Audubon Society of Portland v. United States Natural Resources Conservation Service
Filing
38
AMENDED OPINION & ORDER: Defendant NRCS's motion for partial summary judgment 14 is denied with respect to claim one (violation of FOIA). Plaintiff Audubon's cross motion for summary judgment 23 is granted with respect to claims one (violation of FOIA) and two (violation of FOIA deadline). Claim three (violation of APA) is dismissed as moot because it had been pled in the alternative to claim two. See 12-page amended opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
AUDUBON SOCIETY OF PORTLAND,
No. 03:10-CV-1205-HZ
Plaintiff,
v.
AMENDED OPINION & ORDER
UNITED STATES NATURAL RESOURCES
CONSERVATION SERVICE,
Defendant.
David A Bahr
Bahr Law Offices
1035 ½ Monroe Street
Eugene, OR 97402
Paul August Kampmeier
Washington Forest Law Center
615 Second Avenue, Suite 360
Seattle, WA 98104
Attorneys for Plaintiff
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Kevin C. Danielson
US Attorney’s Office
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Attorney for Defendant
HERNANDEZ, District Judge:
Plaintiff Audubon Society of Portland brings three claims against Defendant United
States Natural Resources Conservation Service (NRCS): (1) unlawful withholding in violation
of the Freedom on Information Act (FOIA), (2) missing a decision deadline in violation of FOIA,
and (3) violation of the Administrative Procedure Act (APA). Defendant NRCS moves for
partial summary judgment on Plaintiff Audubon’s first and third claims.1 Plaintiff Audubon
Society of Portland cross moves for summary judgment on all three of its claims. I deny
Defendant NRCS’s motion for partial summary judgment, grant Plaintiff Audubon’s cross
motion for summary judgment; and dismiss claim three as moot.
BACKGROUND
The circumstances surrounding all three claims involve a FOIA request by Plaintiff
Audubon and the subsequent withholding and redaction of documents by Defendant NRCS.
Plaintiff Audubon had submitted a FOIA request regarding the Safe Harbor Agreement between
the U.S. Fish and Wildlife Service, the Oregon Department of Forestry, and NRCS. Pl.’s Memo.
in Supp. of Cross Mot. for Summ. J. (“Audubon MSJ”), 1. The Safe Harbor Agreement relates
to the conservation of the northern spotted owl on private lands and is part of the NRCS’s
Healthy Forests Restoration Program (HFRP). Id.; Def.’s Mot. for Summ. J. (NRCS MSJ), 3.
1
Defendant NRCS’s motion does not address Audubon’s second claim.
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Audubon does not dispute the following facts in NRCS’s concise statement of facts (Dkt. #15).
Id. at 10, n.1.
1.
In a letter to U.S. Fish and Wildlife dated August 18, 2009, Audubon requested
the documents regarding federal efforts to conserve or manage northern spotted
owls. Decl. of Lesley in Supp. of Def.’s Mot. for Summ. J. (“Kelly Decl.”) Ex. A.
The request included “documents and information in whatever form they have
been recorded or retained, including but not limited to: correspondence sent or
received, memoranda, policies, numerical data, telephone conversation notes,
meeting attendance lists, meeting notes, maps, agreements, contracts, and
electronic data.” Id.
2.
On September 18, 2009, U.S. Fish and Wildlife provided Audubon with 401
documents responsive to the FOIA request and withheld a total of eight
documents under Exemption 5 and 6. U.S. Fish and Wildlife informed Audubon
it was referring 45 additional documents to NRCS, the agency where the
documents originated, for a decision on whether the documents could be released.
3.
On October 7, 2009, NRCS informed Audubon it had reviewed the 45 documents.
NRCS released 17 documents to Audubon and withheld the remaining 28
documents under Exemption 3 based on § 1619(b) of the Food, Conservation, and
Energy Act (FCEA) of 2008, now codified at 7 U.S.C. § 8791(b).
4.
On October 27, 2009, Audubon appealed the decision of NRCS to Dave White,
Chief of NCRS. Prior to a decision on the appeal being made, Audubon filed this
action on September 30, 2010.
5.
NRCS created a Vaughn Index setting describing the documents it has withheld
under FOIA Exemption 3 and 7 U.S.C. § 8791(b) and explained the basis for
withholding the documents. Decl. of Brigette Beaton in Supp. of Def.’s Mot. for
Summ. J. (“Beaton Decl.”) Ex. 1.
6.
NRCS employees reviewed the documents withheld under Exemption 3 and
concluded they were properly withheld under 7 U.S.C. § 8791(b).
