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Conservation Force v. Jewell

United States District Court, District of Columbia

February 5, 2016

SALLY JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants.



A threshold requirement for a plaintiff who seeks to recover attorneys’ fees for claims brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., is to demonstrate that he has “substantially prevailed” in the underlying litigation in a manner that makes him eligible for fees. 5 U.S.C. § 552(a)(4)(E). Before this Court at present is an attorneys’ fees motion that Plaintiff Conservation Force, a nonprofit wildlife-conservation foundation, has brought based on a FOIA lawsuit that the organization filed in 2012 against the Department of the Interior, the United States Fish and Wildlife Service (“FWS”), and high-level executive officers of those agencies in their official capacities (collectively “Defendants”). As explained fully below, this Court has concluded that Conservation Force has not made the required eligibility showing in support of its motion for attorneys’ fees, despite the fact that Defendants provided Conservation Force many of the desired documents soon after the suit’s initiation, and Defendants also revamped the descriptions of redacted information in the agency’s Vaughn Index during the course of the litigation pursuant to an of the Court.[1] Consequently, and as set forth in the separate order that accompanies this Memorandum Opinion, Conservation Force’s motion for attorneys’ fees and costs will be DENIED.


A. The Wood Bison Cases

This Court sketched out much of the relevant background at length in the Memorandum Opinion that it issued in this case on September 2, 2014, see Conservation Force v. Jewell, 66 F.Supp.3d 46, 52-54 (D.D.C. 2014) (“Wood Bison III”); therefore, only broad strokes are necessary here.

Canada permits limited hunting of the Canadian wood bison-a species that has been of concern to environmentalists for some time, see Id. at 53-through the sale of “wood bison hunts[, ]” Conservation Force v. Salazar, 715 F.Supp.2d 99, 101 (D.D.C. 2010) (“Wood Bison I”). In the early 2000s, four American hunters purchased hunts and successfully hunted wood bison, see id., and with the assistance of Conservation Force, each of these individuals submitted applications to the FWS for permission to import their wood bison trophies into the United States. See Id. Conservation Force and the hunters sued the FWS in this District in 2009, after what they considered to be an unreasonably delayed response; their complaint alleged that the FWS’s failure to respond to their important request violated several statutory and constitutional provisions. See Id. at 102-08. The FWS then denied the import applications while the lawsuit was pending, and the court dismissed the plaintiffs’ action as moot. See Id. at 105-07.

Undaunted, Conservation Force sued the FWS again, this time alleging that the agency’s denial of the request to import the hunting trophies violated various statutory provisions. See Conservation Force v. Salazar, 851 F.Supp.2d 39, 42 (D.D.C. 2012) (“Wood Bison II”). This suit asserted, in essence, that the denial was based on impermissible policy reasons (as opposed to good science), see, e.g., id. at 45-46, and the court ultimately agreed with Conservation Force’s argument that the administrative record could not support the agency’s decision, remanding the applications to FWS for reconsideration, see Id. at 52-54.

The FOIA lawsuit that is the basis for the instant motion for attorneys’ fees arose out of Conservation Force’s interest in discovering the true rationale for the initial import denials. See Wood Bison III, 66 F.Supp.3d at 54. Apparently, as part of the administrative record in Wood Bison II, Conservation Force had received documents that appeared to contain the reason that a particular government attorney had recommended that the permits be denied, but the “specific rationale for recommending denial of the permits” had been redacted. Id. at 53. Consequently, on April 16, 2012, Conservation Force submitted a FOIA request to the FWS, requesting “any and all documents, correspondence, and notes of meetings between the [FWS] 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.” Id. (internal quotation marks and citations omitted).

