San Juan Citizens Alliance Inc. v. Bureau of Land Management

          ORDERS ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          RICHARD P. MATSCH, SENIOR JUDGE.

         San 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.^[1] 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”).

         The 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.

         Over time SJCA and the BLM Farmington office have developed a fractious relationship becoming adversarial.

         This 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.

         The 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 requests.

         The 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.

         Discovery 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.

         The relief SJCA requests is an order directing a new and complete records search with directions and a cutoff date.

         SJCA 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, Colorado.

         SJCA 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.

         A 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.

         The FFO 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.

         SJCA 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 Amendment/Environmental Assessment]”:

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. . . .

(Id.)

         Expedited 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.

         On the 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.

         No one 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.

         Apparently 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 Amendment /EA]:

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 GRRA.

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.)

         The 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.

         Alleman 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:

Hi Dave

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 litigation.

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 respective attorneys.

Thank you,

Mike

(Doc. 72-24, Def.'s Ex. C-25 at BLM_0001021-22, emphasis added).

         The response to that email came from Gary Torres, the FFO manager. In an email to Eisenfeld dated February 25, 2014, Torres stated:

Mike: ....

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 ...