AquAlliance v. United States Bureau of Recla

Filing

OPINION [1674395] filed (Pages: 9) for the Court by Judge Millett. [15-5325]

USCA Case #15-5325

Document #1674395

Filed: 05/09/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2016

Decided May 9, 2017

No. 15-5325
AQUALLIANCE,
APPELLANT
v.
UNITED STATES BUREAU OF RECLAMATION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01018)

Matt Kenna argued the cause and filed the briefs for
appellant.
Carl E. Ross, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief was R. Craig Lawrence,
Assistant U.S. Attorney.
Before: BROWN, MILLETT and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.

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MILLETT, Circuit Judge: There may be “water, water,
everywhere,” but nary a water well to be found. 1 AquAlliance
wants to know where the wells are, and it filed a Freedom of
Information Act (“FOIA”) request to find out. But the federal
government declined to say, invoking FOIA Exemption 9,
which permits the withholding of “geological and geophysical
information * * * concerning wells,” including “maps.” 5
U.S.C. § 552(b)(9). The question before us is whether
Exemption 9 permits the government to withhold information
and maps disclosing the locations and depth of certain water
wells. We hold that Exemption 9 means what it says and thus
the government’s withholding was permissible.
I
A
Congress enacted FOIA to “permit access to official
information long shielded unnecessarily from public view.”
Milner v. Department of the Navy, 562 U.S. 562, 565 (2011)
(quoting EPA v. Mink, 410 U.S. 73, 80 (1973)). However
Congress was also aware that “legitimate governmental and
private interests could be harmed by release of certain types of
information.” Department of Justice v. Julian, 486 U.S. 1, 8
(1988) (quoting Federal Bureau of Investigation v. Abramson,
456 U.S. 615, 621 (1982)). FOIA thus “balance[s] the public’s
need for access to official information with the Government’s
need for confidentiality.” Weinberger v. Catholic Action of
Hawaii, 454 U.S. 139, 144 (1981). To that end, FOIA exempts
nine categories of records from the government’s otherwise
broad duty of disclosure. See 5 U.S.C. § 552(b). While those
exemptions “must be narrowly construed,” Milner, 562 U.S. at
565 (quoting Abramson, 456 U.S. at 630), courts still must
1

SAMUEL TAYLOR COLERIDGE, THE RIME OF THE ANCIENT
MARINER (1798).

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respect the balance that Congress struck and give the
exemptions the “meaningful reach and application” that their
plain text requires, John Doe Agency v. John Doe Corp., 493
U.S. 146, 152 (1989); see also DiBacco v. United States Army,
795 F.3d 178, 183 (D.C. Cir. 2015).
At issue in this case is Exemption 9, which provides in full
that FOIA’s general duty of disclosure has no application to
“geological and geophysical information and data, including
maps, concerning wells.” 5 U.S.C. § 552(b)(9).
B
The Department of Interior’s Bureau of Reclamation
oversees water resource management across the United States.
Among the Bureau’s many programs is the Central Valley
Project, the “largest federal water management project in the
country.”
Central Delta Water Agency v. Bureau of
Reclamation, 452 F.3d 1021, 1023 (9th Cir. 2006). The Project
comprises a series of dams, twenty-one reservoirs, eleven
hydropower plants, and 500 miles of canals and aqueducts that
distribute water south from the Sacramento and San Joaquin
Rivers in Northern California, which together serve 20 million
people and 7 million acres of farm land in California. San Luis
& Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 593–
594 (9th Cir. 2014). Water districts within the Central Valley
Project can sell their river water to other districts further south
if the Bureau approves that water transfer. See Central Valley
Project Improvement Act, Pub. L. No. 102-575, § 3405(a), 106
Stat. 4600, 4709–4712 (1992).
Plaintiff AquAlliance is a non-profit organization
dedicated to protecting the Northern California ecosystem and
watersheds. Concerned about the potential adverse effects of
water transfers on the environment, AquAlliance has

