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Case TitleBlack Hills Clean Water Alliance v. United States Forest Service et al
DistrictDistrict of South Dakota
CityWestern Division
Case Number5:2020cv05034
Date Filed2020-05-15
Date Closed2023-06-28
JudgeU.S. District Judge Lawrence L. Piersol
PlaintiffBlack Hills Clean Water Alliance
Case DescriptionThe Black Hills Clean Water Alliance submitted a FOIA request to U.S. Forest Service for records concerning mineral mining operations of operation submitted for the Mystic Ranger District. The agency acknowledged receipt of the request. The agency withheld the records under Exemption 4 (confidential business information). The Black Hills Clean Water Alliance filed an administrative appeal. After hearing nothing further from the agency, the Black Hills Clean Water Alliance filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Attorney's fees

DefendantUnited States Forest Service
DefendantUnited States Department of Agriculture
Documents
Docket
Complaint
Opinion/Order [48]
FOIA Project Annotation: A federal court in South Dakota has accepted the Magistrate Judge's recommendation for resolving a FOIA request submitted by the Black Hills Clean Water Alliance to the U.S. Forest Service pertaining to mining proposals. After Magistrate Judge Veronica Duffy issued her Report and Recommendation for resolving the case, BHCWA filed its objections to the report, many of which challenged aspects of the agency's searches for responsive records. Judge Lawrence Piersol first reviewed BHCWA's challenge to the agency's 2019 search for records. He noted that Duffy had agreed with the agency that BHCWA's claims related to the 2019 search were moot. BHCWA argued that the 2019 searches were not moot because the agency would continue to withhold submitters' proposals that contained allegedly confidential business information and the agency would continue to routinely violate the 20-day time limit for responding to requests. Piersol indicated that USFS's performance in processing submitters' proposals had improved in recent responses to later BHCWA requests, noting that "these facts do not evince an ongoing policy or practice by the agency that will impermissibly impair BHCWA's access to information in the future." As to whether USFS would continue to routinely violate the time limits for responding to requests, Piersol observed that BHCWA's policy or practice claim was based only on two requests and that "once again, while not condoning that conduct, they do not show a 'persistent' pattern of 'prolonged delay.'" He explained that he agreed "with the Magistrate Judge's legal analysis of this issue and finds her recommendation is an appropriate resolution of BHCWA's claims pertaining to the agency's 2019 search," finding that the 2019 search was moot. Next up was whether the agency's 2020 search was adequate. The Magistrate Judge made several findings about the 2020 search. First, she found that the agency's limitation of the search to 21 custodians was unreasonable because the evidence showed that three other individuals appeared likely to have responsive records. She also faulted the agency for limiting its search to electronic records and ignoring paper records entirely. However, she found that the agency's search terms were reasonable. BHCWA argued that the agency should have searched the records of 78 custodians, that it should have searched in other electronic record locations, and the search terms were not reasonable. BHCWA also advocated for an entirely new search. Rejecting that notion, Piersol indicated that "ordering an entirely new search would be an unnecessarily resource-intensive approach when any inadequacies are curable through specifically tailored additional searches." BHCWA claimed that the Supreme Court's ruling in Dept of Justice v. Tax Analysts, 492 U.S. 136 (1989), required the agency to search any relevant records it created and maintained. Piersol, however, noted that "BHCWA misapprehends Tax Analysts, which holds that a requested record must have been created or obtained by the agency for it to qualify as an agency record subject to FOIA disclosure requirements. The case does not espouse the standard BHCWA suggests it does " that, based on the two-pronged definition of agency records which are subject to FOIA disclosure requirements, the records of every person within the agency who created or obtained any material responsive to a FOIA request must be searched in order for the search to be reasonable. It is plausible that records or agency personnel who create or possess responsive material may be reasonably excluded from the agency's search if the search is nevertheless designed to capture that information in some other way. That is the case here. Records of many of the 78 individuals identified by BHCWA were reasonably excluded from the search because the agency determined that any responsive records in those individuals' possession would otherwise be identified in its search of the records of its named records custodians and, therefore, searching the records of those additional individuals would be needlessly cumulative and time consuming. This general approach does not undermine that the agency's search " albeit not an exhaustive one " was reasonably calculated to