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THE WILDERNESS SOCIETY v. UNITED STATES DEPT. OF THE INTERIOR

September 12, 2005.

THE WILDERNESS SOCIETY, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION (September 12, 2005)

Plaintiffs, The Wilderness Society and the Southern Utah Wilderness Alliance, brought this action for declaratory and injunctive relief against the United States Department of the Interior, Bureau of Land Management, and various members of the Department of the Interior ("the Department") in their official capacities for failure to produce records as requested pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Plaintiffs, non-profit environmental organizations that seek to protect America's wilderness and promote sensible land management, seek records held by the Department that relate to the Department's passage of certain amendments to the "Disclaimer Rule" on January 6, 2003 — a policy shift which enables states, counties, and interest groups to wrest title from the United States in order to build highway rights-of-way across federal lands pursuant to a Civil War-era law generally known as R.S. 2477. See 43 C.F.R. Part 1864, 68 Fed. Reg. 494-503 (Jan. 6, 2003); Act of July 26, 1866, § 8, 14 Stat. 251, 253, formerly § 2477 of the Revised Statutes, later 43 U.S.C. § 932, repealed by Pub.L. No. 94-579, Title VII § 706(a) (1976). Currently before the Court are two motions: (1) Defendants' Motion to Dismiss or, in the Alternative, for a Six-Month Open America Stay, to which Plaintiffs have filed an Opposition; and (2) Plaintiffs' Motion for Summary Judgment, to which Defendants have filed an Opposition, and Plaintiffs have filed a Reply and two Notices of Supplemental Authority. Upon a searching examination of the parties' motions, the attached exhibits, the relevant case law, and the entire record herein, the Court shall deny Defendants' Motion to Dismiss or, in the Alternative, for a Six-Month Open America Stay, deny without prejudice Plaintiffs' Motion for Summary Judgment, and shall require the parties to file a Joint Status Report with this Court by September 28, 2005 setting out information as detailed in this Memorandum Opinion. See infra Section III(B).

I: BACKGROUND

  Over the past two decades, the State of Utah and various counties within Utah — as well as other counties and special interest groups across the West — have declared their intention to claim thousands of highway rights-of-way across federal lands in order to promote transportation and development pursuant to a Civil War-era law known as R.S. 2477. Environmental groups have opposed these claims, arguing that they traverse some of the most scenic and environmentally sensitive public lands in the country, including proposed wilderness, federal wilderness study areas, national parks, and national monuments. As Plaintiffs contend, "[r]ecognition of such rights-of-way could lead to the construction of ecologically destructive highways across these lands." Pls.' Mot. for Summ. J. at 5.

  On January 6, 2003, the Department of the Interior passed several amendments to the so-called "Disclaimer Rule" in order to facilitate the ability of states, counties, and interest groups to wrest title from the United States of these claimed rights-of-way and spur development. See Pls.' 2nd Am. Compl. ¶ 17 (citing 43 C.F.R. Part 1864, 68 Fed. Reg. 494-503 (Jan. 6, 2003)). The Disclaimer Rule implements a provision of the Federal Land Policy and Management Act ("FLPMA") that allows the federal government to disclaim its interest in lands. Id. ¶ 18. Among other things, the 2003 revised rule allows states, counties, local governments, and special interest groups to obtain disclaimers regardless of whether they have ever been recognized as owners of record, which the Disclaimer Rule had previously required. Id. Moreover, the new rule also exempts states and local governments from the statute-of-limitations requirement that applies to all other property owners seeking a disclaimer, and allows the Department to recognize R.S. 2477 claims within national parks and wildlife refuges, even over the objections of the National Park Service or the U.S. Fish and Wildlife Service. Id. After the adoption of the 2003 revised rule, the Department secretly negotiated a Memorandum of Understanding ("MOU") with the State of Utah, signed on April 11, 2003, that specifies how the Disclaimer Rule will be used to recognize potentially tens of thousands of miles of claimed highways through public lands in Utah. Pls.' Stmt. of Facts ¶ 9, n. 1; Pls.' 2nd Am. Compl. ¶ 20. On January 14, 2004, the State of Utah submitted its first request for a right-of-way under R.S. 2477 pursuant to the MOU, with at least nineteen other submissions planned. Pls.' 2nd Am. Compl. ¶ 22.

