Basin And Range Watch v. Bureau of Land Management et alCross MOTION for Summary JudgmentD. Neb.August 9, 20161 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DAVID H. BECKER, ESQ. (Pro Hac Vice) Oregon Bar No. 081507 Law Office of David H. Becker, LLC 917 SW Oak St., Suite 409 Portland, Oregon 97205 (503) 388-9160 davebeckerlaw@gmail.com DAVID A. BAHR, ESQ. (Pro Hac Vice) Oregon Bar No. 90199 Bahr Law Offices, P.C. 1035 1/2 Monroe St. Eugene, Oregon 97402 (541) 556-6439 davebahr@mindspring.com WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP CHRISTOPHER W. MIXSON, ESQ. Nevada Bar No. 10685 5594-B Longley Lane Reno, Nevada 89511 (775) 853-6787/Fax: (775) 853-6774 cmixson@wrslawyers.com Attorneys for Plaintiff Basin and Range Watch UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BASIN AND RANGE WATCH, Plaintiff, v. BUREAU OF LAND MANAGEMENT AND THE U.S. DEPARTMENT OF THE INTERIOR, Defendants. CASE NO.: 2:16-cv-00403-JCM-PAL PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF POINTS AND AUTHORITIES AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 1 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ii TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................................. ii TABLE OF AUTHORITIES ....................................................................................................... v GLOSSARY OF ACRONYMS AND ABBREVIATIONS .................................................... viii PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ...................................................... 1 MEMORANDUM OF POINTS AND AUTHORITIES ............................................................ 2 INTRODUCTION......................................................................................................................... 2 BACKGROUND ........................................................................................................................... 4 I. LEGAL FRAMEWORK ...................................................................................................4 A. The Freedom of Information Act. ..............................................................................4 1. An Agency Seeking to Withhold Information Under FOIA has the Burden of Showing That the Act’s Disclosure Exemptions Apply. .................................... 4 2. FOIA Exemption 4 Requires an Agency to Show Actual Competition and a Likelihood of Substantial Competitive Injury. .................................................. 5 3. An Agency Must Comply With Strict Deadlines and Provide Estimated Completion Dates When Responding to FOIA Requests and Processing Administrative FOIA Appeals. ............................................................................ 7 B. Summary Judgment Standard. ...................................................................................8 C. The Administrative Procedure Act. ...........................................................................9 II. FACTUAL BACKGROUND .........................................................................................10 A. The Crescent Dunes Solar Energy Project and the January 2015 Bird Incineration Event. ............................................................................................10 B. Basin and Range Watch’s February 2015 FOIA Requests and Tonopah Solar’s Assertions to BLM in Support of Withholding Under Exemption 4. ...................................................................................................12 C. The Six and Eight Month Delays in Responding to the Requests and Three Months Without a Response to Basin and Range Watch’s Administrative FOIA Appeal. ...................................................................13 1. Basin and Range Watch’s efforts to get responses between March and August 2015. ........................................................................................................ 13 2. Basin and Range Watch engages counsel to assist in obtaining responses. ... 15 3. BLM finally responds to the requests and invokes Exemption 4 to withhold information responsive to the Documents Request.......................................... 15 4. Interior’s FOIA Appeals Office never responds to Basin and Range Watch’s administrative appeal. ........................................................................................ 16 D. Subsequent Bird Incineration Events at the Project and Basin and Range Watch’s Additional FOIA Requests Concerning the Project. ...................17 Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 2 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT iii ARGUMENT ............................................................................................................................... 18 I. BLM AND INTERIOR VIOLATED FOIA BY INVOKING EXEMPTION FOUR WITHOUT SHOWING THE LIKELIHOOD OF SUBSTANTIAL COMPETITIVE INJURY OR EVEN ACTUAL COMPETITION ........................18 A. BLM has Provided No Evidence of Likely Substantial Competitive Injury. .........................................................................................................................18 1. BLM offers no evidence that Tonopah Solar or SolarReserve is likely to suffer substantial competitive injury and BLM’s speculation of potential injury cannot justify withholding. ..................................................................... 19 2. BLM cannot offer evidence that Tonopah Solar or SolarReserve is likely to suffer substantial competitive injury because Tonopah Solar did not assert any such claim to BLM. ...................................................................................... 20 B. BLM has Provided No Evidence of Actual Day-to-Day Competition. ...............................................................................................................21 1. BLM proffers no evidence that the Project or Solar Reserve engages in actual day-to-day competition. ...................................................................................... 21 2. Tonopah Solar does not operate in a competitive market. .............................. 22 C. BLM’s Assertion That the Project is Required to Provide the Requested Information to BLM Precludes a Finding That Disclosure Will Impair BLM’s Ability to Obtain Necessary Information in the Future. ........................................................................................24 D. At Least Part of the Information Withheld is Already in the Public Domain, Precluding a Claim of Confidentiality. .....................................................27 II. THE COURT SHOULD GRANT DECLARATORY RELIEF BECAUSE BLM AND INTERIOR HAVE ENGAGED IN A PATTERN, PRACTICE OR POLICY OF FOIA VIOLATIONS AND BASIN AND RANGE WATCH WILL BE HAMPERED IN FUTURE EFFORTS TO USE FOIA WITHOUT DECLARATORY RELIEF .........................................................................................28 A. Legal Standards for Pattern, Practice or Policy Claims. .......................................29 B. It is Undisputed That BLM and Interior Did Not Comply With Their Deadlines for Providing Final Determinations on the Requests and Appeal and That BLM and Interior Did Not Provide Estimated Completion Dates. ....................................................................................30 C. Basin and Range Watch has Been Injured by the Multiple Delays and is Likely to Continue to be Injured by BLM’s Pattern, Practice or Policy of Violating Deadlines and Failing to Provide Estimated Completion Dates. ......................................................................................................32 D. Basin and Range Watch’s Claims of Specific Deadline Violations are not Moot or, in the Alternative, are Justiciable Under the APA. ...................35 1. The claims of specific deadline violations are not moot. ................................. 35 2. In the alternative, if claims of specific deadline violations are moot under FOIA, Basin and Range Watch is entitled to relief on those claims under the APA. ..................................................................................................................... 37 Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 3 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT iv CONCLUSION ........................................................................................................................... 39 Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 4 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v TABLE OF AUTHORITIES Cases Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845 (9th Cir. 1997) ................................................... 9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 8 Barr v. Matteo, 360 U.S. 564 (1959) .............................................................................................. 5 Bhan v. NME Hosps. Inc., 929 F.2d 1404 (9th Cir. 1991) .............................................................. 8 Black v. U.S. Dep’t of Homeland Sec., No. 2:10-CV-2040 JCM (VCF), 2012 WL 3155142 (D. Nev. Aug. 2, 2012) ...................................................................... 5, 9, 20 Blanco v. Anderson, 39 F.3d 969 (9th Cir. 1994) ......................................................................... 30 Brown v. U.S. Customs & Border Prot., 132 F. Supp. 3d 1170 (N.D. Cal. 2015) ....................... 36 Carlson v. U.S. Postal Serv., 504 F.3d 1123 (9th Cir. 2007)......................................................... 5 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 8 Church of Scientology of Cal. v. U.S. Dep’t of the Army, 611 F.2d 738 (9th Cir. 1979) ......... 4, 25 CNA Fin. Corp. v. Donovan, 830 F.2d 1132 (D.C. Cir. 1987) .................................................... 27 Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir. 1992) .............................................................................................. 6, 25 Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976) .................................................................... 4 Dickinson v. Zurko, 527 U.S. 150 (1999) ....................................................................................... 9 Edmonds Inst. v. U.S. Dep’t of the Interior, 383 F. Supp. 2d 105 (D.C. Cir. 2005) ..................... 38 Frazee v. U.S. Forest Serv., 97 F.3d 367 (9th Cir. 1996) ......................................................... 6, 27 Freeman v. BLM, 526 F. Supp. 2d 1178 (D. Or. 2007) .......................................... 6, 20, 24, 25, 26 GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109 (9th Cir. 1994) .. 4, 5, 6, 7, 18, 20, 25, 27 Gilmore v. U.S. Dep’t of Energy, 33 F. Supp. 2d 1184 (N.D. Cal. 1998) ........................ 29, 35, 36 Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086 (9th Cir. 2016) .................. 29, 35 Hayden v Nat’l Security Agency/Cent. Security Serv., 608 F.2d 1381 (D.C. Cir. 1979) ................ 5 Herrick v. Garvey, 298 F.3d 1184 (10th Cir. 2002) ..................................................................... 26 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) ........................................................... 4 Lahr v. NTSB, 453 F. Supp. 2d 1153 (C.D. Cal. 2006) ................................................................ 26 Lane v. Dep’t of Interior, 523 F.3d 1128 (9th Cir. 2008) ..................................................... 1, 9, 39 Laroche v. SEC, No. 06-17278, 2006 WL 2868972 (N.D. Cal. Oct. 6, 2006) ............................ 38 Lion Raisins, Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072 (9th Cir. 2004) ................................... 18 Lion Raisins, Inc. v. U.S. Dep’t of Agric., 636 F. Supp. 2d 1081 (E.D. Cal. 2009)...................... 38 Long v. IRS, 693 F.2d 907 (9th Cir. 1982) .............................................................................. 30, 36 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) .............................................................. 9 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............................. 9 McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983) ....................................................................... 29 Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) .................................................................................... 4 Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............... 9 Muttitt v. U.S. Cent. Command, 813 F. Supp. 2d 221 (D.D.C. 2011) .............................. 29, 31, 36 Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) .......................................... 