Heartwood, Inc. v. U.S. Forest Service

• Decision Date: 21 April 2006
• Docket Number: No. Civ.A. 02-1898(RWR).,Civ.A. 02-1898(RWR).
• Citation: 431 F.Supp.2d 28
• Parties: HEARTWOOD, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

431 F.Supp.2d 28

HEARTWOOD, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.

No. Civ.A. 02-1898(RWR).

United States District Court, District of Columbia.

April 21, 2006.

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Matthew G. Kenna, Western Environmental Law Center, Durango, CO, James B. Dougherty, Law Office of J.B. Dougherty, Washington, DC, for Plaintiffs.

Oliver W. McDaniel, U.S. Attorney's Office for the District of Columbia, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROBERTS, District Judge.

Plaintiffs Mark Donham and Heartwood, Inc. sued the United States Forest Service ("USFS") to compel the release of draft chapters of an ecological assessment under the Freedom of Information Act ("FOIA") and the Federal Advisory Committee Act ("FACA") after the USFS denied their initial request for the drafts. The USFS moved for summary judgment on both the FOIA and the FACA requests. In response, plaintiffs Heartwood and Donham filed a cross-motion for summary judgment. Because the drafts were developed by the Hoosier-Shawnee Ecological Analysis Committee ("HSEAC"), an advisory committee subject to the FACA, and are not exempted from the FOIA, plaintiffs' cross-motion for summary judgment will be granted, and defendant's motion for summary judgment will be denied.

BACKGROUND

Donham is a full-time employee of Heartwood, a non-profit corporation that seeks to protect forests in the Central Hardwood region of the United States. On behalf of Heartwood, Donham filed a FOIA request with the USFS, seeking copies of the "individual draft reports" of the ecological assessment for the area encompassing the Shawnee and Hoosier National Forests that the HSEAC had prepared for the USFS. (Def.'s Summ. J. Mot., Morgan Decl. ¶ 5.) An ecological assessment is a "scientific assessment of the characteristic composition, structure and processes of ecosystems." (Am. Compl. at 3.) An ecological assessment is not a policy decision, a draft of a policy document, or a policy recommendation. (Pls.' Mot. to Expedite, Ex. A at 5, 8, 9.)

The USFS initiated the ecological assessment of the Shawnee and Hoosier National Forests in order "to gain an understanding of current conditions and trends regarding the land, resources, and people [in the] relevant historical context." (Pls.' Mot. to Expedite, Ex. A at 8.) "A charter for the Hoosier-Shawnee Ecological Assessment, established by the supervisors of the Hoosier and Shawnee National Forests, identified a team to conduct the assessment as well as tentative questions to answer." (Id., Ex. A at 9; see also Pls.' Summ. J. Mot., Ex. A.) This team, the HSEAC, was comprised of scientists, most of whom were not employees of the USFS or the federal government. (Pls.' Summ. J. Mot. at 1; Def.'s Summ. J. Mot., Morgan Decl. ¶ 6.) The USFS entered into agreements with the scientists to produce reports summarizing existing data. (Def.'s Summ. J. Mot., Reynolds Decl. 116, Thompson Decl. ¶ 5.) Among those on the committee were individuals from Purdue University, Southern Illinois University, Indiana Department of Natural Resources, The Nature Conservancy of Indiana and the North Central Experiment Station. (Am. Compl. at 3.)

The USFS asked the HSEAC to produce draft reports "summarizing [the best available] scientific information concerning the ecological conditions of the region encompassing the Hoosier and Shawnee." (Def.'s Summ. J. Mot., Reynolds Decl. ¶ 7.) Although each scientist was to work independently or in a small group, the HSEAC had two meetings with the USFS at which all of the scientists provided information on existing data collections that would be used in the assessment. (Id. ¶ 8.) The group discussed the topics and outlined the report. (Id.) The USFS told the scientists not to make recommendations in their reports (id.), and that "the results of the ecological analysis and population viability assessments, and other analysis ... will be examined to determine how, or if, the desired future conditions outlined in the existing forest plans need to be modified." (Pls.' Summ. J. Mot., Ex. A at 2.)

