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Force v. Jewell

United States District Court, D. Columbia.

September 2, 2014

SALLY JEWELL, Secretary of the U.S. Department of the Interior, et al., Defendants

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For KENNETH LEE SALAZAR, Secretary of the U.S. Department of the Interior, in his official capacity, UNITED STATES DEPARTMENT OF THE INTERIOR, DANIEL M. ASHE, Director of the U.S. Fish and Wildlife Service, in his official capacity, UNITED STATES FISH AND WILDLIFE SERVICE, HILARY TOMPKINS, Solicitor for the U.S. Department of the Interior, OFFICE OF THE SOLICITOR, Defendants: Wyneva Johnson, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR D.C., Washington, DC.

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KETANJI BROWN JACKSON, United States District Judge.

In 2009, the Fish and Wildlife Service (" FWS" ) denied a series of permit applications that would have allowed certain individuals to import hunting trophies of Canadian bison into the United States. In a search for documents related to that FWS determination, Plaintiff Conservation Force (" Plaintiff" ), a nonprofit foundation, submitted a written request to the agency under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2012), and followed with this lawsuit after that document request went entirely unanswered. The instant complaint--which was brought under the FOIA against the FWS, the Department of the Interior, and some of the executive officers of those agencies in their official capacity (collectively, " Defendants" )--was filed on October 4, 2012. Thereafter, Defendants provided a number of responsive documents to Plaintiff, many of which were redacted.

Before this Court at present are the parties' cross-motions for summary judgment regarding the only remaining issue: whether the FWS's redactions constitute proper withholdings under Exemptions 5 and 6 of the FOIA. Defendants argue that those statutory exemptions apply because the documents contain privileged and/or sensitive information, while Plaintiff asserts that Defendant's Vaughn Index and Declaration are insufficient to demonstrate the propriety of Defendants' invocation of those FOIA Exemptions. Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, this Court will GRANT IN PART Defendants' motion for summary judgment, and will enter judgment in Defendants' favor with respect to the Exemption 5 redactions in the existing Vaughn Index that are based solely on the attorney-client privilege and also with respect to Defendant's redaction of personal information from the documents at issue in accordance with Exemption 6. Both parties' motions for summary judgment will be DENIED WITHOUT PREJUDICE regarding all other exemption grounds, and Defendants will be permitted to submit a more robust Vaughn Index or affidavit regarding the redactions. A separate order consistent with this opinion will follow.


Plaintiff is a non-profit foundation that promotes big game hunting and describes itself as having been " formed for the purpose of wildlife conservation, related education, and wildlife research." (Compl., ECF No. 1, ¶ 9.)[1] Defendants are the agencies of the federal government that are responsible for implementing the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531-1544 (2014), which is a statute that generally prohibits the importation of endangered or threatened species in any form including hunting trophies.[2] Under

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the ESA's statutory and regulatory scheme, the FWS may allow importation of hunting trophies " for scientific purposes or to enhance the propagation or survival of the affected species[,]" Conservation Force v. Salazar (Wood Bison II), 851 F.Supp.2d 39, 43 (2012) (citing 16 U.S.C. § 1539(a)(1)(A) and 50 C.F.R. § 17.22), but " [i]ndividuals seeking to import hunting trophies of an endangered species must apply for a permit and satisfy a number of application requirements." Id. Upon receipt of such a permit application, the FWS is duty-bound to follow certain steps, including publishing a notice in the Federal Register, allowing for a notice and comment period, and considering certain mandatory criteria. Id.

This is Plaintiff's third lawsuit regarding a series of import permit applications for Canadian wood bison, a species that has been listed as " endangered" under the ESA since 1970. See Petition to Reclassify the Wood Bison from Endangered to Threatened, 74 Fed.Reg. 5908, 5909 (Feb. 3, 2009).[3] The litigation saga began in the year 2000, when Conservation Force helped four individuals file import permit applications for Canadian wood bison under the ESA. (Compl. ¶ ¶ 17-20.) After the FWS sat on the permit applications for years without making a decision, the organization and those individuals filed suit under the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706 (2014), to compel the FWS to make a decision on the applications. (Compl. ¶ 21; Conservation Force v. Salazar, No. 09-cv-0496 (D.D.C. filed Mar. 16, 2009)). The FWS finally acted to deny the permit applications shortly after the complaint was filed, and as a result, that case was dismissed as moot. Conservation Force v. Salazar (Wood Bison I), 715 F.Supp.2d 99, 105-08 (D.D.C. 2010).

