Black Hills Clean Water Alliance v. U.S. Forest Service et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BLACK HILLS CLEAN WATER ALLIANCE, 5:21-CV-5072-LLP
Plaintiff,
ORDER
vs.
UNITED STATES FOREST SERVICE,
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendants.
Black Hills Clean Water Alliance ("BHCWA"), a non-profit conservation organization
dedicated to protecting the Black Hills region's resources and preventing destructive mining in the
region, brought suit against the United States Forest Service ("Forest Service") and the United
States Department of Agriculture, seeking release of certain government records pursuant to the
Freedom of Information Act("FOIA").
BACKGROUND
On October 20, 2020, BHCWA submitted a written request for agency records to the
Northern Hills District office of the Black Hills National Forest that relate to exploratory gold
drilling in the Northern Hills. A partial response to BHCWA's FOIA request was produced by the
Forest Service on December 3, 2020. A final response was submitted on December 16, 2020.
BHCWA filed an administrative appeal to the Forest Service on March 16,2020. A partial
response to the appeal addressing portions redacted under Exemptions 5 and 6 was produced on
July 8, 2021. A second response to BHCWA's appeal was produced on November 19, 2021,
addressing the adequacy of the agency's search. A third response was produced on August 31,
2022.'
^ On September 9, 2022, Defendants filed a motion for leave to supplement the record with information regarding
the disclosures made on August 31, 2022. (Doc. 39.)
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BHCWA filed this lawsuit on October 21, 2021, asserting that Defendants continued to
unlawfully withhold agency records responsive to the FOIA request. (Doc. 1.)
After Defendants answered the Complaint,the Court issued an order for Discovery Report
and Scheduling Information which, in part, directed the parties to meet and develop a discovery
plan. (Doc. 11.) In The Report ofthe Parties' Planning Meeting, BHCWA listed eight subjects it
wanted to explore through discovery. (Doc. 12.) Defendants stated that they did not believe
discovery was required, and that the matters for which BHCWA sought discovery could be
addressed through cross motions for summary judgment. {Id.) The Court set a shortened time-
frame for discovery in the Rule 16 Scheduling Order.(Doc. 13.) The parties admit that they were
both unsure about the deadline to complete discovery, but they could not agree on whether to ask
the Court for an extension of the deadline. For various reasons, no motion was made by BHCWA
to extend the discovery deadline, and discovery was not undertaken.
In a related case, this Court issued an Order on June 29,2022, requiring the Forest Service
to undertake additional searches. See Black Hills Clean Water Alliance v. United States Forest
Service, et ai, 5:20-cv-05034, at Docket 48. One of the deficiencies identified in that case was
that archived emails were not searched by the agency. In light of the June 29 Order in the related
case, the Forest Service conducted a search of archived emails in this case. The information
discovered in the agency's search was provided to BHCWA on August 31,2022. BHCWA argues
that this is further proof of the inadequacy of the agency's search in this case.^
On July 14, 2022, Defendants filed a motion for summary judgment.(Doc 19.)In order to
establish the adequacy of their search. Defendants submitted the Declaration of Margaret Scofield.
(Doc.24.) In opposition to Defendants' motion for summary Judgment,BHCWA raises a number
ofconcerns about the Scofield Declaration and Defendants' responses to the FOIA request in this
case.(Doc. 29.) One of BHCWA's main concerns is the adequacy of the Forest Service's search.
In its brief, BHCWA requested leave to conduct some discovery about the adequacy ofthe search
before this Court resolves the case by summary judgment or trial. (Id. at 10.)
^ "[DJiscovery of additional documents Is evidence that the search was not thorough." Miller v. U.S. Dep'tof
State, 779 F.2d 1378,1386 {8th Cir. 1985)
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On September 6, 2022, the Court held a hearing on Defendants' motion for summary
judgment. Addressing the issue of BHCWA's request for discovery, counsel for BHCWA
explained that it likely could limit its discovery to two specific types ofdocuments similar to those
that they have obtained in other FOIA requests. Counsel described the documents as search forms
used by the agency to "inform" the search, and emails sent out when coordinating the search.
Examples of these documents produced by agencies in response to other FOIA requests cases are
attached as Exhibit 2 to the Declaration of Bruce Ellison. (Doc. 32-2.)
Defendants continue to argue discovery is unnecessary and that the Court can resolve the
case on summary judgment as the record stands.
DISCUSSION
The Eighth Circuit has explained the burden placed on the government in seeking summary
judgment in a FOIA action:
Summary judgment is available to the defendant in a FOIA case when
the agency proves that it has fully discharged its obligations under FOIA, after the
underlying facts and the inferences to be drawn from them are construed in the light
most favorable to the FOIA requester. In order to discharge this burden,
the agency must prove that each document that falls within the class requested either
has been produced, is unidentifiable, or is wholly exempt from the Act's inspection
requirements. . . . An agency may prove the reasonableness of its search through
affidavits of responsible agency officials so long as the affidavits are relatively detailed,
nonconclusory, and submitted in good faith These affidavits are equally trustworthy
when they aver that all documents have been produced or are unidentifiable as when
they aver that identified documents are exempt.
Miller V. U.S. Dep't ofState, 779 F.2d 1378,1382-83(8th Cir. 1985)(citations and intemal
punctuation omitted).
