Case Detail

FOIA Project Annotation: A federal court in Tennessee has ruled that the Forest Service properly invoked Exemption 5 (deliberative process privilege) in withholding a number of records concerning the Walnut Mountain Project Proposal pertaining to the use of land in the Cherokee National Forest. The Southern Appalachian Biodiversity Project claimed the plan amounted to little more than a commercial timber sale and that the agency had not considered viable alternatives. The Project asked for information concerning the alternatives considered and brought suit when the agency withheld portions under Exemption 5. Noting that the agency had withheld "the very type of records that Exemption 5 has been construed to protect," the court rejected the Project's contention that the agency had withheld factual portions of the records, such as maps. The court agreed with the agency that "even if the notes were redacted, the maps would reveal which forest areas were considered for WMPP inclusion in the [agency's] deliberative process." The court pointed out that the Project had failed to show that the agency's delay in responding to the request was anything more than the result of "administrative backlog" and that the Project could not complain about the delay in the administrative appeal process because it could have brought suit earlier but had elected to wait for the agency to decide its appeal.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2005-09-15	1	COMPLAINT against United States Forest Service and Dale Bosworth in his official capacity as Chief of the United States Forest Service (Filing fee $ 250.00 received, receipt # G2000013) , filed by Southern Appalachian Biodiversity Project and Wild South. Magistrate Judge Dennis H Inman designated for all pretrial matters. (Attachments: # 1 Civil Cover Sheet)(FMM, ) Additional attachment(s) added on 9/15/2005 - Notice of Lawsuit and Request for waiver of Service of Summons (FMM, ). (Entered: 09/15/2005)
2005-09-15	2	MOTION for Leave to Appear pro hac vice by attorney Rachel S Doughty on behalf of Southern Appalachian Biodiversity Project and Wild South. (Fee $60.00 paid, receipt # G2000013) (Attachments: # 1 Certificate of Good Standing from the USDC for the Western District of North Carolina at Asheville, NC)(FMM, ) (Entered: 09/15/2005)
2005-09-16	3	ORDER GRANTING Doc. 2 Motion for Leave to Appear pro hac vice by attorney Rachel S Doughty on behalf of the plaintiffs . Signed by Judge Dennis H Inman on 9/16/05. (FMM, ) (Entered: 09/16/2005)
2005-11-14		Summons Issued as to United States Forest Service, Dale Bosworth, & U. S. Atty General. (RET) (Entered: 11/14/2005)
2005-12-29		SUMMONS Returned Executed by Southern Appalachian Biodiversity Project. Dale Bosworth served on 11/21/2005. (Doughty, Rachel) PDF deleted, filed wrong - Modified on 12/29/2005 (RET, ). (Entered: 12/29/2005)
2005-12-29	4	SUMMONS Returned Executed by Southern Appalachian Biodiversity Project. United States Forest Service served on 11/21/2005; US Attorney General served on 11/25/2005; US Attorney served on 11/28/2005. (Doughty, Rachel) Modified on 12/29/2005 (RLC, ). (Entered: 12/29/2005)
2005-12-30	5	First MOTION for Extension of Time to File Answer or Response to Plaintiffs' Complaint by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 12/30/2005)
2006-01-02	6	AMENDED COMPLAINT against all defendants all defendants., filed by Southern Appalachian Biodiversity Project.(Doughty, Rachel) (Entered: 01/02/2006)
2006-01-02	7	NOTICE by Southern Appalachian Biodiversity Project re 6 Amended Complaint (Doughty, Rachel) (Entered: 01/02/2006)
2006-01-03	8	ORDER GRANTING Doc. 5 Defendant's Motion for Extension of Time until January 30, 2006 within which to respond re Doc. 1 Plaintiff's Complaint . Signed by Judge Dennis H Inman on 1/3/2006. (FMM, ) (Entered: 01/03/2006)
2006-01-03	9	NOTICE by Southern Appalachian Biodiversity Project OF INCORPORATION OF ATTACHMENTS TO FIRST AMENDED COMPLAINT (Attachments: # 1 Exhibit #1 Project Proposal# 2 Exhibit # 2 Comments# 3 Exhibit # 3 FOIA Request# 4 Exhibit #4 Speaks Letter# 5 Exhibit #5 Jacobs Letter# 6 Exhibit # 6 Administrative Appeal# 7 Exhibit # 7 WildLaw Status Request Letter# 8 Exhibit # 8 WildLaw Status Request Letter 2# 9 Exhibit #9 Status Letter June 10# 10 Exhibit #10 Response (July 13)# 11 Exhibit #11 Del Confirm Card)(Doughty, Rachel) (Entered: 01/03/2006)
2006-02-07	10	MOTION for Extension of Time to File Answer Eight Days Out of Time by United States Forest Service, Dale Bosworth. (Attachments: # 1 Defendants' Proffered Answer)(Harber, Loretta) (Entered: 02/07/2006)
