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Parker v. Bureau of Land Managment

April 12, 2001

CAROL M. PARKER, PLAINTIFF,
v.
BUREAU OF LAND MANAGEMENT, ET AL. DEFENDANTS AND WILLIAMS PIPELINE COMPANY AND EQUILON PIPELINE COMPANY, DEFENDANT-INTERVENORS.
MELVIN GOLDSTEIN, PLAINTIFF,
v.
BUREAU OF LAND MANAGEMENT, ET AL. DEFENDANTS AND WILLIAMS PIPELINE COMPANY AND EQUILON PIPELINE COMPANY, DEFENDANT-INTERVENORS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

This case arises under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and is before the Court on federal defendants' and defendant-intervenors' motions for summary judgment. *fn1 In response to two separate FOIA requests filed by plaintiffs, Carol Parker and Melvin Goldstein, for documents relevant to proposed pipeline projects in several states in the western United States, defendants, Bureau of Land Management ("BLM") and Department of the Interior, have withheld certain documents submitted by defendant-intervenors, Williams Pipeline Company ("Williams") and Equilon Pipeline Company ("Equilon"), pursuant to FOIA Exemption (b)(4). Plaintiffs have brought these consolidated lawsuits seeking disclosure of those documents. Because the Court finds that certain documents at issue were properly withheld from disclosure, and that one document was not properly withheld, the Court grants in part and denies in part defendants' and defendant-intervenors' motions for summary judgment.

BACKGROUND

In late 1998, Equilon proposed to extend an existing 406-mile pipeline in New Mexico by 62 miles to the southeast to Odessa, Texas, and by 32 miles to the northwest to the Four Corners area. Equilon St. ¶ 1. In November 1998, Williams Pipeline Company sought a right-of-way ("ROW") from the Utah Office of the BLM ("Utah BLM") to construct and operate a pipeline from Bloomfield, New Mexico to Salt Lake City, Utah. Id. ¶ 2. *fn2 In April 1999, Equilon and Williams formed the Aspen Products Pipeline LLC ("Aspen"), which pursued both the New Mexico project proposed by Equilon and the Utah project proposed by Williams. Id. ¶ 3. On April 30, 1999, BLM published notice in the Federal Register of its intent to prepare an Environmental Impact Statement ("EIS") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., for the Utah ROW application. Williams St. ¶ 4. In June 1999, Equilon submitted a ROW application for Aspen to the New Mexico State BLM for a pipeline from Odessa, Texas to Bloomfield, New Mexico. Id. ¶ 5; Equilon St. ¶ 5. Initially, the New Mexico BLM intended to prepare a separate Environmental Assessment ("EA") for the New Mexico portion of the project. Williams St. ¶ 5.

On June 17, 1999, Aspen submitted to Utah BLM a letter with attachments intended to "provide assurance that a project to Bloomfield, New Mexico [New Mexico ROW] will be pursued in the event that a permit to continue from that point to the Utah Front Range [Utah ROW] fails." Equilon St. ¶ 4; Williams St. ¶ 15. On October 8, 1999, Equilon, as a member of Aspen Pipeline, submitted to New Mexico BLM a compilation of documents designed to demonstrate the independent utility of the proposed pipeline project represented by its application, and to show that the New Mexico ROW would be pursued even if the Utah ROW was not approved. Equilon St. ¶ 7; Williams St. ¶ 18. On November 29, 1999, Williams, on behalf of Aspen, submitted additional documents to the Utah BLM to demonstrate the independent utility of the Utah project, and to demonstrate the permissibility of conducting a separate NEPA review of the Utah and New Mexico projects, based on this independent utility. Williams St. ¶ 23.

The Utah BLM issued a letter on February 1, 2000, indicating that the two projects were connected and a single EIS would be prepared. Fed. Def. Ex. 4 (Steah Decl. ¶ 6). Aspen dissolved that spring, and Williams and Equilon are now pursuing the Utah and New Mexico projects separately. Williams St. ¶ 6. Williams amended the Utah ROW application in March 2000, and Equilon withdrew the New Mexico application. Fed. Def. Ex. 4 (Steah Decl. ¶ 7). Utah BLM began to process the Utah ROW, and Equilon refiled the New Mexico ROW application in April 2000. Id. The environmental impacts of the two proposed ROWs are not being considered in a single EIS as "connected actions." *fn3

On July 20, 2000, plaintiff Carol Parker filed a FOIA request with the Utah BLM, seeking "copies of documentation relating to the decision to separate the Aspen Pipeline Project (now Williams Pipeline) into two analyses for NEPA purposes." Fed. Def. St. ¶ 2. On August 19, 2000, plaintiff Parker submitted another FOIA request to the Utah BLM, requesting "copies of the administrative record developed for the Aspen Pipeline Project which has now been withdrawn from BLM consideration." Equilon St. ¶ 14. On September 29, 2000, plaintiff Melvin Goldstein *fn4 submitted to the Utah BLM, and to the Washington D.C. headquarters of BLM a FOIA request for documents relating to "any and all written material in the possession of the Utah BLM, including, but not limited to, letters, notes, and the intra-or inter-agency memoranda, that pertains to the pipeline project that Williams proposes to build from Bloomfield, New Mexico, to Salt Lake City, Utah." Fed. Def. St. ¶ 1; Equilon St. ¶ 16. Plaintiff Goldstein also requested documents pertaining to the basis upon which the BLM determined that the Williams project has separate economic utility from the Equilon project. Equilon St. ¶ 17. In response to these requests, the BLM released over 3500 pages of documents and withheld three letters and/or their attachments pursuant to Exemption (b)(4) of the FOIA, 5 U.S.C. § 552(b)(4). Fed. Def. St. ¶ 3.

The documents withheld under Exemption (b)(4) are:

1) Appendix 1 to the October 8, 1999 letter from Equilon to Albert Gonzales of New Mexico BLM containing an Independent Utility Analysis with accompanying market studies showing the expected consumption and growth of markets in the Bloomfield, New Mexico market area; the existing pricing data verifying the economic justification of the pipeline from Odessa, Texas to Bloomfield, New Mexico; and how the Albuquerque and Four Corners, New Mexico fuel markets are currently being served and the impact of the pipeline on those markets. Fed. Def. St. ¶ 4.

2) A redacted copy of a [July 17, 1999] letter from Aspen to the Utah BLM, which was attached to an October 21, 1999 letter from Equilon to BLM officials Sally Wisely, LaVerne Steah, and Albert Gonzales, containing market data regarding the Albuquerque/Four Corners market demand for fuel, expected growth, price differentials, trucking costs, and other commercial information. Id.

3) Appendix 1 of the November 29, 1999 letter from Williams to BLM officials Joe Incardini and LaVerne Steah containing an Independent Utility Analysis with accompanying market studies showing the expected consumption and growth of markets in the Crescent Junction, Utah - Grand Junction, Colorado market area; the expected consumption of and growth of markets in the Salt Lake City, Utah market area; and Aspen Northern Project options independent from the Southern Project. Id.

Plaintiffs seek the disclosure of these three documents under FOIA, arguing that they do not fall within Exemption (b)(4). After this litigation was filed, BLM reviewed additional documents for release in response to plaintiffs' requests. This review resulted in the release of an additional 237 pages of documents, including one document, an April 7, 2000 e-mail from Laverne Steah of Utah BLM, with the names of potential New Mexico suppliers to the Utah pipeline redacted pursuant to Exemption (b)(4). Supp. Steah Decl. ¶¶ 3-4. Plaintiffs also seek release of an unredacted version of this e-mail.

LEGAL ANALYSIS

I. STANDARD OF ...


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