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2477 of the Revised Statutes, later 43 U.S.C. § 932, repealed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).
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
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
any and all individual R.S. 2477 claims or
any and all R.S. 2477 potential claims or potential
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
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
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
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
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
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 ...