Ctr. for Biological Diversity v. Bureau of Land Mgmt.

Decision Date09 March 2021
Docket NumberCivil Action No. 17-1208 (BAH)
PartiesCENTER FOR BIOLOGICAL DIVERSITY Plaintiff, v. BUREAU OF LAND MANAGEMENT, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff Center for Biological Diversity ("CBD"), a nonprofit "environmental conservation organization that works to protect native wildlife species and their habitats," Am. Compl. ¶ 1, ECF No. 6, challenges the response of defendant U.S. Department of the Interior ("DOI") to a six-part request submitted pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for records regarding an order issued by the Secretary of the Interior concerning the Federal Coal Program (the "FOIA Request"), id. ¶¶ 27, 30-31. Specifically, plaintiff alleges in three claims that DOI failed to conduct an adequate search for responsive records (Count II), id. ¶¶ 49-53; failed to promptly disclose records responsive to plaintiff's FOIA request (Count III), id. ¶¶ 59-63; and failed to provide reasonably segregable portions of any responsive records exempt from disclosure under FOIA (Count IV), id. ¶¶ 70-75.1

Pending before the Court are the parties' cross-motions for summary judgment. Def.'s Mot. Summ. J. ("Def.'s Mot."), ECF No. 29; Pl.'s Mot. Partial Summ. J. ("Pl.'s Mot."), ECF No. 30. For the reasons set forth below, both parties' motions are denied.

I. BACKGROUND

Plaintiff's FOIA Request is briefly described below, followed by review of DOI's responses to the Request both before and after initiation of this lawsuit.

A. The FOIA Request

On March 28, 2017, then-President Trump signed Executive Order 13783, which, in relevant part, directed the Secretary of the Interior to "take all steps necessary and appropriate to amend or withdraw Secretary's Order 3338" and "to lift any and all moratoria on Federal land coal leasing activities related to Order 3338." Exec. Order No. 13,783, 82 Fed. Reg. 16,093, 16,096 (Mar. 28, 2017). That same day, in response to the Executive Order, plaintiff submitted two FOIA requests, one to DOI and the other to the Bureau of Land Management ("BLM"), seeking "all communications" "referencing Secretarial Order No. 3338." Pl.'s Statement of Material Facts Not in Genuine Dispute ("Pl.'s SMF") ¶ 1, ECF No. 30-2; see also Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF") ¶ 1, ECF No. 29-1; Def.'s Statement of Genuine Issues & Resp. Pl.'s Statement of Issues Not in Dispute ("Def.'s Resp. SMF") ¶ 1, ECF No. 32-1; Decl. of William J. Snape, III ("Snape Decl."), Ex. 1, Letter from Margaret E. Townsend, Open Gov't Staff Att'y, CBD, to Ryan Witt, BLM FOIA Officer (Mar.28, 2017) ("BLM FOIA Request") at 1, ECF No. 30-6; Snape Decl. ¶ 16, ECF No. 30-3 (authenticating the BLM FOIA Request).2 The six parts of the Request specified that it encompassed "all records of discussions or correspondence with private parties, state or local officials, federal elected officials, Trump transition team members, other federal agencies, and internal agency staff" that referenced the Order, Pl.'s SMF ¶ 1; see also Def.'s Resp. SMF ¶ 1, "even if the Order is not explicitly discussed or referenced," BLM FOIA Request at 1-2; see also Am. Compl. ¶ 31. The FOIA Request also defined the term "record" to be "consistent with the meaning of the term under FOIA," and therefore to include a wide variety of file formats, such as voicemails, text messages, instant messages, and chats, in addition to more traditional communications. BLM FOIA Request at 2.

B. Processing of the Request and Procedural History

On March 29, 2017, only one day after issuance of Executive Order 13783, then-Secretary of the Interior Ryan Zinke signed Secretarial Order No. 3348, which order "revoke[d] Secretary's Order 3338," effective immediately. Sec'y of Interior, Secretarial Order No. 3348, Concerning the Federal Coal Moratorium 1 (Mar. 29, 2017). On the same day, DOI acknowledged receipt of the FOIA Request and assigned it tracking number OS-2017-00376. Pl.'s SMF ¶ 5; Def.'s Resp. SMF ¶ 5; Def.'s SMF ¶ 2; Decl. of Amy R. Atwood ("Atwood Decl.") ¶ 7, ECF No. 30-4; Snape Decl., Ex. 3, Letter from Clarice Julka, FOIA Officer, Office of the Sec'y ("OS"), DOI, to Margaret E. Townsend, Open Gov't Staff Att'y, CBD (Mar. 29, 2017) at 1, ECF No. 30-8.

Several months passed without DOI making any further response to plaintiff. See Pl.'s SMF ¶¶ 5-6; Def.'s Resp. SMF ¶¶ 5-6. In June 2017, three months after submission of the FOIA Request, plaintiff requested that the agency provide an estimated completion date for its response to the FOIA Request. Snape Decl., Ex. 4, Letter from Margaret E. Townsend, Open Gov't Staff Att'y, CBD, to Clarice Julka, FOIA Officer, OS, DOI (June 14, 2017) at 2-3, ECF No. 30-9; Snape Decl. ¶ 16; Atwood Decl. ¶ 8. Around the same time, on June 20, 2017, plaintiff initiated this litigation, naming only BLM as a defendant. See Compl., ECF No. 1. About a month later, on July 26, 2017, having received no response from DOI to its June 2017 correspondence, plaintiff amended its complaint to include DOI as a defendant. See Am. Compl.; Pl.'s SMF ¶ 8; Def.'s Resp. SMF ¶ 8.

