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Rocky Mountain Wild, Inc. v. United States Forest Service

United States District Court, D. Colorado

January 29, 2016

ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation, Plaintiff,


WILLIAM J. MARTÍNEZ, District Judge.

This is a lawsuit under the Freedom of Information Act ("FOIA"). See 5 U.S.C. § 552. Plaintiff Rocky Mountain Wild, Inc. ("Rocky Mountain Wild") alleges that Defendant United States Department of Agriculture and its subsidiary, Defendant United States Forest Service (jointly, "the Forest Service"), have not properly responded to a November 2014 FOIA request for various documents. ( See ECF No. 1.)

Currently before the Court are three motions:

1. Rocky Mountain Wild's Motion for Judgment on the Pleadings (ECF No. 19);
2. The Forest Service's Motion for Summary Judgment (ECF No. 36); and
3. Rocky Mountain Wild's Cross-Motion for Partial Summary Judgment (ECF No. 38).

For the reasons explained below, the Motion for Judgment on the Pleadings is denied as moot and the parties' dueling summary judgment motions are both granted in part and denied in part.


A private entity known as the Leavell-McCombs Joint Venture ("LMJV") owns a parcel of former Forest Service land near the base of the Wolf Creek Ski Area in southern Colorado. (ECF No. 36 at 2, ¶ 1.)[1] In 2010, LMJV and the Forest Service began exploring a land exchange that would expand LMJV's holdings in the region: about 177 nonfederal acres for 205 federal acres within the Rio Grande National Forest near the Wolf Creek Ski Area. ( Id. at 3, ¶ 6.) Apparently LMJV wishes to create a large ski-oriented development known as "the Village at Wolf Creek." (ECF No. 1 ¶ 3.) The Forest Service therefore began the process of developing an environmental impact statement ("EIS") for the proposed land exchange. (ECF No. 36 at 3, ¶ 7.)

In February 2014, before the EIS process was complete, Rocky Mountain Wild submitted a FOIA request to the Forest Service. (ECF No. 39-1 at 2.) Rocky Mountain Wild sought the Forest Service's communications with third parties regarding the Wolf Creek project. ( Id. ) The Forest Service's alleged failure to adequately respond to that FOIA request led to what this Court will refer to as the "2014 Lawsuit, " i.e., Rocky Mountain Wild, Inc. v. U.S. Forest Service et al., 14-cv-2496-WYD-KMT (D. Colo., filed Sept. 9, 2014). Senior U.S. District Judge Wiley Y. Daniel presides over the 2014 Lawsuit, which is ongoing.

On November 20, 2014, the Forest Service published its Final EIS and Record of Decision for the Wolf Creek land exchange proposal. (ECF No. 36 at 3, ¶ 8.) Later that same day, Rocky Mountain Wild submitted another FOIA request to the Forest Service. ( Id. ¶ 9.) Whether that new FOIA request was a completely independent request or simply a follow-up to the February 2014 request is disputed, as discussed below in Part III.B. In any event, Rocky Mountain Wild once again concluded that the Forest Service had not responded adequately, and so filed this action. The action was originally assigned to Judge Daniel, but he exercised his prerogative as a senior judge to return the case for reassignment, leading to the undersigned's assignment. ( See ECF Nos. 4-6.)

Since this action was filed, the Forest Service claims to have released "more than 12, 000 pages of documents" to Rocky Mountain Wild. (ECF No. 36 at 6, ¶ 19.) Rocky Mountain Wild and others have also filed a third lawsuit against the Forest Service, which the Court will refer to as the "APA Lawsuit, " i.e., Rocky Mountain Wild et al. v. Dallas et al., 15-cv-1342-WYD (D. Colo., filed June 24, 2015). The APA Lawsuit, presided over by Judge Daniel, substantively challenges the Forest Service's November 2014 EIS.


"FOIA actions are typically decided on motions for summary judgment." Info. Network for Responsible Min. v. Bureau of Land Mgmt., 611 F.Supp.2d 1178, 1182 (D. Colo. 2009). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

In evaluating the pending motions, "two guiding principles apply. First, FOIA is to be broadly construed in favor of disclosure. Second, its exemptions are to be narrowly circumscribed." Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). In other words, "disclosure, not secrecy, is [FOIA's] dominant objective." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (internal quotation marks omitted).


A. Allegations of Bad Faith

At the outset, the Court must address Rocky Mountain Wild's repeated argument that nothing the Forest Service says is trustworthy when it comes to its assertions about its document production efforts, its reasons for withholding documents ( see Part III.C, infra ), and so forth. Rocky Mountain Wild bases this argument on three items of evidence.

