Taylor Energy Co. v. U.S. Dep't of the Interior, Bureau of Ocean Energy Mgmt.

• Decision Date: 21 September 2017
• Docket Number: Civil Action. No 16–CV–388 (BAH)
• Citation: 271 F.Supp.3d 73
• Parties: TAYLOR ENERGY COMPANY LLC, Plaintiff, v. UNITED STATES DEPARTMENT OF the INTERIOR, BUREAU OF OCEAN ENERGY MANAGEMENT; Bureau of Safety and Environmental Enforcement; United State Department of Homeland Security; and United States Coast Guard, Defendants.
• Court: U.S. District Court — District of Columbia

271 F.Supp.3d 73

TAYLOR ENERGY COMPANY LLC, Plaintiff,

v.UNITED STATES DEPARTMENT OF the INTERIOR, BUREAU OF OCEAN ENERGY MANAGEMENT; Bureau of Safety and Environmental Enforcement; United State Department of Homeland Security; and United States Coast Guard, Defendants.

Civil Action. No 16–CV–388 (BAH)

United States District Court, District of Columbia.

Signed September 21, 2017

William Ernest Sparks, Beatty & Wozniak, P.C., Denver, CO, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Taylor Energy Company, LLC, a Louisiana limited liability company that has been engaged in the exploration, development, and production of oil and gas in the Gulf of Mexico, Compl. ¶ 4, ECF No. 1, initiated this action against the United States Department of the Interior ("DOI"), DOI's components, the Bureau of Ocean Energy Management ("BOEM") and Bureau of Safety and Environmental Enforcement ("BSEE"), the Department of Homeland Security ("DHS"), and DHS's component, the United States Coast Guard ("USCG"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The plaintiff challenges the defendants' responses to a FOIA request seeking records that formed the basis for statements posted on BSEE's website concerning the plaintiff's response to an incident on the plaintiff's former oil platform in the Gulf of Mexico, about which incident the plaintiff is engaged in ongoing litigation with the United States Government. Pending before the Court are the defendants' motion for summary judgment and the plaintiff's cross-motion for summary judgment. See generally Defs.' Mot. Summ. J. ("Defs.' Mot."), ECF No. 32; Pl.'s Cross–Mot. Summ. J. ("Pl.'s Cross–Mot."), ECF No. 34. For the reasons set out below, the defendants' motion is granted, and the plaintiff's motion is denied.

I. BACKGROUND

Summarized below is the factual background underlying the plaintiff's FOIA request and review of the defendants' responses to the FOIA request.

A. 2004 INCIDENT AT PLAINTIFF'S OIL PLATFORM

The plaintiff submitted a FOIA request in August 2015 for agency records regarding statements that BSEE posted on its website three months earlier, in May 2015, concerning the plaintiff's ongoing response to a 2004 incident that had occurred at the plaintiff's former oil platform, called "MC20," in the Gulf of Mexico. Defs.' Mot., Attach. 1, Defs.' Stmt. of Material Facts ("Defs.' SMF") ¶¶ 1–2, ECF No. 32–1; id. , Attach. 2, Decl. of Sean R. Gajewski, Attorney, Coast Guard Judge Advocate General's Office of Claims and Litigation ("USCG Decl."), Ex. A, ECF No. 32–2. The plaintiff was considered the "responsible party" in the incident, which "result[ed] from damage to the oil production platform and 25 connected wells during Hurricane Ivan." Defs.' Mot., Attach. 4, Decl. of Karen Miller, Chief, FOIA/Records Office, Gulf of Mexico Region ("GOMR"), BSEE ("BSEE Decl."), Ex. A at 7, ECF No. 32–4. The plaintiff has since collaborated with the defendant agencies, each of which has jurisdiction over the response to the events at MC20. See id. Together, the plaintiff, BSEE, BOEM, and USCG have "worked continuously" under a Unified Command ("UC") to prevent and control the discharge, improve the effectiveness of containment around the leaking oil, and mitigate environmental impacts." Id.

In the years since the spill, the plaintiff has been involved in the site clearance and decommissioning of the MC20 "A" platform and twenty-five wells that were buried in 2004 as a result of a massive mudslide during Hurricane Ivan.¹ See Reply Supp. Defs.' Mot. Summ J. & Defs.' Opp'n Pl.'s Cross–Mot. Summ. J. & ("Defs.' Reply"), Attach. 3, Suppl. Decl. of Karen Miller, Chief, FOIA/Records Office, GOMR ("BSEE Suppl. Decl.") ¶ 16, ECF No. 37–3. To cover the costs of site clearance and decommissioning, the plaintiff, in 2008, put $666,000,000 into trust, with an agreement that "allocated specific amounts of money from the trust to be used to reimburse Taylor Energy for expenses incurred in the decommissioning of the MC–20 site, including the plugging and abandonment of wells." Id. ¶¶ 16–17. In 2014, sixteen wells remained unplugged and $433,000,000 remained in the trust fund.

Id. At that time, the plaintiff "submitted a departure request from intervention well and decommissioning requirements at 30 C.F.R. §§ 250.1710 – 250.1717" covering the sixteen wells that had not yet been plugged because the wells had "little or no potential to flow, and ... it was technically infeasible to drill any additional wells." Id. ¶ 18.