uncover all relevant material." Piersol ruled that the search was unreasonable only to the extent that it did not include the additional three individuals who Duffy had found would also have responsive records. Piersol agreed with Duffy that USFS failed to explain why it did not search paper records as well as electronic records, noting that "absent facts showing otherwise, a reasonable search should have included electronic and non-electronic records." He also found that the agency's search of electronic records should have included archived emails as well. Here, he indicated that "the Court agrees with BHCWA that the agency's records custodians may reasonably be expected to have responsive materials in both archived and non-archived email locations, as well as in other communications programs used by the agency in addition to Microsoft Outlook, unless otherwise shown." He also faulted USFS's limited range of search terms. He pointed out that "here, where the agency generally deferred to each individual records custodian to choose their own search terms, the resulting search failed to consistently employ synonyms and logical variations, such as abbreviations, of even the most basic and obvious search terms and phrases found in or suggested by the text of BHCWA's FOIA request." He indicated that "the result is that any given records custodian may not have captured responsive documents in their possession that were perhaps created by other individuals who used common synonyms or variations of terms the custodians searched, potentially even those synonyms and variations commonly used and searched by their fellow records custodians. The individual searches were often narrow and at the same time, uncoordinated between searchers. The searches in general were not well calculated to uncover all relevant documents as they could have been." The agency withheld records under Exemption 3 (other statutes), Exemption 5 (privileges), and Exemption 6 (invasion of privacy). The agency withheld records under the Federal Cave Resources Protection Act, citing it as an Exemption 3 statute. FCRPA allows agencies to withhold specific site locations of significant caves unless the agency determines disclosure would not create a significant risk of harm, theft, or destruction. Under FCRPA, the agency withheld a wildlife map showing significant caves/abandoned mines, while the other withholding was of GIS data which includes specific locations of significant caves/abandoned mines. Piersol found that the agency's use of the FCRPA fell short in several respects. He pointed out that the FCRPA "requires the U.S. Department of the Interior to maintain a list of significant caves, but the agency's Vaughn index does not indicate how the agency determined the caves at issue here are significant " i.e., the agency does not state in the Vaughn index or its declarations the criteria for the caves on this list. The FCRPA protects the confidentiality of information concerning the nature and location of significant caves. It defines 'cave' as 'any naturally occurring void, cavity, recess, or system of interconnected passages which occurs beneath the surface of the earth. . .' Although not beyond the realm of possibility, the Court is skeptical that the abandoned mines noted by the agency are naturally occurring and thus subject to FCRPA. Neither the Vaughn index nor the agency's declarations show any mines to also be significant caves. The Court holds that on the basis of this record, any abandoned mines on maps in question are not significant cases under the FCRPA." The agency withheld records under the attorney-client privilege and the attorney work product privilege. Duffy found that the agency had upheld the application of the attorney-client privilege but had not shown the attorney work product privilege applied because the agency did not show that likely litigation existed. After reviewing the records himself, Piersol rejected the attorney-client privilege because the agency had not explained how disclosure would cause any foreseeable harm. He pointed out that "the agency's allegation that the redacted information, if disclosed, would reveal confidential, privileged material does nothing more than bring the information within the gambit of the attorney-client privilege. It does not, on its own, specifically identify any harm the agency foresees would result to its interest in keeping confidential information protected." Rather than require the agency to disclose the records it claimed were privileged, Piersol told the agency to provide supplemental affidavits to explain its position more thoroughly. The agency redacted private email addresses, phone numbers and addresses from some of the records it disclosed to BHCWA, arguing that they were protected by Exemption 6. Piersol agreed, noting that "the privacy interest here is more than de minimis. By comparison, the general claim by BHCWA that such disclosure would benefit the interests of citizen oversight of government does not warrant balancing of interests in favor of disclosing the personal information in question. That is not to say that personal information can never be disclosed. Such a disclosure overriding the privacy interest of an individual would have to be more than applicant has claimed here."