The requested records consist of six documents containing 282 pages. (Def.'s Summ. J. Mot., Morgan Decl. ¶ 10.) The first document, a draft of a chapter submitted by five scientists unaffiliated with the USFS, summarizes information on the diversity of aquatic life in the Shawnee and Hoosier Forests. (Id. ¶ 11.) The second document was written by two scientists unaffiliated with the USFS and it summarizes information on the region's freshwater resources. (Id. ¶ 12.) A USFS scientist wrote the third report, summarizing the region's soil conditions. (Id. ¶ 13.) The fourth document reports on terrestrial animal species in the region, and was written by a scientist at a federal agency, a scientist unaffiliated with the federal government and two graduate students. (Id. ¶ 14.) The fifth document, authored by two scientists unaffiliated with the federal government, reports on the historic and prehistoric vegetative conditions of the region. (Id. ¶ 15.) The sixth document is a draft of a sub-chapter on native tree diseases written by a USFS scientist. (Id. ¶ 16.) Each of these requested documents is in draft form and the USFS does not consider them final documents. (Id. ¶ 11-16.)

The draft reports of the HSEAC eventually became a final publication, "The Hoosier Shawnee Ecological Assessment." (Pls.' Mot. to Expedite, Ex. A.) The final assessment notes that the "information presented provides a context for land and resource management planning on the Hoosier and Shawnee National Forests," but that "the assessment makes no management decisions or recommendations."¹ (Id., Ex. A at 3, 5.) This report, a "scientific assessment of the characteristic composition, structure, and processes of ecosystems in the southern one-third of Illinois and Indiana and a small part of western Kentucky[,] ... focuses on information most likely to be relevant to land management planning oh the Hoosier and Shawnee National Forests." (Id., Ex. A at 8.) The USFS will use this final report to develop its Forest Plans and an Environmental Impact Statement for the Hoosier and Shawnee Forests. (Def.'s Summ. J. Mot., Reynolds Decl. ¶ 13.)

The USFS denied plaintiffs' FOIA request on the grounds that the analyses in their draft form constituted protected material under the deliberative process privilege of the FOIA's Exemption 5.² (Def.'s Summ. J. Mot. at 2.) Plaintiffs appealed the USFS's decision, but were denied again based on Exemption 5 of the FOIA. Heartwood³ then filed this action, and the parties filed cross-motions for summary judgment.

DISCUSSION

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir. 2002). The record must be viewed in the light most favorable to the nonmoving party. See Waterhouse, 298 F.3d at 991.

I. FEDERAL ADVISORY COMMITTEE ACT

Congress passed the FACA in part to ensure that the public could remain apprised of the existence, activities and cost of advisory committees. See Public Citizen v. Dep't of Justice, 491 U.S. 440, 446, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (citing 5 U.S.C. app. II § 2(b) (2000)). Enacted in 1972 as a response to the numerous committees, boards, commissions and other groups that had been established to advise officers and agencies in the executive branch of the federal government, one goal of the Act was to prevent wasteful expenditure of public funds. See Public Citizen, 491 U.S. at 453, 109 S.Ct. 2558. Additionally, Congress sought to counter the fear that committees would be dominated by representatives of industry and other special interest groups seeking to advance their own agendas. See Cummock v. Gore, 180 F.3d 282, 284 (D.C.Cir. 1999) (citing H.R.Rep. No. 92-1017 (1972)).

The FACA provides, in part, that:

Subject to [the FOIA], the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.

5 U.S.C. app. II § 10(b). Under the FACA, advisory committees must also "file a charter; announce their upcoming meetings in the Federal Register; hold their meetings in public; and keep detailed minutes of each meeting." In re Cheney, 406 F.3d 723, 727 (D.C.Cir.2005) (citing 5 U.S.C. app. II § 9(c); §§ 10(a)(1), (2), (b) & (c); § 11). Finally, the "committee must `be fairly balanced in terms of the points of view represented' and may `not be inappropriately influenced by the appointing authority or by any special interest.'" Id. (quoting 5 U.S.C. app. II §§ 5(b)(2), (3) & (c)).

The FACA defines an advisory committee as "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ... which is ... established or utilized by one or more agencies in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. app. II § 3(2).

The Supreme Court has given a narrow interpretation to the words "established" and "utilized." An advisory panel is established when it has been formed by a government agency, and utilized if it is "amenable to ... strict management by agency officials." Public Citizen, 491 U.S. at 457-58, 109 S.Ct. 2558; see also Food Chemical News v. Young, 900 F.2d 328, 332-33 (D.C.Cir.1990) (finding that a...