4, 30 Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976) ................... 7, 21, 22 Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) .............................. 6 Niagara Mohawk Power Corp. v U.S. Dep’t of Energy, 169 F.3d 16 (D.C. Cir. 1999) 6, 21, 22, 26 Or. Natural Desert Ass’n v. Gutierrez, 409 F. Supp. 2d 1237 (D. Or. 2006) ......................... 36, 38 Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 5 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT vi Or. Natural Desert Ass'n v. Jewell, -- F.3d --, No. 13-36078, 2016 WL 3033674 (9th Cir. May 26, 2016) ............................................................................... 3 Or. Natural Desert Ass'n v. Locke, 572 F.3d 610 (9th Cir. 2009) ................................................ 38 Our Children’s Earth Found. v. NMFS, Nos. 14-4365 SC & 14-1130 SC, 2015 WL 4452136 (N.D. Cal. July 20, 2015) ........................................................................... 36 Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) ........................................... 29 Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) ............................................................................. 35 Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) .......................... 19 Raher v. Fed. Bureau of Prisons, 749 F. Supp. 2d 1148 (D. Or. 2010) ....................................... 22 Robertson v. Jackson, 766 F. Supp. 470 (E.D. Va. 1991) ............................................................ 30 S. Yuba River Citizens League v. NMFS, No. CIV. S-06-2845 LKK/JFM, 2008 WL 2523819 (E.D. Cal. June 20, 2008) .......................................................................... 36 U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) ........... 4 U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989 ...................................................... 5, 35 United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539 (9th Cir. 1989) ..................... 9 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) ................................................................... 16, 26 Walsh v. U.S. Dep’t of Veterans Affairs, 400 F.3d 535 (7th Cir. 2005) ....................................... 38 Washington Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252 (D.C. Cir. 1982) . 26 Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189 (9th Cir. 2011) . 18, 19, 20, 26 Wickwire Gavin P.C. v. U.S. Postal Serv., 356 F.3d 588 (4th Cir. 2004) ...................................... 9 Statutes 5 U.S.C. § 552(a)(3)(A) .................................................................................................................. 7 5 U.S.C. § 552(a)(4)(B) .................................................................................................................. 4 5 U.S.C. § 552(a)(6) ........................................................................................................................ 8 5 U.S.C. § 552(a)(6)(A)(i) ........................................................................................................ 7, 31 5 U.S.C. § 552(a)(6)(A)(ii) ....................................................................................................... 8, 30 5 U.S.C. § 552(a)(6)(A)(ii)(I) ......................................................................................................... 7 5 U.S.C. § 552(a)(6)(A)(ii)(II) ........................................................................................................ 7 5 U.S.C. § 552(a)(6)(B)(i) ............................................................................................... 7, 8, 13, 31 5 U.S.C. § 552(a)(6)(B)(ii) ............................................................................................................. 8 5 U.S.C. § 552(a)(6)(B)(iii) .......................................................................................................... 13 5 U.S.C. § 552(a)(6)(C)(i) ............................................................................................................... 7 5 U.S.C. § 552(a)(7) ........................................................................................................................ 8 5 U.S.C. § 552(a)(7)(B)(ii) ........................................................................................................... 31 5 U.S.C. § 552(b) .................................................................................................................... 2, 4, 5 5 U.S.C. § 552(b)(4) ................................................................................................................... 2, 5 5 U.S.C. § 706(1) ................................................................................................................ 9, 37, 38 5 U.S.C. § 706(2) .......................................................................................................................... 38 5 U.S.C. § 706(2)(A)................................................................................................................. 9, 37 5 U.S.C. § 706(2)(C) ..................................................................................................................... 37 5 U.S.C. § 706(2)(D)................................................................................................................. 9, 37 NRS 704.7821(2)(c)(2) ................................................................................................................. 23 Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 6 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT vii Regulations 43 C.F.R. § 2.27 ............................................................................................................................ 20 43 C.F.R. § 2.30 ............................................................................................................................ 20 43 C.F.R. § 2805.12(i) .................................................................................................................. 24 43 C.F.R. § 2807.17(a).................................................................................................................. 24 Rules Fed. R. Civ. P. 56 ........................................................................................................................ 1, 8 Fed. R. Civ. P. 56(c) ....................................................................................................................... 8 Fed. R. Evid. 701 .......................................................................................................................... 21 Fed. R. Evid. 801(c) ...................................................................................................................... 21 Fed. R. Evid. 802 .......................................................................................................................... 20 LR 56-1 ........................................................................................................................................... 1 Other Authorities H.R. Rep. No. 104-795 (1996), reprinted in 1996 U.S.C.C.A.N. 3448 ....................................... 31 H.R. Rep. No. 89-1497 (1966), reprinted in 1966 U.S.C.C.A.N. 2418 ......................................... 5 H.R. Rep. No. 93-876 (1974), reprinted in 1974 U.S.C.C.A.N. 6267 ......................................... 29 S. Rep. No. 89-813 (1965) .......................................................................................................... 4, 5 Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 7 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT viii GLOSSARY OF ACRONYMS AND ABBREVIATIONS APA Administrative Procedure Act BLM Bureau of Land Management FOIA Freedom of Information Act Interior U.S. Department of the Interior MW Megawatt PPA Power Purchase Agreement PUCN Public Utilities Commission of Nevada Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 8 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and LR 56-1, plaintiff Basin and Range Watch moves for summary judgment on all claims in its Complaint (ECF No. 1) for the reasons stated in the accompanying Memorandum of Points and Authorities. Defendants Bureau of Land Management (“BLM”)1 and U.S. Department of the Interior (“Interior”) (collectively, “federal defendants”) have violated the Freedom of Information Act (“FOIA” or the “Act”) by unlawfully withholding documents requested by Basin and Range Watch that contain information regarding bird deaths and subsequent operational changes at the Crescent Dunes Solar Energy Project. The federal defendants’ withholding of the requested documents is unlawful because they have improperly invoked an exemption to FOIA and failed, and continue to fail, to provide determinations on Basin and Range Watch’s requests within the deadlines established in the FOIA. Moreover, federal defendants have engaged and continue to engage in an unlawful a pattern, practice or policy of FOIA violations by failing to comply with the statute’s mandates. Basin and Range Watch respectfully requests that the Court grant summary judgment in its favor on all claims and prayers for relief, and that the Court order the production of the unlawfully withheld documents. For the reasons stated below, the Court also should deny federal defendants’ motion for summary judgment. Respectfully submitted this 9th day of August 2016. /s/ David H. Becker /s/ David A. Bahr David H. Becker, Pro Hac Vice David A. Bahr, Pro Hac Vice Law Office of David H. Becker, LLC Bahr Law Offices, P.C. /s/ Christopher W. Mixson Christopher W. Mixson WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Attorneys for Plaintiff Basin and Range Watch 1 Defined acronyms are set out in the “Glossary of Acronyms and Abbreviations.” Supra at viii. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 9 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 2 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION On January 14, 2015-in an event partially captured on video-about 130 birds burned to death in the intense solar “halo” from 1.2 million square feet of mirrors concentrating sunlight onto a collection tower at the Crescent Dunes Solar Energy Project (“Project”). The Project is located on public land north of Tonopah, Nevada, owned by the citizens of the United States and administered by the BLM. BLM has leased about 2,094 acres of public land to a private developer for 30 years to generate about 110 megawatts (“MW”) of electricity. Under the terms of the lease, BLM is responsible for supervising the Project’s operation and for placing conditions on those operations that protect public health, safety, and the environment-including the birds that fly though the project site. On February 26, 2015, Basin and Range Watch-a grass roots non-profit organization dedicated to protecting the Mojave and Sonoran Deserts and advocating for responsible energy development-sent BLM two requests under the FOIA related to the bird incineration event. Basin and Range Watch requested a copy of the video of the event and, separately, documents regarding the event, including any plans for avian monitoring and mitigation of future bird kills. FOIA requires agencies to process requests, and appeals from denials of requests, within 20 working days. BLM did not produce the video until late October 2015-more than six months after the statutory deadline. BLM did not provide its initial decision regarding the request for documents until November 18, 2015-nearly eight months after the statutory deadline. Although BLM produced some responsive documents, it withheld or redacted several others, claiming they were protected under FOIA Exemption 4 as “commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Exemption 4, which allows the withholding of government documents where disclosure would likely result in substantial competitive injury to private businesses, requires a showing of actual competition and a likelihood-not mere possibility-of competitive injury from disclosure. Moreover, federal defendants failed to provide any response to plaintiff’s administrative appeal. