Southern Utah Wilderness v. U.S. Bureau of Land

• Decision Date: 25 July 2005
• Docket Number: No. Civ.A. 04-1446 HHK.,Civ.A. 04-1446 HHK.
• Citation: 402 F.Supp.2d 82
• Parties: SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Plaintiffs, v. U.S. BUREAU OF LAND MANAGEMENT, Defendant.
• Court: U.S. District Court — District of Columbia

402 F.Supp.2d 82

SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Plaintiffs, v. U.S. BUREAU OF LAND MANAGEMENT, Defendant.

No. Civ.A. 04-1446 HHK.

United States District Court, District of Columbia.

July 25, 2005.

James Clark Stansel, Sidley Austin Brown & Wood, Michael C. Soules, Washington, DC, Joro Walker, Salt Lake City, UT, for Plaintiffs.

John F. Henault, Jr., U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

KENNEDY, District Judge.

Plaintiff, Southern Utah Wilderness Alliance ("SUWA"), has requested the Bureau of Land Management ("BLM") to disclose records relating to cultural resources located in the San Juan Resource Area, the Kanab Resource Area, and the Grand Staircase-Escalante National Monument under the Freedom of Information Act, 5 U.S.C. § 552 et seq. BLM has not processed this request and has denied SUWA's request for a fee waiver. By this action, SUWA and Great Old Broads for Wilderness¹ seek a determination that BLM's decision denying SUWA's request for a fee waiver was improper.

Presently before the court are the parties' cross-motions for summary judgment [# 11, 15]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that plaintiffs' motion must be granted, while defendant's motion must be denied.

I. BACKGROUND

On September 9, 2002, SUWA submitted a FOIA request to the BLM's field office in Monticello, Utah. Among nine other categories of records not implicated by this suit, SUWA sought "any records relating in any way to cultural resources in the San Juan Resource Area, including documents relevant to the management, condition, approximate or general location, and protection of, and impacts to these resources." Def.'s Mot. for Summ. J., Ex. A ("Request Letter") at 3. SUWA also made essentially identical requests for records pertaining to cultural resources in two other federally-managed lands in Utah, the Grand Staircase-Escalante National Monument and the Kanab Resource Area, by letters respectively dated September 10, 2002 and November 18, 2002.² All three locations for which SUWA sought records are in the southernmost part of Utah, "a dry area with many caves, allowing for the preservation of normally perishable cultural materials," which thus "includes an extensive record of human habitation" dating back at least 5,000 years. Smith Decl. ¶ 6.

SUWA's requests acknowledged that "records specifying the locations of cultural resources may not be subject to disclosure under FOIA." Request Letter at 3. In addition to seeking disclosure of responsive documents, SUWA requested that BLM waive applicable fees because SUWA "will not use these records for its commercial benefit" but seeks them instead to "to aid its members and the public in understanding the workings of its government," id. at 5.

BLM responded to SUWA's request on October 10, 2002. With regard to SUWA's request for documents related to cultural resources, the agency wrote that

the majority of the documents we have are `site forms.' All information on these forms that relates to the location or nature of the cultural resource must be redacted in accordance with exemption (b)(3) of the FOIA and Section 9 of the Archaeological Resources Protection Act (ARPA, 16 U.S.C. 470hh). With all of the location and nature information redacted, there is little utility to the remaining information on the form and thus there would be no contribution whatsoever to public understanding of the operations and activities of the government.

Def.'s Mot. for Summ. J., Ex. A ("BLM Response Letter") at 1-2.

BLM also noted that SUWA had not provided evidence that it had "any expertise in the field of cultural resources that would allow [it] to use or disseminate [the requested] information in a way that would contribute to the public understanding," id. at 2. For these two reasons, BLM notified SUWA that "your request for a fee waiver is denied for this portion of your request." Id. BLM did, however, state that it would revisit its fee waiver denial if SUWA chose to "provide this office with additional justification for a fee waiver for the redacted site forms," id. Absent a waiver, BLM estimated that it would charge SUWA $18,395 to process its request for the cultural resources documents.³ Because it denied the fee waiver, BLM would not begin processing the request until the agency received "in writing [SUWA's] willingness to pay the anticipated fees or your additional documentation justifying your fee waiver request." Id.

