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Grand Canyon Trust v. Zinke

United States District Court, District of Columbia

May 24, 2018

GRAND CANYON TRUST, Plaintiff,
v.
RYAN ZINKE, in his official capacity as Secretary of the Interior, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         The plaintiff, Grand Canyon Trust, seeks attorney's fees and costs, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), arising from the plaintiff's underlying FOIA requests to defendants, the Department of the Interior's Office of the Secretary (“DOI-OS”) and Bureau of Land Management (“BLM”), for documents regarding an order issued by the Secretary of the Interior concerning the Federal Coal Program, see Compl. ¶ 2, ECF No. 1. Within thirteen months of submitting the FOIA requests and four months of the filing of the complaint, the defendants disclosed, in whole or in part, 65, 353 pages of records, which disclosures fully discharged the defendants' obligations under the FOIA. The parties reached a settlement regarding document production issues but contested the issue of attorney's fees. For the reasons set forth below, the plaintiff's Motion for Attorney Fees and Costs, Pl.'s Mot. Att'y's Fees (“Pl.'s Mot.”), ECF No. 17, is denied because the plaintiff is ineligible for a fee award.

         I. BACKGROUND

         The plaintiff Grand Canyon Trust is “a non-profit corporation with over 3, 500 members” and the mission “to protect and restore the lands, ecosystems, and environment of the Colorado Plateau, including those federal lands for which the mineral estate is owned or managed by the federal government by and through the U.S. Department of the Interior and the Bureau of Land Management pursuant to the Federal Coal Program.” Compl. ¶ 11. In August 2016, the plaintiff submitted FOIA requests to the DOI-OS and BLM requesting “[a]ll documents and records concerning and supporting the development of the January 15, 2016 Secretarial Order 3338” and “[a]ll documents and records concerning the implementation of the January 15, 2016 Secretarial Order 3338, specific to Section 5, Pause of the Issuance of New Federal Coal Leases for Thermal Coal, and Section 6, Exclusions.” Pl.'s Mot., Ex. 1, Decl. of Eric Ames (“Ames Decl.”), Ex. C, Correspondence between Grand Canyon Trust and DOI-OS (“DOI-OS Correspondence”) at 12, ECF No. 17-1; see also Ames Decl., Ex. D, Correspondence between Grand Canyon Trust and BLM (“BLM Correspondence”) at 46, ECF No. 17-1.[1] The two defendants' responses are detailed below, followed by a summary of the ensuing litigation.

         A. The Plaintiff's FOIA Request to the Office of the Secretary

         The DOI-OS acknowledged receipt of the plaintiff's August 2, 2016, request on August 16, 2016, and advised that the DOI-OS FOIA Office was “taking a 10-workday extension under 43 C.F.R. § 2.19” and would be “placing your request under the ‘Complex' processing track.” DOI-OS Correspondence at 17. Two months later, on October 18, 2016, the plaintiff sent a letter to the DOI-OS “objecting to the Office of the Secretary's failure to issue a determination within the statutory deadlines in the FOIA” and requesting “an estimated completion date.” Compl. ¶ 33; see also DOI-OS Correspondence at 18-19. The DOI-OS responded on October 20, 2016, explaining that the FOIA office was “continuing to search for records” and would “provide records to you on a rolling basis as they become available.” DOI-OS Correspondence at 21. The DOI- OS estimated that the agency's first response would be sent “on or about November 17, 2016.” Id. Five days later, the DOI-OS again notified the plaintiff that the request was being processed. Id. at 22. Although the DOI-OS did not provide any files by November 16, 2016, the agency provided a “partial response” of 222 pages on December 2, 2016. Id. at 24; see also Compl. ¶ 36.

         On January 17, 2017, the DOI-OS informed the plaintiff that its search had been completed and all responsive records located, noting that “the records are exceptionally voluminous-about 8, 000 additional pages.” DOI-OS Correspondence at 29. The DOI-OS further stated that although the office had “many requests that require our work and attention, we continue to work diligently on yours, ” with a final response expected “in early February.” Id. On March 17, 2017, after not hearing from the DOI-OS in February, the plaintiff inquired about the timing of “a final response so that we can avoid taking additional steps to secure the public documents.” Id. The DOI-OS promptly responded that the records were “currently with the Office of the Solicitor for comment, ” which is “the final, routine stage of review, ” and that the Office of the Solicitor “has a multitude of requests that require its attention” but was “working diligently to review the voluminous records that are responsive to your request.” Id. In addition, the DOI-OS had located “several thousand additional pages of information” that were still being evaluated. Id. In April 2017, the DOI-OS informed the plaintiff that letters had been sent to several coal companies, notifying the companies that certain information submitted by the companies to the DOI-OS was responsive to the plaintiff's FOIA request and inviting the companies to submit any objections to the release of such information. Id. at 30-42.

