Rocky Mountain Wild, Inc. v. U.S. Forest Serv.

ROCKY MOUNTAIN WILD, INC., Plaintiff, v. UNITED STATES FOREST SERVICE,and UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants.

Civil Action No. 18-cv-03065-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 4, 2021

ORDER

Michael E. Hegarty, United States Magistrate Judge.

Plaintiff, a wildlife and land conservation group, alleges that Defendant United States Forest Service¹ ("Defendant" or "Forest Service") violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., by improperly responding to Plaintiff's FOIA requests for documents related to a land exchange that occurred in the 1980s. Before the Court are the parties' cross motions for summary judgment (ECF 49 and 53). The motions are fully briefed, and the Court finds that oral argument will not assist in their adjudication. Based on the record and thefollowing analysis, the Court denies Plaintiff's Motion for Summary Judgment and grants Defendant's Motion for Summary Judgment.

FINDINGS OF FACT

Cross motions for summary judgment are examined under the usual Rule 56 standards, with the court viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Denver Inv. Advisors, LLC v. St. Paul Mercury Ins. Co., No. 17-cv-00362-MEH, 2017 WL 3130923, at *1 (D. Colo. July 24, 2017). The following are the Court's finding of material facts that are either undisputed or supported by the record. The Court notes instances of dispute between the parties when appropriate.

I. Background of the Wolf Creek Project and Prior Litigation

1. Around 1986,² the Forest Service completed a land exchange with the Leavell-McCombs Joint Venture ("LMJV"). Declaration of Jenna Sloan ("Sloan Decl.") ¶ 8.

2. With this exchange, a parcel of land located near the base of the Wolf Creek Ski Area, managed by the Rio Grande National Forest, was conveyed to LMJV in exchange for land elsewhere that was transferred to the Forest Service. Id.

3. At the time of the land exchange, the parcel of land conveyed to LMJV did not have access to the state highway system. Id. ¶ 9.

4. In 2006, the Forest Service issued a Record of Decision ("ROD") to allow additional access to the property. Id.

5. The decision was subsequently challenged in court by Plaintiff's predecessor organization. Id.

6. That lawsuit settled in 2008 to bring closure to the litigation and allow for the initiation of a new analysis. Id.7. LMJV submitted an amended application to the Forest Service regarding a proposed land exchange around July 2010. Id. ¶ 10.

8. The Forest Service initiated another process under the National Environmental Policy Act ("NEPA") to evaluate this proposal. Id. ¶ 10.

9. Through a third-party contractor, the Forest Service prepared an Environmental Impact Statement ("EIS") to analyze the request for access pursuant to the Alaska National Interest Lands Conservation Act ("ANILCA"). Id.

10. A draft of the EIS was distributed for public comment in 2012. Id.

11. On November 20, 2014, the Forest Service published the Final EIS ("FEIS"). Id.

12. Kenneth Capps, an attorney for the United States Department of Agriculture's Office of General Counsel, was specifically involved in drafting the ANILCA section of the EIS and was asked to review other portions of the document. Declaration of Lynne Hagen ("Hagen Decl.") ¶ 9.

13. The parties dispute whether the Forest Service reasonably anticipated future litigation regarding the Wolf Creek project at the time of the EIS. Defendant's Motion for Summary Judgment ("MSJ") ¶ 13; Plaintiff's Response to the MSJ/Cross Motion for Summary Judgment ("Response" or "Cross MSJ") ¶ 13.

14. The Forest Service issued a final ROD on May 21, 2015, approving the land exchange. Sloan Decl. ¶ 11.

15. Mr. Capps was asked to review draft and final documents relating to the 2015 ROD, including the ROD itself. Hagen Decl. ¶ 9.

16. Plaintiff, among others, challenged the decision in litigation pursuant to the APA (the "prior APA litigation"), although litigation over the 2015 ROD and 2014 FEIS is still ongoing.

Sloan Decl. ¶ 11; see Rocky Mountain Wild v. Dallas et al., 15-cv-01342-JLK (D. Colo. filed June 24, 2015).

17. The administrative record in the prior APA litigation was comprised of documents that were directly or indirectly considered by the decision maker in connection with the May 21, 2015 ROD and FEIS for the Village at Wolf Creek access project. Declaration of Gary Blackwolf ("Blackwolf Decl.") ¶ 2, ECF 52-2 at 1-3.

18. That administrative record included over 18,000 pages of documents described as the "conventional" administrative record, as well as approximately 45,000 additional pages of emails and attached documents, all of which were produced to Plaintiff. Hagen Decl. ¶ 5; Blackwolf Decl. ¶¶ 2-3.

19. In the course of assembling that administrative record, the Forest Service conducted broad searches across many employees' files, returning a large dataset. Hagen Decl. ¶ 6.³

20. In addition to the documents produced to Plaintiff in the prior APA litigation, Plaintiff has previously received documents in response to FOIA requests relating to the Wolf Creek project. Sloan Decl. ¶ 15; see Rocky Mountain Wild, Inc. v. United States Forest Service, et al., 14-cv-02496-WYD-KMT (D. Colo. filed Sept. 9, 2014); Rocky Mountain Wild, Inc. v. United States Forest Service et al., No. 15-cv-00127-WJM-CBS (D. Colo. filed Jan. 19, 2015).

