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Showing Animals Respect and Kindness v. United States Dep't of the Interior

August 12, 2010

SHOWING ANIMALS RESPECT AND KINDNESS, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This is a Freedom of Information Act ("FOIA") case brought by Plaintiff Showing Animals Respect and Kindness ("Plaintiff") against the United States Department of Interior ("DOI") and its component, the United States Fish and Wildlife Service ("FWS") (collectively, "Defendants"), relating to Plaintiff's requests for information about Defendants' criminal investigation of Lee Marvin Greenly and Troy Lee Gentry for hunting and transporting a bear in violation of the Lacey Act, 16 U.S.C. §§ 3371-78. Defendants have produced records responsive to Plaintiff's FOIA requests, withholding and/or redacting some records (including photographs and video recordings) pursuant to various FOIA Exemptions. Defendants have filed a [16] Motion for Summary Judgment Or Alternatively, Motion for Partial Summary Judgment and In Camera Review of Certain Records, claiming that they have complied with all of their obligations under FOIA. Plaintiff opposes Defendants' motion and has filed its own [20] Motion for Summary Judgment, contending that Defendants have improperly claimed an exemption with respect to certain photographs, videos, and written records containing information about Messrs.

Greenly and Gentry. The parties have each filed replies to these motions, and they are now ripe for decision. After a thorough review of the parties' submissions and attachments thereto and applicable case law and statutory authority, the Court shall GRANT-IN-PART Plaintiffs' Motion for Summary Judgment and DENY-IN-PART Defendants' Motion for Summary Judgment with respect to three video recordings identifying Messrs. Greenly and Gentry; the Court shall GRANT-IN-PART Defendants' Motion for Summary Judgment and DENY-IN-PART Plaintiff's Motion for Summary Judgment in all other respects.

I. BACKGROUND

A. FWS and DOI's Investigation into Lee Marvin Greenly and Troy Lee Gentry

Lee Marvin Greenly ("Greenly") is the operator of Minnesota Wildlife Connections, a wildlife photography business providing captive-held animals for individuals to photograph in a wild setting. Pl.'s Stmt.*fn1 ¶ 1. In 1998, Greenly acquired "Cubby," a trophy-caliber, tame/captive-reared black bear. Id. After Cubby developed mouth problems that required expensive dental work, Mr. Greenly sold Cubby to Troy Lee Gentry ("Gentry"), a singer best known as half of the country-music duo Montgomery Gentry. See id. ¶¶ 2, 16; Decl. of Steve Hindi ¶ 17 & Att. 14 ("Country Star Charged in Tame Bear Killing"). The men arranged to have Gentry kill Cubby with a bow and arrow while the bear was enclosed in a one-acre pen on Greenly's property. Pl.'s Stmt. ¶ 2. The taking of the black bear was videotaped and later edited to appear as though Gentry killed the bear in a true "fair chase" hunting situation. Id. In the video footage, the shooter is shown climbing into a tree stand, dressed in camouflage with a bow and arrow, drawing the bow, shooting an arrow that strikes the bear in the side and shooting a second arrow at the bear as it is walking away. Id. The video was edited to show the arrow traveling in slow motion as it struck the bear. Id. The video also contains a narrative in which the shooter talks to the camera about the hunt and how excited he was to have the opportunity to harvest the bear. Id. At least some of this video footage was prepared by Gentry for later use on television or in a music video. Id. ¶ 3. Gentry also arranged for photographs to be taken that implied he had killed a wild bear. Id. ¶ 4. (Defendants have released copies of these photographs with the faces of Gentry and Greenly redacted.) Id.

After killing Cubby, Gentry and Greenly tagged him with a Minnesota hunting license and registered the bear with the Minnesota Department of Natural Resources as though it was lawfully taken from the wild population. See Pl.'s Mot. for Summ. J., Att. 1 (Plea Agreement) at 395-96.*fn2 The men then facilitated the shipment of the bear's hide from Minnesota to a taxidermist in Kentucky. Id. at 396. Gentry gave a copy of the video of the shooting to the taxidermist. Defs.' Resp. Stmt. ¶ 3.*fn3 A video showing a stuffed Cubby in Gentry's game room was aired on television (on the Outdoor Channel) three times during the week of July 24, 2006.

Id. ¶ 5; Pl.'s Mot. for Summ. J., Att. 10 (Record of Information).*fn4

During the spring of 2004, FWS began an investigation concerning wildlife violations occurring on the Rice Lake National Wildlife Refuge near Sandstone, Minnesota. Pl.'s Stmt. ¶ 6. The initial investigation revealed equipment on the refuge suggesting that unlawful hunting was occurring, and the officers recognized some of that equipment as belonging to "a property owner in the immediate area who operated a wildlife photography business." Id. The investigation continued over the following year, and Greenly provided conflicting accounts of his activities, including guiding black bear hunts. Id. ¶ 7. He later told investigators that the "large trophy caliber bear" that had been killed in 2004 was not a wild bear, as he had previously claimed, but was actually a bear raised tame in captivity. Id. During the investigation, FWS investigators spoke with the taxidermist who stuffed Cubby, who provided the investigators with a copy of the video depicting the hunt. Defs.' Resp. Stmt. ¶ 8.

