Western Energy Alliance v. United States Bureau of Land Management
Filing
25
ORDER denying 21 Motion for Attorney Fees. By Judge Robert E. Blackburn on 3/23/2015. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02814-REB-CBS
WESTERN ENERGY ALLIANCE, a Colorado, non-profit organization,
Plaintiff,
v.
BUREAU OF LAND MANAGEMENT, a federal agency within the United States
Department of the Interior,
Defendant.
ORDER DENYING MOTION FOR ATTORNEY FEES & COSTS
Blackburn, J.
This matter is before the court on Plaintiff Western Energy Alliance’s Motion
for Attorney Fees and Costs [#21]1 filed March 4, 2014. The defendant filed a
response [#22], and the plaintiff filed a reply [#23]. I deny the motion
The plaintiff, the Western Energy Alliance (WEA), filed this suit to enforce the
Freedom of Information Act (FOIA). On May 2, 2013, the WEA submitted a FOIA
request to the Bureau of Land Management seeking information about the peer review
process used in developing the report of the BLM titled “A Report on National Greater
Sage-Grouse Measures.” The report was produced by the Sage-Grouse national
Technical Team and is known as the NTT Report.
1
“[#21]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
The BLM failed to make a timely determination concerning the FOIA request and
the WEA filed this suit. About ten days after this case was filed, the BLM made an initial
response to the requests of the WEA by releasing some information on October 24,
2013. Additional information was released by the BLM on December 31, 2013. After
the WEA confirmed that the BLM response was adequate, the parties entered a
stipulation to dismiss this case, but asked the court to retain jurisdiction over the issue
of attorney fees and costs. The court entered an order [#20] to that effect. The
information released by the BLM is peer review documents that were part of the basis
for the NTT report. The NTT report long has been available to the public.
I. STANDARD OF REVIEW
Under 5 U.S.C. § 552(a)(4)(E)(I), a court may award attorney fees in a case
involving a claim under FOIA. Anderson v. Sec’y of Health and Human Services, 80
F.3d 1500, 1504 (10th Cir. 1996). An award of attorney fees and costs is within the
discretion of the district court. Aviation Data Service v. F.A.A., 687 F.2d 1319, 1321
(10th Cir. 1982). A party seeking an award has the burden of showing it is entitled to an
award. Anderson, 80 F.3d at 1504.
The court first must determine if the plaintiff is eligible for an award of fees and
costs. A plaintiff is eligible for an award if the plaintiff has “substantially prevailed” on
the FOIA claim. § 552(a)(4)(E)(ii). A plaintiff has substantially prevailed if the plaintiff
has obtained relief through either (i) a judicial order (or enforceable written agreement
or consent decree); or (ii) a voluntary or unilateral change in position by the agency,
where the claim of the plaintiff was not insubstantial. § 552(a)(4)(E)(ii); Anderson, 80
F.3d at 1504.
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If the plaintiff is eligible, then the court must determine if an award otherwise is
justified. Id. Determination of whether an award otherwise is justified involves
consideration of four factors: (1) the benefit to the public, if any, derived from the case;
(2) the commercial benefit to the plaintiff; (3) the nature of the interest of the plaintiff in
the records sought; and (4) whether the withholding of the records by the government
had a reasonable basis in law. Anderson, 80 F.3d at 1504.
II. ANALYSIS
The BLM does not contest the eligibility of WEA for an award of attorney fees
and costs. However, the BLM contends that none of the four factors in the “otherwise
justified” analysis supports an award of fees and costs.
The WEA is a tax-exempt organization incorporated under Internal Revenue
Code section 501(c)(6) as a “business league.” “A business league is an association of
persons having some common business interest, the purpose of which is to promote
such common interest and not to engage in a regular business of a kind ordinarily
carried on for profit.”2 The membership of the WEA is comprised of “over 480
companies engaged in all aspects of . . . production of oil and natural gas in the West.”
Complaint [#1], ¶¶ 3-4. Its stated goal is to promote exploration and production (“E&P”)
of oil and natural gas through “engag[ing] in any federal regulation that affects the E&P
sector,” promoting “Positive Messages About Industry,” and “Increasing Demand” for oil
and gas. Response [#22], Ex. 5.
2
http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/Business-Leagues (last visited
March 23, 2015).
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A. Public Benefit
To some degree, a successful FOIA plaintiff always acts for the benefit of the
public “both by bringing government into compliance with the FOIA and by securing for
the public at large the benefits assumed to flow from the public disclosure of
government information.” Aviation Data, 687 F.2d at 1323 (internal quotation and
citation omitted). However, noting the underlying purposes of FOIA disclosure, the
United States Court of Appeals for the Tenth Circuit has said the public benefit factor
does not particularly favor attorney's fees where the award would merely
subsidize a matter of private concern; this factor rather speaks for an
award where the complainant's victory is likely to add to the fund of
information that citizens may use in making vital political choices.
