Maricopa Audubon Soc. v. US Forest Service

• Decision Date: 16 August 1995
• Docket Number: Civ. No. 94-1244 JP/DJS.
• Citation: 923 F. Supp. 1436
• Parties: MARICOPA AUDUBON SOCIETY, a non-profit Arizona corporation, and Dr. Robin Silver, an individual, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.
• Court: U.S. District Court — District of New Mexico

923 F. Supp. 1436

MARICOPA AUDUBON SOCIETY, a non-profit Arizona corporation, and Dr. Robin Silver, an individual, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.

Civ. No. 94-1244 JP/DJS.

United States District Court, D. New Mexico.

August 16, 1995.

John W. Zavitz, Assistant U.S. Attorney, Albuquerque, NM, Jacqueline Becerra, U.S. Department of Justice, Washington, DC, for defendant.

Matthew G. Kenna, Durango, CO, for plaintiffs.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

The subjects of this order are defendant's Motion for Summary Judgment (doc. # 7), filed March 22, 1995 and plaintiffs' Cross-Motion for Summary Judgment (doc. # 10), filed April 7, 1995. Having reviewed the parties' briefs and supporting documentation, I find there are no genuine issues of material fact and conclude that defendant's motion should be denied and that summary judgment should be granted in favor of plaintiffs.

I. Background:

This lawsuit arises out of plaintiffs' request under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") for management territory maps¹ used to protect the Mexican spotted owl on United States Forest Service ("Forest Service") lands in New Mexico and Arizona ("region 3"). The Forest Service refused to disclose the management territory maps arguing that the maps are exempt from disclosure under 5 U.S.C. § 552(b)(2) ("exemption 2").

The following facts are undisputed. On June 23, 1994, Dr. Robin D. Silver, on behalf of the Maricopa Audubon Society ("plaintiffs"), requested several documents pertaining to the Mexican spotted owl from the Forest Service under the FOIA. On July 8, 1994, Charles W. Cartwright, Jr., Regional Forester released a number of the documents to plaintiffs but denied the request for the Mexican spotted owl territory maps. On August 16, 1994, plaintiffs appealed the denial of the territory maps to Jack Ward Thomas, Chief of the Forest Service, but the Forest Service did not respond to plaintiffs' appeal. Subsequently, on October 28, 1994, plaintiffs filed this action seeking the release of all the management territory maps, without displaying the core areas,² for the Mexican spotted owls in region 3.

In 1993, the Mexican spotted owl was named as a threatened species under the Endangered Species Act.³ Prior to the owl's listing, Regulation 2671.2 from the Forest Service Manual ("FSM") guided Forest Service personnel in responding to FOIA requests about proposed, endangered, and threatened species ("PET"). That regulation allowed the Forest Service to deny dissemination of information "if the release of such information would likely jeopardize or have a detrimental effect on recovery of the species. Personnel shall not identify specific location information that could jeopardize the welfare of a threatened, endangered, proposed or sensitive species." FSM Reg. 2671.2. Regional Forester David Jolly stated that in applying FSM Regulation 2671.2 to permit the release of information on sensitive species under the FOIA, "Valid requests for sensitive information to conduct legitimate studies or research can be accommodated by obtaining a signed statement from the individual conducting the studies which states the location of such sites will not be divulged to others not directly involved in conducting the studies." August 30, 1989 letter to Forest Supervisors.

Defendant explained that Forester Jolly's statement "refers to the Forest Service's policy of releasing information in conjunction with granting a permit to conduct a legitimate study on lands managed by the Forest Service." According to defendant, legitimate studies required a permit. Consequently, defendant argued that "this policy is wholly inapplicable and irrelevant to a release under the FOIA." Defendant's reply brief at 21. However, the explicitly stated "Subject" of the August 30, 1989 letter was "Release of Information on Sensitive Species under Freedom of Information Act (FOIA)". Furthermore, in the August 30, 1989 letter, Forester Jolly discussed how to apply FSM Regulation 2671.2 to requests under the FOIA. Although Forester Jolly used the phrase "legitimate studies or research" in the letter, he did not specify in the letter that a requesting party had to have a permit before a study would be considered legitimate.