2006-02-08	11	ORDER GRANTING Doc. 10 Defendant's Motion for Extension of Time to Answer eight days after the expiration of the period for filing the same . Signed by Judge Dennis H Inman on 2/8/2006. (FMM, ) (Entered: 02/08/2006)
2006-02-08	12	ANSWER to Complaint by United States Forest Service, Dale Bosworth.(Harber, Loretta) (Entered: 02/08/2006)
2006-02-09	13	NOTICE of Hearing: Scheduling Conference set for 3/29/2006 02:30 PM. (Attachments: # 1 Notice of Availability of Magistrate Judge# 2 Sample Scheduling Order)(EBM, ) (Entered: 02/09/2006)
2006-03-21	14	NOTICE CANCELLING 13 3/29/06 Scheduling Conference. A briefing schedule will issue. (EBM, ) (Entered: 03/21/2006)
2006-03-30	15	STIPULATION re: Proposed Briefing Schedule by United States Forest Service. (Attachments: # 1 proposed Order setting briefing schedule)(Harber, Loretta) (Entered: 03/30/2006)
2006-04-04	16	ORDER that defendants shall file their dispositive motion on or before June 16, 2006; plaintiffs shall file their opposition and/or cross-motion within thirty (30) days thereafter; and further opposition or replies shall be filed in accordance with LR 7.1, Pleadings and Motions.Signed by Judge J Ronnie Greer on 4/4/2006. (FMM, ) (Entered: 04/04/2006)
2006-06-15	17	First MOTION for Extension of Time to File Summary Judgment Motion by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 06/15/2006)
2006-06-16	18	ORDER granting 17 Motion for Extension of Time to File a dispositive motion. Defendants shall file their dispositive motion on or before 7/17/06; plaintiffs shall file their opposition and/or cross-motion within 30 days thereafter.. Signed by Judge Dennis H Inman on 6/16/06. (RET) (Entered: 06/16/2006)
2006-06-26	19	MOTION for Leave to Appear Pro Hac Vice (Filing fee $ 60.00 received, receipt #G2000648.) for attorney Stephen H Novak to appear on behalf of Plaintiffs, Southern Appalachian Biodiversity Project and Wild South. (Attachments: # 1 Certificate of Good Standing from the USDC for the Western District of North Carolina)(FMM, ) (Entered: 06/26/2006)
2006-06-27	20	ORDER granting Plaintiffs Motion 19 for the admission of Stephen H. Novak, Esq., pro hac vice in this action . Signed by Judge Dennis H Inman on 06/27/06. (KDO) (Entered: 06/27/2006)
2006-07-13	21	Second MOTION for Extension of Time to File Summary Judgment Motion by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 07/13/2006)
2006-07-14	22	ORDER granting Defendants Motion 21 seeking a second enlargement of time within which to file a motion for summary judgment. The plaintiffs do not oppose the Motion and there is good cause for granting the extension. The defendants may have until August 16, 2006, within which to file their dispositive motion . Signed by Judge Dennis H Inman on 07/14/06. (KDO) (Entered: 07/14/2006)
2006-08-16	23	Third MOTION for Extension of Time to File Motion for Summary Judgment and Supporting Memo by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 08/16/2006)
2006-08-17	24	ORDER GRANTING Doc. 23 Defendant's Motion for Extension of Time until August 25, 2006, within which to file a dispositive motion . Signed by Judge Dennis H Inman on 8/17/2006. (FMM, ) (Entered: 08/17/2006)
2006-08-25	25	Fourth MOTION for Extension of Time to File Dispositive Motion by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 08/25/2006)
2006-08-28	26	ORDER GRANTING Doc. 25 Defendant's Motion for Extension of Time to respond to the planitiff's motion for summary judgment until September 5, 2006. Signed by Judge Dennis H Inman on 8/28/2006. (FMM, ) (Entered: 08/28/2006)
2006-09-06	27	MOTION for Summary Judgment by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 09/06/2006)
2006-09-06	28	MEMORANDUM in Support of Motion re 27 MOTION for Summary Judgment filed by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 09/06/2006)
2006-09-06	29	AFFIDAVIT in Support re 27 MOTION for Summary Judgment filed by United States Forest Service, Dale Bosworth. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D)(Harber, Loretta) (Entered: 09/06/2006)
2006-09-06	30	AFFIDAVIT in Support re 27 MOTION for Summary Judgment filed by United States Forest Service, Dale Bosworth. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I)(Harber, Loretta) (Entered: 09/06/2006)
2006-10-03	31	First MOTION for Extension of Time to File Response/Reply to Defendants' summary judgment motion/memorandum by Southern Appalachian Biodiversity Project, Wild South. (Novak, Stephen) (Entered: 10/03/2006)