Id.
In an FOIA action, where the plaintiff seeks disclosure of material for
commercial purposes, attorney fees may be awarded only on a positive
and clear showing of substantial public benefit. Minimal, incidental and
speculative public benefit will not suffice.
Id. “The test . . . is whether the disclosure will assist the citizenry generally in making
an informed judgment as to governmental operations.” Id.
The WEA contends the information it obtained from the BLM conferred a public
benefit because it was covered extensively in the news. The exhibits cited by the WEA
show three instances of coverage in what appear to be industry news publications.
Reply [#23], Exhibits A - C. The information was not in the public domain before the
WEA obtained disclosure. The WEA says it made the information available to its
members and to the public. Motion [#21], Exhibit A, ¶ 11. However, the WEA provides
no details about these disclosures, and the defendant contends the information is not
available on the publicly available portion of the WEA website.
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The WEA is correct when it says the information is relevant to the integrity of
conservation measures for the sage-grouse. However, there is no showing that this
peer review information will provide a substantial public benefit. Rather, the current
record demonstrates, at most, a minimal, incidental, industry focused, and speculative
public benefit. In addition, the WEA notes that its work has attracted the attention of
Congress. The WEA notes its influence on a bill introduced in Congress to require
more transparency and accountability for Endangered Species Act data and science.
However, the WEA makes no specific showing that the peer review information at issue
here had a significant influence in that effort.
For the reasons discussed above, I find and conclude that the public benefit
factor weighs against an award of attorney fees.
B. Commercial Benefit & Nature of Plaintiff’s Interest
The second and third factors are related closely; thus, I consider them together.
These factors “assess whether a plaintiff has ‘sufficient private incentive to
seek disclosure’ without attorney’s fees.” Davy v. C.I.A., 550 F.3d 1155, 1160 (D.C.
Cir. 2008).
One important factor which the trial court should take into consideration is
whether the action was brought to advance the private commercial interest
of the complainant. Section 552(a)(4)(E) was not intended to compensate
FOIA complainants who have a private commercial interest in disclosure
which is sufficient incentive to pursue their claim through the courts.
Aviation Data, 687 F.2d at 1322. The U.S. Court of Appeals for the District of
Columbia Circuit has said
the first three factors assist a court in distinguishing between requesters
who seek documents for public informational purposes and those who
seek documents for private advantage. The former engage in the kind of
endeavor for which a public subsidy makes some sense, and they typically
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need the fee incentive to pursue litigation; the latter cannot deserve a
subsidy as they benefit only themselves and typically need no incentive to
litigate
Davy v. C.I.A., 550 F.3d 1155, 1160 (D.C. Cir. 2008).
The WEA is a private, non-profit organization but its purpose is to promote and
support “individuals and businesses dedicated to more efficiently exploring, developing,
and producing oil and natural gas using environmentally-sound methods in the
intermountain west, [and] promoting the beneficial uses of natural gas . . . .” Response
[#22], Ex. 4, p. 2. Here, it is clear the WEA seeks to achieve a benefit for its members
by obtaining the FOIA information and using it to challenge regulations of its industry
which its members oppose. The record demonstrates use of the FOIA material
primarily for such purposes. In this context, an award of attorney fees and costs “would
merely subsidize a matter of private concern.” Aviation Data, 687 F.2d at 1323.
Applying § 552 as codified and construed, the second and third factors weigh
against an award of attorney fees and costs.
C. Reasonable Basis To Withhold Information
As detailed in the motion [#21], the release of the information by the BLM was
delayed beyond the applicable FOIA deadlines. As noted, the information sought by the
WEA was released by the BLM shortly after this case was filed. Nothing in the record
demonstrates a reasonable basis in law for this delay. This factor weighs in favor of an
award of fees and costs.
III. CONCLUSION & ORDER
Three of the four relevant factors weigh against an award of fees and costs. The
fourth factor weighs in favor of an award because disclosure of the information was
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delayed by the BLM. Still, the BLM cooperated in resolving this case quickly after the
case was filed. On balance, I conclude that an award of fees and costs is not justified.
THEREFORE, IT IS ORDERED that Plaintiff Western Energy Alliance’s
Motion for Attorney Fees and Costs [#21] filed March 4, 2014, is DENIED.
Dated March 23, 2015, at Denver, Colorado.
BY THE COURT:
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