Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian, CV-05-188-B-W.

• Decision Date: 22 June 2007
• Docket Number: No. CV-05-188-B-W.,CV-05-188-B-W.
• Citation: 493 F.Supp.2d 91
• Parties: NULANKEYUTMONEN NKIHTAQMIKON, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, Department of the Interior, Defendants.
• Court: U.S. District Court — District of Maine

493 F.Supp.2d 91

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.

June 22, 2007.

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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 District of Maine, Portland, ME, Robin A. Friedman, U.S. Department of Justice Division of General Law U.S. Department of the Interior, Stephanie Yu, U.S. Department of Interior Office of the Solicitor, Washington, DC, for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

WOODCOCK, District Judge.

Nulankeyutmonen Nkihtaqmikon¹ (NN), a group of private citizens who are members of the Passamaquoddy Tribe (Tribe), brought this Freedom of Information Act (FOIA) action against the Bureau of Indian Affairs (BIA) seeking documents related to the BIA's approval of a ground lease agreement between the Tribe and Quoddy, LLC, a private liquefied natural gas (LNG) company hoping to build a terminal on tribal lands. NN's First Amended Complaint seeks declaratory and injunctive relief grounded in three charges: (1) that the BIA failed to conduct an adequate search to respond to NN's requests for records; (2) that the BIA wrongfully withheld documents; and, (3) that the BIA engaged in an impermissible practice of "delayed disclosure" which has caused, injury — and will cause future injury — to NN. The parties have filed cross motions for summary judgment. See Defs.' Am. Mot. for Summ. J. (Docket # 59) (Defs.' Mot.); Pl.'s Cross-Mot. for Summ. J. (Docket # 55) (PL's Mot.).² The Court denies NN's motion and grants the BIA's motion.

I. STATEMENT OF FACTS

A. NN's First FOIA Request — June 8, 2005

The facts are largely undisputed.³ On June 1, 2005, the BIA approved a ground lease agreement between the Tribe and Quoddy, LLC, which planned to construct an LNG facility on tribal land. The citizens who comprise NN are residents of the Pleasant Point Passamaquoddy Reservation and oppose its construction on tribal lands. NN faxed its first FOIA request to Suzanne Langan of the BIA on June 8, 2005, asking for documents related to the proposed lease of tribal land to Quoddy, LLC. The first request sought:

1. All documents in your possession and control concerning the proposed construction of a LNG facility by the group "Quoddy, LLC" in or around the Passamaquoddy Bay, Point Pleasant, Fundy Bay, Gleason Point, or Gleason Cove.

2. All documents concerning the proposed lease of tribal land by the Passamaquoddy Reservation at Point Pleasant to Quoddy, LLC.

This request includes, but is not limited to, reports, survey data, inter and intraagency correspondence (both written and electronic), agency correspondence with the tribe and/or its members and with Quoddy, LLC (both written and electronic), maps, photographs, environmental studies, charts and graphs, and records of relevant phone calls, minutes of relevant meetings, and any other related documents.

On June 9, 2005, a representative for NN followed up by telephone with Ms. Langan, who informed her that the only document responsive was the ground lease itself. NN already possessed the lease.

B. NN's Second FOIA Request — July 11, 2005

On July 11, 2005, NN filed a second FOIA request with the BIA, with different language to reflect that the issue no longer involved a "proposal," because in the meantime, NN learned that the BIA had approved the lease agreement on June 1, 2005.⁴ In that letter, NN made a more detailed request:

1. The environmental review documents, prepared either by BIA or the Sipayik Environmental Department, and any other environmental documents relied upon.

2. The Solicitor's Opinion regarding the decision to approve the lease.

3. Information regarding any appeal process that may be available for this decision through the BIA or the Department of Interior.

4. All documents in your possession and control concerning the decision of BIA to approve the ground lease between Passamaquoddy Reservation and Quoddy, LLC.

This request includes, but is not limited to, reports, survey data, inter and intraagency correspondence (both written and electronic), agency correspondence with the tribe and/or its members and with Quoddy, LLC (both written and electronic), maps, photographs, environmental studies, charts and graphs, and records of relevant phone calls, minutes of relevant meetings, and any other related documents.