Audubon challenges the withholding of the 28 documents that were reviewed by NRCS.
Audubon MSJ, 1.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
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and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (internal quotation omitted). The nonmoving party must go beyond the pleadings
and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court views inferences drawn from the facts
in the light most favorable to the nonmoving party and draws all reasonable inferences in that
party's favor. Long v. City & County of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007).
If the factual context makes the nonmoving party’s claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
I. Claim One - Withholding of Information Under FOIA
The resolution of this claim depends on whether NRCS used a valid exemption under
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FOIA to withhold the requested documents. If no exemption applies, then the documents must
be disclosed. NRCS has argued that the documents are protected from disclosure because the
following exemption applies. FOIA exempts matters that are
(3) specifically exempted from disclosure by statute (other than section 552b of
this title [5 USCS § 552b]), if that statute–
(A) (I) requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue; or (ii) establishes particular criteria for
withholding or refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009
[enacted Oct. 28, 2009], specifically cites to this paragraph.
5 U.S.C. § 552(b)(3). Exemptions under FOIA are narrowly construed because there is a “strong
presumption in favor of disclosure”. Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009). The
agency that invokes the exemption has the burden of proving that the exemption properly applies
to the documents. Id.
There is a two-part inquiry to determine whether the “Exemption 3” stated above applies
to the Audubon’s FOIA request. Carlson v. United States Postal Serv., 504 F.3d 1123, 1127 (9th
Cir. 2007). “First, we determine whether the withholding statute meets the requirements of
Exemption 3. Then, we determine whether the requested information falls within the scope of
the withholding statute.” Id. NRCS argues that the “withholding statute” is § 1619 of the Food,
Conservation, and Energy Act (FCEA) of 2008, now codified as 7 U.S.C. § 8791.2 The FCEA
was enacted “[t]o provide for the continuation of agricultural and other programs of the
Department of Agriculture through fiscal year 2012, and for other purposes.” 110 Pub.L. No.
246, preamble. The relevant section of the FCEA limits disclosures of
2
From this point onward, I will refer to § 1619 of the FCEA as “§ 8791”.
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(A) information provided by an agricultural producer or owner of agricultural land
concerning the agricultural operation, farming or conservation practices, or the
land itself, in order to participate in programs of the Department; or
(B) geospatial information otherwise maintained by the Secretary about
agricultural land or operations for which information described in subparagraph
(A) is provided.
7 U.S.C. § 8791(b)(2)(A)-(B).3 Both parties agree that § 8791 is a “withholding statute” that
meets the requirements of Exemption 3. NRCS MSJ, 11-12; Audubon MSJ, 13. Therefore, I
assume that § 8791 is a withholding statute without deciding the issue.4
The second part of the inquiry is whether Audubon’s requested information falls within
the scope of § 8791. The documents requested by Audubon regard NRCS’s Healthy Forests
Restoration Program (HFRP). HFRP is a voluntary program with the purpose of “restoring and
enhancing forest ecosystems to promote the recovery of threatened and endangered species,
improve biodiversity, and enhance carbon sequestration.” Decl. of Ronald Alvarado in Supp. of
Def.’s Mot. for Summ. J. (“Alvarado Decl.”) ¶5. Landowners who wish to participate in HFRP
must file an application, submit to site visits, and submit a conservation plan to NRCS. Id. at
¶11-13.
There are two subparagraphs in § 8791 under which the documents may be withheld from
disclosure. 7 U.S.C. § 8791(b)(2)(A), (B). Under § 8791(b)(2)(A), the documents must satisfy
the following elements to prohibit disclosure: (1) the information is provided by an agricultural
3
Although there are exceptions to these limitations of disclosures, i.e., situations in which
disclosure is not prohibited, neither party have argued that the exceptions to § 8791 apply in this
case.
4
Section 8791 has been found to satisfy the requirements of Exemption 3. Zanoni v. U.S.
Dep’t of Agric., 605 F.Supp.2d 230, 236-37 (D.D.C. 2009).
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producer or owner of agricultural land, (2) the information concerns the agricultural operation,
farming or conservation practices, or the land itself, and (3) the information is provided in order
to participate in programs of the Department of Agriculture. Under § 8791(b)(2)(B), the
information shall not be disclosed if it is (1) geospatial information, (2) maintained by the
Secretary5, and (3) about agricultural land or operations for which information in subparagraph
(A) is provided.
A.