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 10 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 3 Because FOIA’s purpose and philosophy is one of full agency disclosure, it is unusual among federal statutes in placing the burden on the agency to show that any withholding is justified, without deference to the agency’s position. BLM has not met that burden here, offering only conclusory and generalized allegations of competition and potential injury to justify its unlawful withholding. Basin and Range Watch depends on FOIA to obtain information about bird kills at the Project and what steps BLM is taking to ensure that they do not recur. BLM’s delays of six or eight months in responding, its unwarranted withholdings, and its pattern, practice or policy of non-compliance with FOIA’s requirement to provide the statutorily required estimated completion dates so requesters know the status of their requests, all impede the right of Basin and Range Watch, and the broader public, to know what is going on at the Project and how BLM is addressing it. “Renewable energy projects, although critical to the effort to combat climate change, can have significant adverse environmental impacts, just as other large-scale developments do.” Or. Natural Desert Ass’n v. Jewell, -- F.3d --, No. 13-36078, 2016 WL 3033674, at *1 (9th Cir. May 26, 2016). The public has a right to know about such impacts when projects operate on public land and affect public resources. Because the Project kills birds that belong to the public on land that belongs to the public, the public is entitled to know how the Project-and the federal agency that oversees it-will ensure that future bird deaths from concentrated sunlight at the Project are avoided. Birds continue to be killed and injured by concentrated sunlight at the Project. Basin and Range Watch intends to keep using FOIA to obtain information that BLM refuses to share voluntarily with the public about the magnitude of the problem and what solutions-if any-are being implemented. BLM’s extensive violations of FOIA that necessitated the filing of this case thwart the Act’s purpose of allowing the public to hold its federal agencies accountable, and portend that future FOIA requests will be met with similar delays and unwarranted withholdings unless this Court grants declaratory and injunctive relief in favor of Basin and Range Watch. // Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 11 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 4 BACKGROUND I. LEGAL FRAMEWORK A. The Freedom of Information Act. 1. An Agency Seeking to Withhold Information Under FOIA has the Burden of Showing That the Act’s Disclosure Exemptions Apply. “FOIA is often explained as a means for citizens to know what ‘their Government is up to.’” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)). The purpose of FOIA is “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” S. Rep. No. 89-813, at 3 (1965). The Supreme Court has interpreted the disclosure provisions of FOIA broadly, noting that the Act was animated by a “philosophy of full agency disclosure.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). Accordingly, FOIA requires that federal agencies disclose records to any person upon request, unless the information falls within one of the narrow exemptions from FOIA listed in 5 U.S.C. § 552(b). Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (“disclosure, not secrecy, is the dominant objective of the Act”). In furtherance of the Act’s policy of governmental transparency, its disclosure exemptions are to be very narrowly construed by the agencies and reviewing courts. John Doe Agency, 493 U.S. at 152; GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1112 (9th Cir. 1994) (FOIA exemptions “are to be narrowly construed by the courts”); Church of Scientology of Cal. v. U.S. Dep’t of the Army, 611 F.2d 738, 741-42 (9th Cir. 1979) (“The Freedom of Information Act . . . mandates a policy of broad disclosure of government documents when production is properly requested.”). Under FOIA, the government always bears the burden of establishing that any given document falls within the scope of the Act’s exemptions from mandatory disclosure. 5 U.S.C. § 552(a)(4)(B) (“the burden is on the agency to sustain its action”); Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996) (“The agency resisting disclosure of requested information has the burden of Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 12 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 5 proving the applicability of an exemption.”). Not only does the government bear the burden of proving that information is exempt from disclosure, a court’s review of the agency’s decision is de novo, and the administrative decision is not accorded any deference. Carlson v. U.S. Postal Serv., 504 F.3d 1123, 1127 (9th Cir. 2007) (“we do not give deference to the USPS’s determination that the requested information was ‘information of a commercial nature’ and review de novo”); Hayden v Nat’l Security Agency/Cent. Security Serv., 608 F.2d 1381, 1384 (D.C. Cir. 1979) (“The trial court must make a de novo review of the Agency’s classification decision, with the burden on the agency to justify nondisclosure.”). The Supreme Court has noted approvingly that Congress clearly intended that the burden always rest on the agency to demonstrate-and not upon the requester to disprove-that the materials sought have not been improperly withheld. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989) (citing, S. Rep. No. 89-813, at 8 (1965) (“Placing the burden of proof upon the agency puts the task of justifying the withholding on the only party able to explain it”)); see also H.R. Rep. No. 89-1497, at 9 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2426 (same). Not long before FOIA was enacted on July 4, 1966, Justice Hugo Black noted that the “effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.” Barr v. Matteo, 360 U.S. 564, 577 (1959) (Black, J., concurring). It is this principle of agency accountability that Congress and the courts have held should inform judicial review under FOIA. 2. FOIA Exemption 4 Requires an Agency to Show Actual Competition and a Likelihood of Substantial Competitive Injury. Exemption 4 of FOIA, 5 U.S.C. § 552(b)(4), exempts from disclosure “commercial or financial information obtained from a person and privileged or confidential.”2 See GC Micro, 33 2 Exemption 4 also allows an agency to withhold “trade secrets,” 5 U.S.C. § 552(b)(4), but BLM has not invoked that justification. See generally Defendants’ Motion for Summary Judgment at 2 (ECF No. 20) at 1-11 (“Defs.’ MSJ”). Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 13 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 6 F.3d at 1112 (describing Exemption 4). Basin and Range Watch agrees with federal defendants that the information it requested is “commercial.” The Ninth Circuit has adopted the D.C. Circuit’s primary test3 for whether commercial information is “confidential.” Id. at 1112-13. “Information qualifies as ‘confidential’ for the purposes of Exemption 4 ‘if disclosure is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.’” Id. (quoting Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 766-67 (D.C. Cir. 1974) (“Nat’l Parks I”)). To carry its burden of withholding the requested documents under the first prong of this test, the agency must show that it is likely that disclosure will impair the agency’s ability to obtain necessary information in the future. Id. However, if a person is already obligated to provide the requested information to the agency, “there is little ‘danger that public disclosure will impair the ability of the Government to obtain this information in the future.’” Freeman v. BLM, 526 F. Supp. 2d 1178, 1187 (D. Or. 2007) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878 (D.C. Cir. 1992) (en banc)). To carry its burden under the second prong-whether disclosure is likely to cause substantial competitive harm-the agency “must present specific ‘evidence revealing (1) actual competition and (2) a likelihood of substantial competitive injury.’” Frazee v. U.S. Forest Serv., 97 F.3d 367, 371 (9th Cir. 1996) (quoting GC Micro, 33 F.3d at 1113). To sustain its burden here, the BLM must first establish-as a threshold matter-the existence of actual competition. Rather than speculation that a submitter “may face future or potential competition . . . [FOIA] explicitly requires proof that the submitters face actual competition.” Niagara Mohawk Power Corp. v U.S. Dep’t of Energy, 169 F.3d 16, 18-19 (D.C. Cir. 1999) (emphasis in original, citing 3 The Ninth Circuit has expressly declined to adopt the D.C. Circuit’s alternative test for cases involving voluntary submissions to the government. See Frazee v. U.S. Forest Serv., 97 F.3d 367, 371-72 (9th Cir. 1996) (citing Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc)). Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 14 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 7 Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976) (“Nat’l Parks II”)). The competition at issue must constitute “meaningful day-to-day competition with businesses offering similar goods and services.” Nat’l Parks II, 547 F.2d at 681-84. Mere conjectural or even probable future competition regarding matters such as contract renewal does not satisfy the Exemption 4 test. Id. And, particularly in light of BLM’s position here, “conclusory and generalized allegations of competitive harm are insufficient to show that requested information is ‘confidential’ under the second prong of the National Parks test.” GC Micro, 33 F.3d at 1113. 3. An Agency Must Comply With Strict Deadlines and Provide Estimated Completion Dates When Responding to FOIA Requests and Processing Administrative FOIA Appeals. Consistent with its purpose to provide timely information upon request by the public, the FOIA imposes strict and rigorous deadlines on federal agencies. The Act provides that a federal agency that receives a FOIA request “shall . . . determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request.” 5 U.S.C. § 552(a)(6)(A)(i). If the agency determines the requested records are exempt from public disclosure, the agency must also communicate to the requester that they have a right to appeal that determination. Id. If the agency determines the records are not exempt from public disclosure, the agency is required to make the requested records “promptly available” to the requester. Id. §§ 552(a)(3)(A), (a)(6)(C)(i). In limited circumstances, an agency may obtain additional time-beyond the twenty business day deadline-to determine whether to comply with the request in two limited circumstances. First, the agency may toll the twenty business day deadline pending receipt of information from a requester, including clarification about fee assessment. Id. § 552(a)(6)(A)(ii)(I)-(II). Second, the agency may extend the deadline for making a determination for an additional ten business days based on “unusual circumstances.” Id. § 552(a)(6)(B)(i). Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 15 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 8 To invoke the ten business day extension due to unusual circumstances, the agency must take three specific steps: it must (1) provide “written notice to the person making such request setting forth the unusual circumstances for such extension,” (2) provide “the date on which a determination is expected to be dispatched” (i.e. the “estimated completion date” for the request), and (3) “provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request.” Id.. § 552(a)(6)(B)(i)-(ii). An agency asserting that unusual circumstances prevent its compliance with FOIA’s deadlines also “shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency.” Id. FOIA also requires that an agency provide a tracking number for any request or administrative appeal that will take more than ten business days to process and provide “an estimated date on which the agency will complete action on the request.” Id. § 552(a)(7). When appeals are filed, the agency “shall . . . make a determination with respect to any appeal within twenty days.” Id. § 552(a)(6)(A)(ii). FOIA makes no provision for extension of time for an agency to make a determination regarding an appeal. See id. § 552(a)(6). B. Summary Judgment Standard. Summary judgment under Fed. R. Civ. P. 56(c) is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The substantive law governing a claim determines whether a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A moving party is entitled to summary judgment as a matter of law “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Bhan v. NME Hosps. Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). The burden on the moving party may be discharged by “‘showing’-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 16 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 9 Once the moving party has met its burden, the non-movant may not rest on mere allegations, but must instead proffer specific facts showing that a genuine issue exists for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). FOIA cases are typically decided on motions for summary judgment. See Lane v. Dep’t of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008); Wickwire Gavin P.C. v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004) (summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved); Black v. U.S. Dep’t of Homeland Sec., No. 2:10-CV- 2040 JCM (VCF), 2012 WL 3155142, at *2 (D. Nev. Aug. 2, 2012). C. The Administrative Procedure Act. The Administrative Procedure Act (“APA”) sets forth standards governing judicial review of federal administrative agencies’ actions. See Dickinson v. Zurko, 527 U.S. 150, 152 (1999). The APA provides for judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Pursuant to the APA, a court “shall . . . hold unlawful and set aside agency actions . . . that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or adopted “without observance of procedure required by law.” 5 U.S.C. §§ 706(2)(A) , (D). The APA also mandates that a reviewing court “shall . . . compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). “Agency action” is defined broadly and “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551. Review of agency action is narrow; however, the agency must articulate a rational connection between the facts found and the conclusions made. Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The reviewing court must determine whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989). An Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 17 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 agency’s decision can be upheld only on the basis of the reasoning found in that decision. Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997). II. FACTUAL BACKGROUND4 Basin and Range Watch does not dispute the Factual Background set out in the federal defendants’ Motion for Summary Judgment (ECF No. 20) at 2-5, subject to the following additions, modifications, and details. A. The Crescent Dunes Solar Energy Project and the January 2015 Bird Incineration Event. The Crescent Dunes Solar Energy Project operates by concentrating sunlight to heat liquid salt to over 1,000o F. Declaration of David H. Becker (filed herewith) Ex. A at 2-4 (“Becker Dec.). Designed to generate 110 MW of electricity, the Project consists of over 10,000 tracking mirrors, called heliostats, arrayed in a 1.75-mile diameter circle around a 640-foot tall tower. Id. Atop the tower sits a 100-foot tall receiver. Id. at 4. The heliostats-more than 1.2 million square feet of mirrored glass-follow the sun during the day and concentrate sunlight on the receiver. Id. After being heated in the receiver, the salt is stored in a hot salt tank, from which it is piped through a steam generator, which drives a steam turbine, generating electricity. Id. The hot salt storage allows the Project to generate electricity even at night. Id. Basin and Range Watch volunteers have visited the Project area at least 15 times since 2010, identifying over a dozen species of birds on and near the Project site. Declaration of Kevin Emmerich ¶¶ 7, 11 (filed herewith) (“Emmerich Dec.). Basin and Range Watch has posted information on its website about the project’s potential effects and construction progress, including photographs of the project site at various stages of construction. Id. ¶ 7 (citing http://www.basinandrangewatch.org/CrescentDune.html). The Project is operated by Tonopah Solar Energy, LLC (“Tonopah Solar”), a subsidiary 4 Because Basin and Range Watch largely adopts the “Factual Background” section in the federal defendants’ Motion (ECF No. 20), this discussion is not labeled a statement of undisputed material facts, but Basin and Range Watch submits that it satisfies the intent of LR 56-1. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 18 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 11 of SolarReserve, a company that develops concentrating solar plants (like the Project) and conventional photovoltaic solar projects around the world. See Becker Dec. Ex. B at 1; Declaration of Michelle Piland ¶ 13 (ECF No. 20-1) (“Piland Dec.”). Tonopah Solar holds a right-of-way from BLM covering about 2,094 acres of public land north of Tonopah, Nevada. See Becker Dec. Ex. B at 1-2. The right-of-way has a 30-year term, expiring at the end of 2039. Id. at 2. The right-of-way expressly requires Tonopah Solar to provide BLM “access to environmental, technical, and financial records, reports, and information” related to the project; failure of Tonopah Solar to provide access to such information “may . . . result in the suspension or termination of the right-of-way.” Id. at 6. The right-of-way includes extensive conditions and protocols to protect birds and other wildlife. Id. at 18-21. Tonopah Solar contracted Stantec Consulting Services, Inc. (“Stantec”) to perform the biological surveys required by the right-of- way. Piland Dec. ¶ 13. A January 14, 2015, test of the Project’s “standby position”-in which heliostats are not aimed at the tower receiver, but rather somewhere in the air while they are waiting to go to work generating electricity-involved configuring its mirrors to create a halo of concentrated solar flux above the tower. Id. ¶ 14; Becker Dec. Ex. C at 1-2 (photograph showing halo). The test caused about 130 birds to be burned to death. Piland Dec.¶ 15. Stantec recorded video of the event and filed a report with BLM, stating that the “heat was so intense that birds flying into the halo were immediately burned and smoke was clearly evident.” Piland Dec. ¶ 15; Becker Dec. Ex. C at 1. As discussed below, Basin and Range Watch eventually obtained the video and posted it for public viewing on its website and on YouTube, where it has received over 10,000 views. See http://www.basinandrangewatch.org/Crescent-Dunes-Solar-Flux.html (last visited Aug. 9, 2016); https://www.youtube.com/watch?v=f_7xOx-HMxk (last visited Aug. 9, 2016). During the following month, Tonopah Solar and Stantec corresponded with BLM, providing the agency with additional information regarding their mitigation efforts. Piland Dec.¶ 17. // // Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 19 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 12 B. Basin and Range Watch’s February 2015 FOIA Requests and Tonopah Solar’s Assertions to BLM in Support of Withholding Under Exemption 4. Basin and Range Watch submitted two FOIA requests on February 26, 2015. Emmerich Dec. ¶ 15 & Exs. 1-2. One requested the video of the January 14, 2015 bird incineration event, to which BLM assigned tracking number BLM-2015-00391 (the “Video Request”). Id. Ex. 1 at 2. The other request sought “[a]ny documents including internal BLM communications with Solar Reserve on the avian mortality, mitigation and monitoring for the Crescent Dunes Solar Project.” Id. Ex. 2 at 1 (the “Documents Request”). BLM assigned tracking number BLM-2015-00401 to the Documents Request. Id. Ex. 5 at 1. More specifically, the Documents Request sought “documents that talk about the problems and plans for avian monitoring and mitigation for this project,” particularly the bird incineration event, and “[a]ny emails about mitigation plans that involve different configurations of the heliostats would be of interest.” Id. Ex. 2 at 1. Basin and Range Watch explained that it was requesting the information “to identify the problems caused by these projects, to find solutions that will preserve natural ecosystems and open spaces, and to educate the public about the problems associated with renewable energy development and the possible solutions” and “because it is important to the future design of solar energy sited on public lands and how that relates to wildlife conservation.” Id. at 1-2. After receiving Basin and Range Watch’s FOIA requests, BLM gave Tonopah Solar a chance to review the requests and potentially object to the release of information, as contemplated in the Department of Interior’s FOIA regulations. 43 C.F.R. §§ 2.27, 2.30; see Becker Dec. Exs. F, G (BLM letters to Tonopah Solar regarding Basin and Range Watch’s requests). BLM carefully explained to Tonopah Solar that, to justify withholding, the company would have to show how disclosure was likely to “cause you substantial competitive or other business harm,” which BLM further explained would require Tonopah Solar to “explain how: 1) you face actual competition in the relevant marketplace; and 2) substantial competitive injury would likely result from disclosure.” Becker Dec. Ex. F at 2, Ex. G at 2. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 20 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 But Tonopah Solar made no assertion that it faces actual competition, or that it would suffer likely substantial competitive injury from disclosure. Id. Ex. H at 1-2, Ex. I at 1-2. In a letter to BLM dated March 20, 2015, the company objected to the release of the video. Becker Dec. Ex. H. On May 1, 2015, the company requested redaction of several documents responsive to Basin and Range Watch’s Documents Request, noting that BLM “had already identified much of the privileged and confidential information.” Id. Ex. I at 1. Tonopah Solar offered only the conclusory assertion that the video and documents contained “privileged and confidential commercial information” and that the company had a “commercial interest” in the video and the documents, which extended to preventing their disclosure to the public. Id. Ex. H at 2, Ex. I at 2. C. The Six and Eight Month Delays in Responding to the Requests and Three Months Without a Response to Basin and Range Watch’s Administrative FOIA Appeal. Although FOIA requires an agency to make a final determination whether to comply with a request within twenty business days (or thirty business days if the agency invokes “unusual circumstances”), BLM took more than six months (over 180 days) to make a final determination on the Video Request and nearly eight months (almost 240 days) to make a final determination on the Documents Request. 1. Basin and Range Watch’s efforts to get responses between March and August 2015. BLM sent letters to Basin and Range Watch regarding the Video Request dated March 5, 2015 and March 26, 2015. Emmerich Dec. Exs. 3, 4. The latter letter stated that BLM was taking a 10-workday extension, but did not set forth unusual circumstances to justify this request, as FOIA requires. Id. Ex. 4 at 1; see 5 U.S.C. §§ 552(a)(6)(B)(i) (requirement to set forth unusual circumstances), 552(a)(6)(B)(iii) (definition of “unusual circumstances”). It did, however, provide an estimated completion date for the request: April 9, 2016. Emmerich Dec. Ex. 4 at 1. BLM sent a letter to Basin and Range Watch regarding the Documents Request on March 11, 2015. Id. Ex. 5. BLM estimated that it would have the request completed by March 31, 2015. Id. at 2. This was BLM’s last formal communication with Basin and Range Watch about the Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 21 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 Documents Request until November 18, 2015. See id. ¶¶ 19-23 & Ex. 6 at 1-9. After BLM missed both the statutory deadlines and estimated dates for completing the requests, BLM’s Nevada State FOIA Specialist did keep Basin and Range watch informally apprised of delays in processing the two requests. On March 31, 2015, she advised Basin and Range Watch that the “solicitor has been tied up with litigation issues” but that decisions on both FOIA requests were expected by the end of that week. Id. Ex. 6 at 4. However, that was the last time that BLM provided an estimated completion date for either request, and Basin and Range Watch’s subsequent efforts to obtain estimated completion dates went unanswered. See id. ¶ 21 & Ex. 6 at 4-10; Becker Dec. ¶¶ 12-14 & Ex. J at 1-6, Ex. L at 1-4. On April 10, 2015, BLM’s Nevada State FOIA Specialist emailed Basin and Range Watch to explain that the Solicitor had identified additional items that would need to be sent to Tonopah Solar for review, but that BLM “will do a rolling release of information [i.e. release uncontested documents while contested documents continue to be reviewed] as soon as it is cleared.” Emmerich Dec. Ex. 6 at 4. On April 28, 2015-two months after the request-she advised Basin and Range Watch that there had been a problem transmitting the video to the Solicitor’s Office. Id. at 5. On June 16, 2015, Basin and Range Watch emailed the FOIA Specialist, asking for an update on when the group could expect a response. Id. at 6. The FOIA Specialist responded that she had “elevated” the request to the BLM Washington Office. Id. On July 30, 2015, Basin and Range Watch again emailed the FOIA Specialist, again requesting an update on when the group could expect a response. Id. at 7. She responded that she was still trying to see if the Solicitor’s Office had completed its review and that she would let Basin and Range Watch know when she heard back. Id. On August 14, 2015, Basin and Range Watch again emailed asking for the status of the requests. Id. at 8. The FOIA Specialist responded that she had kept asking, but had not heard anything back and apologized for not being able to get an answer to Basin and Range Watch. Id. Two weeks later, she suggested that Basin and Range Watch file an administrative appeal, presumably to formally elevate the issue to the Interior FOIA Appeals Office. Id. at 8. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 22 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 15 2. Basin and Range Watch engages counsel to assist in obtaining responses. In early September, Basin and Range Watch engaged counsel to assist in a potential administrative appeal or litigation to obtain the information it had requested five months earlier. Emmerich Dec. ¶ 20. On September 15, October 2, and October 15, 2015, counsel sent letters on behalf of Basin and Range Watch to BLM Nevada State Director John Ruhs, asking him to acknowledge receipt, advising him of BLM’s FOIA deadline violations, offering assistance in expediting processing, and requesting estimated completion dates for the requests. Becker Dec. ¶ 12 & Ex. J. These letters also advised State Director Ruhs that time was now of the essence in receiving responses because the Project was not yet operational,5 and Basin and Range Watch “intends to use the requested information to better understand how BLM and the developer are responding to, and-they hope-taking measures to prevent bird kills.” Id. Ex. J at 2. Basin and Range Watch explained that it was “anxious to receive the requested materials to be able to disseminate them to the public and inform the public dialogue regarding the as-yet-not- operational Crescent Dunes Solar Energy Project, its impact to birds, and BLM’s oversight of the project.” Id. at 3, 5. Basin and Range Watch received no responses to any of these letters, either formally or informally. Becker Dec. ¶ 12; Emmerich Dec. ¶ 21. 3. BLM finally responds to the requests and invokes Exemption 4 to withhold information responsive to the Documents Request. In late October 2015, BLM finally released the video to Basin and Range Watch. Emmerich Dec. ¶ 22. On November 18, 2015, BLM provided its final determination on Basin and Range Watch’s February 26, 2015 Documents Request. Id. ¶ 22 & Ex. 7. BLM produced 257 pages of documents, but withheld three pages in full and 15 pages in part under FOIA Exemption 4. Id. Ex. 7 at 1. BLM first explained that it had “determined that the information at issue was required to be submitted to the government.” Id. Then it offered a short, conclusory 5 The Project became operational in February 2016. Defs.’ MSJ at 2. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 23 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 16 rationale for invoking Exemption 4, stating that “[t]he material withheld contains proprietary information regarding the internal procedures of the company which should remain proprietary, disclosure of this information may cause harm to the competitive position of the person from whom the information was obtained and/or 2) harm the government’s ability to obtain it in the future.” Id. Based on these alleged “facts,” BLM asserted that “this information is confidential for the purposes of Exemption 4 and we have withheld it.” Id. BLM’s FOIA Specialist alleges that “[t]he information withheld consists of detailed discussions regarding the operational procedures relating to the Solar Project and the testing protocol,” including “detailed discussions of the grantee’s proposed mitigation plans and the effect of the proposals on operation” and “specific details such as number of solar panels active during various testing phases, the length of time various testing routines take, and the estimated success of these testing phases.” Piland Dec. ¶ 53. Other withheld sections “contain technical details regarding the capacity of individual solar panels and the total heat generating capacity of various configurations.” Id.; see also Defs.’ MSJ Ex. 4 (ECF No. 20-4) (Vaughn index). 4. Interior’s FOIA Appeals Office never responds to Basin and Range Watch’s administrative appeal. Basin and Range appealed BLM’s partial denial of its request to the Interior FOIA Appeals Office on December 17, 2015. Becker Dec. Ex. K. The appeal asked for acknowledgement that the Appeals Office had received the appeal and also for an estimated date by which the processing of the appeal would be complete. Id. at 1. On December 24, 2015, counsel for Basin and Range Watch spoke by telephone with the Interior FOIA Appeals Officer, who advised that the appeal had been received and that there were no issues preventing it from being processed. Declaration of Darrell R. Strayhorn ¶¶ 35-36 (ECF No. 20-3) (“Strayhorn Dec.”). Counsel for Basin and Range Watch emailed letters to the Interior FOIA Appeals Officer on January 7, January 22, February 5, and February 19, 2016, asking for acknowledgement of receipt, advising the Appeals Office that time was of the essence to obtain the requested information (because the Project had not yet entered operation), and asking for an estimated Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 24 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 17 completion date for processing the Appeal. Becker Dec. ¶ 14 & Ex. L. Basin and Range Watch received no response to any of these letters. Id. ¶ 14; Emmerich Dec. ¶¶ 25-26. Basin and Range Watch filed suit on the one-year anniversary of its Documents Request. Id. ¶ 27. D. Subsequent Bird Incineration Events at the Project and Basin and Range Watch’s Additional FOIA Requests Concerning the Project. Basin and Range Watch continues to be concerned about the Project’s potential for incinerating birds and about further delays in receiving information about the Project timely under FOIA. Emmerich Dec. ¶¶ 28, 35, 39-43; Declaration of Laura Cunningham ¶¶ 6, 8-11 (filed herewith) (“Cunningham Dec.”). In November 2015, the public relations assistant to BLM State Director Ruhs told Basin and Range Watch that Tonopah Solar considered the monthly bird monitoring report to contain proprietary information, and therefore that BLM would no longer provide these reports to Basin and Range Watch without formal FOIA requests. Emmerich Dec. ¶ 28. Thus, if Basin and Range Watch or any member of the public wants information about the Project from BLM, it will now need to resort to FOIA. Basin and Range Watch submitted a third FOIA request to BLM on April 14, 2016, seeking the same information regarding avian mortality, mitigation and monitoring at the Project as sought in the Documents Request, except for the period from July 2015 to April 2016 (the “Third FOIA Request”). Emmerich Dec. Ex. 8. Basin and Range Watch submitted additional information to perfect the request on April 23, 2016, making the deadline for BLM to provide a final determination May 20, 2016. Id. ¶ 30. On May 21, 2016, BLM advised Basin and Range Watch that it had collected additional information but needed to review it, and gave a tentative date of June 17, 2016 for a determination. Id. ¶ 32. As of August 9, 2016, Basin and Range Watch has not received a final determination for that request, but BLM has informally indicated that a response may be provided by August 19, 2016. Id. ¶¶ 33-34. Basin and Range Watch sent BLM a fourth FOIA request for Project-related documents on August 1, 2016, for the period from April 2016 to July 2016, for which the determination deadline has not yet run. Id. Ex. 9. During a recent visit to a bird sanctuary, Basin and Range Watch’s Executive Director Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 25 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 18 observed a prairie falcon which had been found in the Project’s solar field on or about July 20, 2016. Cunningham Dec. ¶ 6. The falcon’s feathers were melted and degraded, with the tail and both wings melted away, and the bird had sores that were still growing. Id. ¶ 7. The photographs she took of the bird illustrate the severe damage it suffered, all of which were consistent with exposure to high heat from solar flux. Id. ¶¶ 6-7. She also reviewed a report of an injured Lewis’s woodpecker from the Project, found from a similar time period as the falcon which died. Id. ¶ 8. The woodpecker had worse sores on its wings which started small, then grew in size as flesh died. Id. The sores became oozing wounds, then bone became visible. Id. The bird was able to eat but did not survive its wounds. Id. These recent injuries and death raise serious concerns that the Project is continuing to kill and maim birds, and that the public is not being adequately informed about what BLM intends to do to address that. Id. ¶ 11; Emmerich Dec. ¶ 43. ARGUMENT I. BLM AND INTERIOR VIOLATED FOIA BY INVOKING EXEMPTION FOUR WITHOUT SHOWING THE LIKELIHOOD OF SUBSTANTIAL COMPETITIVE INJURY OR EVEN ACTUAL COMPETITION A. BLM has Provided No Evidence of Likely Substantial Competitive Injury. Federal defendants have not borne their burden of showing that disclosure of the withheld and redacted information is likely to cause substantial competitive harm to Tonopah Solar or SolarReserve because the government has parroted only conclusory allegations of potential harm from the disclosure. Although BLM “need not show that releasing the documents would cause ‘actual competitive harm,’” it must “show that there is (1) actual competition in the relevant market, and (2) a likelihood of substantial competitive injury if the information were released.” Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189, 1194 (9th Cir. 2011) (quoting GC Micro, 33 F.3d at 1113). Reliance on government affidavits to make these showings is permissible, “so long as the affiants are knowledgeable about the information sought and the affidavits are detailed enough to allow the court to make an independent assessment of the government's claim.” Lion Raisins, Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 26 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 19 Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004). “Although ‘the court need not conduct a sophisticated economic analysis of the likely effects of disclosure[,] . . . [c]onclusory and generalized allegations of substantial competitive harm . . . are unacceptable and cannot support an agency’s decision to withhold requested documents.” Watkins, 643 F.3d at 1195 (quoting Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983)). 1. BLM offers no evidence that Tonopah Solar or SolarReserve is likely to suffer substantial competitive injury and BLM’s speculation of potential injury cannot justify withholding. Although federal defendants assert that the information released “would likely be used by competitors to gain a commercial advantage and cause substantial harm to Crescent Dune’s operators,” Defendants’ Motion for Summary Judgment at 9 (ECF No. 20) (“Defs.’ MSJ”), none of their declarations actually describes such “likelihood.” In fact, only one of BLM’s declarations contains allegations of potential competitive harm at all. Piland Dec. ¶¶ 54-56. A second declaration alleges generally that “companies are highly sensitive to the potential for release of any confidential business information, particularly any materials that might provide unnecessary detail as to the technology being used at their generating facilities,” without describing how this is likely to result in substantial competitive harm to Tonopah Solar or SolarReserve. Declaration of Anita L. Bilbao ¶ 12 (ECF No. 20-2) (“Bilbao Dec.). The one declaration that addresses potential competitive harm carefully couches its allegations in the language of “possibility,” not “likelihood.” It alleges that “[t]his type of information is not normally released to the public because the testing methods and the results of the testing could be copied by another company.” Piland Dec. ¶ 54 (emphasis added). It adds, “[r]elease of this information would cause substantial competitive harm because the results of the testing could be used by another commercial energy company to jump ahead of its competitors by utilizing the means and methods to get results at a faster pace than other companies.” Id. ¶ 55 (emphasis added). Finally, it alleges that “[r]elease of this information would inhibit the government’s ability to obtain this information in the future because the company may not be Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 27 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 20 forthright about future information as the government has released it, therefore, given an advantage to the submitter’s competitors.” Id. ¶ 56 (emphasis added). None of these conclusory and generalized allegations says that competitive harm is “likely,” nor even that the potential competitive harm would be “substantial.” See Freeman, 526 F. Supp. 2d at 1190 (“The ‘substantial harm’ analysis requires more than a theoretical possibility of injury or scintilla of harm.”). These conclusory allegations cannot support BLM’s decision to withhold documents under Exemption 4. Watkins, 643 F.3d at 1195; GC Micro, 33 F.3d at 1113. 