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People For the Ethical Treatment of Animals, Inc v. Bureau of Indian Affairs

August 3, 2011


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


Plaintiff People for the Ethical Treatment of Animals, Inc. ("PETA"), a Virginia nonprofit corporation, has sued the Bureau of Indian Affairs ("BIA"). Plaintiff brings this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., claiming that defendant failed to conduct a reasonable search in response to two FOIA requests made by plaintiff, and as a result, failed to produce the requested documents until after litigation commenced. Before the Court are defendant's motion for summary judgment and plaintiff's cross motion for summary judgment. For the reasons set forth below, the Court will grant defendant's motion and deny plaintiff's motion.



Plaintiff submitted two FOIA requests. The first request ("the August request") was submitted on August 2, 2010, and sought information regarding three leases entered into by the Eastern Band of Cherokee Indians ("EBCI"): Santa's Land; the Cherokee Bear Zoo and/or Barry Coggins; and Chief Saunooke Bear Park and/or Chief Saunooke Trading Post and/or Cole Klapsaddle (collectively, "the Bear leases"). (Complaint ["Compl."] at ¶ 10; Defendant's Memorandum of Law in Support of Motion for Summary Judgment ["Def.'s Mot."] at 2.) Plaintiff limited the scope of the August request to documents dated from January 1, 2003, to the date of the request, August 2, 2010. (Compl. at ¶ 10.) Defendant assigned the August request FOIA Control No. BIA-2010-01249. (Id. at ¶ 11.)

Defendant houses the Bear leases in hard-copy form only, located in a file cabinet at the BIA's Cherokee Agency office in Cherokee, North Carolina. (Def.'s Mot., Declaration of Franklin Keel ["Keel Decl."] at ¶ 5; Defendant's Memorandum of Points and Authorities in Support of Supplement to Motion for Summary Judgment, Reply and Opposition to Plaintiff's Cross Motion for Summary Judgment ["Def.'s Supp."] at 2; Def.'s Supp., Declaration of Ruth McCoy ["McCoy Decl."] at ¶¶ 1, 2.) In that office, Ruth McCoy serves as a Realty Officer and supervises Gail Kuester, a Realty Specialist who maintains BIA's lease files pertaining to EBCI lands. (Def.'s Supp., Declaration of Gail Kuester ["Kuester Decl."] at ¶¶ 1, 2, p. 4; McCoy Decl. at ¶ 1.) Kuester was assigned to the August request, and searched "a spreadsheet of [EBCI] leases on the Cherokee Agency share drive," which "does not contain copies of documents" but "contains information showing the lease number, lessor, and lessee." (Kuester Decl. at ¶¶ 3, 4.) Kuester used the information to collect data on the Bear leases and then manually searched the hard copy files in the file cabinet. (Id. at ¶ 4.) Pursuant to the August request, on September 23, 2010, defendant produced seven documents totaling 273 pages: three memoranda, one letter, one lease, and two lease supplements. (Compl. at ¶ 12, Ex. 2; Reply in Support of Defendant's Supplement to Motion for Summary Judgment ["Def.'s Rep."], Second Supplemental Declaration of John Harrington ["Second Harrington Decl."] at ¶ 3.)

Plaintiff submitted a second FOIA request ("the October request") on October 12, 2010, seeking the same documents as the August request, but plaintiff removed the date restriction for the search. (Id. at ¶ 14.) Defendant assigned the October request FOIA Control No. BIA-2011-00035. (Id. at ¶ 15, 16, Ex. 5.) In response to the October request, Kuester again conducted a manual search of the files, finding no additional responsive documents that had not already been provided to plaintiff as a result of the August request. (Id.; Kuester Decl. at ¶ 4.)

On December 2, 2010, plaintiff filed an administrative appeal, asserting that defendant's search was unreasonable and inadequate. (Compl. at ¶ 20, Ex. 5.) On January 14, 2011, defendant informed plaintiff that it would have a decision on the appeal in one or two weeks. (Id. at ¶ 23.) The record does not reflect that defendant took any further steps to resolve the appeal.

Plaintiff filed the instant complaint on March 17, 2011. (Compl. at 1.) John Harrington, BIA counsel, spoke to plaintiff's counsel on April 13, 2011, seeking clarification of the types of documents plaintiff requested. (Def.'s Mot. at 2.) Plaintiff's counsel informed Harrington that a number of responsive documents could be eliminated from the search, but that plaintiff wanted any documents related to the exhibition of animals, the enforcement of laws and regulations, and contractual obligations showing that lessees were complying with laws and regulations. (Id. at 2-3.) During this phone call, Harrington admitted that defendant's search and production up to that point had been inadequate. (Pl.'s Rep. at 4; Def.'s Rep. at 8.)

In March 2011, Rebecca Smith, a Program Support Assistant at the BIA's Branch of Tribal Government, Eastern Region, in Nashville, Tennessee, requested that BIA employees at the Cherokee Agency send her copies of the entire files of each of the Bear leases. (Def.'s Supp., Declaration of Rebecca J. Smith ["Smith Decl."] at ¶¶ 1, 4.) She received those files on March 25, 2011, and then sent them electronically to Harrington. (Id. at ¶ 4.) Subsequent to several conversations between Harrington and Smith outlining responsive and exempt documents, on April 22, 2011, defendant produced an additional thirty-eight documents, totaling approximately 420 pages, that were responsive to the August and October requests. (Def.'s Mot. at 3; Plaintiff's Consolidated Memorandum of Points and Authorities in Support of Plaintiff's Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment ["Pl.'s Cross Mot."] at 9; Smith Decl. at ¶ 5; Second Harrington Decl. at ¶ 4.) Only one of those documents, totaling six pages, was responsive to the August request but not produced in the September 2010 disclosure (Second Harrington Decl. at ¶ 5); thus, the vast majority (thirty-seven out of thirty-eight documents) were responsive to the October request, which had no restrictions as to dates. Twelve of the documents contained minor redactions of private addresses or private financial information. (Keel Decl. at ¶ 11.)

The EBCI completed an electronic database of its reservation lands in May 2011; unlike the Cherokee Agency's spreadsheet that contains references to files that exist in hard-copy form only, the EBCI database houses all of EBCI's lease documents in a searchable, electronic format. (Def.'s Supp. at 2, 3.) The database is the sole property of the EBCI; however, the EBCI granted access to defendant upon the database's completion. Kuester searched the database in May 2011, after the Eastern Region in Nashville had reviewed the entire set of BIA files and produced every responsive document in those files. (Id.) Kuester used search terms that included the lease numbers, the lessors' and lessees' names, and the words "Santa's Land," "Cherokee Bear Zoo," and "Chief Saunooke's Trading Post." (Kuester Decl. at ¶¶ 5, 6, 7, p. 4.) She found 479 pages of responsive documents but discovered that those documents were the same ones that had already been produced by the Eastern Region office in the April 2011 disclosure. (Def.'s Supp. at 2, 3.)



The Court may grant a motion for summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing ...

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