21. Documents were produced to Plaintiff in connection with those prior FOIA requests between 2014 and 2016. Sloan Decl. ¶ 22.

22. The district court set aside the 2015 ROD decision on May 19, 2017, and LMJV appealed to the Tenth Circuit. Id. ¶ 11. That appeal was later dismissed. Id.

23. The parties dispute whether the Forest Service had anticipated litigation at the time of the 2008 settlement and whether that expectation was heightened after the loss on the merits in 2017. MSJ ¶ 23; Resp. ¶ 23.

24. On July 19, 2018, the Rio Grande National Forest issued a new Draft ROD, approving access to LMJV's land through a right-of-way as opposed to a land exchange. Sloan Decl. ¶ 12.

25. Before the Draft ROD was issued, in connection with this new decision, Forest Service staff prepared a Biological Assessment ("BA"). Id.

26. Forest Service staff also prepared a Supplemental Information Report ("SIR") to determine if the 2014 EIS required supplementation. Id.; ECF 52-4 at 1.

27. The Forest Service also consulted with the U.S. Fish and Wildlife Service, which resulted in a Biological Opinion ("BO") issued on December 17, 2018. Sloan Decl. ¶ 12.

28. The Forest Service received objections to the Draft ROD, including objections from Plaintiff. Id. ¶ 13.

29. The objections were considered, and a response was issued on November 19, 2018. Id.

30. On February 27, 2019, the Rio Grande National Forest issued the Final ROD. Id.

31. On May 28, 2019, Plaintiff initiated a lawsuit challenging the Final ROD. See Rocky Mountain Wild et al. v. Dallas et al., Case No. 19-cv-01512-CMA (D. Colo. filed May 28, 2019) (the "ongoing APA litigation").

II. Procedural History of Plaintiff's FOIA Request

32. On July 20, 2018, Plaintiff submitted a FOIA request to the Forest Service, Region 2, seeking a broad range of documents relating to the Village at Wolf Creek Access Project and the July 19, 2018 Draft ROD. Sloan Decl. ¶ 16; Exh. A.

33. On August 7, 2018, the Forest Service sent a letter to Plaintiff, acknowledging receipt of the request, seeking additional information to support Plaintiff's fee waiver request, and noting that the request had been assigned FOIA tracking number 2018-FS-R2-05258-F. Sloan Decl. ¶ 17; Exh. B.

34. The August 7, 2018 letter also noted that the FOIA request appeared to encompass communications among the Forest Service, USDA's Office of the General Counsel ("OGC"), and the United States Department of Justice ("DOJ") regarding the ongoing litigation involving Plaintiff and the agency. Sloan Decl. ¶ 17; Exh. B at 3.

35. The letter indicated that the Forest Service would construe the FOIA request not to include such documents, which would be subject to privilege and for which Plaintiff could expect to receive, at most, a large privilege log of records exempt from disclosure. Sloan Decl. ¶ 17. A large volume of documents was released in response to the FOIA request without assertion of any FOIA exemption.

36. The August 7, 2018 letter also noted that the FOIA request was complex and that "exceptional circumstances" pursuant to 5 U.S.C. § 552(a)(6)(C) were present. Id.

37. Plaintiff responded to the Forest Service's inquiries by letter dated August 16, 2018. Id. ¶ 18; Exh. C.

38. Plaintiff's letter provided additional information in support of Plaintiff's fee waiver request. Sloan Decl. ¶ 18; Exh. C at 1-4. The letter also confirmed that the FOIA request didseek communications among the Forest Service, OGC, and DOJ relating to "any past or current litigation" and insisted that any assertion of privilege for such documents "must be supported within a lawful Vaughn index." Sloan Decl. ¶ 18; Exh. C at 5.

39. The Forest Service sent Plaintiff two additional letters, both dated September 5, 2018. Sloan Decl. ¶ 19; Exh. D; Exh. E.

40. The first letter granted Plaintiff's fee waiver request. Sloan Decl. ¶ 19; Exh. D at 2.

41. Also, that letter repeated that "exceptional circumstances" pursuant to 5 U.S.C. § 552(a)(6)(C) were present, due to the complexity of the FOIA request. Sloan Decl. ¶ 19; Exh. D at 2.

42. The second letter also stated that "exceptional circumstances" pursuant to 5 U.S.C. § 552(a)(6)(C) were present. Sloan Decl. ¶ 20; Exh. E at 4.

43. Additionally, the second letter indicated that the Forest Service had assigned a separate tracking number for the portion of Plaintiff's FOIA request encompassing records that related to prior and ongoing litigation involving Plaintiff and the agency. Sloan Decl. ¶ 20; Exh. E at 1-3.

44. Subsequently, however, the Forest Service decided to consider all portions of the FOIA request under the same, initially assigned...