United States District Court, D. Colorado
ORDERS ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
RICHARD P. MATSCH, SENIOR JUDGE.
Juan Citizens Alliance, Inc. (“SJCA”) is a
Colorado non-profit corporation acting as a citizens advisory
group with an emphasis on protecting the natural environment
in the Four Corners Area. It has offices in Durango, Colorado and
Farmington, New Mexico. To obtain information necessary to
perform its mission, SJCA frequently uses the Freedom of
Information Act, 5 U.S.C. § 522 (“FOIA”).
Farmington Field Office (“FFO”) of the Bureau of
Land Management (“BLM”) has responsibility for
management of public lands, including a multiple use area
known as the Glade Run Recreation Area (“GRRA” or
“Glade”), being an area of 22, 000 acres along
the northern boundary of Farmington surrounding the
communities of Flora Vista and Aztec to the west and east,
respectively. Despite its name the Glade contains oil and gas
production and active grazing allotments in addition to
recreational uses for motorized and non-motorized activities.
It is popular with those who do vehicular “rock
crawling” and is the location of mountain biking
events. Large power lines cross the area.
time SJCA and the BLM Farmington office have developed a
fractious relationship becoming adversarial.
civil action brought under the FOIA brings that relationship
into this court. The antagonism is asserted boldly in the
second claim for relief in the Amended Complaint, filed
August 20, 2015 (Doc. 35). SJCA alleges that the FFO has
engaged in a pattern and practice of illegally withholding
agency records from SJCA's multiple FOIA requests and
routinely failed to commit adequate resources to make full,
timely and lawful responses to those requests. The relief
requested is a reference to Special Counsel for an
investigation of the office pursuant to 5 U.S.C. §
552(a)(4)(F). Proceedings on that claim have been stayed to
permit adjudication of the First Claim for Relief seeking
resolution of three FOIA requests made in 2014.
defendant moved for summary judgment on that claim on April
11, 2017, based on a 48 page statement of undisputed facts
and multiple exhibits and declarations of six BLM employees
explaining the searches made and production of documents in
response to those requests. BLM's position is that it has
complied with the law's requirements in a reasonable
manner given the failure of SJCA to communicate adequately
what records were being sought and the breadth of those
plaintiff responded that there were factual disputes and that
discovery was necessary to show that the BLM failed to follow
an appropriate methodology to comply with these requests and
did not document the searches made, making it impossible to
determine whether all relevant agency records have been
obtained. The plaintiff also asserts that it has not received
records of monitoring and oversight that should have been
created and maintained if the FFO had been properly
supervising activities in the Glade. In short, SJCA asserts
that the defendant's motion cannot be granted because
there is no way to determine what was done by whom and when
the searches were conducted and there has been no adequate
explanation of why no records were found in some categories
where they should be expected to exist.
hearings have been held and some additional documents were
produced. On April 26, 2018, SJCA filed a cross-motion for
summary judgment (Doc. 89). It included responses to the
defendant's statement of facts, included others and
submitted additional exhibits.
relief SJCA requests is an order directing a new and complete
records search with directions and a cutoff date.
has long been critical of management of the Glade. The FFO
began developing a Recreation and Travel Plan for the Glade
in 2009. Janelle Alleman, an outdoor recreational planner,
led development of the Plan. In the course of planning, it
became apparent that there was a need to amend the 2003
Farmington Resource Management Plan. The BLM released an
Environmental Assessment (“EA”) for public
comment in February, 2013. It was withdrawn after SJCA
pointed out obvious flaws in the analysis, including the use
of portions of an analysis made for a trail near Montrose,
submitted a FOIA request for documents related to the Glade
in May, 2013. Finding the processing of that response
inadequate, it filed a FOIA action in December, 2013,
designated as Civil Action No. 13-cv-03403-MSK-KLM.
settlement agreement was reached as reflected in an undated
document describing the BLM's obligation to conduct a
search and provide a final response letter. That letter was
issued on January 10, 2014, and the case was dismissed with
prejudice on January 27, 2014 on the plaintiff's motion.
Presumably SJCA was satisfied with the 9, 487 pages of agency
records it had received.
released a revised EA on February 6, 2014, with proposed
amendments to the RMP and set a 15-day public comment period.
SJCA requested additional time. The BLM denied that request.
then submitted a new FOIA request on February 13, 2014,
asking for “copies of the following agency records
created or obtained by BLM and [Department of the Interior],
as oversight department for preparation of the [Glade Run
Recreation Area Resource Management Plan
1) All communications and records of communications,
including letters, attachments, documents, e-mails, text
messages, phone messages, minutes of meetings, etc.,
involving DOI, and BLM (Farmington and Santa Fe offices) from
May 2013 through present.
2) All indexes, notes, lists, and other agency records that
identifies [sic] the agency records contained in the
administrative record for the RMPA/EA Travel Management Plan
. . . .
