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DEFENDERS OF WILDLIFE v. U.S. DEPARTMENT OF AGRICULTURE

March 30, 2004.

DEFENDERS OF WILDLIFE et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE et al., Defendants



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, case comes before the court on the motions for summary judgment of defendants United State Department of Agriculture ("USDA") and the United States Forest Service("Forest Service") and the motions for summary judgment of plaintiffs Defenders of Wildlife and Endangered Species Coalition's motion for summary judgment. The plaintiffs argue that the defendants impermissibly withheld, and must now release, information that the plaintiffs sought through a FOIA request. The plaintiffs also argue that the defendants do not meet their burden of conducting a reasonable search and justifying non-disclosure of exempted information pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In response, the defendants argue they have met their burden under FOIA because their search was adequate and their affidavits sufficiently explain the exempted information. Because the defendants' search of the Office of Natural Resources and Page 2 Environment and its Vaughn indicies were inadequate, the court grants in part the plaintiffs' motion and denies in part the defendants' motion.

  II. BACKGROUND

  A. Factual Background

  In 1891 Congress created the National Forest System to regulate specifically designated national forests. Pls.' Mot. for Summ. J. ("Pls.' Mot.") at 3. The Forest Services manages the National Forest System pursuant to the direction of the Under Secretary for Natural Resources and Environment in the USDA Office of Natural Resources and Environment ("NRE"). Am. Compl. ¶ 20. The National Forest Management Act ("NFMA") governs management of the National Forest System and specifically requires the maintenance of biodiversity on national forests. 16 U.S.C. § 1604(g)(3)(B); Id. ¶ 15. The NFMA also requires periodic revisions to forest plans which govern a management activities on national forests. Id. ¶ 18. In 1997, the Secretary of Agriculture convened a committee to produce a report intended to facilitate NFMA revisions. Pls.' Statement of Undisputed Material Facts ¶ 7. Based on the committee's report, as well as feedback from meetings with tribal, state and local governments, the Forest Service developed a comprehensive revision of the NFMA and promulgated the revision into final form on November 9, 2000. Am. Compl. ¶ 14. On May 17, 2001, the Secretary of Agriculture issued an interim directive extending the deadline for compliance with the November 9, 2000 regulation for one year. Id. ¶¶ 25. On September 10, 2002, the NRE, through another interim directive, postponed compliance with the November 9, 2000 NFMA revisions until NFMA regulations are rewritten. Id. 26. Page 3

  Prior to the last postponement, on May 29, 2002, the plaintiffs submitted a FOIA request to the USDA for two sets of records related to the suspension of the NFMA regulations. Id. ¶ 27. Specifically, the plaintiffs requested:
1. All records, other than those published in the Federal Register, related to any communications by, to from and/or within the Department of Agriculture, the Office of Management and Budget, and/or the Council on Environmental Quality, pertaining to development of the Interim Directives ("Interim Directives," 66 Fed. Reg. 27551 (May 17, 2001); 66 Fed. Reg. 27555 (May 17, 2001); 67 Fed. Reg. 35431 (May 20, 2002)) suspending the recently adopted National Forest Management Act regulations ("2000 regulations;" 65 Fed. Reg. 67513 (November 9, 2000)), and pertaining to efforts to suspend, revoke, postpone, and/or revise the 2000 regulations. Please be sure to include communications to and from other agencies and their staff, communications to an from outside parties such as companies, associations, individuals, and environmental organizations, and internal communications. Please also include comments received on the Interim Directives, and the "comments from individuals, groups and organizations expressing concerns regarding its implementation" mentioned at 67 Fed. Reg. 35432.
2. A record of people outside of federal agencies who were consulted or involved in formulating the Interim Directives, or reviewing suggestions, recommendations, and/or proposals to suspend, postpone, or revise the 2000 regulations.
Pls.' Mot. Ex. 4 at 2. The plaintiffs' FOIA request defined "records" as "all written, transcribed, recorded or graphic matters, however produced or reproduced." Id. Further, the plaintiffs indicated that the term "Department of Agriculture" encompasses the agency as well as "departments, branches, divisions, subdivisions, or subsidiaries, together with all of their employees, officials, officers, agents, contractors, subcontractors, appointees, consultants, or any other persons or entities acting on their behalf or performing services for them." Id.

