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American Bird Conservancy v. U.S. Fish and Wildlife Service

United States District Court, E.D. Virginia, Alexandria Division

June 9, 2015

AMERICAN BIRD CONSERVANCY, Plaintiff,
v.
U.S. FISH AND WILDLIFE SERVICE, et al., Defendants.

MEMORANDUM OPINION

T. S. ELLIS, III, District Judge.

At issue in this now-concluded Freedom of Information Act[1] ("FOIA") case is plaintiff's motion for attorney's fees, which raises the following issues:

(1) Whether plaintiff is eligible to recover attorney's fees under FOIA.
(2) Whether plaintiff's filing of the complaint or plaintiff's litigation efforts in this case caused defendants' disclosure of previously-withheld documents.
(3) If so, whether the nature of the documents that plaintiff's litigation efforts caused to be disclosed warrants an award of attorney's fees, and, if so, the amount of that award.

As the parties have fully briefed and argued these issues, they are now ripe for resolution.

I.

A more complete recitation of facts and procedural history of this FOIA dispute may be found in the Order that resolved the parties' cross-motions for summary judgment.[2] For purposes of the motion at bar, the following facts are sufficient.

Plaintiff American Bird Conservancy ("ABC") is a non-profit organization that seeks to conserve native birds and their habitats in the Americas through scientific research, analysis, and advocacy. One of plaintiff's advocacy and research programs, the "Bird-Smart Wind Program, " is aimed at addressing threats to birds and avian habitats caused by wind energy development. In furtherance of this program, plaintiff seeks to ensure that the federal government minimizes the adverse impact on birds and their habitats during the construction and operation of wind energy facilities. The federal defendants in this case are the U.S. Department of the Interior ("DOI") and the U.S. Fish and Wildlife Services ("FWS"). FWS is a bureau within DOI that seeks to guide conservation, development, and management of America's fish and wildlife resources. DOI is a Cabinet-level agency responsible for managing America's natural and cultural resources.

Plaintiff's motion for attorney's fees focuses on plaintiff's series of three FOIA requests and defendants' responses to those requests, including the disclosure of documents during the pendency of this litigation. Plaintiff's first FOIA request, submitted on April 5, 2011, sought "full copies of all documents relating to mortality of birds and bats at wind farms in Kenedy County, Texas... and FWS internal and external correspondence about bird and bat mortality at wind farms in Kenedy County, Texas." On April 14, 2011, plaintiff sent three additional FOIA requests to FWS regional offices requesting more records pertaining to proposed and constructed wind power facilities. These requests sought studies of potential bird and bat impacts for the proposed projects, bird and bat mortality data regarding the proposed and constructed projects, and correspondence between FWS and its project developer concerning bird and bat impacts of these projects. In response, FWS released a number of documents responsive to this FOIA request, but withheld certain documents pursuant to several FOIA exemptions. Specifically, twenty-nine documents from FWS Region Two were withheld based on FOIA Exemptions 4, 5, 6, and 7(A); twenty-eight documents from FWS Region Three were withheld based on FOIA exemptions 4 and 5; and nine documents from FWS Region Six were withheld based on FOIA exemptions 4 and 6.

Plaintiff's second FOIA request was submitted on June 28, 2012 to the FWS Division of Information Resources and Technology Management in Arlington, Virginia for "review comments from FWS regional and local offices regarding the drafts of the FWS Land-Based Wind Energy Guidelines" and "interagency review comments regarding the drafts of the FWS Land-Based Wind Energy Guidelines" from agencies other than FWS. On April 10, 2013, FWS released a number of documents responsive to this request, but withheld two documents in their entirety based on FOIA Exemption 5. The withheld documents were (1) the comments on the Council on Environmental Quality on the draft Guidelines, and (2) the comments of the Office of Management and Budget on the draft Guidelines.