On November 7, 2002, SUWA appealed BLM's denial of the fee waiver. In response to BLM's first assertion, that the records sought would have "little utility" and would make "no contribution whatsoever to public understanding," SUWA claimed that "BLM dramatically overstate[d] the impact of redaction on the utility of the information sought," Def.'s Mot. for Summ. J., Ex. A ("Appeal Letter") at 6. SUWA noted that even with redactions the `site forms' would likely contain information about impacts to cultural resources in the San Juan Resource Area, allowing the public to evaluate "BLM's management and care of threatened archaeological and cultural sites." Id. at 7. Furthermore, SUWA noted, while BLM had stated that "the majority" of responsive documents would be site forms, SUWA expected that other documents besides site forms should be disclosed pursuant to its request.⁴

SUWA also responded to the second rationale BLM advanced for denying the fee waiver, namely that SUWA failed to demonstrate its "expertise in the field of cultural resources." SUWA stated that it recently released a report on cultural resources in Utah wilderness, frequently made public comments to BLM and other federal agencies about impacts to cultural resources on federally-managed lands, and has contracted with archaeologists to "help it assess impacts to cultural resources on BLM lands." Id. at 9-10. In support of its ability to disseminate the information sought to a public audience, SUWA cited "over fifty articles" published in the past years "relating specifically to SUWA"s influence and participation on public lands grazing issues," as well as the organization's history of distributing information through broadcast and print media, outlets which "contact SUWA for comment when any issues regarding public lands in southern Utah arise," id. at 11.

By letter dated December 4, 2002, the Department of the Interior's FOIA Appeals Officer, William Wolf, acknowledged receipt of SUWA's appeal of the fee waiver denial. He stated that an "extraordinarily large number of FOIA appeals" received by his office would prevent a timely decision, and that SUWA has "a right to treat the delay in responding to [its] appeal as a final denial of [its] request," Pls.' Mot. for Summ. J., Ex. 2 to Phelan Decl. at 2. This suit followed.

II. ANALYSIS

A. Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In the absence of disputed material facts, as in this instance, summary judgment is the appropriate mechanism for resolving FOIA disputes. See Fed.R.Civ.P. 56(c); Alyeska Pipeline Service Co. v. EPA, 856 F.2d 309, 313-14 (D.C.Cir.1988). Indeed, FOIA cases are "typically adjudicated" through summary judgment motions. Judicial Watch, Inc. v. Export-Import Bank, 108 F.Supp.2d 19, 25 (D.D.C.2000).

B. Applicable Law — Fee Waiver

FOIA requires agencies to waive fees normally assessed for search, review, and duplication of documents "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). BLM's fee waiver regulations repeat this statutory language and provide that the agency may waive fees "if disclosure of all or part of the information is in the public interest because its release — (1) Is likely to contribute significantly to public understanding of the operations or activities of the Government; and (2) Is not primarily in the commercial interest of the requester." 43 C.F.R. § 2.19(b). To guide the agency in assessing the first part of this test, BLM regulations direct requesters to provide information as to how the records sought "concern the operations or activities of the Government," 43 C.F.R. Pt. 2, App. D(b)(1); whether there is a "logical connection" between the records sought and the operations or activities of interest, id. (b)(2)(I); how disclosure will "contribute to the understanding of the public at large or a reasonably broad audience of persons interested in the subject," id. (b)(2)(ii); the requester's identity, qualifications, and expertise regarding the requested information, id. (b)(2)(iii), and "ability and intention to disseminate the information," id. (b)(2)(iv); and if release of the requested records will "contribute significantly to public understanding," id. (b)(3).

The requester bears the burden of showing entitlement to a fee waiver. Nat'l Treasury Employees Union v. Griffin, 811 F.2d 644, 647 (D.C.Cir.1987). The court reviews de novo an agency determination to deny a fee waiver request, limiting itself to "the record before the agency." 5 U.S.C. § 552(a)(4)(A)(vii); see also, e.g., Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 35 (D.C.Cir.1998). Finally, "Congress amended FOIA to ensure that it be liberally construed in favor of waivers for noncommercial requesters." Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309,...