After submitting the departure request, the plaintiff asked BSEE to "consider returning some or all of the remaining trust fund money to Taylor." Id. ¶ 19. BSEE sought legal counsel from the Department of Justice ("DOJ") in connection with the plaintiff's request and to respond to DOJ's request for information from BSEE "in the context of this attorney-client relationship," BSEE drafted a seven-page April 3, 2015 memorandum that was used by BOEM, BSEE, and the agencies' lawyers. Id. ¶ 20; Defs.' Reply, Attach. 2, Suppl. Decl. of Natasha Alcantara, FOIA Officer, BOEM ("BOEM Suppl. Decl.") ¶ 11, ECF No. 37–2. In particular, BSEE's Regional Director, GOMR, Lars Herbst, drafted the memorandum with help from DOI's Office of the Solicitor ("SOL"). BSEE Suppl. Decl. ¶ 21. "[I]n its final form," the memorandum, entitled "Taylor Energy Company LLC, Mississippi Canyon Block 20—BSEE's Considerations for Revision of Taylor Energy's Trust Agreement," was approved by BSEE Director Brian Salerno "to inform discussions between BSEE and DOJ," and "Director Salerno's Office sent this memorandum to DOJ on April 3, 2015." Id. ¶¶ 16, 21.

Later in April, BOEM officials received a "BSEE memorandum dated April 3, 2015," with the same author, Mr. Herbst, and title as the aforementioned memorandum, that had been sent by "an attorney in [SOL] in order to inform BOEM's feedback on [a] draft 20–point document" addressing the plaintiff's requests. BOEM Suppl. Decl. ¶¶ 6, 11–12, Ex. A. On May 11, 2015, BSEE sent the plaintiff "a final decision denying Taylor's departure request." BSEE Suppl. Decl. ¶ 22, Ex. D. "Shortly thereafter, Taylor was informed that trust funds would not be returned at that time." Id. ¶ 22. A few months later, on January 4, 2016, the plaintiff sued the United States in the Court of Federal Claims for breach of the trust agreement and for breach of "its obligation of good faith and fair dealing by refusing to direct release to Taylor of the funds remaining in the trust account." See BSEE Suppl. Decl. ¶ 23 (citing Taylor Energy Co. v. U.S. , 1:16–cv–12).²

B. PLAINTIFF'S FOIA REQUEST

Around the time of BSEE's denial of the plaintiff's departure request, in May of 2015, BSEE posted material on its website concerning the incident at MC20, including a "Joint DOI–USCG Statement" pertaining to the "Taylor Energy/Mississippi Canyon 20 (MC20) Oil Discharge," and links to two documents named "Taylor Energy Oil Discharge at MC 20 Site and Ongoing Response Efforts" and "Taylor Energy U.S. Coast Guard Fact Sheet." Compl. ¶ 20; BSEE Decl., Ex. A. After learning of these online materials, the plaintiff filed identical FOIA requests with BSEE, BOEM and USCG, on August 3 and 4, 2015. USCG Decl., Ex. A; Defs.' Mot., Attach. 3, Decl. of Natasha Alcantara, FOIA Officer, BOEM, Ex. A ("BOEM Decl."), ECF No. 32–3; BSEE Decl., Ex. A. This FOIA request had three parts. The first part sought "all studies, analyses, memorandum, and correspondence between and among the United States Department of the Interior, BSEE, BOEM and the USCG that support" four enumerated statements on the BSEE website. Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Mem.") at 1.³ The second part of the FOIA request sought "all correspondence (emails, letters, faxes and any other correspondence) relating to" a statement about a joint aerial observation workshop that the UC led in August 2014, with a specific request for documentation about the methodology used to estimate the quantity and rate of discharge. Defs.' Mem. at 2.⁴ Finally, the third part of the FOIA request sought "all correspondence, and FOIA–related correspondence (emails, letters, faxes and any other correspondence) relating to Taylor or MC20 between the USCG and the Associated Press and Michael Kunzelman." Id.

All three agencies responded to the plaintiff's FOIA request. BOEM responded, on September 8, 2015, stating that it anticipated a delay in responding. BOEM Decl., Ex. D. at 2–3. BSEE produced, on October 7, 2015, a partial response totaling 188 pages, including 69 documents in full, BSEE Decl. ¶ 19, and, on November 10, 2015, acknowledged the plaintiff's request for an update on further production, without providing any timeline for further production, BSEE Decl., Ex. F. The USCG produced, on November 12, 2015, an interim response of 249 pages of documents, which response the plaintiff appealed on December 11, 2015. USCG Decl. ¶¶ 13, 16. "[D]ue to Defendants' failure to timely respond to Taylor's requests and failure to timely respond to Taylor's appeals," the plaintiff filed the instant suit. Compl. ¶ 2.

C. THE FOIA LAWSUIT

The plaintiff filed this FOIA lawsuit on February 25, 2016, to compel the defendants to produce the requested records or declare that no such documents exist, and provide a final determination on the plaintiff's FOIA requests. Compl. at 13. The plaintiff also sought relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. —a claim that this Court has since dismissed.⁵ At the time that the plaintiff filed the instant lawsuit, the agencies were still in the process of searching for responsive records. See BOEM Decl. ¶¶ 31–35; BSEE Decl. ¶¶ 14–21; USCG Decl. ¶¶ 6–29. During that process, BSEE provided the plaintiff with an opportunity to narrow its request in an effort to "expedite the bureau's response." BSEE Decl. ¶ 23. The plaintiff...