Forest Cnty. Potawatomi Cmty. v. Zinke

278 F.Supp.3d 181

FOREST COUNTY POTAWATOMI COMMUNITY, Plaintiff,

v.Ryan ZINKE, Secretary, United States Department of the Interior, et al., Defendants.

Civil Action No. 14–2201 (BAH)

United States District Court, District of Columbia.

Signed September 30, 2017

April E. Olson, Pro Hac Vice, Eric Nicholas Dahlstrom, Pro Hac Vice, Reed Bienvenu, Pro Hac Vice, Richard W. Hughes, Pro Hac Vice, Rothstein Law Firm, Tempe, AZ, Dennis Jeffrey Whittlesey, Dickinson Wright PLLC, Washington, DC, Donna M. Connolly, Pro Hac Vice, Rothstein Law Firm, Santa Fe, NM, for Plaintiff.

Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief JudgeThe plaintiff, Forest County Potawatomi Community, a federally recognized Native American tribe located in Crandon, Wisconsin, filed ten requests, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for information relating to a competitor tribe's unsuccessful application to open a gaming establishment. Pl.'s Statement of Undisputed Material Facts & Resps. to Defs.' Statement of Undisputed Material Facts ("Pl.'s SUMF") ¶¶ 19, 37–118, ECF No. 49–2. The FOIA requests were submitted to three components of the U.S. Department of the Interior ("DOI")—the Bureau of Indian Affairs' ("BIA") Central Office ("BIA–Central") and Midwest Regional Office ("MWRO"), and Office of Indian Gaming ("OIG"). Id.¹ The gaming application died, but the FOIA requests live on. In response to the plaintiff's requests, DOI released over 22,954 pages of information. Id. ¶ 139. Dissatisfied, the plaintiff sued the defendants to compel disclosure of nine documents withheld in full or part and to challenge the adequacy of the agencies' search procedures. Pending before this Court are the parties' cross-motions for summary judgment. See generally Defs.' Mot. Summ. J. ("Defs.' MSJ"), ECF No. 44; Pl.'s Cross–Mot. Summ. J., ECF No. 49. The defendants' motion is granted in part and denied in part, and the plaintiff's motion is denied.

I. BACKGROUND

Contextual background for the FOIA requests at issue is helpful in understanding the scope and timing of the requests, and the agencies' rationale for the searches conducted and withholdings. Consequently, the statutory framework for, and participation in, commercial gaming activities of both the plaintiff and the Menominee Indian Tribe of Wisconsin ("Menominee") are briefly reviewed before turning to the legal challenges to the defendants' responses to plaintiff's FOIA requests.

A. Overview of Statutory Framework Governing Indian Gaming

The records sought in this action concern the Menominee's application to engage in gaming operations on land approximately 35 miles from the plaintiff's gaming facility in Wisconsin.² Under the Indian Reorganization Act ("IRA"), the Secretary of DOI "is authorized, in his discretion, to acquire ... any interest in lands, water rights, or surface rights to lands ... for the purpose of providing land for Indians." 25 U.S.C. § 5108 ; see also Citizens Exposing Truth About Casinos v. Kempthorne , 492 F.3d 460, 461 (D.C. Cir. 2007) ("[T]he Secretary may acquire lands for the purpose of providing land for Native Americans."). The IRA further specifies that "[t]itle to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired." 25 U.S.C. § 5108. Under the Indian Gaming Regulatory Act ("IGRA"), "gaming regulated by [the IGRA] shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988." 25 U.S.C. § 2719(a). Notwithstanding this provision, a tribe may conduct gaming on trust land acquired after 1988 when, as relevant here, the Secretary determines after a consultation process that "a gaming establishment on newly acquired lands" both (1) "would be in the best interest of the Indian tribe and its members" and (2) "would not be detrimental to the surrounding community." Id. § 2719(b)(1)(A). This exception may be granted "only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination." Id.

In practice, the Secretary makes this two-part determination after a tribe submits an application for a gaming exemption to the applicable BIA Regional Office, which develops and sends a recommendation to OIG. Pl.'s SUMF ¶ 2. OIG then conducts its own review and prepares a draft two-part determination for consideration and final decision by the Assistant Secretary for Indian Affairs. Id.

