Case Detail

FOIA Project Annotation: A federal court in Colorado has ruled that the U.S. Forest Service did not conduct an adequate search for records concerning the Wolf Creek Access Project that were requested by Rocky Mountain Wild and that it has failed to justify its claims under Exemption 5 (privileges). Rocky Mountain Wild requested records concerning contacts with outside entities relating to the project. The agency initially disclosed 6,684 pages. The agency released another 120 pages, but withheld 1,684 pages in full under Exemption 5. The court found the agency's search was inadequate, noting that "although the two searches performed by the Forest Service resulted in the disclosure, either in part or in full, of thousands of pages of information, limiting the search to [two offices of the Divide Ranger District of the Rio Grande National Forest] could not be expected to result in a reasonable search of requested documents under the actual FOIA request. In this case, the Forest Service failed to conduct a reasonable search for the information requested by Plaintiff in the FOIA request, including a failure to include the suggested entities in the search that would likely have responsive records." The court found the agency had not contacted several employees who had participated in the Wolf Creek project. The court noted that the agency "did [not] make the proper effort to determine whether personnel in its various offices participated in the agency's decision making regarding the Wolf Creek Project, or whether they may have had responsive records in their control or possession." The court rejected the agency's claim that the attorney-client privilege applied to 1,684 pages described as subject to a "legal sufficiency review." The court indicated that "this broad justification is not sufficiently clear, specific, or detailed to permit a court to determine whether a sufficient factual basis exists to support the agency's refusal to disclose the information." While the court agreed that the records were predecisional, it found the agency had failed to establish that they were deliberative as well. The court indicated that the agency's explanation "merely recites part of the legal standard for the privilege under exemption 5, and is insufficient as stated to warrant withholding all or parts of the responsive documents."
Issues: Search - Reasonableness of search, Exemption 5 - Privileges - Attorney-client privilege

Date Filed	Doc #	Docket Text
2014-09-09	1	COMPLAINT against All Defendants (Filing fee $ 400,Receipt Number 1082-4035606)Attorney Matthew David Sandler added to party Rocky Mountain Wild(pty:pla), filed by Rocky Mountain Wild. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(Sandler, Matthew) (Entered: 09/09/2014)
2014-09-09	2	Case assigned to Judge Wiley Y. Daniel and drawn to Magistrate Judge Kathleen M. Tafoya. Text Only Entry (sphil, ) (Entered: 09/09/2014)
2014-09-09	3	SUMMONS issued by Clerk. Magistrate Judge Consent form issued pursuant to Local Rule (Attachments: # 1 Magistrate Judge Consent Form) (sphil, ) (Entered: 09/09/2014)
2014-09-10	4	ORDER REFERRING CASE to Magistrate Judge Kathleen M. Tafoya for non-dispositive matters. That pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this matter is referred to the assigned United States Magistrate Judge is designated to conduct proceedings in this civil action as follows: (1) Convene a scheduling conference under Fed.R.Civ.P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LCivR 16.2. (2) Conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause. (3) Hear and determine pretrial matters, including discovery and other non-dispositive motions. (4) Alternative Dispute Resolution Authority: Court sponsored alternative dispute resolution is governed by D.C.COLOLCivR 16.6. On the recommendation or informal request of the magistrate judge, or on the request of the parties by motion, the court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. (5) Conduct a pretrial conference and enter a pretrial order. It is further ORDERED that parties and counsel shall be familiar and comply with the above judge's requirements found at www.cod.uscourts.gov. Entered by Judge Wiley Y. Daniel on 9/10/14. Text Only Entry (rkeec) (Entered: 09/10/2014)
2014-09-11	5	ORDER Setting Scheduling Conference for 12/10/2014 09:45 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya, by Magistrate Judge Kathleen M. Tafoya on 9/11/14. (sgrim) (Entered: 09/11/2014)
