Conservation Force v. Ashe

• Decision Date: 10 October 2013
• Docket Number: Civil Action No. 12–CV–1428 (KBJ)
• Citation: 979 F.Supp.2d 90
• Parties: Conservation Force, Plaintiff, v. Daniel M. Ashe, Director of the U.S. Fish and Wildlife Service, in his official capacity, et al., Defendants.
• Court: U.S. District Court — District of Columbia

979 F.Supp.2d 90

Conservation Force, Plaintiff,

v.Daniel M. Ashe, Director of the U.S. Fish and Wildlife Service, in his official capacity, et al., Defendants.

Civil Action No. 12–CV–1428 (KBJ)

United States District Court, District of Columbia.

October 10, 2013

John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiff.

Wyneva Johnson, U.S. Attorney's Office for D.C., Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

Plaintiff Conservation Force brought this action when Defendants U.S. Fish and Wildlife Service (“the Service” or “FWS”) and its Director, Daniel M. Ashe, failed to respond to a document request that Plaintiff made under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012). (Complaint (“Compl.”), ECF No. 1.) After Plaintiff filed the complaint in this case, the Service produced a number of responsive documents. (Defs.' Statement Of Material Facts As To Which There Is No Genuine Dispute (“Defs.' Facts”), ECF No. 11, ¶ 5.) Consequently, the only issue at present is whether the Service conducted an adequate search when it gathered documents responsive to Plaintiff's request. Defendants have filed a motion to dismiss the complaint, or in the alternative for summary judgment (“Defs.' Mot.”) (ECF No. 11), in which they argue that they have produced all of the responsive documents that were found as a result of an adequate search and thus the case is moot. Plaintiff has filed a cross-motion for summary judgment (“Pl.'s Mot.”) (ECF No. 14), which maintains, to the contrary, that the Service's search was inadequate and that the case is not moot because Plaintiff is still waiting to receive all of the documents that are responsive to the FOIA request.

Upon consideration of the motions and the record herein, the Court concludes that the Service has not conducted an adequate search for responsive records, and therefore, that the agency's documents production does not render this case moot. Accordingly, Defendants' motion to dismiss, or alternatively for summary judgment, is DENIED, and Plaintiff's cross-motion for summary judgment is GRANTED. A separate order consistent with this opinion will follow.

I. BACKGROUNDA. The Endangered Species Act

This case arises out of a FOIA request for documents pertaining to the Service's consideration of a petition brought under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–1544 (2006). Pursuant to regulations promulgated at 50 C.F.R. §§ 17.1–17.108 (2012), the Service “determine[s] whether any species is an endangered species or a threatened species.” 16 U.S.C. § 1533(a)(1).¹ The Service announces the status of a species by listing it as “endangered” or “threatened” in the Federal Register. Id. § 1533(c).²

The ESA allows individuals to submit petitions to downlist or delist a species— i.e., to remove a species from the list of endangered or threatened animals. Id. § 1533(b)(3). The ESA mandates that within ninety days of receiving a downlist petition, the Service “shall” publish in the Federal Register a finding as to “whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A) (“90–day finding”). If the Service concludes that the requested downlist may be warranted, then the statute requires it to publish an additional finding within twelve months, stating that (a) the petition is warranted, or (b) the petition is not warranted, or (c) the petition is warranted but other pending proposals preclude it. Id. § 1533(b)(3)(B) (“12–month finding”). If the Service concludes that the downlist is warranted as stated in the 12–month finding, then a general notice and a proposed regulation downlisting the species must promptly follow. Id. § 1533(b)(3)(B)(ii). Thus, the ESA requires the Service to follow a two-step process for making findings related to downlist petitions: first, the Service must make and publish a 90–day finding; then, if the 90–day finding is that the downlist petition has merit, the Service must proceed to make and publish a 12–month finding regarding whether the downlist petition is warranted.

B. The Straight–Horned Markhor and the 1999 Downlist Petition

Plaintiff Conservation Force is a non-profit foundation that describes itself as promoting wildlife conservation, education, and research. (Compl. ¶ 8.) ³ This litigation concerns Plaintiff's interest in the straight-horned markhor, a wild goat found in the Torghar Hills region of Pakistan. ( Id. ¶¶ 1, 8.) Overhunting, habitat loss, and competition from livestock have greatly diminished the markhor population. ( See90–Day Finding on Straight-horned Markhor Downlist Petition, 64 Fed.Reg. 51,499 (Sept. 23, 1999), Ex. 1 to Pl.'s Mot., ECF No. 14–1, at 2.) As a result, in 1975, the Service classified the straight-horned markhor as “endangered” under the ESA. ( Id.)

