Nkihtaqmikon v. Bureau of Indian Affairs

• Decision Date: 25 September 2006
• Docket Number: No. CV-05-188-B-W.,CV-05-188-B-W.
• Citation: 453 F.Supp.2d 193
• Parties: Nulankeyutmonen NKIHTAQMIKON, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, Department of the Interior, Defendants.
• Court: U.S. District Court — District of Maine

453 F.Supp.2d 193

Nulankeyutmonen NKIHTAQMIKON, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, Department of the Interior, Defendants.

No. CV-05-188-B-W.

United States District Court, D. Maine.

September 25, 2006.

COPYRIGHT MATERIAL OMITTED

David K. Mears, Justin E. Kolber, Patrick A. Parenteau, Environmental and Natural Resources Law Clinic, Vermont Law School, South Royalton, VT, Lynne A. Williams, Law Office of Lynne A. Williams, Bar Harbor, ME, for Plaintiff.

Evan J. Roth, U.S. Attorney's Office, Portland, ME, Stephanie Yu, U.S. Department of Interior Office of the Solicitor, Washington, DC, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

WOODCOCK, District Judge.

Nulankeyutmonen Nkihtaqmikon (NN) is a group of private citizens who are members of the Passamaquoddy Tribe and who oppose a ground lease between the Tribe and Quoddy Bay, LLC to construct and operate a liquefied natural gas (LNG) terminal on tribal lands. On June 9, 2005, NN made a Freedom of Information (FOIA) request for documents related to the Bureau of Indian Affairs' (the BIA) approval of the lease. Now, over fifteen months later, after three FOIA requests, two administrative appeals, and a federal lawsuit, the BIA is still revealing the existence of documents responsive to the original request. Because of this history, even though the BIA is entitled to summary judgment on the pending Complaint, the Court stays action on the motion to allow NN to supplement its pleading, if necessary, to resolve any legal issues that may have developed since the filing of the Complaint.

This lawsuit is part of a much larger dispute between the BIA and NN. The BIA approved the lease, provoking NN's inquiry into the grounds for the approval. Filed under FOIA, 5 U.S.C. § 552, NN, in a two-count Complaint, alleges the BIA failed to disclose the Regional Solicitor's Opinion (Solicitor's Opinion) it relied upon in approving the lease and further failed to rule on Plaintiff's appeal within FOIA's statutory timeframe. See Compl. (Docket # 1). Defendants, the BIA and the United States Department of Interior (Department), moved for summary judgment, alleging that the case is moot because Defendants have "voluntarily produced the only document whose withholding plaintiff challenged, and the FOIA does not recognize a separate claim based on an agency's delay in responding to an administrative appeal." Defs.' Mot. for Summ. J. at 1 (Docket # 11) (Defs.' Mot).

NN argues that the BIA has still not fully responded to the FOIA request and that it continues to wrongfully withhold documents; NN seeks denial of the motion or, alternatively, leave to file a supplemental complaint. See Pl.'s Resp. in Opp'n to Defs.' Mot. for Summ. J. at 1 (Docket # 14) (Pl.'s Resp.). This Court concludes that Count I of the complaint is moot and that the motion for summary judgment on Count II must be granted. To allow NN time to supplement its Complaint to respond to the most recent administrative ruling, this Court stays its decision until no later than October 6, 2006 on the motion for summary judgment and will allow NN until September 29, 2006 to move to supplement the Complaint.

I. Factual Background¹

A. The June 9, 2005 FOIA Request— Documents Concerning the Proposed LNG Construction and the Proposed Lease of Tribal Land— and the BIA Response

On June 9, 2005, NN faxed its initial FOIA request to the BIA Eastern Regional Office. Pl.'s Additional Statement of Material Facts ¶ 6 (Docket # 15) (PASMF).² To follow up, a student clinician at the Environmental and Natural Resources Law Clinic at Vermont Law School (attorney for Plaintiff), telephoned Suzanne Langan, the BIA's FOIA Coordinator. Id. During this conversation, Ms. Langan stated the only document in the BIA's possession related to the request was the proposed ground lease agreement, which Plaintiff already possessed. Id.

B. The July 11, 2005 FOIA Request Environmental Review Documents, the Solicitor's Opinion, the Appeals Process, and the BIA Decision to Approve the Ground Lease—and the August 5, 2005 BIA Response

On July 11, 2005, NN mailed a second, more formal FOIA request to the BIA, seeking release of the Solicitor's Opinion and three other categories of information. Defs.' Statement of Material Facts ¶ 1 (Docket # 12) (DSMF ); Pl.'s Opposing Statement of Material Facts ¶ 1 (Docket # 15) (POSMF)).³ On August 5, 2005, the BIA responded. DSMF ¶ 2; POSMF ¶ 2a. With respect to Plaintiff's first request, seeking "the environmental review documents, prepared either by the BIA or the Sipayik Environmental Department, and any other environmental documents relied upon," POSMF ¶ 2b, the BIA released the Categorical Exclusion checklist, representing it was the only relevant document.⁴ See DSMF ¶ 2; PASMF ¶ 8.