I also note that when plaintiffs requested the information concerning the Mexican spotted owl on June 23, 1994, they submitted a three and one-half page letter outlining why they desired the information. In their June 23, 1994 letter to the Forest Service, plaintiffs stated that the requested information would be used primarily to give the general public an understanding of the controversy surrounding the Mexican spotted owl. Additionally, plaintiffs explained that they planned to independently analyze the effects of the timber harvest program on the Mexican spotted owl.

Defendant denied plaintiffs' request for the management territory maps because the Forest Service's previous biological evaluation had shown that the maps contained information more specific than that recommended for release. The biological evaluation, conducted after the owl was listed as a threatened species, determined that identification of a territory generally described as a 5,000 to 10,000 acre area would not harm the owl. The biological evaluation noted that more precise information, such as a management territory map, could reveal locations of nest stands which might increase the likelihood of malfeasance. On May 26, 1993, the Department of Interior concurred with the Forest Service's conclusion that the release of more specific information than a 5,000 to 10,000 acre area could harm the Mexican spotted owl.

Defendant explained, and plaintiffs do not dispute, that someone who possesses a management territory map could easily locate a Mexican spotted owl and its nest. Furthermore, because protection of the Mexican spotted owl is controversial, it is likely that some individuals might threaten or harm the owl. Even though plaintiffs agree that the core areas should be redacted from the maps, it would not be difficult to locate a core area with a management territory map because the core area is usually found in the center of the map.

Based on these facts, defendant argues that its motion for summary judgment should be granted because management territory maps for the Mexican spotted owls are exempt from disclosure under the FOIA. Plaintiffs assert that the exemption is inapplicable and, therefore, that summary judgment should be granted in their favor.

II. Cross-motions for summary judgment:

A. Legal Standard for Summary Judgment:

Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to "`secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). A motion for summary judgment may be granted only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, as well as any affidavits, "show that there is no genuine issue as to any material fact ..." Fed. R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Although the material submitted by the parties in support of and in opposition to the motion must be construed liberally in favor of the party opposing the motion, Harsha v. United States, 590 F.2d 884, 887 (10th Cir.1979), the burden on the moving party may be discharged by demonstrating the absence of evidence to support the non-moving party's case. Celotex, supra at 324, 106 S.Ct. at 2553. In such a situation, the moving party is entitled to judgment as a matter of law, "because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 322, 106 S.Ct. at 2552.

B. The FOIA and the Applicability of FOIA Exemptions:

"The predominant objective of FOIA is disclosure. Congress enacted FOIA to ensure that the public has access to government information so that it can scrutinize the government's performance of its statutory duties and thereby promote governmental honesty." Hale v. U.S. Dept. of Justice, 973 F.2d 894, 897 (10th Cir.1992) (citing EPA v. Mink, 410 U.S. 73, 79-80, 93 S.Ct. 827, 832-33, 35 L.Ed.2d 119 (1973), vacated on other grounds, 509 U.S. 918, 113 S.Ct. 3029, 125 L.Ed.2d 717 (1993) (Mem.)); see also Dept. of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (FOIA's purpose is "to open agency action to the light of public scrutiny").

The public's right to government information is not without limits. Section 552(b) of the FOIA delineates nine categories of information that are exempt from compelled disclosure. The exemptions are to be "narrowly construed," Rose, 425 U.S. at 361, 96 S.Ct. at 1599, and the burden is on the government agency "to demonstrate ... that the materials sought may be withheld due to an exemption." Vaughn v. United States, 936 F.2d 862, 866 (6th Cir.1991) (citing 5 U.S.C. § 552(a)(4)(B)). A federal court reviews de novo an agency's decision to withhold records requested under the FOIA. See 5 U.S.C. § 552(a)(4)(B).

C. Exemption 2:

In this case, defendant invokes the exemption set forth in 5 U.S.C. § 552(b)(2) which protects from disclosure information that is "related solely to the internal personnel rules and practices of an agency."⁴ In interpreting exemption 2, the Supreme Court, in Rose, reasoned that "at least where the situation is not one...