2014-09-16	6	SUMMONS issued by Clerk. (sphil, ) (Entered: 09/16/2014)
2014-09-17	7	NOTICE of Entry of Appearance by Zeyen Julian Wu on behalf of United States Department of Agriculture, United States Forest ServiceAttorney Zeyen Julian Wu added to party United States Department of Agriculture(pty:dft), Attorney Zeyen Julian Wu added to party United States Forest Service(pty:dft) (Wu, Zeyen) (Entered: 09/17/2014)
2014-10-16	8	ANSWER to 1 Complaint, by United States Department of Agriculture, United States Forest Service.(Wu, Zeyen) (Entered: 10/16/2014)
2014-10-17	9	Amended ANSWER to 1 Complaint, by United States Department of Agriculture, United States Forest Service.(Wu, Zeyen) (Entered: 10/17/2014)
2014-10-29	10	CORPORATE DISCLOSURE STATEMENT. (Sandler, Matthew) (Entered: 10/29/2014)
2014-10-29	11	SUMMONS Returned Executed upon defendant(s) United States Department of Agriculture served on 9/16/2014, answer due 11/17/2014; United States Forest Service served on 9/16/2014, answer due 11/17/2014. (Attachments: # 1 Exhibit Certified Mail Receipts)(Sandler, Matthew) (Entered: 10/29/2014)
2014-12-03	12	Proposed Scheduling Order by Plaintiff Rocky Mountain Wild, Inc. (Stills, Travis) (Entered: 12/03/2014)
2014-12-10	13	COURTROOM MINUTES for Scheduling Conference held on 12/10/2014 before Magistrate Judge Kathleen M. Tafoya. ORDERED: Defendant shall file its motion for summary judgment, including a Vaughn Index and declarations, as required, on or before February 6, 2015. Plaintiff's response to Defendant's motion for summary judgment and any cross motion for summary judgment shall be filed on or before March 12, 2015. However, should Plaintiff file a Rule 56 (d) motion for discovery as addressed infra, this response/cross motion deadline will be vacated and the deadline to file a response/cross-motion for summary judgment will be stayed until resolution of the Rule 56(d) motion. If Plaintiff determines a need for discovery based on Defendant's motion for summary judgment and accompanying documentation, Plaintiff is permitted to file a Rule 56(d) motion on or before February 26, 2015. Defendant's response to Plaintiff's Rule 56(d) motion shall be filed on or before March 12, 2015. A reply is not permitted. A hearing on any motion filed by Plaintiff pursuant to Fed. R. Civ. P. 56(d) is set for March 19, 2015 at 1:30 p.m. in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. (The hearing will be vacated if Plaintiff elects to proceed without having filed a Rule 56(d) motion.) Counsel shall come prepared to discuss further scheduling, including the time necessary to complete any discovery allowed by the court and to re- set the deadline for Plaintiff to file a response/cross motion for summary judgment. Discovery is not authorized in this matter absent a ruling on a timely filed Rule 56(d) motion. FTR: KMT C201. (sgrim) (Entered: 12/10/2014)
2014-12-23	14	TRANSCRIPT of Scheduling Conference held on December 10, 2014 before Magistrate Judge Tafoya. Pages: 1-39. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 3/26/2015. (Avery Woods Reporting, ) (Entered: 12/23/2014)
2015-02-06	15	MOTION for Summary Judgment by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit 1 Declaration of Harald Fuller-Bennett, # 2 Exhibit 2 Declaration of Guy Blackwolf, # 3 Exhibit 3 Pl.'s FOIA Request, # 4 Exhibit 4 Initial Response, # 5 Exhibit 5 Final Determination, # 6 Exhibit 6 Pl.'s Admin. Appeal, # 7 Exhibit 7 Appeal Determination, # 8 Exhibit 8 Memorandum of Understanding, # 9 Exhibit 9 Vaughn Index, # 10 Exhibit 10 Sched. Conf. Transcript)(Wu, Zeyen) (Entered: 02/06/2015)
2015-02-09	16	NOTICE of Errata re 15 MOTION for Summary Judgment by Defendants United States Department of Agriculture, United States Forest Service (Attachments: # 1 Exhibit Defendants' Vaughn Index)(Wu, Zeyen) (Entered: 02/09/2015)
2015-03-02	17	MINUTE ORDER: Because Plaintiff did not file a Rule 56(d) motion on or before 2/26/2015, the Motion Hearing set for 3/19/2015 is VACATED. By Magistrate Judge Kathleen M. Tafoya on 3/2/2015. Text Only Entry (kmtlc2) (Entered: 03/02/2015)
2015-03-12	18	RESPONSE to 15 MOTION for Summary Judgment filed by Plaintiff Rocky Mountain Wild, Inc. (Attachments: # 1 Exhibit FWS communications with index, # 2 Exhibit AR communications with index, # 3 Exhibit Mueller Declaration, # 4 Exhibit Forest Service Team from WC FEIS V1, # 5 Exhibit Project Contact Information, # 6 Exhibit FWS FOIA Letter 12.30.14, # 7 Exhibit Consultation and Coordination from WC FEIS V1, # 8 Exhibit FW_ WCV FP Amendment Question Revisited, # 9 Exhibit Biological Opinion p. 1-15, # 10 Exhibit Biological Opinion p. 16-25, # 11 Exhibit Biological Opinion p. 26-40, # 12 Exhibit Crossing Structure Estimates, # 13 Exhibit Washington Office Communications, # 14 Exhibit Withheld In Full to Plaintiff, # 15 Exhibit Withheld In Part RGNF)(Sandler, Matthew) (Entered: 03/12/2015)