C. The BIA's Response — August 5, 2005

The BIA responded by letter dated August 5, 2005,⁵ identifying and enclosing one document responsive to NN's first item — a categorical exclusion checklist. With regard to the second item, the BIA informed NN that it was withholding the Solicitor's Opinion pursuant to the FOIA exemption provided by 5 U.S.C. § 552(b)(5) (Exemption 5). The BIA claimed that the document "reflects the recommendations and advice of staff members, and was used to arrive at a final agency decision." For the third item, the BIA responded that it is "not required under FOIA to fulfill an `information' request." Finally, the BIA concluded that the only document responsive to the fourth item was the ground lease itself. The BIA did not respond to the request contained in the unnumbered paragraph, which broadly defined the sorts of documents NN was seeking.

D. NN's Appeal of September 1, 2005 and DOI's Ruling

On September 1, 2005, NN appealed the BIA's decision to the Department of Interior (DOI), raising three main arguments. First, with respect to the BIA's refusal to disclose the Solicitor's Opinion, NN argued that Exemption 5 was inapplicable because "regardless of any intra-agency category, it was used as the basis for the BIA's final decision to approve the lease." Second, NN asserted the BIA was required under FOIA to "make reasonable efforts" to comply with its request for information regarding any appeal process available to NN. Third, with respect to the unnumbered paragraph, NN claimed that the BIA's response to its request did not "take into account the scope of the request."

DOI partially granted the appeal on October 6, 2005, but it failed to reach a decision about the applicability of Exemption 5.⁶ As to the other grounds for appeal DOI required NN to "describe the requested records in enough detail to enable the employee familiar with the subject area of the request to locate the records with a reasonable amount of effort," and directed the BIA to determine whether it could locate the records with a "reasonable amount of effort." With regard to the third issue, because the BIA did not address NN's request in the unnumbered paragraph, the DOI remanded the issue to the BIA for reconsideration of that aspect of the request. DOI denied NN's appeal with respect to its request for "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply," because FOIA does not require an agency to create documents that do not exist.⁷ DOI also agreed with NN that the BIA had failed to identify the amount of information contained within the Solicitor's Opinion, and remanded the case to the BIA.

E. Remand to the BIA

On remand, the BIA conducted a broader, supplemental search for documents over a three-week period and reported its findings to NN in a letter dated October 25, 2005. The BIA informed NN of the existence of two additional documents — agency correspondence with the Tribe — both of which the BIA redacted pursuant to FOIA Exemption 4. The BIA letter further informed NN that the Solicitor's Opinion, still withheld, was three pages long, and attached a copy of 25 C.F.R. § 162. ¶ 3, which outlines the BIA's appeal process.

F. NN Files Suit

Still dissatisfied, NN filed suit in federal court on December 6, 2005, requesting release of the Solicitor's Opinion.⁸ Four months later, on April 6, 2006, the BIA voluntarily produced a full, unredacted version of the Solicitor's Opinion and on May 25, 2006, the BIA moved for summary judgment on mootness grounds, arguing that there no longer existed a case or controversy because NN now possessed the subject of the Complaint. Recognizing that NN had limited its cause of action to the Solicitor's Opinion because of the BIA's representation that that was the only document responsive to its FOIA request, the Court granted the BIA's motion, but allowed NN to amend its Complaint. See Nulankeyutmonen Nkihtaqmikon, 450 F.Supp.2d at ¶ 5, 453 F.Supp.2d at 204.

G. NN's Third FOIA Request — May 12, 2006

When NN received the Solicitor's Opinion, it found references to documents that appeared responsive to NN's FOIA request, but that the BIA itself had not yet disclosed. On May 12, 2006, NN sent a new FOIA request for these documents:

1. The letter sent to the BIA from the Tribe's expert in the field of natural gas plants, describing advice to the Tribe concerning the reasonableness of the lease agreement, as referenced in the Solicitor's Memorandum prepared by Horace G. Clark, dated May 26, 2005.

2. All documents relating to the above letter.

3. All documents in your possession and control relating to the Tribe's decision to approve the lease agreement and all documents relating to the Tribe's decision to waive an appraisal by the BIA.

4. All documents relating to the BIA's decision to approve the lease agreement, all documents relating to the BIA's decision to forego environmental analysis under NEPA, and all documents relating to the BIA's decision not to conduct an appraisal of fair annual rental for the leased land, including, but not limited to, the Memorandum of March 18, 2003, "Appraisal of Fair...