         Finally, on May 1, 2017, the plaintiff requested that the DOI-OS “identify the estimated completion date and provide a disclosure plan for the release of documents and records no later than the close of business on May 3, 2017.” Id. at 45. On May 3, 2017, a FOIA Officer from the DOI-OS spoke with the plaintiff and stated that “a large portion of the documents were being reviewed by the Office of the Solicitor” and that “the request would take at least another two months to finalize.” Defs.' Answer ¶ 43, ECF No. 18. The plaintiff then filed this lawsuit on May 9, 2017.

         According to the defendants, “as of the date of Plaintiff's Complaint, the Office of the Secretary had completed its search for all responsive documents [and] had produced the first partial response of 222 pages of records to Plaintiff.” Id. ¶ 3. A second partial release of 5, 830 pages of records was transmitted to the plaintiff on May 25, 2017, two weeks after the complaint was filed but without any action by the Court. Id. ¶ 38. On June 13, 2017, approximately one month after the complaint was filed, the DOI-OS transmitted a final release of 314 pages, resulting in a total 6, 366 pages released to the plaintiff, still without any deadlines imposed by the Court. See Joint Status Report dated June 28, 2017 (“First JSR”) at 1, ECF No. 12.

         B. The Plaintiff's FOIA Request to BLM

         BLM responded to the plaintiff's August 2, 2016, request two days later and informed the plaintiff that the request “falls into the complex track, ” which “is for requests that can be processed in twenty-one to sixty workdays.” BLM Correspondence at 49. On October 10, 2016, however, BLM allegedly informed the plaintiff “that it would require ‘at least a year to compile and produce the responsive documents.'” Compl. ¶ 54. The plaintiff responded on October 17, 2016, requesting “an explanation for the estimated completion date.” Id. ¶ 55; see also BLM Correspondence at 50-52. Ten days later, BLM responded that work was underway to “get[ ] you the responsive records as expeditiously as we can, ” with “rolling releases” shortly, and that the plaintiff would be contacted “no later than Tuesday, November 1 to provide you with either a timeline or records release schedule.” BLM Correspondence at 53. On November 2, 2016, BLM informed the plaintiff that “the easiest way to provide you the records would be on a monthly basis, ” id. at 54, but no records were produced in November 2016, Compl. ¶ 58. The plaintiff inquired about the promised records on December 1, 2016, and shortly thereafter, BLM released twelve pages of records. See BLM Correspondence at 54, 56-59; Compl. ¶ 61.

         BLM continued reviewing records through January and February 2017. On January 3, 2017, BLM informed the plaintiff that it was “working through a substantial amount of your records” and “hop[ed] to have your records to you very soon.” BLM Correspondence at 60. On February 28, 2017, acknowledging that the plaintiff was “looking for hard dates, ” BLM informed the plaintiff that DOI-OS had to finish reviewing “approximately 1, 200 pages” of documents. Id. at 61. The FOIA Officer stated that, “[i]f everything goes accordingly with the second set of documents, you should have them by the end of March” and that “[g]etting the records to you has become one of my top priorities.” Id. On May 1, 2017, after not receiving any additional records, the plaintiff sent a letter to BLM requesting “a revised estimated completion date” and “a disclosure plan for the release of the remaining documents and records no later than the close of business on May 3, 2017.” Id. at 64. The plaintiff filed this lawsuit on May 9, 2017. After the complaint was filed, but without any court order directing disclosure, BLM released 569 pages to the plaintiff on June 30, 2017; 1, 294 pages on July 28, 2017; and 57, 112 pages on August 31, 2017, for a total of 58, 987 pages. Defs.' Opp'n at 5.

         C. Litigation History

         The plaintiff filed a complaint on May 9, 2017, seeking declaratory and injunctive relief under the FOIA. See generally Compl. On June 28, 2017, the parties filed their first Joint Status Report, in which the DOI-OS indicated that its response to the FOIA request was complete, with three separate releases of records: “222 pages of records on December 2, 2016; 5, 830 pages of records on May 25, 2017, and 314 pages on June 13, 2017.” First JSR at 1. BLM's search was “still underway, ” but the agency had “produced twelve responsive pages in December 2016” and had agreed, without the Court's involvement, “to two releases, one on June 30, 2017 and the final production on August 31, 2017.” Id. at 1-2. These disclosures were timely made, with 569 pages released on June 30, 2017, and 57, 112 pages released on August 31, 2017, as well as 1, 294 pages released on July 28, 2017. Defs.' Opp'n at 5. Three months later, the parties informed the Court that “[n]o document production issues remain.” Joint Status Report dated Sept. 29, 2017 (“Second JSR”) at 1, ECF No. 14. The plaintiff subsequently “indicated that the production [wa]s satisfactory, ” and the parties ultimately settled all claims other than the plaintiff's claim for attorney fees and other litigation costs, which motion is now pending before ...


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