2015-03-12	19	MOTION for Partial Summary Judgment incorporating Exhibits from Plaintiff's Response to Defendant's Motion for Summary Judgment by Plaintiff Rocky Mountain Wild, Inc. (Sandler, Matthew) (Entered: 03/12/2015)
2015-03-25	20	MOTION to Strike 18 Response to Motion,,, Exhibits 1 and 8 Only by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit 1 Plaintiff's Rule 26(a)(1) Disclosure, # 2 Exhibit 2 Transcript of 12/10/14 Scheduling Conf.)(Wu, Zeyen) (Entered: 03/25/2015)
2015-03-25	21	MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Partial Summary Judgment incorporating Exhibits from Plaintiff's Response to Defendant's Motion for Summary Judgment , 15 MOTION for Summary Judgment by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit Transcript of Scheduling Conference)(Wu, Zeyen) (Entered: 03/25/2015)
2015-03-25	22	SUPPLEMENT/AMENDMENT to 20 MOTION to Strike 18 Response to Motion,,, Exhibits 1 and 8 Only Certificate of Compliance with Local Rule 7.1(a) by Defendants United States Department of Agriculture, United States Forest Service. (Wu, Zeyen) (Entered: 03/25/2015)
2015-03-31	23	SUPPLEMENT/AMENDMENT to 21 MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Partial Summary Judgment incorporating Exhibits from Plaintiff's Response to Defendant's Motion for Summary Judgment , 15 MOTION for Summary Judgment by Defendants United States Department of Agriculture, United States Forest Service. (Wu, Zeyen) (Entered: 03/31/2015)
2015-04-01	24	RESPONSE to 20 MOTION to Strike 18 Response to Motion,,, Exhibits 1 and 8 Only filed by Plaintiff Rocky Mountain Wild, Inc. (Attachments: # 1 Exhibit Supplemental Mueller Declaration)(Sandler, Matthew) (Entered: 04/01/2015)
2015-04-01	25	RESPONSE to 21 MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Partial Summary Judgment incorporating Exhibits from Plaintiff's Response to Defendant's Motion for Summary Judgment , 15 MOTION for Summary Judgment filed by Plaintiff Rocky Mountain Wild, Inc. (Sandler, Matthew) (Entered: 04/01/2015)
2015-04-02	26	REPLY to Response to 21 MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Partial Summary Judgment incorporating Exhibits from Plaintiff's Response to Defendant's Motion for Summary Judgment , 15 MOTION for Summary Judgment filed by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit Conferral E-mails)(Wu, Zeyen) (Entered: 04/02/2015)
2015-04-02	27	MINUTE ORDER granting 21 Defendants Motion for Extension of Time to Respond to Plaintiffs March 12, 2015 Motions. Defendants reply to Plaintiffs Response to Motion for Summary Judgment ECF No. 18 and Defendants response to Plaintiffs Cross Motion for Partial Summary Judgment ECF No. 19 are now due not later than April 24, 2015, by Judge Wiley Y. Daniel on 4/2/2015.(evana, ) (Entered: 04/02/2015)
2015-04-24	28	RESPONSE to 19 MOTION for Partial Summary Judgment incorporating Exhibits from Plaintiff's Response to Defendant's Motion for Summary Judgment , 15 MOTION for Summary Judgment Consolidated Reply filed by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit 1 Declaration of Dan Dallas, # 2 Exhibit 2 Declaration of Marge Gallegos, # 3 Exhibit 3 Supplemental Declaration of Guy Blackwolf, # 4 Exhibit 4 43 Fed. Reg. 55987)(Wu, Zeyen) (Entered: 04/24/2015)
2015-05-08	29	REPLY to Response to 19 MOTION for Partial Summary Judgment incorporating Exhibits from Plaintiff's Response to Defendant's Motion for Summary Judgment filed by Plaintiff Rocky Mountain Wild, Inc. (Sandler, Matthew) (Entered: 05/08/2015)
2015-05-14	30	MINUTE ORDER: No later than 14 days after ruling on the motions for summary judgment (Doc. Nos. 15 & 19), the parties shall file a Joint Status Report, if any portion of the case remains pending, advising the court as to the status of the case and whether any deadlines or hearing should be set. By Magistrate Judge Kathleen M. Tafoya on 5/14/2015. Text Only Entry (kmtlc2) (Entered: 05/14/2015)