The Wood Bison I plaintiffs then filed a second lawsuit, alleging that the FWS's denials of their permit applications violated the ESA and the APA. ( See Compl. ¶ 22.) See also Wood Bison II, 851 F.Supp.2d at 42. The gravamen of the plaintiffs' claim in Wood Bison II was that the agency " acted arbitrarily and capriciously in denying the individual plaintiffs' applications to import wood bison hunting trophies." Id. The court in Wood Bison II (Bates, J.) granted in part and denied in part the plaintiffs' motion for summary judgment, finding that the FWS had failed to articulate a satisfactory explanation for denying the hunting-trophy importation permits despite the overwhelming scientific evidence that supported issuing the permits. Wood Bison II, 851 F.Supp.2d at 54. Significantly for present purposes, the Wood Bison II court agreed with the plaintiffs that the administrative record reflected a strange about-face on the part of the agency: after gathering substantial scientific evidence (perhaps even a consensus) that sport-trophy hunting would not jeopardize the wood bison and thus importation permits could be issued consistent with the objectives of the ESA, the FWS nevertheless denied the permits. Id. at 45-46, 50-53. The denial appears to have resulted from the influence of an attorney-advisor within the government, who purportedly expressed his disagreement with any decision to issue the permits based on policy grounds, id. at 49-50, but the attorney's specific rationale for recommending denial of the permits was redacted from the administrative record that was submitted for the Wood Bison II litigation due to

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the agency's invocation of the attorney-client privilege. [4]

It is the redacted rationale for the denial of the importation permits that Plaintiff sought to uncover through the FOIA request that is at the heart of the instant litigation. ( See Pl.'s Combined Opp'n to Defs.' Mot. for Summ. J. & Cross-Mot. for Summ. J. (" Pl.'s Mot." ), ECF No. 17, 6-7 (" Plaintiff filed the FOIA request that has led to this litigation" based on its belief that " any description of the actual reasons for FWS's permit denials [must] be found somewhere in the material withheld as privileged" from the administrative record in Wood Bison II.).) On April 16, 2012, Plaintiff submitted a letter to the Fish and Wildlife Service requesting " any and all documents, correspondence, and notes of meetings between the Fish and Wildlife Service and the Office of the Solicitor regarding import permits for Canadian wood bison trophies since 2000" including " any documents excluded as purportedly 'privileged' from the administrative record in" Wood Bison II. (Defs.' Facts; ECF No. 16-1, ¶ 1; Suppl. Decl. of Timothy J. Van Norman (" Suppl. Van Norman Decl." ), ECF No. 16-3, ¶ 2.) The request listed specific documents of interest, including documents from meetings in which the FWS discussed the wood bison permits. (Defs.' Facts ¶ 1; Suppl. Van Norman Decl. ¶ 2.) The FWS acknowledged receipt of Plaintiff's request on April 19, 2012 (Suppl. Van Norman Decl. ¶ 2), but still had not responded by October of that year, when Plaintiff filed the instant complaint. (Compl. ¶ ¶ 35-36.)

On November 19, 2012, approximately one month after the complaint in this case was filed, Defendants requested a stay while the agency reviewed its files in order to respond to the FOIA request, and over the next month, the FWS proceeded to produce and release to Plaintiff 1,026 pages of responsive documents. (Suppl. Van Norman Decl. ¶ 5.) Defendants released a second set of responsive documents on January 9, 2013, which consisted of the 577 partially-redacted pages that are the subject of the instant dispute. ( Id. ¶ 6.)

Defendants filed a motion for summary judgment on March 13, 2013, maintaining that " its withholding of certain documents in their entirety and its redaction of portions of other documents are supported by appropriate exemptions" ; specifically, FOIA Exemptions 5 and 6. (Defs.' Mot. for Summ. J. (" Defs.' Mot." ), ECF No. 16, at 3.) Plaintiff filed a cross-motion for summary judgment on April 12, 2013, asserting that " Defendants have failed to carry their burden to sustain the [FWS's] withholding of portions of documents responsive" to the FOIA request, and that " there is evidence showing the redactions contain non-exempt records stating FWS's hidden reasons for denying the permits underlying this suit." (Pl.'s Mot. at 1.) The parties' cross-motions for summary judgment are now ripe for consideration.


A. Summary Judgment In FOIA Cases

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