2006-10-04	32	ORDER GRANTING Doc. 31 Plaintiff's Motion for Extension of Time to File Response/Reply re Doc. 27 Defendant's MOTION for Summary Judgment. Responses due by 11/6/2006. Signed by Judge Dennis H Inman on 10/4/2006. (FMM, ) (Entered: 10/04/2006)
2006-11-06	33	MOTION for Summary Judgment by Southern Appalachian Biodiversity Project, Wild South. (Novak, Stephen) (Entered: 11/06/2006)
2006-11-06	34	MEMORANDUM in Support of Motion re 33 MOTION for Summary Judgment and in opposition to Defendant's Motion for Summary Judgment filed by Southern Appalachian Biodiversity Project, Wild South. (Novak, Stephen) (Entered: 11/06/2006)
2006-11-06	35	AFFIDAVIT in Support re 33 MOTION for Summary Judgment Exhibit 1 filed by Southern Appalachian Biodiversity Project, Wild South. (Novak, Stephen) (Entered: 11/06/2006)
2006-11-06	36	AFFIDAVIT in Support re 33 MOTION for Summary Judgment Exhibit 2 filed by Southern Appalachian Biodiversity Project, Wild South. (Novak, Stephen) (Entered: 11/06/2006)
2006-11-09	37	First MOTION for Extension of Time to File Response/Reply by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 11/09/2006)
2006-11-13	38	ORDER GRANTING Doc. 37 Defendant's Motion for Extension of Time to File Response/Reply re Doc. 33 MOTION for Summary Judgment. Responses due by 1/5/2007. Signed by Judge Dennis H Inman on 11/13/2006. (FMM, ) (Entered: 11/13/2006)
2006-12-19	39	Second MOTION for Extension of Time to File Response/Reply by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 12/19/2006)
2006-12-20	40	ORDER granting 39 Defendant's Motion for Extension of Time to File Reply to Plaintiff's response to defendant's motion for summary judgment. Replies due by 1/19/2007. Signed by Judge Dennis H Inman on 12/20/2006. (FMM, ) . (Entered: 12/20/2006)
2007-01-15	41	Third MOTION for Extension of Time to File Response/Reply by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 01/15/2007)
2007-01-16	42	ORDER GRANTING Doc. 41 Defendants Motion for Extension of Time to File Reply to the plaintiff's response to the defendants' dispositive motion. Replies due by 1/26/2007. Signed by Judge Dennis H Inman on 1/16/2007. (FMM, ) (Entered: 01/16/2007)
2007-01-29	43	MOTION for Extension of Time to File Response/Reply by United States Forest Service, Dale Bosworth. (Attachments: # 1 Exhibit Defendant's Response/Reply# 2 Exhibit Turner Supp. Declaration# 3 Exhibit Ex. 1 to Turner Supp. Declaration# 4 Exhibit Ex. 2 to Turner Supp. Declaration/Revised Vaughn Index# 5 Exhibit Wyman Supp. Declaration)(Harber, Loretta) (Entered: 01/29/2007)
2007-01-29	44	RESPONSE in Opposition re 43 MOTION for Extension of Time to File Response/Reply filed by United States Forest Service. (Novak, Stephen) (Entered: 01/29/2007)
2007-01-30	45	ORDER GRANTING Doc. 43 Defendant's Motion for Extension of Time to File Response/Reply re Doc. 33 Plaintiff's MOTION for Summary Judgment. Defendants shall immediately file the response/reply. If plaintiffs wish to file a reply to the defendants' response to plaintiffs' dispositive motion, they are referred to Local Rule 7.1(c). If they wish to file a reply to the defendants' reply to plaintiffs' motion for summary judgment, plaintiffs are referred to Local Rule 7.1(d). Signed by Judge Dennis H Inman on 1/30/2007. (FMM, ) (Entered: 01/30/2007)
2007-01-31	46	RESPONSE to Motion re 33 MOTION for Summary Judgment Defendants' Response to Plaintiff's Motion for Summary Judgment and Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment filed by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 01/31/2007)
2007-01-31	47	AFFIDAVIT Declaration of Sharon Turner by United States Forest Service, Dale Bosworth. (Attachments: # 1 Exhibit # 2 Exhibit Revised Vaughn Index)(Harber, Loretta) (Entered: 01/31/2007)
2007-01-31	48	AFFIDAVIT Declaration of Candace Wyman by United States Forest Service, Dale Bosworth. (Harber, Loretta) (Entered: 01/31/2007)
2007-02-22	49	ORDER REASSIGNING CASE. Case reassigned to Judge R Leon Jordan for all further proceedings. Judge J Ronnie Greer no longer assigned to case.Signed by Judge Curtis L Collier on 2/22/07. (EBM, ) (Entered: 02/22/2007)
2007-06-26	50	MEMORANDUM OPINION signed by Judge R Leon Jordan on 6/25/2007. (JDH) (Entered: 06/26/2007)
2007-06-26	51	ORDER DISMISSING CASE signed by Judge R Leon Jordan and entered by Patricia L McNutt, Clerk of Court on 6/25/2007: Defendants' motion for summary judgment 27 is GRANTED, and plaintiffs' motion for summary judgment 33 is DENIED. This cause is DISMISSED. (JDH) (Entered: 06/26/2007)
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