2015-09-30	31	ORDER That Defendants Motion for Summary Judgment ECF No. 15 is DENIED. It is FURTHER ORDERED as follows: Plaintiffs Cross Motion for Partial Summary Judgment ECF No. 19 is GRANTED in part and DENIED in part; Defendants Motion to Strike Evidence in Plaintiffs Response to Defendants Motion for Summary Judgment and Plaintiffs Motion for Summary Judgment ECF No. 20 is DENIED, by Judge Wiley Y. Daniel on 9/30/2015.(evana, ) (Entered: 09/30/2015)
2015-10-27	32	MOTION for Extension of Time to Complete Document Review and Production in Accordance with the Court's September 20, 2015 Order by Defendants United States Department of Agriculture, United States Forest Service. (Wu, Zeyen) (Entered: 10/27/2015)
2015-10-30	33	RESPONSE to 32 MOTION for Extension of Time to Complete Document Review and Production in Accordance with the Court's September 20, 2015 Order filed by Plaintiff Rocky Mountain Wild, Inc. (Sandler, Matthew) (Entered: 10/30/2015)
2015-10-30	34	ORDER Defendants Motion for Extension of Time to Produce Additional Responsive Documents Pursuant to the Courts September 30, 2015 Order ECF No. 32 is GRANTED. Defendants shall produce documentation in compliance with the Courts September 30, 2015 Order ECF No. 31 no later than Monday, November 30, 2015. No future extension requests will be considered on this issue, by Judge Wiley Y. Daniel on 10/30/2015.(evana, ) (Entered: 10/30/2015)
2015-10-30	35	STATUS REPORT Regarding Compliance with 31 September 30, 2015 Order by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit Revised Vaughn Index)(Wu, Zeyen) (Modified on 11/3/2015 added 31 link)(evana, ). (Entered: 10/30/2015)
2015-11-19	36	MOTION to Clarify re 32 MOTION for Extension of Time to Complete Document Review and Production in Accordance with the Court's September 20, 2015 Order by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit 1 E-mails Re: FOIA Search)(Wu, Zeyen) (Entered: 11/19/2015)
2015-11-23	37	RESPONSE to 36 MOTION to Clarify re 32 MOTION for Extension of Time to Complete Document Review and Production in Accordance with the Court's September 20, 2015 Order filed by Plaintiff Rocky Mountain Wild, Inc. (Attachments: # 1 Exhibit Conferral emails)(Sandler, Matthew) (Entered: 11/23/2015)
2015-11-25	38	ORDER Denying 36 Defendants Motion to Clarify Regarding Search and Production of Records for Certain Forest Service Custodians. The five named custodians are not relieved from inclusion in the search for responsive records, as defined in the September 30, 2015 Order, by Judge Wiley Y. Daniel on 11/25/2015.(evana, ) (Entered: 11/25/2015)
2015-11-30	39	STATUS REPORT by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit 1 Attorney-client Privilege Vaughn Index, # 2 Exhibit 2 Exemption 6 Vaughn Index)(Wu, Zeyen) (Entered: 11/30/2015)
2016-04-06	40	ORDER On or before May 31, 2016, counsel for Rocky Mountain Wild and counsel for the Forest Service shall meet and confer in good faith as to whether the Forest Service has, at that point, fully discharged its FOIA obligations as they pertain to Rocky Mountain Wilds February 2014 FOIA request; and On or before June 15, 2016, Rocky Mountain Wild shall file a joint status report setting forth the issues on which the parties agree, and the parties respective positions on issues for which they do not agree, if any. Based on the joint status report, the Court will address any remaining issues and set any additional deadlines, by Judge Wiley Y. Daniel on 4/6/2016. (evana, ) (Entered: 04/06/2016)
2016-06-14	41	Joint STATUS REPORT by Plaintiff Rocky Mountain Wild, Inc. (Sandler, Matthew) (Entered: 06/14/2016)
2016-06-15	42	MINUTE ORDER re: 41 The Parties in the above referenced matter have indicated by way of a Joint Status Report, that they expect to file settlement documents addressing the merits of the FOIA claims within the next ten days. Accordingly, the Parties shall file dismissal papers regarding the FOIA claims on or before Friday, June 24, 2016. Any motions for attorneys fees and/or costs associated with this litigation shall be filed with the Court no later than Monday, August 15, 2016, by Judge Wiley Y. Daniel on 6/15/2016. (evana, ) (Entered: 06/15/2016)
2016-06-24	43	Joint MOTION to Dismiss Merits While Reserving Attorneys' Fees by Defendants United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit Declaration of Andria Weeks, # 2 Proposed Order (PDF Only))(Wu, Zeyen) (Entered: 06/24/2016)
2016-06-28	44	ORDER Granting 43 the Parties Joint Motion to Dismiss, and the present litigation is dismissed with prejudice, by Judge Wiley Y. Daniel on 6/28/2016.(evana, ) (Modified on 6/29/2016corrected typo)(evana, ). (Entered: 06/29/2016)
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