  The FOIA processor for the USDA received the plaintiffs' FOIA request on June 11, 2002. Fowler Decl. ¶¶ 1,6. That same day, the FOIA processor forwarded the request to the Forest Service and sent an acknowledgment letter to the plaintiffs. Id. ¶ 7. Based on her Page 4 experience and judgment, the FOIA processor decided not to forward the FOIA request to any other offices within the USDA. Id. ¶ 10. On October 28, 2002, however, on the recommendation of the Forest Service FOIA staff, the FOIA processor forwarded the FOIA request to the NRE and the USDA Office of General Counsel ("OGC"). Id. ¶ 9.

  1. The Forest Service Documents

  The FOIA officer for the Forest Service received the plaintiffs' FOIA request on June 11, 2002. Morgan Decl. ¶¶ 1, 5. The Forest Service's search in response to the plaintiffs' FOIA request yielded 848 pages of responsive documents. Id. ¶ 8. Of those documents, the Forest Service withheld 636 pages in full, withheld 46 pages in part and released 166 pages in full. Id.

  Of the records withheld in full, the Forest Service indicated that the records fell into four general groupings. The first group consisted of "about 520 pages" of drafts of rules. Id. ¶. The second group comprised 32 pages of drafts for the regulatory workplans for the rules. Id. ¶ 10. The third group consisted of 9 pages of draft informational memoranda for the Secretary of Agriculture. Id. ¶ 11. The fourth group included "about 75 pages" of miscellaneous records, including drafts of talking points, question and answer items, a draft of the "Larson Report," drafts of the plan for promulgating the interim final rule, and varied drafts of issues and positions related to the rules. Id. ¶ 12.

  Of the records withheld in part, the Forest Service indicated that the records fell into four categories. Group one consisted of 29 pages of emails that the Forest Service redacted to "protect the discussions, questions, issues, strategies, and explanations regarding the content of the rules and the procedures for processing the rules." Id. ¶ 14. Group two consisted of seven pages of a planning outline that the Forest Service redacted "to protect the views of the author Page 5 about particular consideration related to the rules." Id. Group three included seven pages of miscellaneous records containing "discussions, opinions, positions and other deliberations between agency employees or between agency employees and agency counsel on the content and language of the rules and on strategies to cope with issues within the rules." Id. Group four comprised three pages of e-mails that the Forest Service redacted to protect personal information. Id.

  2. The NRE Documents

  The Executive Assistant to the Under Secretary of Agriculture for Natural Resources and Environment received the plaintiffs' FOIA request on October 28, 2002. Alston Decl. ¶ 1. The NRE explains that the number of records within it was very limited because it returns records relating to program matters, such as the plaintiffs' requested rulemaking records, to the originating agency. Id. ¶ 5 . It further states that upon receipt of the plaintiffs' FOIA request, the office searched subject-matter files that were arranged by topic and the staff action database, which contained tracking information on letters received by USDA and the responses to those letters. Id. ¶ 6. The NRE's search of the files entailed both a manual search of the subject-matter files and an electronic search of the staff-action database. Id. ¶¶ 7, 10. The NRE reported that its search did not locate any documents responsive to the plaintiffs' FOIA request. Id. ¶ 12. In a supplemental declaration, the NRE declares that the Deputy Under Secretary of the NRE reviewed the plaintiffs' FOIA request and that the Under Secretary stated that he had no responsive documents. Alston Supplemental Decl. ¶ 5. Page 6

  3. The OGC Docuements

  The Associate General Counsel for Natural Resources declares that the Assistant General Counsel of the Natural Resources Divison ("NRD") received the plaintiffs' FOIA request on October 30, 2002. Poling Decl. ¶ 1, 4. The OGC located seven documents responsive to the plaintiffs' request. Id. ¶ 6. Specifically, four of those documents were e-mails that the OGC withheld to "protect the candor necessary to the utility of interchanges, discussions, questions, strategies and explanations concerning the planning rule and the process for promulgation." ...


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