  In an effort to garner information regarding the Department's policy shifts and to determine the new policy's potential impact on public lands, Plaintiffs submitted separate FOIA requests via facsimile and email with three government offices on September 26, 2003 — one with the Department of the Interior, one with the Bureau of Land Management's Washington, D.C., headquarters office, and one with the Arizona State Office of the Bureau of Land Management. Id. ¶ 23; Pls.' Stmt. of Facts ¶ 9; Pl.'s Mot. for Summ. J., Exs. 2-4. Plaintiffs requested:
all records (including but not limited to documents, information, faxes, letters, comments, emails, summaries of telephone conversations, handwritten notes, meeting minutes, or any other materials) generated, modified, or acquired by . . . [each agency] relating to or otherwise concerning the following:
• implementation of revisions to regulations concerning Recordable Disclaimers of Interest, 43 C.F.R. Part 1860, adopted January 6, 2003;
• submission of requests for recordable disclaimers;
• memoranda of understanding (MOUs) or other agreements concerning recordable disclaimers of interest and/or rights-of-way under Revised Statute (R.S.) 2477, including but not limited to the MOU entered into between the Interior Department and the State of Utah on April 9, 2003;
• policy, rules, legislation, or guidance relating to R.S. 2477;
• any and all individual R.S. 2477 claims or assertions; and
• any and all R.S. 2477 potential claims or potential assertions.
Pls.' 2nd Am. Compl. ¶ 23; Pls.' Stmt. of Facts ¶ 9; Exs. 2-4 at 1 (emphasis in original).

  Nearly two months after Plaintiffs submitted their three FOIA requests to Defendants, the Department sent Plaintiffs a letter on November 19, 2003, that simply acknowledged its receipt of Plaintiffs' various FOIA requests. Pls.' Stmt. of Facts ¶ 11. The Department's November 19, 2003 letter did not provide Plaintiffs with any of the requested information, and did not inform Plaintiffs of their appeal rights. Id. However, the November 19, 2003 letter did indicate that the Department was then "in the process of issuing a determination on [Plaintiffs'] request for a fee waiver." Pls.' Corrected Opp'n, Ex. 4 at 1. On December 10, 2003, the Department informed Plaintiffs that it had made a "decision to deny your request for a waiver of FOIA processing fees for the entirety of your request." Pls.' Stmt. of Facts ¶ 12; Pls.' Mot. for Summ. J., Ex. 6 at 3. The December 10, 2003 letter stated that Plaintiffs could appeal the "decision to deny your request for a waiver of FOIA processing fees for the entirety of your request," Pls.' Corrected Opp'n, Ex. 5 at 3, or — rather than appeal — Plaintiffs could (1) limit their request to documents already available to the public and receive such at no cost; (2) specify an amount that they were willing to pay so that the Department could process the request to the extent that the agreed amount covered the Department's costs; or (3) agree to pay the full costs of processing the entire request, id. at 4-5. The December 10, 2003 letter did not provide an estimate of the costs associated with processing Plaintiffs' FOIA requests. See id.

  Plaintiffs administratively appealed the Department's denial of their fee waiver petition on December 19, 2003. Pls.' Stmt. of Facts ¶ 13; Pls.' Mot. for Summ. J., Ex. 8. In their appeal, Plaintiffs asserted that they were entitled to a waiver of fees pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 43 C.F.R. § 2.19, and also appealed the Department's failure to determine and announce what documents it would release or withhold as required by 5 U.S.C. § 552(a)(6)(A)(i). Id. The Department did not address Plaintiffs' appeal until April 6, 2004, upon which it issued a decision that did not grant the requested fee waiver and did not respond to Plaintiffs' appeal of the Department's alleged failure to promptly provide the requested records. Pls.' Stmt. of Facts ¶¶ 13-14; Pls.' Mot. for Summ. J., Ex. 9 at 1.

  Meanwhile, on February 6, 2004, the Department provided a partial, incomplete response to Plaintiffs' three FOIA requests. Pls.' Stmt. of Facts ¶ 15; Pls.' Mot. for Summ. J., Ex. 11. This February 6 response acknowledged the it was "limit[ed]" to a subset of the requested records — namely, the external correspondence and final agency documents for which Plaintiffs would have qualified for a full fee waiver — from one of the Department's offices, as it was "still awaiting file search results" from the other two offices to which Plaintiffs had directed their requests. Id. The letter accompanying this production noted that the Department was enclosing copies of fifty-three (53) documents, and that "[r]edactions will be clearly identified and labeled." Pls.' Corrected Opp'n, Ex. 10 at 2. On March 22, 2004, Plaintiffs appealed this February 6, 2004 partial response, reiterating their December 19, 2003 challenge to the Department's alleged failure to respond by providing all responsive records in a timely manner and expanding their challenge to "unlawful" redactions in several of the fifty-three documents provided in the February 6, 2004 partial response. Pls.' Corrected Opp'n, Ex. 11 at 2. On April 27, 2004, the Department notified Plaintiffs that their appeal was "awaiting legal review," that a response would be provided "as soon as possible," and that Plaintiffs had the right to "treat the delay in responding . . . as a final denial" of their appeal. Pls.' Corrected Opp'n, Ex. 12 at 1.