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frequently submitted comments to the Bureau on water transfer
applications.
In November 2013, AquAlliance filed a FOIA request
seeking copies of all documents related to water transfers that
occurred in 2013. In May 2014, AquAlliance filed a similar
FOIA request for all documents related to water-transfer
applications filed with the Bureau for 2014. When the Bureau
failed to provide timely responses to both requests,
AquAlliance filed suit in the United States District Court for
the District of Columbia to compel disclosure of the requested
documents. That lawsuit apparently prompted the Bureau to
turn over most of the requested records. But, as relevant here,
the Bureau redacted information relating to water-well
construction, completion, depth, and location.
AquAlliance and the Bureau both filed motions for
summary judgment. The district court denied AquAlliance’s
motion and granted summary judgment to the Bureau on the
ground that Exemption 9 permitted the withholding of well
depth and location information. See AquAlliance v. Bureau of
Reclamation, 139 F. Supp. 3d 203, 209 (D.D.C. 2015). The
court reasoned that the statutory text draws “no distinction
* * * among types of wells, and * * * provides no reason to
think that water wells would be excluded from the exemption’s
purview.” Id. at 209–210. The district court also noted that
well location and depth “is seemingly prototypical
‘geophysical information.’” Id. at 211.
AquAlliance appealed in the hope that this court would
read the statutory text differently. We do not.

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II
We review the district court’s grant of summary judgment
de novo. See Citizens for Responsibility and Ethics in
Washington v. Federal Election Comm’n, 711 F.3d 180, 184
(D.C. Cir. 2013). The burden is on the government to prove
that a claimed FOIA exemption applies. See National Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002).
In determining the applicability of Exemption 9, we
“start[] with its text.” Milner, 562 U.S. at 569. In this case,
that is also where we end. As noted earlier, Exemption 9
permits the Bureau to withhold from disclosure “geological and
geophysical information and data, including maps, concerning
wells.” 5 U.S.C. § 552(b)(9). On its face, AquAlliance’s
request seeks “information and data” “concerning” the depth
and location of “wells,” specifically “including maps.” The
ordinary meaning of “wells” includes water wells. See, e.g.,
Well, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining
“well” as “[a] hole or shaft sunk into the earth to obtain a fluid,
such as water, oil, or natural gas”) (emphasis added).
The depth and location of wells straightforwardly qualifies
as “geological and geophysical information,” 5 U.S.C.
§ 552(b)(9). Geological and geophysical records document the
physical composition and structure of (for present purposes)
the Earth, including its subsurface. See, e.g., 8 MCGRAW-HILL
ENCYCLOPEDIA OF SCIENCE & TECHNOLOGY 36 (11th ed. 2012)
(defining “geology” as “[t]he study of the Earth’s materials and
of the processes that shape them”); id. at 80 (defining
“geophysics” as “[t]he study of the Earth and its relation[] to
the rest of the solar systems,” including “the Earth’s interior”);
see also Oral Argument at 8:24-8:36 (AquAlliance counsel: “I
think the definition of geophysical refers to more the structure
of the underground area.”). Geological maps, for example,

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often disclose a region’s topographical features, plate tectonics,
and soil composition. See 8 MCGRAW-HILL ENCYCLOPEDIA,
supra, at 42–43. Hydrogeological maps, in particular, show the
locations of aquifers conveying water beneath the Earth’s
surface. 2
Providing the well-depth and location information to
AquAlliance would thus necessarily disclose geological or
geophysical information. After all, to function, water wells
must be drilled deep enough to reach the sub-surface water
table. So the depth and location of wells reveal the location
both of groundwater deposits or flows and of aquifers or the
water table. That is archetypical geological and geophysical
information, which is obtained through geophysical processes.
See, e.g., 8 MCGRAW-HILL ENCYCLOPEDIA, supra, at 72–73
(seismic mapping is used “in groundwater studies, engineering
geophysics, and mining to map the water table”); id. at 77
(electrical survey methods are effective “in exploring for
ground water and in mapping bedrock”). AquAlliance’s FOIA
request thus falls squarely within Exemption 9.
AquAlliance voiced two objections to that plain-text
reading. First, AquAlliance argues that information should
only qualify as “geological and geophysical” if it (i) is technical
or scientific, and (ii) would bestow a competitive advantage on
the person who receives it. That argument fails because there
is nothing ambiguous about “geological and geophysical,” at
least not in a way that would permit judicially engrafting a
competitive-advantage limitation onto the text.