B. The Menominee's Gaming Application

In 2004, the Menominee "filed an off-reservation gaming acquisition application with [MWRO] requesting that the Secretary acquire in trust approximately 228 acres of land" in Kenosha, Wisconsin for gaming purposes. Id. ¶¶ 8, 15. "The site of the proposed casino is located approximately 190 miles from the Menominee's gaming facility in Northern Wisconsin," and the "Menominee's existing gaming facility is located approximately 160 miles north of the [plaintiff's] casino in Milwaukee, [Wisconsin]." Id. ¶ 26. MWRO entered into a three-party agreement ("TPA") with a third party contractor, Analytical Environmental Services ("AES"), and the Menominee to undertake preparation of Environmental Impact Statements ("EISs") required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. , as part of the Menominee's gaming application. Decl. of Scott Doig ("First MWRO Decl.") ¶¶ 6, 9, 11, 16, ECF No. 45–1. AES was responsible "only for the delivery of draft and final EIS documents." Id. ¶ 16.

The Secretary denied the Menominee's application to acquire the land in trust on January 7, 2009. Pl.'s SUMF ¶ 29. Thereafter, the Menominee sued DOI challenging the denial, which lawsuit was resolved in 2011 with an agreement that DOI would withdraw its denial letter and reconsider the Menominee's application. Id.

Following further review, DOI conveyed to the Governor of Wisconsin, on August 23, 2013, a Secretarial Determination, ECF No. 49–25, that gaming at the Kenosha location would be in the Menominee's best interest and not detrimental to the surrounding community. See id . ¶ 14. On January 23, 2015, the Governor conveyed to the Secretary his non-concurrence with DOI's determination, prompting DOI to recognize formally, on June 1, 2015, that the Kenosha site could not be acquired in trust. Id . ¶ 124.

C. The Plaintiff's FOIA Requests

As this process unfolded, the plaintiff filed ten FOIA requests for documents concerning the Menominee's gaming application with BIA–Central, MWRO, and OIG. Pl.'s SUMF ¶¶ 37–118. These requests sought "to obtain the Supplemental Information submitted by Menominee or its third party contractor, Analytical Environmental Services (‘AES’), regarding the Kenosha Casino Application" in order to "provide meaningful comments on the Kenosha Casino Application ... by the comment deadlines." Pl.'s Cross–Mot. Summ. J., Ex. 3, Decl. of April E. Olson ("Plaintiff Decl.") ¶ 4, ECF No. 49–3. In response to this multiple FOIA requests, the defendants produced 22,954 pages of documents. Pl.'s' SUMF ¶¶ 18, 139. Despite the volume of this production, the plaintiff filed the instant suit challenging both the adequacy of the search and the withholdings. Id. ¶ 126.

The defendants withheld 71 documents, pursuant to FOIA Exemptions 3, 4, 5, and 6, for reasons set out in a Vaughn Index. See Vaughn Index, ECF No. 45–2.³ The plaintiff does not contest the defendants' withholdings under Exemptions 3, 5, and 6, except as to segregable portions of such documents. Pl.'s Mem. Supp. Cross–Mot. Summ. J. & Resp. Defs.' Mot. Summ. J. ("Pl.'s Mem.") at 5 & n.2, 7, 24–25, ECF No. 49–1; Pl.'s Reply Supp. Cross–Mot. Summ. J. ("Pl.'s Reply") at 1, 15–16, ECF No. 60. At issue, then, are the plaintiff's challenges to withholdings under Exemption 4 and the adequacy of the defendants' searches for responsive documents. The plaintiff raises the following five grounds for relief, claiming the defendants: (1) improperly withheld six documents under Exemption 4, Pl.'s Mem. at 1; (2) failed to produce or identify in their Vaughn Index two documents that the plaintiff "knows to be in [d]efendants' possession," id .;⁴ (2) failed to release reasonably segregable information from documents withheld in their entirety, id . at 7; (3) failed to search AES's computer networks for responsive documents, id . at 1; and (4) engaged in a pattern and practice of violating FOIA, id . at 2.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "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). "In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’ " Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric. , 455 F.3d 283, 287 (D.C. Cir. 2006) ). Indeed, the D.C. Circuit has observed that "the vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

The FOIA was enacted "to promote the ‘broad disclosure of Government records’ by generally requiring federal agencies to make their records available to the public on request." DiBacco v. U.S. Army , 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of Justice v. Julian , 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) ). Reflecting the necessary balance between the public's interest in governmental transparency and "legitimate...