In response to Plaintiffs second request seeking the Solicitor's Opinion, the BIA withheld the document in its entirety pursuant to FOIA Exemption 5 for inter-agency or intra-agency communications.⁵ DSMF ¶ 2; POSMF ¶ 2c; PASMF ¶ 8. In response to the third request, relating to "[i]nformation regarding any appeal process that may be available for this decision through the BIA or Department of Interior," the BIA claimed that it was not required to fill an "information" request and advised NN that it could resubmit the request citing specific documents.⁶ DSMF ¶ 2; POSMF ¶ 2d; PASMF ¶ 8. Finally, the BIA responded to the fourth request, for all documents concerning the ground lease approval, by stating that NN already possessed the only document in question, namely a copy of the ground lease. DSMF ¶ 2; POSMF ¶ 2d; PASMF ¶ 8.

C. The FOIA Appeal and Subsequent BIA Release

On September 1, 2005, NN filed a FOIA appeal. DSMF ¶ 3; POSMF ¶ 3. NN asserted that the BIA did not properly consider the scope of its request or the type of documents requested, challenged the BIA's use of Exemption 5, and contested its refusal to fill an "information" request regarding the lease approval appeal process. PASMF ¶ 9. On October 6, 2005, the Department issued a decision partially granting NN's FOIA appeal and remanding those portions to the BIA. DSMF ¶ 3. More specifically, the Appeals Officer required the BIA to process NN's request for documents related to the lease approval (including its request for reports and correspondence, both written and electronic), noted that the BIA was incorrect to dismiss the request on the grounds that NN used the term "information" instead of "documents," and determined that the BIA was required by regulations to provide an estimate of the volume of information withheld. PASMF ¶ 10. The Department did not at that time determine whether the BIA properly used Exemption 5 to withhold Item 2, the Solicitor's Opinion. DSMF ¶ 3; POSMF ¶ 3; PASMF ¶ 10.

On October 25, 2005, following the remand from the Appeals Officer, the BIA released two additional documents, with redactions, to the Plaintiff. DSMF ¶ 4; POSMF ¶ 4; PASMF ¶ 11. The BIA estimated the entire volume of information withheld to be three pages of the Solicitor's Opinion. PASMF ¶ 11. Finally, the BIA noted that it did not "receive or create any electronic media" relevant to the FOIA request. Id. On December 6, 2005, NN filed this lawsuit.

D. The BIA's April 6, 2006 Disclosure of the Solicitor's Opinion, the May 12, 2006 FOIA Request, Further BIA Disclosure, the July 11, 2006 Appeal, and the September 18, 2006 Decision⁷

On April 6, 2006, four months after NN filed this action, the BIA released the Solicitor's Opinion. DSMF ¶ 5; POSMF ¶ 5; PASMF ¶ 14. The text of this opinion revealed the existence of other documents relevant to NN's July 11, 2005 FOIA request, including a letter from the Passamaquoddy Tribe's expert in the field of natural gas plants.⁸ POSMF ¶ 2b; PASMF ¶ 14. On May 12, 2006, NN served a third FOIA request to the BIA asking for release of the documents referenced in the Solicitor's Opinion. PASMF ¶ 15. This request reiterated NN's July 11, 2005 request seeking "[a]11 documents relating to the BIA's decision to approve the lease agreement," and included a specific request for the letter from the natural gas plant expert. Id.

After the BIA filed its May 25, 2006 motion for summary judgment, on June 8, 2006, the BIA responded to the May 12th letter, disclosing the existence of ten additional documents relating to Plaintiffs original July 11, 2005 request, including previously undisclosed electronic documents. PASMF ¶ 17. The BIA withheld these documents under Exemptions 4 and 5.⁹ Id. Two additional documents, already in NN's possession, were released. Id. In response to the BIA's June 8, 2006 letter, on July 21, 2006, NN filed an appeal with DOI, challenging the BIA's withholding of these additional documents. See Pl.'s Sur-Reply Memo. to Defs.' Reply Memo. in Further Support of Its Mot. For Summ. J. Ex. A (Docket # 18).

Finally, at the September 22, 2006 oral argument, counsel brought the Court up to date. On September 18, 2006, Plaintiff received a decision from DOI on the appeal. The Plaintiff represented that the DOI decision revealed the existence of even more relevant documents, but NN had not had sufficient time to decide what its response should be.

II. Standard of Review

Though framed as a motion for summary judgment, the parties recognize that Defendants' motion seeks a judgment that this Court lacks subject matter jurisdiction over the action. Therefore, the matter amounts to a motion to dismiss under Rule 12(b)(1). See Defs.' Mot. at 5; Pl.'s Resp. at 6; see also Caribbean Mushroom Co. v. Gov't Dev. Bank, 980 F.Supp. 620, 621 (D.P.R.1997).¹⁰

"A motion to dismiss an action under Rule 12(b)(1) ... raises the fundamental question whether the federal district court has subject matter jurisdiction over the action before it." United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n. 6 (1st Cir.2005) (citation omitted). Article III of the Constitution confines the federal courts' jurisdiction to those claims...