Story of Stuff Project v. U.S. Forest Serv.

• Citation: 345 F.Supp.3d 79
• Decision Date: 27 September 2018
• Docket Number: Case No. 17-cv-00098 (APM)
• Parties: STORY OF STUFF PROJECT, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

345 F.Supp.3d 79

STORY OF STUFF PROJECT, et al., Plaintiffs,

v.UNITED STATES FOREST SERVICE, Defendant.

Case No. 17-cv-00098 (APM)

United States District Court, District of Columbia.

Signed September 27, 2018

Rachel Doughty, Greenfire Law, P.C., Berkeley, CA, Matt Kenna, Public Interest Environmental Law, Durango, CO, for Plaintiffs.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

I. INTRODUCTION

Plaintiffs Story of Stuff Project and Courage Campaign Institute (collectively, "Plaintiffs") bring this action against Defendant United States Forest Service (the "Forest Service") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs seek records related to the government's management of Nestlé Waters North America, Inc.'s ("NWNA") operations in the San Bernardino National Forest in California.

After Plaintiffs filed this lawsuit, the Forest Service conducted a search and located 928 photos, 728 geographic information system ("GIS") files, 4 spreadsheets, 1 video, and 11,425 pages in responsive records. The Forest Service withheld some of these records in their entirety, redacted some, and released others in full to Plaintiffs. To justify its withholdings and redactions, the Forest Service invoked FOIA Exemptions 4, 5, 6, and 9. In turn, Plaintiffs contest the Forest Service's withholdings and redactions as unjustified.

Before the court are the parties' cross-motions for summary judgment. For the reasons described below, the court finds that the Forest Service properly withheld information under Exemption 5. However, the court also finds that the Forest Service has not properly justified withholding information under Exemptions 4, 6, or 9. Accordingly, Defendant's Motion for Summary Judgment is granted in part and denied in part and Plaintiffs' Cross-Motion for Summary Judgment is denied.

II. BACKGROUND

Plaintiff Story of Stuff Project is a non-profit corporation that facilitates an online community dedicated to environmental sustainability and resource conservation efforts. Compl., ECF No. 1, ¶ 4. Story of Stuff Project has more than 800 members who live near the San Bernardino National Forest and have expressed concern about the diversion of water resources from the Forest. Id. Plaintiff Courage Campaign Institute is a non-profit corporation that organized, among other actions, a campaign asking NWNA to cease bottling water in California in response to the historic California drought. Id. ¶ 5. Courage Campaign Institute has over 9,000 members who live near the San Bernardino National Forest, regularly visit the Forest, and have expressed concern about the diversion of water resources from the Forest. Id.

In light of their mutual concern regarding the government's management of NWNA's operations and use of resources on public lands in the San Bernardino National Forest, Plaintiffs sent a FOIA request to the Forest Service on November 7, 2016, seeking records pertaining to:

The water diversion and transmission facilities constructed and operated on U.S. Forest Service land in and near the West Fork of Strawberry Creek in the San Bernardino National Forest; and

The "Nestle Waters North America Inc. Special Use Permit CE" listed on the Current Schedule of Proposed Actions (SOPA) 01/01/2016 to 03/31/2016 at the URL: http://www.fs.fed.us/sopa/components/reports/sopa-110512-2016-01.html#4.

See Def.'s Mot. for Summ. J., ECF No. 19 [hereinafter Def.'s Mot.], Attach. A, ECF No. 19-2, at 1–2.

Plaintiffs filed this lawsuit on January 13, 2017, challenging the government's failure to process its FOIA request and disclose any responsive documents. See generally Compl. The Forest Service thereafter began to produce records. The Forest Service located 928 photos, 728 GIS files, 4 spreadsheets, 1 video, and 11,425 pages of responsive records, and released non-exempt, redacted records to Plaintiffs in rolling productions from February 2017 through August 2017. See Def.'s Mot., Statement of Material Facts as to Which There Is No Genuine Issue [hereinafter Def.'s Stmt.], ¶¶ 8–9; see also Def.'s Mot., Attach. B, ECF No. 19-3. The Forest Service invoked FOIA Exemptions 4, 5, 6, and 9 to withhold or redact some of the responsive records; of the 11,425 pages identified by the Forest Service, 8,193 pages were released in full, 1,991 pages were released in part, and 1,241 were withheld in their entirety. Def.'s Stmt. ¶¶ 10–12.