Issues: Adequacy - Search
Opinion/Order [70]
Opinion/Order [78]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2020-05-151COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, ($400 fee paid, receipt# 0869-3317459) filed by Black Hills Clean Water Alliance. (CLR) Modified text on 5/18/2020 (DJP). (Entered: 05/15/2020)
2020-05-152Summonses Issued as to USA. Summmons(es), AO 85, and Rule 73 Memo delivered to plaintiff's counsel via electronic delivery to plaintiffs attorney. (Attachments: # 1 Summonses Issued, # 2 AO 85)(CLR) (Entered: 05/15/2020)
2020-05-293NOTICE of Appearance by Alison J. Ramsdell on behalf of All Defendants. (Ramsdell, Alison) (Entered: 05/29/2020)
2020-05-294MOTION for Attorney Jeffrey Parsons to be Admitted Pro Hac Vice (paid $100 PHV fee; receipt number 0869-3324793) by Black Hills Clean Water Alliance. (Ellison, Bruce) (Entered: 05/29/2020)
2020-05-295MOTION for Attorney Travis Stills to be Admitted Pro Hac Vice (paid $100 PHV fee; receipt number 0869-3324814) by Black Hills Clean Water Alliance. (Ellison, Bruce) (Entered: 05/29/2020)
2020-05-296MOTION for Attorney Roger Flynn to be Admitted Pro Hac Vice (paid $100 PHV fee; receipt number 0869-3324817) by Black Hills Clean Water Alliance. (Ellison, Bruce) (Entered: 05/29/2020)
2020-05-297ORDER granting 4 Motion for Admission Pro Hac Vice of Jeffrey C. Parsons. Signed by U.S. District Judge Jeffrey L. Viken on 5/29/20. (SB) (Entered: 05/29/2020)
2020-05-298ORDER granting 5 Motion for Admission Pro Hac Vice of Travis Stills. Signed by U.S. District Judge Jeffrey L. Viken on 5/29/20. (SB) (Entered: 05/29/2020)
2020-05-299ORDER granting 6 Motion for Admission Pro Hac Vice of Roger Flynn. Signed by U.S. District Judge Jeffrey L. Viken on 5/29/20. (SB) (Entered: 05/29/2020)
2020-06-0310ADMISSION OF SERVICE Executed as to 2 Summons Issued as to USA. Admission filed by Black Hills Clean Water Alliance. (Ellison, Bruce) Modified text on 6/3/2020 (DJP). (Entered: 06/03/2020)
2020-06-2711ANSWER to 1 Complaint by All Defendants. (Ramsdell, Alison) (Entered: 06/27/2020)
2020-06-2912ORDER for Discovery Report and Scheduling Information. Signed by U.S. District Judge Jeffrey L. Viken on 6/29/20. (SB) (Entered: 06/29/2020)
2020-08-1213Discovery Report re 12 Order for Discovery Report by United States Department of Agriculture, United States Forest Service. Related document: 12 Order for Discovery Report.(Ramsdell, Alison) (Entered: 08/12/2020)
2020-08-1214NOTICE of Appearance by Stephanie C. Bengford on behalf of All Defendants. (Bengford, Stephanie) (Entered: 08/12/2020)
2020-08-1415SCHEDULING ORDER: Discovery due by 10/16/2020. Motions due by 10/30/2020. Signed by U.S. District Judge Jeffrey L. Viken on 8/14/20. (SB) (Entered: 08/14/2020)
2020-10-0216Unopposed MOTION to Extend Deadlines by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 10/02/2020)
2020-10-1317ORDER granting 16 Motion to Extend Deadlines. Discovery due by 11/16/2020. Motions due by 11/30/2020. Signed by U.S. District Judge Jeffrey L. Viken on 10/13/20. (SB) (Entered: 10/13/2020)
2020-11-2518MOTION to Extend Deadlines by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 11/25/2020)