Despite the weight to be accorded to agency affidavits, "the burden remains on the
government to demonstrate that it has thoroughly searched for the requested documents where they
might reasonably be found." Miller, 779 F.2d at 1383. Once the agency has shown by convincing
evidence that its search was reasonable, the burden is on the requester to rebut that evidence by
showing the search was not conducted in good faith. Id. "Summary judgment would be improper
if the adequacy of the agency's search were materially disputed on the record, for such a dispute
would indicate that material facts were still in doubt." Id.
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This Court reviews de novo the issue of the adequacy of the Forest Service's search for
records responsive to BHCWA's request. 5 U.S.C. § 552(a)(4)(B).
The Court is aware of cases from various courts limiting discovery in FOIA cases. See,
e.g., Pinson v. U.S. Dep't ofJustice,55 F.Supp.3d 80(D.D.C. 2014). Indeed,the local rules ofthe
United States District Court in the District of Columbia exempt FOIA actions from the
requirements of initial disclosure under Rule 26(a)(1). Id. at 82, citing D.D.C. LCvR 26.2(a)(9).
Recently, a district court in the District of Coliunbia described how courts in that District view the
scope of discovery in FOIA cases:
Discovery in FOIA cases is "rare," and when, as here, it is granted its scope
is heavily circumscribed./n re Clinton, 973 F.3d 106, 110, 116-17 (D.C. Cir.
2020). Typically,discovery in FOIA matters is "limited to the scope ofthe agency's
search and its indexing and classification procedures." Heily v. U.S. Dep't ofCom.,
69 F. App'x 171,174(4th Cir. 2003); see also Voinche v. FBI,412 F. Supp. 2d 60,
71 (D.D.C. 2006)(explaining that discovery in FOIA matters is "limited to the
adequacy of the agency's search and similar matters"); Pub. Citizen Health
Research Grp. v. FDA, 997 F. Supp. 56, 72 (D.D.C. 1998) (holding that FOIA
discovery would be limited to "investigating the scope of the agency search for
responsive documents, the agency's indexing procedures, and the like"), rev'd in
part on other grounds, 185 F.3d 898 (D.C. Cir. 1999); Church of Scientology v.
IRS, 137 F.R.D. 201, 202 (D. Mass. 1991)(explaining that discovery in a FOIA
case is limited to "certain factual issues, including the scope ofthe agency's search,
its indexing and classification procedures"). So,"[w]hether a thorough search for
documents has taken place and whether withheld items are exempt from disclosure
are permissible avenues for discovery." Niren v. Immigration & Naturalization
Serv., 103 F.R.D. 10, 11 (D. Or. 1984)(concluding that the scope of discovery is
limited in FOIA cases to "whether complete disclosure has been made by the
agency in response to an individual's request for information."). Other appropriate
lines of inquiry include how agency employees "conducted a search, which files
were reviewed, what search terms were used, how the documents were produced to
[the agency's FOIA specialist], whether any documents were withheld from
production, who made the decisions about withholding, and other relevant
questions." Miccosukee Tribe ofIndians ofFla. v. United States, 516 F.3d 1235,
1246(11th Cir. 2008).
Cole V. Federal Emergency Management Agency, 340 F.R.D. 485,487(D.D.C. 2022).
The Court was unable to find guidance from the Eighth Circuit regarding discovery in
FOIA actions. The Court is not convinced that the Eighth Circuit would heavily circumscribe
discovery in FOIA cases as has become the practice in the D.C. Circuit. However, BHCWA's
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requested records fall within even the D.C. Circuit's limitations on discovery because the records
are related to the adequacy of the Forest Service's search.
Some circuit courts have noted that the decision whether to allow discovery in FOIA cases
is within the district court's discretion. See, e.g.. World Publishing Co. v. U.S. Dep't ofJustice,
672 F.3d 825, 832(10th Cir. 2012)("The decision whether to allow discovery in FOIA cases is
left largely to the discretion ofthe district courtjudge"); Wood v. FBI,432 F.3d 78,84-85(2d Cir.
2005). District courts in the Eighth Circuit have broad discretion in managing discovery in other
civil litigation. Williams v. TESCO Servs., Inc., 719 F.3d 968, 976 (8th Cir. 2013); see also
Haviland v. Catholic Health Initiative-Iowa, Corp, 692 F.Supp.2d 1040, 1044 (S.D. Iowa 2010)
("Because no single rule or deadline can encompass the myriad of variations in discovery,...
judges are given broad discretion to manage the overall process in the interests of dispatch and
fairness."). It is the Court's conclusion that it has broad discretion to manage discovery in this
FOIA case.
In light of its broad discretion to manage discovery, and recognizing the parties' mutual
confusion regarding the discovery deadline, the Court will allow BHCWA to discover documents
related to the adequacy of the Forest Service's search. Accordingly,
IT IS ORDERED that, within 10 days from the date of this Order, Black Hills Clean
Water Alliance may serve discovery requests on Defendants related to the adequacy of the Forest
Service's efforts to search for responses to the FOIA request in this case. Responses shall be made
as provided for in the Federal Rules of Civil Procedure. In lieu of depositions, the discovery
requests may also request a narrative of the search processes in this case.
1 ('•CDated this day of September, 2022.
BY THE COUR^
ATTEST:
MATTHEW W. THELEN,CLERK
iawrence L. Piersol
Jnited States District Judge
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