§ 8791(b)(2)(A) - Agricultural Operation
I begin the analysis by looking at the definitions of the key words in the statute. Only
“agricultural operation” is defined within § 8791 as “the production and marketing of agricultural
commodities and livestock.” 7 U.S.C. § 8791(b)(1). Within this definition, “agricultural
commodities” is the relevant term. Looking at the definition section of the chapter6 that includes
§ 8791, “producer” is defined as “an owner, operator, landlord, tenant, or sharecropper that
shares in the risk of producing a crop and is entitled to share in the crop available for marketing
from the farm, or would have shared had the crop been produced.” Id. at § 8702(13)(A). For
words undefined by the statute, I look to the ordinary meaning of the word. FDIC v. Meyer, 510
U.S. 471, 476 (U.S. 1994) (“In the absence of such a definition, we construe a statutory term in
accordance with its ordinary or natural meaning.”) (citation omitted).
With respect to subparagraph (A) of §8791(b)(2), the first element depends on whether
the forest land owners are “agricultural producers or owners of agricultural land”. “Agricultural”
5
“Secretary” is defined as the Secretary of Agriculture. 7 U.S.C. § 8701.
6
The chapter that encompasses § 8791 is entitled “Agricultural Commodity Support
Programs”.
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ordinarily means “of, relating to, or used in agriculture” and “agriculture” ordinarily means “the
science or art of cultivating the soil, harvesting crops, and raising livestock”. Webster’s New
International Dictionary 43-44 (3d ed. 2002). Given that “crop” appears in the statutory
definition of “producer”, there is some redundancy in defining “agricultural producer”.
Considering all of these definitions, the first element is satisfied if the land owner shares the risk
in cultivating or harvesting a crop and is entitled to a share in that crop that is available for
marketing. Here, whether the forest land owners in this case are “agricultural producers”
depends on whether wood or timber is a crop. “Crop” ordinarily means “the top, head, or highest
part [originally] of an herb, flower, or tree”. Id. at 540. Given that the definition of “crop”
includes only the top or highest part of a tree, as opposed to the entire tree, I find that the land
owners are not agricultural producers. The first element may still be met if the forest land
owners are “owners of agricultural land”. “Agricultural” means the “harvesting of crops” as
mentioned before. Because I have found that the ordinary definition of “crop” does not include
wood or timber, the forest land owners are not agricultural producers.
For the second element, the information must concern the agricultural operation, farming
or conservation practices, or the land itself. It is undisputed that the information submitted by the
land owners for the HFRP concerns the “conservation practices” or the catch-all category of “the
land itself”. Beaton Decl. ¶¶9-14, 24. The information submitted by the landowners includes
“the size of the forestry operation; location, density, and type of plant species; current
management strategies; age and health of timber stands; harvest decisions; financial objectives;
conservation goals; history of the land; geospatial information (maps and aerial photographs
annotated with specific information about the land); and acreage amounts.” Id. This type of
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information concerns the land itself, and some conservation practices. Thus, the second element
is met.
The second element could also be satisfied if the information concerns “agricultural
operations”. As stated before, “agricultural operations” is statutorily defined as “the production
and marketing of agricultural commodities and livestock.” 7 U.S.C. § 8791(b)(1). If wood or
timber is considered an agricultural commodity, then the second element is met. Audubon
argues that the definition of agricultural commodities does not include wood or timber. Plaintiff
supports its contention by arguing that (1) the FCEA distinguishes between “agricultural” and
“forestry” in its various sections (see e.g., § 2707), (2) the FCEA distinguishes between
“farmers” and “forest land owners” (see e.g., §2709), and (3) §8791 is found in Title I of the
FCEA for the administration of “Commodity Programs”, while Title VIII of the FCEA is
dedicated to “Forestry”. Audubon MSJ, 17. Based on these references in the FCEA, Audubon
believes that “agricultural commodities” do not include wood, timber, or forest products.
Defendants counter with their own cites to various Acts within the United States Code to
show that agricultural commodities include wood, timber, and forest products. Defendants refer
to the Federal Crop Insurance Act 7 U.S.C. § 1518), the Agricultural Marketing Act of 1946 (7
U.S.C. § 1626), and the Agricultural Foreign Investment Disclosure Act (7 U.S.C. § 3508) in
which “agricultural commodity”, “agricultural product” and “agricultural” have included timber
and forest products. NRCS Resp. & Reply, 6. An important distinction is that Plaintiff has
limited its analysis to the FCEA, which contains the exemption statute § 8791. Defendants on
the other hand, have cited to Acts outside of the FCEA in support of its argument. Because
Congress has failed to expressly define “agricultural” or “agricultural commodities” as used in §
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8791 of the FCEA, I find that Plaintiff’s argument is more persuasive. Because the FCEA makes
a distinction between “agriculture” and terms related to forests, I find that wood, timber, and
forest products are not agricultural commodities under the FCEA. Nonetheless, for reasons
stated above, the second element has been met.
