Our Children's Earth Found. v. Nat'l Marine Fisheries Serv.
| Decision Date | 20 July 2015 |
| Docket Number | Case No. 14-1130 SC,Case No. 14-4365 SC |
| Court | U.S. District Court — Northern District of California |
| Parties | OUR CHILDREN'S EARTH FOUNDATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. |
Now before the Court are cross-motions for partial summary judgment in this Freedom of Information Act ("FOIA") case. ECF Nos. 12 ("Mot."), 17 ("Opp'n & Cross-Mot."). Plaintiffs are two groups of environmental advocates seeking summary judgment on their claims that Defendants,1 the National Marine Fisheries Service (the "Fisheries Service") and the United States Army Corps of Engineers(the "Corps"), failed to comply with the FOIA in responding to Plaintiffs' requests for documents. Additionally, Plaintiffs allege that the Fisheries Service has a pattern and practice of such failures. Defendants disagree and have moved for summary judgment in their own right, arguing they have complied with the law.
Also pending before the Court and considered herein is a motion filed in case No. 14-1130 SC, ECF No. 64 ( ) and 66 ("Gov't Response to Mot. to Relate") to relate case No. 15-2558 JSC to the case at bar and to case No. 14-1130 SC. Case No. 14-1130 SC and this case have already been related.
The Court previously granted in part and denied in part cross-motions for summary judgment on similar FOIA issues in a related case, Our Children's Earth Foundation v. National Marine Fisheries Service, -- F. Supp. 3d --, No. 14-1130 SC, 2015 WL 1458156 (N.D. Cal. Mar. 30, 2015), and the underlying facts are more fully explained in that opinion. Id. at *1-2. Relevant to this motion, in its prior order, the Court declined to address allegations of a pattern and practice of FOIA violations by the Fisheries Service, noting that those same issues were raised here between the same parties with a fuller evidentiary record. Id. at *8.
The cross-motions for summary judgment in this case are fully briefed, ECF Nos. 22 ( ), 23 ("Gov't Reply"),2 and appropriate for resolution without oral argument under Civil Local Rule 7-1(b). For the reasons set forth below the motions are GRANTED in part and DENIED in part.
While this case concerns solely FOIA claims, Plaintiffs' underlying concerns are twofold: (1) an endangered fish, the Central California Coast Steelhead; and (2) a dam and associated water system, the Searsville Dam and "Lake Water System," owned by Stanford University. Plaintiffs believe the Searsville Dam and Lake Water System have adversely impacted Steelhead population and habitat. Through the four FOIA requests at issue in this case, FOIA requests addressed in the related case, and others, Plaintiffs seek information about the Steelhead, Stanford's activities, and a biological opinion issued by the Fisheries Service to the Corps supporting the Corps' issuance of a permit to Stanford for upgrades to the Lake Water System.
Plaintiffs' complaints are four-fold. First, Plaintiffs believe that the Fisheries Service's search for records responsive to two of its FOIA requests were inadequate. Second, Plaintiffs argue the Fisheries Service has improperly withheld or overly redacted responsive records under two exemptions in the FOIA. Third, Plaintiffs contend that the Fisheries Service is defying Department of Commerce (of which the Fisheries Service is a part) regulations by cutting off their search for responsive records at the date the FOIA request is received rather than the date the search begins. Plaintiffs refer to these dates as "search cutoff dates" and argue their net effect is to deprive Plaintiffs of documents created after the cutoff date but during the pendency of a search. Finally, Plaintiffs argue the Court should issue a declaratory judgment that the Fisheries Service and the Corps' responses to Plaintiffs' requests were untimely, and issuedeclaratory and injunctive relief to remedy the Fisheries Service's alleged pattern and practice of FOIA violations.
The Fisheries Service and the Corps have moved for summary judgment in their own right arguing that their searches were adequate, withholdings were justified, search cutoff dates were reasonable and not contrary to Department of Commerce regulations, and declaratory and injunctive relief are accordingly unwarranted.
Entry of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment should be granted if the evidence would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). "A moving party without the ultimate burden of persuasion at trial—- usually, but not always, a defendant —- has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
"In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id. "In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Id. "The evidence of the nonmovant is to be believed, andall justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
FOIA cases are typically decided on motions for summary judgment. Yonemoto v. Dept. of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2011) as amended (Jan. 18, 2012). "To carry their summary judgment burden, agencies are typically required to submit an index and 'detailed public affidavits' that, together, 'identify the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption.'" Id. (quoting Lion Raisins v. Dep't of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004) (alterations in original)). These submissions are typically referred to as a Vaughn index, after Vaughn v. Rosen, 484 F.2d 820, 823-25 (D.C. Cir. 1973), and they must be "from 'affiants who are knowledgeable about the information sought' and 'detailed enough to allow court[s] to make an independent assessment of the government's claim of exemption.'" Yonemoto, 686 F.3d at 688 (internal alterations omitted) (quoting Lion Raisins, 354 F.3d at 1079).
The Court will address the adequacy of the search and improper withholding arguments first, before turning to Plaintiffs' requests for declaratory or injunctive relief.
First, Plaintiffs challenge the adequacy of the Fisheries Service's search for records responsive to their first and second FOIA requests.
/// To comply with the FOIA, an agency must conduct a "search reasonably calculated to uncover all relevant documents." Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (quoting Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). In so doing, "the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Id. (quotation omitted) (emphasis in original).
To prevail on a motion for summary judgment, the agency must demonstrate "beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents." S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., No. CIV. S-06-2845 LKK/JFM, 2008 WL 2523819, at *11 (E.D. Cal. June 20, 2008) (citing Zemansky, 767 F.2d at 571). In so doing, the agency may rely on "reasonably detailed, non-conclusory affidavits and declarations submitted in good faith," id., describing "what records were searched, by whom, and through what process." Lawyers' Comm. for Civil Rights v. U.S. Dep't of the Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. Cal. 2008) (quoting Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)). The purpose of this requirement is "to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
As in the related case, the Fisheries Service has submitted a declaration from Gary Stern, Branch Chief of the Fisheries Service's San Francisco Bay Branch, which is itself a branch of theFisheries Service's North-Central Coast Office located in Santa Rosa, California. ECF No. 20 ("Stern Decl.").
As to Plaintiffs' first request, the North-Central Coast Office was tasked with searching for responsive records because it conducted all the Fisheries Service's work involving Stanford, Searsville, and San Francisquito Creek and those locations fall within the North-Central Coast Office's geographic area of responsibilities. Id. at ¶ 5. After reviewing Plaintiffs' first request, Stern "tasked all [Fisheries Service] staff within the San Francisco Bay Branch and administrative support staff within the [North-Central Coast Office] with searching for potentially responsive documents." Id. at ¶ 5. The staff searched hard copy and electronic files including emails, office files, and "relevant project folders" for responsive records. Id. at ¶ 6. The staff also conducted "relevant key word searches for 'Searsville,' 'Stanford,' and 'San Francisquito Creek' as well as for the names of the individuals involved in relevant email discussions (e.g., 'Corinne Gray', 'Roy Torres', 'Holly Costa', and 'Tom Zigterman')." Id. (errors in original). The Fisheries Services' Records...
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