Plaintiff's third FOIA request was submitted on March 29, 2013 to the FWS Division of Information Resources and Technology Management in Arlington, Virginia and to the Office of the Secretary of the Interior for records of FWS internal meetings concerning "a proposed rule that would dramatically increase the duration of Eagle Act take permits" and also requested "the FWS guidance document used by wind developers seeking Eagle Act take permits."[3] Specifically, plaintiff sought "staff communications related to such meetings, including meeting agendas, meeting notes, emails, and letters, " as well as "records prepared for the meetings such as handouts and presentations."

On June 14, 2013, plaintiff filed the instant complaint against FWS and DOI to compel disclosure of requested records. Two months later, on August 15, 2013, defendants released 1187 pages of records responsive to plaintiff's third FOIA request, 225 of which were redacted in part pursuant to FOIA Exemptions 5 and 6. According to defendants, based on a sworn declaration submitted by Claire Julka, the FOIA Officer for the Office of Secretary at the Department of the Interior, the August 15, 2013 document release occurred because the "Office of the Solicitor completed its consultation concerning the records [at issue] and transferred the records... for release." Julka Decl. ¶ 21. Moreover, the Julka Declaration contends under oath that "[p]laintiff's filing of the complaint or any filings related to the complaint had nothing to do with [the] office's timing of the release." Id. ¶ 24. One day later, on August 16, 2013, FWS released 225 pages of previously-withheld materials in six documents responding to plaintiff's first FOIA request. As with the August 15 release, defendants declare under oath that the timing of the release was caused by the necessity of completing a consultation with the Office of the Solicitor and that "[p]laintiff's filing of the complaint or any filings related to the complaint had nothing to do with [the] office's timing of the release." Urioste Decl. ¶ 26.

On November 22, 2013, defendants filed a motion for summary judgment with respect to the remaining documents at issue. Plaintiff filed both an opposition to defendant's motion and a cross-motion for summary judgment on December 23, 2013. While the summary judgment motions were pending, on January 16, 2014, FWS released all of the Kenedy County documents that had previously been withheld on the basis of Exemption 7(A) grounds in response to plaintiff's first FOIA request. This release consisted of 9 documents and 38 pages of additional material. According to the sworn declaration of Melanie Ikenson, Program Analyst and FOIA Coordinator for the Southwest Region of FWS, on "January 14, 2014... Law Enforcement Field Agent Alejandro Rodriguez, in consultation with the United States Department of Justice, determined that it was no longer necessary to withhold the nine documents withheld under Exemption 7(A) on September 14, 2012." Ikenson Decl. ¶ 9. Importantly, Ms. Ikenson also noted that

[t]his changed withholding determination was not related to the [p]laintiff's FOIA litigation. Instead, the changed withholding determination was due to the evolution of the investigation between September 14, 2012 and January 14, 2014. As of January 14, 2014, [FWS] in consultation with the United States Department of Justice, determined that the underlying law enforcement matter would not be further pursued and therefore determined the release of the subject documents was appropriate.

Id.

On February 21, 2014, following briefing and argument on the parties' cross-motions for summary judgment, an Order issued taking the summary judgment motions under advisement and directing defendants to submit the documents still at issue for in camera review.[4] In the course of submitting the documents for in camera review, defendants released parts of 4 additional documents in response to plaintiff's third FOIA request on May 6, 2014.[5]

Finally, on June 24, 2014, the Summary Judgment Order issued, recording the results of the in camera review. Specifically, the Order granted defendants' motion in part, finding that FOIA Exemptions 4 and 5 were validly applied to the following documents:

1. FWS Region Two documents 2, 3, 5, 18 with the exception of the first paragraph, 19-21, 28, and 29;
2. FWS Region Three documents 2, 6-16, 20, and 22-28;
3. FWS Region Six documents 1-6 and 9;
4. Office of Management and Budget and Counsel on Environmental Quality Comments documents 1 and 2; and
5. Office of the Secretary documents 1-3, 6-10, 12, 13, 15-17, 19, 21-23, 25-28, 32, and 33.[6]

Defendants' motion was denied in all other respects. At the same time, plaintiff's motion for summary judgment was also granted in part, with the Order directing defendants ...


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