2020-11-2519DECLARATION of Jenna Sloan re 18 MOTION to Extend Deadlines . (Ramsdell, Alison) (Entered: 11/25/2020)
2020-12-0120RESPONSE to Motion re 18 MOTION to Extend Deadlines filed by Black Hills Clean Water Alliance. (Ellison, Bruce) (Entered: 12/01/2020)
2020-12-1421REPLY to Motion Response re 18 MOTION to Extend Deadlines filed by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 12/14/2020)
2020-12-1422DECLARATION of Alison J. Ramsdell re 21 Reply to Motion Response . (Attachments: # 1 Exhibit A - E-mail correspondence) (Ramsdell, Alison) (Entered: 12/14/2020)
2020-12-1423ORDER granting 18 Motion to Extend Deadline. Motions due by 1/29/2021. Signed by U.S. District Judge Jeffrey L. Viken on 12/14/20. (SB) (Entered: 12/14/2020)
2021-01-2924(FILED IN ERROR) First MOTION for SUMMARY JUDGMENT by Black Hills Clean Water Alliance. (Attachments: # 1 Attachment statement of Undisputed Facts, # 2 Attachment Affidavit of Documentary Evidence, # 3 Exhibit Expedited FOIA Request, # 4 Exhibit Public Meeting Materials, # 5 Exhibit F3 Gold POO, # 6 Exhibit USFS Response, # 7 Exhibit USFS Website F3 Gold, # 8 Exhibit FOIA Produced Excerpts, # 9 Exhibit FOIA Appeal, # 10 Exhibit FOIA Litigation Production Release, # 11 Exhibit Pinyon Link for BHCWA Litigation, # 12 Exhibit CM-ECF User Manual and Adminstrative Procedures excerpt) (Ellison, Bruce) Modified on 2/5/2021 (DJP). (Entered: 01/29/2021)
2021-01-2925MOTION for SUMMARY JUDGMENT by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 01/29/2021)
2021-01-2926MEMORANDUM in Support re 25 MOTION for SUMMARY JUDGMENT filed by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 01/29/2021)
2021-01-2927STATEMENT OF UNDISPUTED MATERIAL FACTS re 25 Motion for Summary Judgment filed by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 01/29/2021)
2021-01-2928DECLARATION of Jenna Sloan re 25 MOTION for SUMMARY JUDGMENT . (Attachments: # 1 Exhibit A-BHCWA's FOIA Request, # 2 Exhibit B-Forest Service's Response to FOIA Request, # 3 Exhibit C-BHCWA's FOIA Appeal, # 4 Exhibit D-Forest Service Correspondence re Rolling Productions, # 5 Exhibit E-Vaughn Index) (Ramsdell, Alison) (Entered: 01/29/2021)
2021-02-0429(FILED IN ERROR) First MOTION for SUMMARY JUDGMENT by Black Hills Clean Water Alliance. (Attachments: # 1 Attachment statement of Undisputed Facts, # 2 Attachment Affidavit of Documentary Evidence) (Ellison, Bruce) Modified on 2/5/2021 (DJP). (Entered: 02/04/2021)
2021-02-05NOTICE of Filing Error: 24 Motion for Summary Judgment,, 29 Motion for Summary Judgment were filed in error and should be disregarded. (DJP) (Entered: 02/05/2021)
2021-02-0530MOTION for SUMMARY JUDGMENT by Black Hills Clean Water Alliance. (Ellison, Bruce) (Entered: 02/05/2021)
2021-02-0531STATEMENT OF Undisputed MATERIAL FACTS re 30 Motion for Summary Judgment filed by Black Hills Clean Water Alliance. (Ellison, Bruce) (Entered: 02/05/2021)