In 2006, attorneys from the U.S. Department of Justice charged Gentry and Greenly with felony violations of the Lacey Act, which prohibits, inter alia, the transport through interstate commerce of wildlife taken in violation of any state law, 16 U.S.C. § 3372. Pl.'s Stmt. ¶ 10. Both Greenly and Gentry entered plea agreements with the government. Greenly entered a plea of guilty to two felonies under the Lacey Act and was sentenced to three years' probation, fined $1000, and ordered to pay restitution in the amount of $3068. Defs.' Stmt. ¶ 14. Gentry entered a plea of guilty to one misdemeanor count of conspiracy to violate the Lacey Act and was sentenced to three months' probation and fined $15,000. Id. In Gentry's plea agreement, which was released by Defendants in response to Plaintiff's FOIA request, Gentry agreed that he had conspired to kill a black bear in a fenced enclosure and to submit a false record to the Minnesota Department of Natural Resources registering the animal as lawfully taken, with the intent to transport the bear in interstate commerce. See Pl.'s Mot. for Summ. J., Att. 1 (Plea Agreement) at 394-95.

B. FOIA Requests Submitted by Plaintiff

Plaintiff Showing Animals Respect and Kindness is a nonprofit organization dedicated to the protection of animals both in captivity and in the wild. Pl.'s Stmt. ¶ 11. On or about October 25, 2007, the FWS Office of Law Enforcement ("OLE") received a FOIA request from Plaintiff's president, Steve Hindi. Defs.' Stmt. ¶ 1. The request was for "documents relating to the UNITED STATES OF AMERICA v. LEE MARVIN GREENLY and TROY LEE GENTRY CASE," specifically "[c]opies of any videotapes seized." Id. ¶ 2. Plaintiff states that it filed the request "[s]eeking to understand why the government did not pursue stiffer penalties against Mr. Gentry and Mr. Greenly for the senseless slaughter of Cubby." Pl.'s Stmt. ¶ 12. The FWS OLE conducted a search of its investigative case file and located three video recordings responsive to Plaintiff's request. Defs.' Stmt. ¶ 3. On November 23, 2007, FWS informed Plaintiff that three video recordings identifying individuals had been located and that the videos were being withheld pursuant to FOIA Exemption 6.*fn5 Later, FWS asserted that the videos were also withheld pursuant to FOIA Exemption 7(C).*fn6

In the Vaughn index*fn7 produced by Defendants in this litigation, Defendants describe the three videos as follows. As to the video on Disk 6:

The video recording is approximately 5 minute 57 seconds long and is a segment of a cable television show called "Hunter's Specialties: Game Room." In this video recording, an individual, who identifies himself by name, leads a tour of his residence, including his "game room," where a number of stuffed and mounted animals are displayed. One of the animals displayed in the video recording is a black bear, the killing of which was the subject of the OLE/FWS investigation. The individual narrates the video recording and is in view virtually throughout the recording, as is the interior of his house and garage, and the view from within his garage onto the street. To FWS's knowledge, this video recording aired on cable television three times in February*fn8 2006. To our knowledge, it has not aired since then and is not now available to the public.

Defs.' Mot. for Summ. J., Vaughn Index ("Vaughn Index") at 2-3. As to the second video withheld, on Disk 8:

The video recording is approximately 23 minutes and 44 seconds long and appears to consist of the unedited footage from which the "Game Room" segment, referenced above as Disc #6, was derived. In addition to the material included in the first video recording, this video recording includes more views of the interior of the individual's house. The video recording also shows a view of the city skyline from a window in the house. To FWS's knowledge, this video recording was never made public. Id. at 3. As to the third video, on Disk 9:

This video recording is approximately 12 minutes and 40 seconds long and shows the hunting of the black bear. This video recording starts with a title screen saying "Minn. Bear." The individuals, who were the subjects of the FWS investigation, are pictured throughout this video recording. The first scene of this video recording shows the individuals on the porch of a building where they briefly discuss the weather and their hunting plans. In the next scene, one of the individuals, armed with a bow and several arrows, climbs a tree to a platform. Two minutes and 56 seconds into the video recording, the black bear is shot with an arrow by the individual on the platform. In the next scene, the two individuals track the wounded bear. Finally, the two individuals pose with the bear's carcass. To FWS's knowledge, this video recording was never made public.

Id. The FOIA officer in charge of responding to Plaintiff's request, Marion Dean, determined that these videos were exempt from FOIA because the individuals in the videos were subjects of an FWS/OLE investigation. Decl. of Marion Dean ¶ 7. With respect to the footage on Disks 6 and 8, Ms. Dean has explained that the video footage shows the interior of the Gentry family home. Supp. Decl. of Marion Dean ¶ 5. Plaintiff filed an administrative appeal with respect to FWS's withholding these three videos on December 17, 2007. Id. ¶ 8. However, FWS did not rule on the appeal prior to the filing of this action.

On or about May 7, 2009, Defendants received a second FOIA request from Plaintiff. Defs.' Stmt. ¶ 10. Plaintiff's second request sought "all records, including any photographs, videotapes, and e-mails, related to the investigation and the subsequent plea agreement/sentencing of both Troy Gentry and Marvin Greenly." Id. FWS personnel conducted a search for responsive records and released a set of responsive records on August 28, 2009. Id. ¶ 12. Defendants informed Plaintiff that some documents had been withheld pursuant to FOIA Exemptions 3, 5, 6, 7(C) and 7(E).*fn9 Id. Defendants provided a second production on September 4, 2009. Id. The records or materials responsive to Plaintiff's two FOIA requests consist of 827 pages and eleven CD/DVDs. Id. ΒΆ 16. Defendants redacted the names and faces of Gentry and Greenly from ...


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