  In response to the delays encountered, Plaintiffs filed a Complaint before this Court on April 22, 2004. Plaintiffs amended their original complaint on June 9, 2004, and — with Defendants' consent — submitted a Second Amended Complaint on July 27, 2004. Plaintiffs' Second Amended Complaint contends that the Department's actions violated the strictures of the FOIA in three separate ways: (1) Defendants failed to provide Plaintiffs with all of the information requested in their September 2003 FOIA requests in a timely manner; (2) Defendants failed to grant Plaintiffs a waiver of fees with respect to the information requested; and (3) Defendants failed to make a determination on Plaintiffs' appeal of the denial of the fee waiver requested in their September 26, 2003 FOIA request letters. See 2nd Am. Compl. at 12. On July 29, 2004, after ten months of effectively denying Plaintiffs their fee waiver request, personnel of the Department signed a declaration stating that "[u]pon careful consideration, the Department has reversed its earlier decision to deny Plaintiff's [sic] request for fee waivers" and that with this reversal, the Department considers "the fee waiver issue to be resolved." Defs.' Mot. to Dismiss, Ex. 1 (7/29/04 Decl. of Ms. Sue Ellen Sloca) at ¶ 3.

  Defendants, on August 10, 2004, filed a Motion to Dismiss or, in the Alternative, for a Six-Month Open America Stay. Defendants argue that dismissal is warranted under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for two reasons: (1) because — according to Defendants — "Plaintiffs here have advanced a pure challenge to the Department's refusal to grant a fee-waiver without any component challenging the underlying policy associated with the fee waiver," "Plaintiffs' fee waiver challenge is mooted by the Department's decision to grant the fee waiver," Defs.' Mot. to Dismiss at 3; and (2) Plaintiffs failed to exhaust their administrative remedies as required, id. at 4-5. In the alternative, Defendants request a six-month Open America stay. Id. at 5-9. After simply setting forth the case law relevant to such a stay, Defendants assert in toto:
As should be apparent now, Defendants, by regulation could not fully process Plaintiffs' FOIA request until the fee-waiver issue has been resolved. Now that it has been resolved by the Department's reversing its decision, the DOI can now fully process the request. Because Plaintiffs effectively concede that they were given the opportunity to limit their request, but refused to do so, instead filing suit, both exceptional circumstances and due diligence should be found to exist[.]
Defs.' Mot. to Dismiss at 8-9. In their motion, Defendants do not specifically identify the due diligence exercised as to Plaintiffs' requests, nor do they explicate the exceptional circumstances necessitating the delay, nor do they attach any affidavits attesting to such alleged facts. See generally Defs.' Mot. to Dismiss. In addition to opposing Defendants' motion,*fn1 Plaintiffs filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 on October 4, 2004, in which they assert that summary judgment in their favor is appropriate due to the fact that the Department "has failed for more than a full year to comply with a statutory deadline requiring a response to [Plaintiffs'] FOIA requests within 20 days" — i.e., 5 U.S.C. § 552(a)(6)(A)(i). See Pls.' Mot. for Summ. J. at 9. Plaintiffs also contend that the Department's "illegal failure to timely grant [Plaintiffs'] fee waiver cannot excuse the agency's failure to timely respond to [Plaintiffs'] requests." Id. at 8.*fn2

  In the time period subsequent to the parties' motions, the Department has provided Plaintiffs with two supplemental installments of documents responsive to their September 26, 2003 FOIA requests — one of which arrived on April 8, 2005, and the other of which was provided on July 7, 2005. See Pls.' 5/20/05 Notice of Suppl. Auth. in Supp. of their Mot. for Summ. J.; Pls.' 8/18/05 Notice of Suppl. Auth. in Supp. of their Mot. for Summ. J. While certainly much more substantial than the first installment provided on February 6, 2004, Plaintiffs consider these responses "incomplete" due to the fact that Defendants have withheld numerous documents and "heavily-redacted" other records pursuant to FOIA Exemption 5 "without satisfying the most basic standards for invoking exemptions." Pls.' 5/20/05 Notice of Suppl. Auth. in Supp. of their Mot. for Summ. J. at 2. In support of their claim, Plaintiffs have highlighted several examples of "documents withheld in full or in part [which] are simply stamped `Exemption 5' with absolutely no indication on them as to why they might be exempt from disclosure." Pls.' 8/18/05 Notice of Suppl. Auth. in Supp. of their Mot. for Summ. J. at 4. Defendants have not filed a response to Plaintiffs' supplemental notices, nor have they filed a Vaughn index detailing the withheld documents and relevant redactions.

  II: LEGAL STANDARDS

  As noted previously, Defendants have moved to dismiss Plaintiffs' action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and, in the alternative, have moved for a stay under the doctrine elicited in Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976). In contrast, Plaintiffs have moved for summary judgment under Rule 56 of the Federal ...


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