Soon after plaintiff filed its Amended Complaint, DOI "beg[an] searching for and reviewing records . . . responsive to" the FOIA Request. Joint Status Report (Sept. 7, 2017) ¶ 3, ECF No. 9. Under the Court's supervision, from September 2017 to early 2019, DOI produced responsive records to plaintiff, including responsive records from DOI's Office of the Secretary ("DOI-OS"), "with no serious issues or disagreements between the parties." Pl.'s SMF ¶ 11; see also Def.'s Resp. SMF ¶ 11; Def.'s SMF ¶ 7; Pl.'s Resp. Def.'s Statement of Material Facts ("Pl.'s Resp. SMF") ¶ 7, ECF No. 30-2; Second Joint Status Report (Nov. 30, 2017), ECF No. 10; Third Joint Status Report (Mar. 16, 2018), ECF No. 11; Fourth Joint Status Report (Aug. 15, 2018), ECF No. 12; Fifth Joint Status Report (Nov. 9, 2018), ECF No. 13; Joint Status Report (Jan. 29, 2019), ECF No. 15. During this time, according to the acting DOI-OS FOIA Officer, DOI-OS "identified likely custodians in the OS" and sent the FOIA request to those individuals with instructions to "search all electronic and paper files in their possession" based on "the subject matter of Secretarial Order No. 3338," the order repealed by Secretary Zinke's signing ofSecretarial Order No. 3348. Decl. of Leah Fairman ("Fairman Decl.") ¶ 4, ECF No. 29-2; see also Def.'s SMF ¶ 16; Pl.'s Resp. SMF ¶ 16. The identified custodians each carried out an initial search. Fairman Decl. ¶ 4. DOI-OS also "asked each custodian to identify other custodians who were likely to have additional responsive documents," and undertook a similar process with the new list of custodians. Id. ¶ 5; see also Def.'s SMF ¶ 17; Pl.'s Resp. SMF ¶ 17. As Secretarial Order No. 3338 concerned the Federal Coal Program, the agency's initial efforts "focused on the minerals management mission of" DOI. Fairman Decl. ¶ 6; see also Def.'s SMF ¶¶ 17-18; Pl.'s Resp. SMF ¶¶ 17-18. The initial search ultimately "yielded 2,338 responsive pages" of records. Fairman Decl. ¶ 8; see also Def.'s SMF ¶ 19; Pl.'s Resp. SMF ¶ 19.

At the close of the initial search, plaintiff "expressed concern over the apparent lack of Secretarial communications," that is, communications directly to or from Secretary Zinke, in DOI's rolling productions of records. Fairman Decl. ¶ 7; see also Def.'s SMF ¶ 20; Pl.'s Resp. SMF ¶ 20. DOI-OS thus expanded its search to include records in the files of the Secretary, which were searched by his Special Assistant, and his Chief of Staff, Fairman Decl. ¶ 7; Def.'s SMF ¶ 21; Pl.'s Resp. SMF ¶ 21, but reported that no new records were located, Fairman Decl. ¶ 7; Def.'s SMF ¶ 22; Pl.'s Resp. SMF ¶ 22. Consequently, in their April 2019 status report, the parties raised an "area of disagreement . . . regarding records pertaining to the Interior Secretary and his office," Joint Status Report (Apr. 8, 2019) at 1, ECF No. 17, namely, plaintiff's continued concern that DOI's productions did not include meaningful correspondence to or from Secretary Zinke, Fairman Decl. ¶ 9; Pl.'s Mem. P. & A. Supp. Pl.'s Mot. Partial Summ. J. & Opp'n Defs.' Mot. Summ. J. ("Pl.'s Opp'n") at 3-4, ECF No. 30-1.

The parties agreed to confer about the absence of Secretary-level records, see Joint Status Report (July 30, 2019) at 1, ECF No. 18, but encountered delays in the production of potentiallyrelevant documents that were subject to "review[] by the White House for equities," Joint Status Report (Aug. 26, 2019) at 1, ECF No. 19; see 43 C.F.R. §§ 2.12, 2.13. The White House completed its review in February 2020, Pl.'s SMF ¶ 13; Def.'s Resp. SMF ¶ 13, and DOI subsequently released its final production of documents, consisting of 181 additional pages, to plaintiff, Joint Status Report (Mar. 2, 2020) ¶ 1, ECF No. 25. This production did not include "any communications from the Secretary or Deputy Secretary of the Interior" or "any records that would be considered a draft of final Secretarial Order No. 3348." Pl.'s SMF ¶ 13; Def.'s Resp. SMF ¶ 13. As a result, upon review of this final release of documents, plaintiff continued to "believe[] that there might be some records [from DOI-OS] still possibly missing." Joint Status Report (June 8, 2020) ("June 2020 JSR") ¶ 2, ECF No. 26.

In an effort to address this concern, plaintiff requested, and DOI agreed to conduct, "a supplemental search for documents related to then-Secretary Zinke's involvement in the promulgation of Secretarial Order No. 33[4]8," based on search terms provided by plaintiff. Fairman Decl. ¶ 9; see also June 2020 JSR ¶¶ 3-4; Def.'s SMF ¶¶ 24-26; Pl.'s Resp. SMF ¶¶ 24-26. DOI-OS FOIA staff proceeded to search Secretary Zinke's government email account and his personal email account, as well as DOI's document tracking system, using DOI's "email and correspondence databases," with the search terms...

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