(Doc. 72-18, Def.'s Ex. A-1 at BLM_0000847-48). That
request further stated:
Please note that this request must be read broadly and seeks
all records created, obtained, and/or maintained by or on
behalf of DOI and staff, employees, attorneys, agents, etc.
concerning the EA prepared by BLM as lead agency. The request
seeks all Farmington BLM records pertaining to the GRRA
RMPA/EA. Please also include the formal required New Mexico
State Office review records that occurred in conjunction with
the release of the revised RMPA/EA on February 6, 2014 and
the Administrative Record for the project. . . .
processing was requested because these records were thought
to be necessary for commenting on the Revised EA/RMP before
the deadline of February 21, 2014. Notably this request asked
for records from May, 2013, the date of the request that had
been resolved by settlement of the prior action.
date of its receipt by Eileen Vigil, the BLM's State
Records Administrator for New Mexico, in her office in Santa
Fe, she sent the request to Debra Yeager, the FFO's FOIA
coordinator who assigned it to Alleman who identified 14
employees who had worked on the Plan development and would
likely have or know of responsive records. On the same day
(February 13), Alleman sent each of those 14 employees an
email asking that they search for any “emails, phone
messages, notes, meeting minutes, or other forms of
communication related to the Glade, ” and explaining
that this request is for “all communications or other
documents from May, 2013 to the present.” (Doc. 72-21,
Def.'s Ex. C-1 at BLM-0007614). Alleman had worked on the
response to the May, 2013 request. There is nothing in the
record indicating that her selection of 14 employees was
because they had done searches pursuant to that request or
that she gave any directions beyond what is in her email to
them. Alleman requested a response within a week and asked
those email recipients to forward her email to others she may
have missed. Alleman sent the same request to two persons in
the State Office the next day.
communicated with SJCA about processing its request until
February 21, 2014 when Vigil wrote an acknowledgment of its
receipt and informed SJCA that the request did not meet
BLM's criteria for expedited processing. She did not
question why the beginning date was May, 2013, the date of
the request that had just been settled by the dismissal of
the prior action.
impatient that no response had been received, SJCA sent
another request on February 19, 2014, describing it as an
addendum to the February 13 request, asking for “data
associated with information on the following data points in
the [Glade Run Recreation Area Resource Management Plan
1. All surface disturbance by oil and gas activities in the
GRRA including well pads, roads, pipelines, central delivery
points, compressors, waterlines, electrical lines, and pig
launchers. Data on total surface disturbance by all oil and
gas activities in the GRRA.
2. All travel management data (routes, roads, approved right
of ways) with data on open, closed and limited travel
designations including Off-Highway Vehicle routes.
Additionally, data on travel management inventory maps so
travel management segment condition/description can be tied
to on the map locations.
3. All data on closed routes, and closed right of ways in the
4. All land health standard determination and sustained yield
data for multiple use resources in the GRRA.
5. All minimization criteria data used for all resources
evaluated in the GRRA RMPA/EA.
6. All monitoring data used by BLM to comply with monitoring
responsibilities of the 2003 Resource Management Plan and
monitoring reports required annually from 2004-present.
7. All data concerning archeological resources in the GRRA,
including a distribution map of the archeological sites
listed in section 3.7 of the RMP/EA by area/location, site
type, feature type, alternative boundary and RMZ Zone. In
addition, all data concerning National Register of Historic
Places eligible, undetermined, or not considered eligible
sites. Please also provide all data on the archeologically
“surveyed area” of the GRRA - i.e., what has been
examined on foot to current “Class III”
(intensive inventory) standards. . . .
(Doc. 72-18, Def.'s Ex. A-2 at BLM_0000060-61). That
request further stated, “It is highly unlikely that the
requested records are exempt from disclosure as the request
is for records concerning the GRRA RMPA/EA which SJCA has
previously FOIAed.” (Id.)
scope of this request, read literally, seems to ask for the
entire contents of the FFO as could be “data associated
with information” related to the Amendment. Item 6
requests “monitoring data” going back to 2004.
did not understand this request and sought advice from Dale
Wirth, Branch Chief of the FFO, and Amanda Nisula, the FFO
NEPA planner. To seek clarification, David Evans, District
Manager for the Farmington District, spoke by telephone with
Michael Eisenfeld (SJCA's director) on February 24,
explaining that it would take 12 to 14 months to respond to
“monitoring data.” After declining Evans'
request to meet, Eisenfeld sent an email to him that
afternoon, summarizing the conversation:
Thank you for your call today concerning the Glade Run
Recreation Area Freedom of Information Act Requests of
February 2014. As I understand our conversation, BLM has
concerns over the scope of the request and has estimated a
response time of 12-14 months (please confirm that this is
accurate). This comes as some surprise to SJCA since the
latest GRRA FOIAs are follow-ups on a FOIA that BLM responded
to in settlement of recent litigation. It was my
understanding that this FOIA would simply require BLM to
supplement the recent response with additional information
starting with a search cut-off date (December 23, 2013) used
in the litigation settlement. To the extent that
additional categories of information are requested, it is my
understanding that the requested information and data
requests should be readily available as routine
inventories/monitoring/evaluation. I can't imagine any
circumstances that would justify a 12-14 month response
deadline, particularly where the Environmental Assessment
involves a 15-day comment period.
It would be helpful if you would provide a written
explanation so SJCA staff and our attorney can better
understand the basis for the 12-14 month response estimate.
It is my sense, from our call today, that the Interior
Solicitor is already working on this request, so it appears
that BLM is treating this matter as involving potential
Once we review your outline of the categories of documents
and the reasoning behind the extended response time, we would
be amenable to discuss the scope of the request, proposals
for specific deadlines for compliance, and perhaps a staged
release for our latest GRRA FOIAs. Once we receive your
explanation of the 12-14 month estimate, we should discuss a
time for a call, and whether or not it should include our
(Doc. 72-24, Def.'s Ex. C-25 at BLM_0001021-22, emphasis
response to that email came from Gary Torres, the FFO
manager. In an email to Eisenfeld dated February 25, 2014,
We did have some concerns regarding the scope of the FOIA and
we did not want to assume that your request was limited to an
extension of the previous FOIAs regarding the Glade planning
effort. Some of the terms of your request such as “all
monitoring data used by BLM to comply with the monitoring
responsibilities of the 2003 Resource Management Plan”
could be interpreted as involving areas outside of the Glade
Run Recreation Area. If ...