2

See, e.g., Kenneth E. Lite, Jr., Hydrogeologic Mapping,
WATER ENCYCLOPEDIA, http://www.waterencyclopedia.com/HyLa/Hydrogeologic-Mapping.html (last visited April 26, 2017).

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AquAlliance points to the legislative history of Exemption
9. But neither the House nor the Senate Report contains any
reference to competitive disadvantage or scientific
technicalities. S. REP. NO. 813, 89th Cong., 1st Sess. 37
(1965); H.R. REP. NO. 1497, 89th Cong., 2d Sess. 32 (1966).
Notably, when Congress wanted to craft a FOIA exemption to
protect trade secrets and competitive financial or scientific
information, it knew how to say so. See 5 U.S.C. § 552(b)(4)
(applicable to confidential “commercial or financial
information”).
AquAlliance also argues that Exemption 9 was meant to
apply only to oil and gas wells, reasoning that, for such wells,
geological and geophysical information can have significant
value to economic competitors. The short answer is that—
whatever AquAlliance believes Congress might have meant—
Congress said geological and geophysical information
“concerning wells,” without any such adjectival limitation.
AquAlliance points out that the House Report discusses
Exemption 9’s purpose as protecting oil and gas companies
from competitors eager to freeload on the companies’ research
investments. See H.R. REP. NO. 1497, supra, at 32 (“Witnesses
contended that disclosure of the seismic reports and other
exploratory findings of oil companies would give speculators
an unfair advantage over the companies which spent millions
of dollars in exploration.”).
That is no help to AquAlliance. The Supreme Court has
used legislative history only to “illuminate ambiguous text” in
FOIA. Milner, 562 U.S. at 572; see also Department of State
v. Washington Post Co., 456 U.S. 595, 599 (1982). The
problem for AquAlliance is that there is nothing ambiguous
about Exemption 9’s unqualified reference to “wells.”

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In any event, nothing in the House Report says that
protecting oil and gas companies was the House’s only
concern. And the Senate Report on the bill lacks any such
limiting language. Instead, the Senate Report explains that the
Exemption was added “to protect from disclosure certain
information which is highly valuable to several important
industries and which should be kept confidential when it is
contained in Government records.” S. REP. NO. 813, supra, at
37. Water wells directly implicate that purpose, given the value
of water and competing demands for it, especially in the
Western United States. See, e.g., Michael Wines, West’s
Drought and Growth Intensify Conflict Over Water Rights,
NYTIMES.COM
(March
16,
2014),
https://www.nytimes.com/2014/03/17/us/wests-drought-andgrowth-intensify-conflict-over-water-rights.html (“Residents
of the arid West have always scrapped over water.”).
AquAlliance, in short, asks the court to use “ambiguous
legislative history to muddy clear statutory language,” Milner,
562 U.S at 572. That we cannot do. The proper course, instead,
is for this court to assume that Congress meant what it said, and
said what it meant. 3

3

See Loughrin v. United States, 134 S. Ct. 2384, 2391 (2014);
Connecticut National Bank v. Germain, 503 U.S. 249, 253–254
(1992) (“We have stated time and again that courts must presume
that a legislature says in a statute what it means and means in a statute
what it says there.”).

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The judgment of the district court upholding the Bureau’s
withholding of water well location and depth information under
Exemption 9 is affirmed. 4
So ordered.

4

Because we conclude that the Bureau properly withheld the well
depth information under Exemption 9, we do not reach the Bureau’s
separate argument that the information is also covered by Exemption
4, 5 U.S.C. § 552(b)(4).

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