again claiming protection from disclosure under Exemption 5. Compl. ¶14. Cone appealed the denial of his FOIA request and the denial of his fee waiver request to the FOIA Appeals Officer of the DOI. Compl.¶ 15. The DOI upheld the denial of Cone's fee waiver request, and remanded the appeal to the Albuquerque Area Office of the BIA to determine whether the requested records would be released and what the cost of processing would be. Compl. ¶ 16.

Upon remand, the BIA released various records associated with the Keller-Bliesner Report, and indicated that the agency was still reviewing additional records for possible release pursuant to Cone's FOIA request. Compl.¶ 17. The BIA later issued a final response to the remanded portion of Plaintiff Cone's FOIA request. Compl.¶ 18. The final response described BIA records, including documents which BIA determined were non-responsive to Cone's FOIA request, documents were which responsive and which would be released, and other responsive documents which BIA claimed were exempt from release under Exemption 5. Id.

Cone appealed the BIA's final response to the remanded portion of Cone's FOIA request to the FOIA Appeals Officer.⁸ Compl.¶ 19. The FOIA Appeals Officer granted in part and denied in part Cone's appeal, releasing additional documents, and denying disclosure pursuant to FOIA Exemption 5 as to certain records or portions of records associated with the Keller-Bliesner Report. Compl.¶ 20. The decision issued by the FOIA Appeals Officer included a recommendation that the DOI deny Cone's FOIA request "on the basis of the deliberative process (DP), attorney work-product (AWP), and government commercial information (GCI) privileges of Exemption 5 of the FOIA." Cone Memo. Ex. E. The FOIA Appeals Officer also recommended that Cone's fee waiver request be denied. Id. These recommendations were adopted by the DOI. Id. Cone thereafter brought suit in the instant action, pursuant to 5 U.S.C. § 552(a)(4)(B), seeking declaratory and injunctive relief and a grant of costs and attorneys fees pursuant to 5 U.S.C. § 552(a)(4)(E).

B. Plaintiff CPA's FOIA Request

CPA submitted a FOIA request to the Albuquerque Area Office of the BIA on August 10, 1999. Compl.¶ 21. The request sought various categories of BIA records pertaining to the BIA's involvement in water deliveries associated with the Pine River Project, and further sought BIA records pertaining to any land classification studies performed on the Southern Ute and Ute Mountain reservations. Id. CPA's FOIA request specifically sought the...