In 1999, an individual named Naseer Tareen submitted a petition to downlist the straight-horned markhor (“the 1999 downlist petition”) on behalf of the Society for Torghar's Environmental Protection (“STEP”). (Compl. ¶ 13.) The Service reviewed Tareen's petition and made a 90–day finding that the 1999 downlist petition had merit, but it subsequently failed to make the required 12–month finding. (Id.) Nine years after the deadline for the 12–month finding, Plaintiff initiated a lawsuit to compel the Service to make that finding, but that action was dismissed as statutorily time-barred. See Conservation Force v. Salazar, 811 F.Supp.2d 18, 28 (D.D.C.2011).⁴

Trying a different tack with respect to the 1999 downlist petition, Plaintiff submitted the instant FOIA request to the Service in October of 2011, seeking the entire administrative record for that petition. (Compl. ¶ 15.) In relevant part, Plaintiff requested the following:

[T]he entire Administrative Record for the petition to downlist the markhor filed by Naseer Tareen and STEP in 1999. (64 F.R. 51499, “90–day Finding on Petition to Reclassify the Straight-horned Markhor Population of the Torghar Region of Balochistan, Pakistan from Endangered to Threatened and Initiation of Status Review for Markhor.”)

(Ex. 1 to Defs.' Mot., ECF No. 11–2, at 3.) Although the Service promptly acknowledged by letter that it had received Plaintiff's FOIA request and that it would “advise [Plaintiff] of the status of our response within 20 workdays [,]” neither an update nor any responsive production followed. (Compl. ¶¶ 17, 20.) Plaintiff's counsel sent a follow-up letter to the Service inquiring about the status of the production the following month, but again there was no response. ( Id. ¶¶ 18–19.) After ten months elapsed without any word from the Service, Plaintiff filed the instant FOIA lawsuit. ( Id. ¶¶ 20–22.)

The Service responded to Plaintiff's FOIA request three months after the complaint in this case was filed.⁵ The Service purportedly found a total of 59 documents, which it released to Plaintiff along with a cover letter that stated that the Service was “providing all pertinent responsive documents that we found in our files.” (Ex. 2 to Defs.' Mot., FWS Letter of Oct. 24, 2012, ECF No. 11–3.) The Service also took care to note that it was not withholding or redacting any of the responsive documents it found during the search. ( Id. (“No information has been withheld in our response.”).) The Service then filed a motion to dismiss or, in the alternative, a motion for summary judgment in this action, arguing that the litigation was moot because the Service had provided all responsive documents to Plaintiff. (Defs.' Mot. at 1.)

In its combined opposition and cross-motion for summary judgment, Plaintiff continues to challenge the Service's response to its FOIA request. Plaintiff asserts that the FOIA request expressly sought “the entire Administrative Record,” and that the Service admittedly has not searched for any documents that were generated after the 90–day finding, i.e., documents from the period in which the Service considered, but did not make, the required 12–month finding with respect to the Tareen petition. In Plaintiff's view, records from the period after the published 90–day finding are part of the administrative record, and the Service has improperly failed even to search for any such records, much less to produce them, based on the “mistaken assertion that they have made a complete release of responsive documents' for the [FOIA] request underlying this suit.” (Pl.'s Mot. at 1.) Therefore, Plaintiff argues, not only is the case not moot, but summary judgment should be granted in Plaintiff's favor. ( Id.)

The question for this Court is whether, by limiting its FOIA search to records that were generated or considered prior to the 90–day finding, the Service conducted an adequate search in response to Plaintiff's request for “the entire Administrative Record” such that the Service's release of the documents it found during its limited investigation moots this case.

II. LEGAL STANDARDSA. Motion to Dismiss for Mootness

A case is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citation omitted). “[A] defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). Instead, to prevail on a mootness claim arising from a defendant's voluntary conduct, a movant must show that “there is no reasonable expectation ... that the alleged violation will recur, and ... interim relief or events have completely and irrevocably eradicated the effects of the alleged violation[.]” Davis, 440 U.S. at 631, 99 S.Ct. 1379 (internal citations and quotation marks...