First, Rocky Mountain Wild submits a collection of 31 documents obtained through a FOIA request to the United States Fish & Wildlife Service. (ECF No. 37-6.) All of the documents are communications between Forest Service and Fish & Wildlife employees, and are variously dated between 2011 and 2013. They are not found in any production made by the Forest Service to Rocky Mountain Wild. Rocky Mountain Wild claims that "[t]he Forest Service admitted [in the 2014 Lawsuit that it] failed to retain many of the[se] documents." (ECF No. 37 at 6, ¶ 16.)

Second, Rocky Mountain Wild points to an August 2012 e-mail chain between various Forest Service employees. (ECF No. 50-4.) No party has provided context for the e-mail chain, but the end of the chain includes an exchange exclusively between two employees in which one of them appears to recommend deleting e-mails to avoid having to disclose them under FOIA:

Dan's main concern wasn't the letter, but the emails around the letter that might be a little damaging in the event they are not all deleted in case we get a foia.... remember we are swimming with sharks and need to keep e-mails from even the remote appearance of whatever, so make sure you burn this once read!

( Id. at 1 (ellipses in original).)

Third, Rocky Mountain Wild cites a January 2013 e-mail from Forest Service employee Randy Ghormley to various other Forest Service employees, including an attorney in the Forest Service's Office of General Counsel named Kenneth Capps. (ECF No. 37-10.) Ghormley appears to be discussing a memorandum of some sort justifying a particular decision. Regarding that memorandum, Ghormley says,

I had Rick send that to me hardcopy so it would not be subject to FOIA (is that correct?). Rick's brief write-up is worth a review/discussion in my opinion so I wanted to get your thoughts on this. If you would like to review this 1 page document of "justification points" please let me know and I'll have Rick send it electronically through an email with Ken [Capps] as a cc so it will remain attorney-client privilege[d] and not subject to FOIA from what I understand. If this isn't a concern and you want to see it anyways I can scan and share.

( Id. at 3.) Within minutes of receiving this e-mail, Capps replied to all recipients regarding Ghormley's FOIA concerns:

I don't think you need to go through any gyrations to attempt to keep the document from being subject to FOIA. It is subject to FOIA right now but we'd deny any request for it under the deliberative process privilege until the ROD is issued, then, it would most likely be released.

( Id. at 2.)

The foregoing evidence naturally raises eyebrows, but the Court finds it insufficient to create a presumption of bad faith or general lack of trustworthiness. Rocky Mountain Wild points to no FOIA requests pending when any of this evidence was generated, and Rocky Mountain Wild has cited no authority for the implicit proposition that the Forest Service had a duty under FOIA to preserve records absent a pending FOIA request. Cf. Kim v. U.S. Dep't of the Interior, 859 F.Supp.2d 13, 18 (D.D.C. 2012) ("although... courts have occasionally sanctioned an agency for destroying responsive documents in FOIA litigation, in those cases the destruction occurred after the FOIA request was made").

Furthermore, the "burn this once read" e-mail-to the extent it was meant seriously rather than tongue-in-cheek-obviously was preserved, not destroyed. And Ghormley's notion that copying an attorney on a communication would automatically protect the communication under the attorney-client privilege was quickly disabused by the attorney himself. Thus, Rocky Mountain Wild has not presented a record sufficient for this Court to infer that the Forest Service's representations about its document collection efforts are untrustworthy.

B. Reasonableness of the Forest Service's Search for Records

1. Did the Forest Service Reasonably Interpret Rocky Mountain Wild's Request?

The parties dispute whether the Forest Service properly understood the scope of documents requested by Rocky Mountain Wild.

Through its November 20, 2014 FOIA request, Rocky Mountain Wild sought
copies of the Administrative Record made for the November 20, 2014 Draft Record of Decision and Environmental Impact Statement for the Village at Wolf Creek Access Project, including all communications and records of communications between the Forest Service and outside entities relating to the Village at Wolf Creek Access Project, including but not limited to, communications related to the preparation of the Environmental Impact Statement (EIS), Endangered Species Act consultation, Army Corps of Engineers reviews, and other federal, state, and local government reviews and approvals.
In particular, this request seeks all as-yet undisclosed agency records created or obtained by the Forest Service concerning the proposed Village at Wolf Creek Access Project including communications between:
• The Forest Service and other federal, state or local agencies;
• The Forest Service and the Leavell/McCombs joint partnership and ...

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