After production, the Forest Service moved for summary judgment. See Def.'s Mot., Mem. of P. & A. in Supp. of Def.'s Mot. [hereinafter Def.'s Mem.]. The motion was supported by the declaration of Latanga Rush, the Region 5 FOIA/PA Coordinator with the Forest Service, see Def.'s Mot., Decl. of Latanga Rush, ECF No. 19-1 [hereinafter Rush Decl.], as well as a Vaughn Index, see Def.'s Mot., Attach. C, ECF No. 19-4 [hereinafter Vaughn Index]. Rush's declaration explained the scope of the search conducted in response to Plaintiffs' FOIA request and the reasons for the Forest Service's invocation of various FOIA exemptions to redact and withhold the records. See generally Rush Decl.

Plaintiffs opposed the Forest Service's motion, and filed a cross-motion for summary judgment, asserting that no proper basis exists for most of the government's redactions and withholdings. See Pls.' Notice of Errata, ECF No. 25, Pls.' Corrected Cross-Mot. for Summ. J. & Resp. to Def.'s Mot., ECF No. 25-1 [hereinafter Pls.' Cross-Mot.],¹ at 2–4; see also Pls.' Reply in Supp. of Pls.' Cross-Mot., ECF No. 26 [hereinafter Pls.' Reply]. In response to Plaintiffs' arguments, the agency conducted a supplemental search and located an additional submission to the agency by NWNA, which the Forest Service reviewed, redacted, and released to Plaintiffs. See Def.'s Mem. of P. & A. in Opp'n to Pls.' Cross-Mot. & Reply to Pls.' Opp'n to Def.'s Mot., ECF No. 23 [hereinafter Def.'s Reply], at 1. The Forest Service's subsequent production was accompanied by the supplemental declaration of Latanga Rush and an updated Vaughn Index. Def.'s Reply, 2nd Decl. of Latanga Rush, ECF No. 23-2 [hereinafter 2d Rush Decl.], Attach. D, ECF No. 23-3 [hereinafter 2d Vaughn Index]. In further support of its motion for summary judgment, the Forest Service also submitted the declaration of Larry Lawrence, the Natural Resource Manager of NWNA. See Def.'s Reply, Decl. of Larry Lawrence, ECF No. 23-1 [hereinafter Lawrence Decl.].

The parties' motions are now ripe for disposition.

III. STANDARD OF REVIEW

Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011). A court must grant summary judgment "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). A dispute is "genuine" only if a reasonable fact-finder could find for the nonmoving party, and a fact is "material" only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A defendant agency in a FOIA case is entitled to summary judgment upon demonstrating that no material facts are in dispute, that it has conducted an "adequate search," and that all located responsive records have been produced to the plaintiff or are exempt from disclosure. See Students Against Genocide v. Dep't of State , 257 F.3d 828, 833, 838 (D.C. Cir. 2001). An "adequate search" is one that is "reasonably calculated to uncover all relevant documents." Oglesby v. U.S. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears the burden of proving that it performed such a search, and it may rely on sworn affidavits or declarations to do so. See SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200–01 (D.C. Cir. 1991). The court may grant summary judgment to the agency based on this evidence if it is reasonably specific and contradicted by neither record evidence nor evidence of agency bad faith. Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981) ; accord Beltranena v. Clinton , 770 F.Supp.2d 175, 181–82 (D.D.C. 2011). Plaintiffs can rebut an agency's supporting affidavits and declarations by demonstrating, with "specific facts," that there remains a genuine issue as to whether the agency performed an adequate search for documents responsive to the plaintiff's request. See Span v. U.S. Dep't of Justice , 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ).

An agency also bears the burden of showing that it properly withheld materials pursuant to a statutory exemption. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014). An agency "may carry its burden ... by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate." Brennan Ctr. for Justice v. Dep't of State , 296 F.Supp.3d 73, 80 (D.D.C. 2017). "If the agency's affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.' " ACLU v. U.S. Dep't of Def. , 628 F.3d 612, 626 (D.C. Cir. 2011) (internal quotation marks omitted).

IV. DISCUSSION

The Forest Service invokes FOIA Exemptions 4, 5, 6, and 9 to justify its various redactions and withholdings. Plaintiff challenges the applicability of all exemptions.² See generally Pls.' Cross-Mot.; Pls.' Rep...