2021-02-0532AFFIDAVIT in Support re 30 MOTION for SUMMARY JUDGMENT filed by Black Hills Clean Water Alliance. (Attachments: # 1 Exhibit BHCWA-1 CleanWaterAlliance-FOIA request, # 2 Exhibit BHCWA-2 Public Meeting Materials, # 3 Exhibit BHCWA-3 F3 Gold POO, # 4 Exhibit BHCWA-4 Regional FS FOIA Response 2-12-19, # 5 Exhibit BHCWA-5 Forest Service website F3 Gold-1, # 6 Exhibit BHCWA-6 FOIA-produced emails-excerpts, # 7 Exhibit BHCWA-7 FOIA Appeal, # 8 Exhibit BHCWA-8 FOIA Litigation Production Release 8, # 9 Exhibit BHCWA-9 Pinyon Link for BHCWA Lit Production 5, # 10 Exhibit BHCWA-10 CM-ECF User Manual and Adminstrative Procedures excerpt) (Ellison, Bruce) (Entered: 02/05/2021)
2021-02-1933(FILED IN ERROR) RESPONSE to Motion re 25 MOTION for SUMMARY JUDGMENT filed by Black Hills Clean Water Alliance. (Ellison, Bruce) Modified on 2/22/2021 (DJP). (Entered: 02/19/2021)
2021-02-19NOTICE of Filing Error: 33 Response to Motion was filed in error and should be disregarded. (Ellison, Bruce) (Entered: 02/19/2021)
2021-02-1934RESPONSE to Motion re 25 MOTION for SUMMARY JUDGMENT filed by Black Hills Clean Water Alliance. (Attachments: # 1 Attachment Response to Defendant's Statement of Undisputed Facts, # 2 Attachment Declaration of Documentary Evidence, # 3 Exhibit Exhibit 11 Affidavit of Dr. Jarding, # 4 Exhibit Exhibit 12 FOIA SEARCH) (Ellison, Bruce) (Entered: 02/19/2021)
2021-02-1935RESPONSE to Motion re 30 MOTION for SUMMARY JUDGMENT filed by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 02/19/2021)
2021-02-1936DECLARATION of Jenna Sloan re 35 Response to Motion . (Ramsdell, Alison) (Entered: 02/19/2021)
2021-02-1937RESPONSE to 31 Statement of Material Facts filed by All Defendants. (Ramsdell, Alison) (Entered: 02/19/2021)
2021-03-0538REPLY to Motion Response re 30 MOTION for SUMMARY JUDGMENT filed by Black Hills Clean Water Alliance. (Attachments: # 1 Attachment DECLARATION RE EVIDENCE, # 2 Exhibit Exhibit-13 Formal Letter, # 3 Exhibit Exhibit-14 Formal Letter, # 4 Exhibit Exhibit-15 Response to Letter, # 5 Exhibit Exhibit-16 RMV v FS) (Ellison, Bruce) (Entered: 03/05/2021)
2021-03-0539REPLY to Motion Response re 25 MOTION for SUMMARY JUDGMENT filed by All Defendants. (Ramsdell, Alison) (Entered: 03/05/2021)
2021-09-1540ORDER REFERRING 25 MOTION for SUMMARY JUDGMENT filed by United States Forest Service, United States Department of Agriculture, 30 MOTION for SUMMARY JUDGMENT filed by Black Hills Clean Water Alliance. Signed by U.S. District Judge Jeffrey L. Viken on 9/15/21. Motions referred to U.S. Magistrate Judge Veronica L. Duffy. (SB) (Entered: 09/15/2021)
2021-09-3041REPORT AND RECOMMENDATIONS re 25 MOTION for SUMMARY JUDGMENT , 30 MOTION for SUMMARY JUDGMENT Objections to R&R due by 10/14/2021. Signed by US Magistrate Judge Veronica L. Duffy on 9/30/2021. (PM) (Entered: 09/30/2021)
2021-10-1442RESPONSE to 41 Report and Recommendations filed by All Defendants. (Ramsdell, Alison) (Entered: 10/14/2021)
2021-10-1443DECLARATION of Jenna Sloan re 42 Response to Report and Recommendation . (Ramsdell, Alison) (Entered: 10/14/2021)
2021-10-1444OBJECTION to 41 Report and Recommendation by Black Hills Clean Water Alliance (Ellison, Bruce) (Entered: 10/14/2021)
2021-10-2845RESPONSE to 43 Declaration, 42 Response filed by Black Hills Clean Water Alliance. (Ellison, Bruce) (Entered: 10/28/2021)