The final element of subparagraph is whether the information was provided in order to
participate in a program of the Department of Agriculture. HFRP was established by NRCS, an
agency of the U.S. Department of Agriculture. Alvarado Decl. ¶¶4-5. The information
submitted by the land owners was submitted to NCRS for participation in HFRP. This final
element is satisfied.
In summary, I find that the information regarding the private forest lands was not properly
exempt from disclosure under Exemption 3 and § 8791(b)(2)(A). Although the second and third
elements were met, the first element was not met because the forest land owners are not
agricultural producers or owners of agricultural land. This finding affects document numbers 5,
11, 15, 25, 26, 27, 32, and 33, all of which had been completely withheld or redacted in part as
described in Exhibit 1 of the Beaton Declaration.
B.
§ 8791(b)(2)(B) - Geospatial Information
NRCS has also withheld documents under § 8791(b)(2)(B), which requires the
information to be (1) geospatial information, (2) maintained by the Secretary of Agriculture, and
(3) about agricultural land or operations for which information in subparagraph (A) is provided.
Geospatial information includes data such as global positioning system (GPS) coordinates. Ctr.
for Biological Diversity v. USDA, 626 F.3d 1113, 1116 (9th Cir. 2010). Here, NRCS has
withheld geospatial information about the land and operations of various private forest lands.
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Beaton Decl. ¶8. As determined under the § 8791(b)(2)(A) analysis above, the information is
maintained by the Secretary of Agriculture (via NRCS). Thus far, the first and second elements
of § 8791(b)(2)(B) have been met. For the final element, the information must concern
agricultural land or operations. As I previously stated, agricultural land or operations do not
concern wood, timber, or forest products. Therefore, I find that documents 6, 7, 8, 12, 13, 15, 16,
19, and 20, as referred to in Exhibit 1 of the Beaton Declaration, were not properly redacted or
withheld by NRCS. In summary, there is a violation of FOIA for the unlawful withholding of
information. Thus, Plaintiff Audubon’s motion is granted and Defendant NRCS’s motion is
denied for claim one–the withholding of information under FOIA.
II.
Claim Two - Decision Deadline Violation of FOIA
Audubon’s second claim concerns NRCS’s delay in responding to an administrative
appeal after it withheld disclosure of requested documents. Compl. ¶¶35-36. Defendant NRCS
has admitted in its Answer that it failed to respond to Audubon’s administrative appeal within the
statutory time limits as required by 5 U.S.C. § 552(a)(6)(A)(ii) and 7 C.F.R. § 1.14(c). Answer
¶13. Because NRCS concedes this issue, I grant summary judgment in favor of Audubon for its
second claim. Plaintiff is entitled to a declaratory judgment that NRCS has failed to make a
timely determination in Audubon’s administrative appeal under FOIA.
III.
Claim Three - APA Violation
This claim is based on Section 706 of the APA, which generally allows a reviewing court
to set aside an agency action if it is arbitrary, capricious, an abuse of discretion; in excess of
statutory authority; or without observance of legally required procedure. 5 U.S.C. § 706(2).
Audubon brought this APA claim as an alternative to the violations alleged in its second
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claim–the deadline violation under FOIA. Reply ISO Audubon MSJ, 11. Because I have already
found in favor of Audubon for its second claim, the motions with respect to this claim are moot.
IV.
Attorney Fees
Plaintiff Audubon seeks reasonable attorney fees and costs pursuant to FOIA and 28
U.S.C. § 2412. Compl. at 11. Attorney fees and costs are granted because Audubon prevailed on
its claim of unlawful withholding of documents under FOIA.
CONCLUSION
Defendant NRCS’s motion for partial summary judgment [# 14] is denied with respect to
claim one (violation of FOIA). Plaintiff Audubon’s cross motion for summary judgment [# 23]
is granted with respect to claims one (violation of FOIA) and two (violation of FOIA deadline).
Claim three (violation of APA) is dismissed as moot because it had been pled in the alternative to
claim two.
IT IS SO ORDERED.
Dated this 18th
day of January, 2012.
/s/ Marco A. Hernandez
MARCO A. HERNANDEZ
United States District Judge
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