The FWS acknowledged receipt of the FOIA request on April 17, 2012. (See Pl.’s Mem. in Supp. of Pl.’s Mot. for Atty.’s Fees and Costs (“Pl.’s Mem.”), ECF No. 37-1, at 3.)[2] The agency next communicated with Conservation Force on August 9, 2012; it sent a letter to explain that, because the “request consisted primarily of documents that were previously identified as privileged” during Wood Bison II, the FWS had forwarded the document request to the FOIA Officer for the Department of the Interior Solicitor’s Office for his review. (Second Decl. of Timothy Van Norman (“Second Van Norman Decl.”), ECF No. 12-1, ¶¶ 2-3; see also Pl.’s Mem. at 3-4.) When Conservation Force had still received no response by October 4, 2012-and had apparently unsuccessfully tried to contact certain individuals identified as contact persons in the August 9 letter (see Pl.’s Mem. at 4)-it filed a lawsuit in this Court, alleging that the FWS had failed to comply with the FOIA’s requirement that document-production determinations be made expeditiously, see 5 U.S.C. § 552(a)(6). (See Compl., ECF No. 1, ¶¶ 42-46.) Notably, with respect to the relief sought, Conservation Force’s complaint specifically requested that the Court (1) declare that the government violated the FOIA when it failed to respond to the April 2012 request “in accordance with the statutory deadline”; (2) declare that the government was continuing to violate the FOIA for the same reasons; (3) issue an injunction ordering the government to provide all records described in the April 2012 FOIA request that could not lawfully be withheld; and (4) grant Plaintiff costs of litigation. (See Compl. at 12-13.)

Subsequently, in November of 2012, the FWS and the Department of the Interior jointly determined that the August referral to the Department of the Interior had been a mistake and that the FWS should resume processing the documents. (See Second Van Norman Decl. ¶ 6.) Around the same time, Defendants asked the Court for a ten-week stay of the proceedings to permit the agency to search for and review responsive documents. (See Defs.’ Mot. to Stay, ECF No. 9, at 1-2.) Conservation Force opposed the stay motion on the grounds that Defendants had failed to establish the “exceptional circumstances” the FOIA requires to justify an administrative stay, see 5 U.S.C. § 552(a)(6)(C). (See generally Pl.’s Opp’n to Defs.’ Mot. to Stay, ECF No. 10.) But then, on December 12, 2012, and before the Court ruled on the stay request, Defendants released 1, 026 pages of unredacted responsive documents and simultaneously reiterated that it expected to complete its review-including possible redactions or withholdings-of all remaining responsive material by January 31, 2013. (See Defs.’ Reply to Pl.’s Opp’n to Stay, ECF No. 12, at 1.)

On January 3, 2013, this Court addressed the pending stay request by ordering Defendants to “show cause in writing why the requested extension of time should be granted” (see Order (“Show-Cause Order”), ECF No. 13, at 1), and gave Defendants until January 10 to better explain why the Court should grant an extension to process the FOIA request. (See Id. at 4.) Shortly thereafter, on January 9, 2013, the FWS provided its final release of documents-577 pages of partially redacted responsive records-and withdrew its stay request as moot. (See generally Defs.’ Resp. to Show-Cause Order, ECF No. 14.)

The parties then proceeded to clash on the redaction front. Defendants filed a motion for summary judgment, a supplemental declaration from an FWS official, and a Vaughn Index as proof that the FOIA’s enumerated exceptions supported the withholding of certain information. See Wood Bison III, 66 F.Supp.3d at 54. Predictably, Conservation Force disagreed, offering its own motion for summary judgment that asserted that Defendants’ materials “f[e]ll woefully short of the level of specificity required to justify withholdings under [the FOIA exemptions claimed].” See Id. at 54, 58.

This Court resolved the redaction dispute, in part, on September 2, 2014, by concluding that Defendants were entitled to summary judgment on the subset of redactions that were based on the FOIA’s attorney-client-privilege and personal-information exemptions; the Court, however, denied without prejudice both parties’ cross-motions for summary judgment with respect to the withholdings that were based on the work-product and deliberative-process privileges. See Id. at 62, 66-68. The Court determined that Defendants had provided insufficient evidence to permit a ruling as to whether or not those claimed exemptions actually applied, and as a result, it permitted Defendants to choose, on the one hand, to file “a supplemental Vaughn Index, affidavit, or declaration that provides the necessary additional information regarding the redacted documents[, ]” or, on the other, to release the challenged withheld content. Id. at 68; (see also Order (“September 2 Order”), ECF No. 26, at 1-2). Defendants opted to file a supplemental Vaughn Index and affidavit on October 2, 2014 (see Defs.’ Notice of Filing, ECF No. 30), and orally renewed their motion for summary judgment at a status conference held on April 7, 2015. At that conference, Conservation Force “conceded that the ...

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