2022-02-1546(FILED IN ERROR) STATUS REPORT Report of the Parties' Planning Meeting by Black Hills Clean Water Alliance (Ellison, Bruce) Modified on 2/16/2022 (VMM). (Entered: 02/15/2022)
2022-02-16NOTICE of Filing Error: 46 Status Report was filed in error and should be disregarded. (Ellison, Bruce) (Entered: 02/16/2022)
2022-04-1847ORDER REASSIGNING CASE. Judge Jeffrey L. Viken no longer assigned to case. Signed by U.S. District Judge Jeffrey L. Viken on 4/18/22. (SB) (Entered: 04/18/2022)
2022-06-2948ORDER adopting in part 41 Report and Recommendation; sustaining in part and overruling in part 44 Objection to Report and Recommendation; granting in part and denying in part 25 Motion for Summary Judgment; granting in part and denying in part 30 Motion for Summary Judgment. Signed by U.S. District Judge Lawrence L. Piersol on 6/29/22. (SKK) (Entered: 06/29/2022)
2022-07-2149Unopposed MOTION to Extend Supplemental Response Deadline by United States Department of Agriculture, United States Forest Service. (Ramsdell, Alison) (Entered: 07/21/2022)
2022-07-2550ORDER granting 49 Motion to Extend Supplemental Response Deadline. Signed by U.S. District Judge Lawrence L. Piersol on July 25, 2022. (DLC) (Entered: 07/25/2022)
2022-08-1251SUPPLEMENT by Defendants United States Department of Agriculture, United States Forest Service . (Ramsdell, Alison) (Entered: 08/12/2022)
2022-08-1252DECLARATION of Joshua Sidon re 51 Supplement in Response to Court's Order . (Attachments: # 1 Exhibit A-Decision re Significant Caves, # 2 Exhibit B-Supplemental Vaughn Index, # 3 Exhibit C-Letter to BHCWA re Eleventh Disclosure) (Ramsdell, Alison) (Entered: 08/12/2022)
2022-08-3153ORDER. Signed by U.S. District Judge Lawrence L. Piersol on August 30, 2022. (DLC) (Entered: 08/31/2022)
2022-09-0254STATUS REPORT by United States Department of Agriculture, United States Forest Service (Ramsdell, Alison) (Entered: 09/02/2022)
2022-09-0455STATUS REPORT by Black Hills Clean Water Alliance (Ellison, Bruce) (Entered: 09/04/2022)
2023-06-0756ORDER. Signed by U.S. District Judge Lawrence L. Piersol on 06/07/2023. (KLE) (Entered: 06/07/2023)
2023-06-1457RESPONSE to 56 Order Regarding Release of Documents filed by United States Department of Agriculture, United States Forest Service. (Attachments: # 1 Exhibit A - Transmittal Letter, # 2 Exhibit B - First Release Plans) (Ramsdell, Alison) (Entered: 06/14/2023)
2023-06-2858ORDER Dismissing Case. Signed by U.S. District Judge Lawrence L. Piersol on 06/27/2023. (KLE) (Entered: 06/28/2023)
2023-06-2859JUDGMENT OF DISMISSAL Signed by U.S. District Judge Lawrence L. Piersol on 06/27/2023. (KLE) (Entered: 06/28/2023)
2023-06-2860MOTION for Attorney Fees by Black Hills Clean Water Alliance. (Attachments: # 1 Exhibit Declaration of Stills, # 2 Exhibit Declaration of Parsons, # 3 Exhibit Declaration of Ellison, # 4 Exhibit Declaration of Jarding, # 5 Exhibit Eubanks Declaration, # 6 Exhibit Kenna Declaration, # 7 Exhibit USFS FOIA Response) (Ellison, Bruce) (Entered: 06/28/2023)
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