2. BLM cannot offer evidence that Tonopah Solar or SolarReserve is likely to suffer substantial competitive injury because Tonopah Solar did not assert any such claim to BLM. The reason that BLM can offer no more than conclusory assertions about competition and the solar energy market is that Tonopah Solar has not asserted that it would suffer any competitive injury as a result of disclosure. After receiving Basin and Range Watch’s FOIA requests, BLM provided Tonopah Solar an opportunity to review the requests and potentially object to the release of information, as contemplated in the Department of Interior’s FOIA regulations. 43 C.F.R. §§ 2.27, 2.30. On March 20, 2015, Tonopah Solar sent a letter to BLM objecting to the release of the video. Becker Dec. Ex. H at 1. Tonopah Solar claimed that the video contained “privileged and confidential commercial information” and therefore that FOIA Exemption 4 precluded its release. Id. But Tonopah Solar made no claim that the disclosure would be likely to cause it substantial competitive harm. Id. at 1-2. In its May 1, 2015 letter to BLM asking for the redaction of information for the Documents Request, Tonopah Solar incorporated its March 20, 2015 response by reference and reiterated that the “Redactions contain commercial information that is proprietary to [the company].” Becker Dec. Ex. I at 2. Although Tonopah Solar claimed “a commercial interest in preventing the disclosure of the Redactions to the public,” its short letter nowhere asserts that such disclosure would be likely to cause it substantial competitive harm. Id. at 1-2. Without any claim from the developer itself that it engages in day-to-day competition and Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 28 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 21 is likely to suffer substantial competitive harm, the BLM declarants’ assertions are unsupported hearsay that lack any foundation for the assertions, and are therefore inadmissible under Fed. R. Evid. 802-which alone justifies the denial of the federal defendants’ motion for summary judgment. See Black, 2012 WL 3155142, at *2 (denying pro se plaintiff’s motion for summary judgment for failure to authenticate evidence); Fed. R. Evid. 701, 801(c). B. BLM has Provided No Evidence of Actual Day-to-Day Competition. 1. BLM proffers no evidence that the Project or Solar Reserve engages in actual day-to-day competition. BLM also has offered no more than conclusory statements about actual competition, and has defined a different nebulous “market” than the one Tonopah Solar itself contemplates in its letters to BLM. To sustain its burden to withhold the information under Exemption 4, BLM must show the existence of actual competition. Speculation that a submitter “may face future or potential competition” is insufficient, because “[FOIA] explicitly requires proof that the submitters face actual competition.” Niagara Mohawk, 169 F.3d at 18-19 (emphasis in original). The competition at issue must constitute “meaningful day-to-day competition with businesses offering similar goods and services.” Nat’l Parks II, 547 F.2d at 681-84. Mere conjectural or even probable future competition does not satisfy the Exemption 4 test. Id. Federal defendants argue that “in the competitive and rapidly expanding solar market, copying the procedures used at Crescent Dunes could significantly reduce the time competitors are required to achieve the same results.” Defs.’ MSJ at 9. Although they cite both the Piland and Bilbao Declarations for this statement, the former contains no allegation about a market or actual competition, much less meaningful day-to-day competition. See Piland Dec. ¶¶ 53-56. The Bilbao Declaration contains only allegations that renewable energy development is a BLM priority, that Interior has approved nine utility-scale solar facilities on public lands, that the Project is the second approved that uses concentrated solar thermal “power tower” technology, and that “[t]here continues to be a high demand for the development of solar projects in the West, and, therefore significant competition between solar energy companies for project design, Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 29 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 22 technology, approvals, and contracts.” Bilbao Dec. ¶¶ 9-12. Be that as it may, the fact that solar development on public lands is a BLM priority does not satisfy BLM’s burden to justify its withholding on the basis of actual day-to-day competition and likely competitive injury. None of these allegations states that Tonopah Solar (or SolarReserve) currently faces actual day-to-day competition, or describes any facts or circumstances that would imply as much. At most, the final allegation describes potential future competition for development of solar projects on Western public lands generally. Id. ¶ 12. There is no evidence of what other “competitors” exist, what potential projects are in development “in the West,” and, indeed, no evidence that SolarReserve is currently competing to develop new projects in the United States at all. Id. SolarReserve’s website lists only three current concentrating solar projects (the Project, one in South Africa, and one in Chile) and three South African photovoltaic projects. See http://www.solarreserve.com/en/global-projects (last visited Aug. 8, 2016). The website lists “development activity” in 12 U.S. states and 33 foreign countries, id., but there is no additional information on the site about what that “activity” might involve (and none of the 45 named states or countries has a clickable hyperlink). By failing to offer evidence that SolarReserve or Tonopah Solar faces actual, current, day-to-day competition, but rather only generalized allegations of hypothetical future competition, BLM cannot sustain its burden to withhold information under Exemption 4. Niagara Mohawk, 169 F.3d at 18-19; Nat’l Parks II, 547 F.2d at 681-84; see also Raher v. Fed. Bureau of Prisons, 749 F. Supp. 2d 1148, 1160 (D. Or. 2010) (“Unless [the agency] can provide more specific evidence regarding each redaction and explain how a competitor could use the redacted information to inform its bidding in future competition for similar contracts, the alleged harm appears to be no more than a theoretical possibility.”). 2. Tonopah Solar does not operate in a competitive market. Tonopah Solar itself defined the scope of its “relevant market” as the construction and operation of the Project-a “market” in which it faces no competition because it has a contract to Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 30 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 23 sell all of its power to NV Energy, the Nevada utility monopoly. In its May 1, 2015 letter to BLM objecting to disclosure of information responsive to the Documents Request, Tonopah Solar stressed that it had a “commercial interest in constructing and operating a for-profit solar facility, in a competitive environment,” and that it had a “commercial interest in constructing and operating this first-of-its kind solar facility in a manner that minimizes adverse environmental (including avian) impacts.” Becker Dec. Ex. I at 2. The company’s interest was purely in the construction and operation of the Project, not competition for other existing or future projects. This reinforces that there is no factual basis to support a conclusion that Tonopah Solar and the Project are involved in actual, present competition that would provide a context in which a business rival would use the requested information to Tonopah Solar’s disadvantage. There is, in fact, no “competitive environment” for this Project because Tonopah Solar has a 25-year Power Purchase Agreement (“PPA”) under which NV Energy is obligated to purchase all of the electricity that the Project generates until January 1, 2040. Becker Dec. Ex. M at 4-5. All of Tonopah Solar’s product-the energy it generates from the Project-is dedicated solely for purchase by NV Energy for the 25-year term of the PPA. Id. at 4. In return, NV Energy agreed to purchase all of the energy generated by Tonopah Solar at fixed rates for the term of the PPA. Id. at 4-5. And NV Energy is entitled to pass the entire cost of the electricity from the Project on to its ratepayers. See NRS 704.7821(2)(c)(2) (once the Public Utilities Commission of Nevada (“PUCN”) approves a PPA with a renewable energy generator such as Tonopah Solar, “the utility provider may recover all just and reasonable costs associated with the contract.”).6 Because Tonopah Solar has a guaranteed buyer for all of its output for 25 years at a pre-set contract price, and that buyer can pass all the cost on to its ratepayers, Tonopah Solar does not operate in a “competitive environment,” and the “actual 6 The PUCN approved Tonopah Solar’s PPA with NV Energy for energy from the Project on July 30, 2010. See Order ¶ 330, PUCN Docket No. 10-02009, available at http://pucweb1.state.nv.us/PDF/AxImages/DOCKETS_2010_THRU_PRESENT/2010- 2/3190.pdf (last visited Aug. 8, 2016). Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 31 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 24 competition” necessary for withholding information under FOIA Exemption 4 is not present. C. BLM’s Assertion That the Project is Required to Provide the Requested Information to BLM Precludes a Finding That Disclosure Will Impair BLM’s Ability to Obtain Necessary Information in the Future. BLM has confirmed that Tonopah Solar is required to provide BLM with the information that Basin and Range Watch requested. Defs.’ MSJ at 2; Piland Dec. ¶¶ 11-12 (detailing the right-of-way’s avian mortality monitoring and reporting requirements), 57 (“The company is required to provide this information pursuant to the terms of BLM Right-of-Way Lease/Grant N- 86292 5-l, which requires the holder to provide access to records and information regarding environmental, technical, and financial records.”). Because Tonopah Solar holds-and presumably desires to retain-a right-of-way on public land to operate the Project, and is required to continue to provide BLM with the requested information, its disclosure to the public cannot impair BLM’s ability to obtain the information in the future. The right-of-way for construction and operation of the Project makes it mandatory for Tonopah Solar to provide any information that BLM, as the grantor of the right-of-way, requests-on penalty of suspension or termination of the right-of-way if the developer refuses. Becker Dec. Ex. B at 6. Section 5(l) of the right-of-way specifies that Upon the request of the Authorized Officer, the holder shall provide access to environmental, technical, and financial records, reports, and information related to construction, operation, maintenance and termination (i.e. decommissioning) of the right-of-way authorization. Any information marked confidential or proprietary will be kept confidential to the extent allowed by law. Failure of the holder to cooperate with such request, provide data, or grant access to such records, reports, and information may, at the discretion of the Authorized Officer, result in suspension or termination of the right-of-way authorization in accordance with the regulations. Id. (emphasis added). Because the terms of the right-of-way condition Tonopah Solar’s continuing access to the public lands on which the Project sits on its mandatory disclosure of any information BLM requests, the disclosure of that information to the public could not impair BLM’s ability to obtain the information in the future. See, e.g., Freeman, 526 F. Supp. 2d at 1187 (holding that Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 32 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 25 information provided to government agency in support of mineral patent application was not “voluntarily provided” in light of “the extraordinary benefits” sought to be enjoyed by the information’s submitter and was not, therefore, subject to FOIA’s Exemption 4); see also 43 C.F.R. §§ 2805.12(i) (BLM regulation obligating the holder of a BLM right-of-way to “[c]omply with project-specific terms, conditions, and stipulations”), 2807.17(a) (“If BLM determines that [the holder] ha[s] violated one or more of the terms, conditions, or stipulations of [its] grant,” BLM may suspend or terminate the right-of-way grant). To carry its burden of withholding the requested documents under the first prong of the test, the agency must show that it is likely that disclosure will impair the agency’s ability to obtain necessary information in the future. GC Micro, 33 F.3d at 1112-13. However, if a person is required to provide the requested information to the agency, “there is little ‘danger that public disclosure will impair the ability of the Government to obtain this information in the future.’” Freeman, 526 F. Supp. 2d at 1187 (quoting Critical Mass, 975 F.2d at 878).7 Nevertheless, federal defendants assert that “BLM determined that releasing the technical details about Crescent Dunes would inhibit the free flow of information between the government and solar operators, because competitors could copy the pre-operations testing methods and the results of the testing, causing substantial competitive harm.” Defs.’ MSJ at 9 (citing Piland Dec. ¶¶ 53-56). This assertion rests on a single statement by BLM’s declarant that “[r]elease of this information would inhibit the government’s ability to obtain this information in the future 7 In a footnote, federal defendants argue that, although the Ninth Circuit has not adopted the alternative test in Critical Mass for determining “competitive harm” in cases involving voluntary submissions to the government, the information at issue in this case should be properly withheld on that ground also. Defs.’ MSJ at 8 n.3. This argument is refuted by the plain language of the right-of-way and BLM’s acknowledgment that the information is required to be provided to the government, i.e. that the information was not provided voluntarily. Becker Dec. Ex. B at 6; Piland Dec.¶ 57. It is also refuted by federal defendants’ concession earlier in their brief that the material is not submitted voluntarily. Defs.’ MSJ at 2 (“The Right of Way/Lease requires the operator to provide information on environmental and technical issues to BLM.”). Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 33 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 26 because the company may not be forthright about future information as the government has released it, therefore, given an advantage to the submitter’s competitors.” Piland Dec. ¶ 56. But this is a non-sequitur: by the explicit terms of its right-of-way, Tonopah Solar is required to turn over any information BLM requests, on pain of having its right-of-way revoked. See discussion supra at 11, 24-25. The conclusory statement that disclosure would inhibit the government’s ability to obtain the information in the future cannot satisfy BLM’s burden to show that Exemption 4 applies. Church of Scientology, 611 F.2d at 742 (“In meeting its burden of proof, the government may not rely upon ‘conclusory and generalized allegations of exemptions’”) (quoting Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)). And BLM’s suggestion that Tonopah Solar “may not be forthright about future information” is too speculative to sustain a withholding under Exemption 4. Niagara Mohawk, 169 F.3d at 18 (rejecting, as “inherently weak,” claim of qualitative impairment when agency “secured the information under compulsion”); Lahr v. NTSB, 453 F. Supp. 2d 1153, 1175 (C.D. Cal. 2006) (no impairment from release of information pertaining to “‘flight characteristics and performance of a Boeing 747’” where submitter did “not argue” that impairment would be likely, but instead simply “speculate[d] that [in the event of disclosure] it would reconsider its polices of providing information such as this to the government”); see also Washington Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 269 (D.C. Cir. 1982) (holding that an agency must demonstrate that a threatened impairment is “significant” because a “minor” impairment is insufficient to overcome the general disclosure mandate of the FOIA). In short, the benefit to Tonopah Solar of continuing to submit information required by the terms of its public lands’ right-of-way-not having its right-of-way suspended or terminated- makes it impossible that BLM’s ability to obtain the information in the future will be impaired. Freeman, 526 F. Supp. 2d at 1187; N.Y. Pub. Interest Research Group v. EPA, 249 F. Supp. 2d 327, 336-37 (S.D.N.Y. 2003) (no impairment from release of submitter’s alternative river- dredging analysis, because submitter “had significant external incentives to provide” it). Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 34 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 27 D. At Least Part of the Information Withheld is Already in the Public Domain, Precluding a Claim of Confidentiality. Because it covers only “confidential” information, Exemption 4 is waived if information requested is already in the public domain. Watkins, 643 F.3d at 1196. “[W]hether ‘information is already in the public domain,’ i.e., waiver of an exemption, is a ‘proposition that if true would give victory [to plaintiff] independent’ of whether Exemption 4 properly applies.” Herrick v. Garvey, 298 F.3d 1184, 1193 (10th Cir. 2002) (quoting Niagara Mohawk, 169 F.3d at 19). “To the extent that any data requested under FOIA are in the public domain, the [government] is unable to make any claim to confidentiality-a sine qua non of Exemption 4.” CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987) (alteration added). The information that BLM has withheld includes “detailed discussions of the grantee’s proposed mitigation plans and the effect of the proposals on operation” and “specific details such as number of solar panels active during various testing phases, the length of time various testing routines take, and the estimated success of these testing phases.” Piland Dec.¶ 53. However, about three months after the January 2015 bird incineration event, SolarReserve’s Chief Executive Officer, Kevin Smith, shared the technical details of the company’s ostensible solution to incinerating birds with a journalist at the on-line publication Clean Technica. Becker Dec. Ex. C at 2-3. According to the article, the company’s engineering team recalibrated the standby algorithm “so that no more than four ‘suns’ would hit any focal point during standby.” Id. at 2. According to Mr. Smith, “what we did is we spread [points of concentrated solar energy] over a several hundred meters of a sort of ‘pancake’ shape so any one point is safe for birds-it’s 4 suns or less.” Id.8 The article includes a crude drawing of the “solution” and Mr. Smith’s claim that 8 It is difficult to square SolarReserve’s CEO trumpeting the technical details of its solution to the internet press with the federal defendants’ claim that disclosure of “the testing could be used by another commercial energy company to jump ahead of its competitors by utilizing the means and methods to get results at a faster pace than other companies.” Piland Dec.¶ 55. It also is difficult to conceive how a competitor-learning that it could avoid killing birds simply by re- aiming its mirrors to multiple points in the sky when the facility is on “standby” (i.e. not aiming the mirrors at the receiver)-would somehow be able to “jump ahead” of SolarReserve and cause Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 35 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 28 the “change appears to have fully corrected the problem,” id. at 3-a claim belied by burns recently suffered by a prairie falcon and a Lewis’s woodpecker at the Project. See Cunningham Dec. ¶¶ 6-8. In addition, the configuration of the Project’s mirrors are visible to any member of the public in an aircraft or who walks up to the chain-link fence surrounding the project. Emmerich Dec. ¶¶ 8-10 (aerial and ground photographs of the Project). Information that is “in public view daily” is not confidential. Frazee, 97 F.3d at 371; GC Micro, 33 F.3d at 1112 n.3 (finding that disclosure of agency information “freely or cheaply available from other sources” is unlikely to cause substantial competitive harm to submitter). SolarReserve also is offering public tours of the Project-which would disclose to any knowledgeable observer the configuration of its mirrors. See http://www.solarreserve.com/en/global-projects/csp/crescent-dunes/form/crescent- dunes/form (last visited July 31, 2016). Because SolarReserve itself has made the sort of information sought available in the public domain, BLM cannot claim that it is “confidential.” For all of these reasons, Basin and Range Watch is entitled to summary judgment on the Second Claim of its Complaint and injunctive relief from this Court ordering BLM to produce the unlawfully withheld information. II. THE COURT SHOULD GRANT DECLARATORY RELIEF BECAUSE BLM AND INTERIOR HAVE ENGAGED IN A PATTERN, PRACTICE OR POLICY OF FOIA VIOLATIONS AND BASIN AND RANGE WATCH WILL BE HAMPERED IN FUTURE EFFORTS TO USE FOIA WITHOUT DECLARATORY RELIEF Basin and Range Watch is entitled to a declaratory judgment on its First, Third and Fourth Claims because BLM has engaged in a pattern, practice or policy of failing to comply with the FOIA deadlines for processing the group’s FOIA requests and its appeal and by failing to provide estimated completion dates for the group’s FOIA requests and its appeal. Federal defendants do not dispute that BLM and Interior have not met their FOIA deadlines, but rather (continued) it substantial competitive harm. Id. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 36 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 29 argue that Basin and Range Watch has not presented sufficient allegations to support a pattern or practice claim and that it cannot obtain relief as to the specific deadline violations because those claims are moot. However, because Basin and Range Watch has now had four final determinations owed by BLM and Interior delayed beyond the statutory deadlines, because Basin and Range Watch is harmed by these delays, and because it is certain to be subjected to the same delays in future FOIA requests, Basin and Range Watch is entitled to relief on its claims. Because specific deadline violations claims are justiciable under FOIA where, as here, neither the agency’s processing of the appeal of the Documents Request nor Basin and Range Watch’s Third FOIA Request are complete, Basin and Range Watch’s deadline violations claims are not moot. But, if the Court finds them nonjusticiable under FOIA, it should grant the requested declaratory relief pursuant to the APA. A. Legal Standards for Pattern, Practice or Policy Claims. To sustain a pattern or practice claim, a plaintiff must demonstrate that “(1) the agency’s FOIA violation was not merely an isolated incident, (2) the plaintiff was personally harmed by the alleged policy, and (3) the plaintiff himself has a sufficient likelihood of future harm by the policy or practice.” Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1103 (9th Cir. 2016). A pattern or practice claim is not mooted by the agency’s production of documents. Id. (citing Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)). Because FOIA’s intended purpose is to assure timely public access to governmental information and records, “[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.” H.R. Rep. No. 93-876 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271. Consistent with this congressional directive, courts have held that “an agency's failure to comply with the FOIA’s time limits is, by itself, a violation of the FOIA, and is an improper withholding of the requested documents.” See, e.g., Gilmore v. U.S. Dep’t of Energy, 33 F. Supp. 2d 1184, 1187 (N.D. Cal. 1998) (citing McGehee v. CIA, 697 Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 37 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 30 F.2d 1095, 1110 (D.C. Cir. 1983) (“a system adopted by an agency for dealing with documents of a particular kind constitutes ‘withholding’ of those documents if its net effect is significantly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.”). In addition, a plaintiff states a viable claim for failure to provide estimated completion dates when the administrative process was not completed at the time the suit was filed and the agency failed repeatedly to provide an estimated completion date-even within a single FOIA request. Muttitt v. U.S. Cent. Command, 813 F. Supp. 2d 221, 230-31 (D.D.C. 2011). B. It is Undisputed That BLM and Interior Did Not Comply With Their Deadlines for Providing Final Determinations on the Requests and Appeal and That BLM and Interior Did Not Provide Estimated Completion Dates. “BLM concedes that it did not provide the requested information within FOIA’s timeframe” for the Video Request, the Documents Request, and the appeal of the latter. Defs.’ MSJ at 10. Although Basin and Range Watch appreciates the attempts by BLM’s Nevada State FOIA Specialist to get answers from the Solicitor’s Office and the BLM Washington Office regarding its requests, see Emmerich Dec. ¶ 19 & Ex. 6, internal communication issues within an agency do not excuse the agency from complying with unambiguous statutory deadlines. In this case, BLM provided a final determination on the Video Request in late October 2015 when the deadline for a final determination was April 9, 2015. Id. ¶¶ 16, 22. The deadline for a final determination on the Documents Request was March 26, 2015, but BLM did not provide a final determination, including the partial withholding, until November 18, 2015. Id. ¶¶ 16, 23. Federal defendants also admit that Interior has never responded to Basin and Range Watch’s December 17, 2015 appeal. Defs.’ MSJ at 5, 10. Interior therefore violated the 20 business day deadline for processing FOIA appeals. 5 U.S.C. § 552(a)(6)(A)(ii). As a small non- profit, Basin and Range Watch is sympathetic to Interior’s staffing issues in its FOIA Appeals Office, see Strayhorn Dec. ¶¶ 28-34, but this does not excuse its violation of the law. See Blanco v. Anderson, 39 F.3d 969, 973 (9th Cir. 1994) (“‘Lack of resources and lack of bad faith on the Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 38 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 31 part of the agency officials [are] no excuse for failing to provide the plaintiffs their statutory entitlements.’” (quoting Robertson v. Jackson, 766 F. Supp. 470, 476 (E.D. Va. 1991)). It is unconscionable that an agency with a clear command from Congress to provide final determinations on FOIA requests and appeals within 20 working days would take up to eight months to make a determination on a request, and then be unable to resolve an appeal within three months (as of the time the Complaint in this case was filed). Delays of this magnitude fundamentally undermine the ability of a public interest organization like Basin and Range Watch to fulfill its mission of watchdogging the agency and ensuring that the public is aware of what “their Government is up to.’” Favish, 541 U.S. at 171; see also Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982) (“unreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent these abuses”). Indeed, even when Congress extended the FOIA response deadlines from 10 to 20 business days in 1996, it remained concerned that “many agencies have failed to process FOIA requests within the deadlines required by law. These delays in responding to FOIA requests continue as one of the most significant FOIA problems.” H.R. Rep. No. 104-795, at 13 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3456. On April 14, 2016, Basin and Range Watch submitted its Third FOIA Request for information regarding avian mortality, monitoring and mitigation at the Project for the period from July 2015 to April 2016. Emmerich Dec. ¶ 29 & Ex. 8. BLM’s 20-working day deadline to respond to that request expired on May 20, 2016. Id. ¶ 30; see 5 U.S.C. § 552(a)(6)(A)(i). BLM has again failed to comply with FOIA’s mandatory deadline for providing a final determination on the Third FOIA Request.9 See Emmerich Dec. ¶ 31-34. 9 On August 1, 2016, Basin and Range Watch submitted a fourth FOIA request for information regarding avian mortality, monitoring and mitigation at the Project from April 2016 to July 2016. Emmerich Dec. ¶ 35 & Ex. 9. Although the time for BLM to provide a final determination has not yet expired for this fourth request, based on BLM’s conduct in this case, it too, is likely to pass without response before the Court resolves the cross-motion for summary judgment. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 39 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 32 FOIA also requires that agencies inform the public of the estimated dates by which agency processing of requests and appeals will be completed and final determinations issued. 5 U.S.C. §§ 552(a)(6)(B)(i), (7)(B)(ii). After BLM and Interior missed their statutory deadlines for completing the processing of the Video Request, Documents Request, and the appeal of the latter, Basin and Range Watch repeatedly asked BLM and Interior to provide estimated completion dates. Emmerich Dec. ¶¶ 19, 21, 23, 39, 42 & Ex. 6; Becker Dec. ¶¶ 12-14 & Exs. J- L. BLM and Interior never responded to, and often never acknowledged, these requests, in violation of FOIA. Emmerich Dec. ¶¶ 21, 26, 39, 42 & Ex. 6; Becker Dec. ¶¶ 12-14. This evidence suffices to show BLM’s and Interior’s violations of the statutory obligations to provide estimated completion dates so that FOIA requesters know the status of their requests and can decide whether to appeal or file suit. See Muttitt, 813 F. Supp. 2d 221, 231 (D.D. C. 2011) (“based on the multiple alleged instances in which State failed to provide the plaintiff with an estimated completion date, the plaintiff has stated a viable pattern and practice claim”). After three FOIA requests and one appeal have taken at least four months (and up to nearly eight months) to process, and after repeated failures by BLM and Interior to provide estimated dates for completing action on the requests and appeal, it is evident that the violations of FOIA’s 20 business day processing deadline and obligation to provide estimated completion dates are not isolated incidents. C. Basin and Range Watch has Been Injured by the Multiple Delays and is Likely to Continue to be Injured by BLM’s Pattern, Practice or Policy of Violating Deadlines and Failing to Provide Estimated Completion Dates. As a non-profit public interest organization working to conserve the Nevada and California deserts, Basin and Range Watch’s goal is to identify the problems of energy sprawl and find solutions that will preserve our natural ecosystems and open spaces. Emmerich Dec. ¶ 6. It specializes in ground-truthing proposed project sites and reporting its findings to the public to foster better-informed comments to the agencies. Id. Since 2010, Basin and Range Watch has tracked the Project and posted information about the Project’s progress on the organization’s Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 40 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 33 website. Id. ¶ 7. Basin and Range Watch has been deeply concerned that the Project would potentially kill significant numbers of birds during its operation, either from incinerating birds in the solar “halo” created by the vast mirror array or by having birds strike the 1.2 million square- feet of mirrors that combine to form what looks like an attractive, shimmering lake in the middle of the desert. Id. ¶¶ 11, 14. Prior to February 2015, BLM provided Basin and Range Watch with construction compliance reports informally-that is, without the need for a FOIA request. Id. ¶ 12. Basin and Range Watch learned of the January 14, 2015 bird incineration event from BLM personnel during a visit to the Project site on February 17, 2015. Id. ¶ 13. Basin and Range Watch immediately posted this information on its website, id. ¶¶ 13-14, and nine days later filed the Video Request and Documents Request with BLM. Id. ¶ 15. Basin and Range Watch sought the information urgently because the Project had not entered operation and the requested information-about avian mortality, monitoring, and how the operator (and BLM) intended to prevent future bird kills-would be valuable for the public, and the group, to use in urging BLM to ensure that events like the January 2015 bird incineration event would never recur. Id. ¶¶ 15, 37, 38, 41 & Ex. 2 at 1-2, Ex. 9 at 2-6. The long delays in receiving the requested information- more than 18 months (and counting) now, for the information improperly withheld under Exemption 4, and at least four months for each of its first three FOIA requests related to the Project-have seriously impeded Basin and Range Watch’s ability to understand whether BLM has, in fact insured against bird mortality at the Project, and to disseminate that information to the general public. Id. ¶¶ 39-43. Basin and Range Watch depends on FOIA to further its goals of educating the public about threats and possible solutions to problems raised by industrial scale energy projects in the California and Nevada deserts and of being a watchdog to hold BLM accountable for serving the public’s interest in protecting birds and other public resources as it oversees these projects. Id. ¶¶ 5-6, 36-38. BLM’s and Interior’s pattern or practice of repeated deadline violations and failure to provide estimated completion dates harms Basin and Range Watch by impeding it from Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 41 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 34 fulfilling its core missions. See id. ¶¶ 39-43. In November, 2015, Rudy Evenson, BLM’s public relations assistant to State Director Ruhs, informed Basin and Range Watch that the public information officer for Solar Reserve said the company still considers monthly avian monitoring reports to contain proprietary information. Id. ¶ 28. Therefore, Mr. Evenson advised Basin and Range Watch that if it wants copies of the actual individual monthly avian monitoring reports, it will still need to file requests under the FOIA so that the BLM can review the documents and make a determination regarding the need to redact any proprietary information before they are released. Id. The prairie falcon and Lewis’s woodpecker burned at the Project in late July 2016 make it even more likely that Basin and Range Watch will continue to seek information from BLM through FOIA about how it intends to ensure that Tonopah Solar does not continue to burn birds in the course of its production process. See Cunningham Dec. ¶¶ 6-8, 11. And BLM’s suggestion that a holder of a 30-year right-of-way on public lands somehow “may not be forthright” about disclosing information it is required to disclose is also deeply disturbing and raises a host of questions about whether BLM actually is discharging its obligation to protect the public’s interests during the course of the Project’s operation-essentially guaranteeing that Basin and Range Watch will continue to use FOIA to attempt to ensure that BLM is accountable to the public for its oversight of the Project. Piland Dec. ¶ 56. Lengthy delays in obtaining information and endless cycles without action or even information on when to expect action seriously impairs Basin and Range Watch’s ability to fulfill its mission and fundamentally undermines FOIA’s philosophy of prompt and full agency disclosure. Because Basin and Range Watch will need to file FOIA requests for avian monitoring, mortality, and mitigation information regarding the Project on an ongoing basis for the life of the Project to be able to evaluate whether, in fact, bird incineration problems have been solved, Basin and Range Watch is likely to be harmed in the future by BLM’s and Interior’s pattern or practice of deadline violations and refusal to provide estimated dates by which its requests will be processed. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 42 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 35 D. Basin and Range Watch’s Claims of Specific Deadline Violations are not Moot or, in the Alternative, are Justiciable Under the APA. 1. The claims of specific deadline violations are not moot. Federal defendants’ argument that Basin and Range Watch’s claims related to specific deadline violations is moot fails because BLM and Interior have not completed the administrative processing of the Documents Request because Interior has never provided a final determination of Basin and Range Watch’s appeal. See Defs.’ MSJ at 5 (acknowledging that Interior has not yet responded to the appeal), 10 (arguing that the specific deadline violations for the Video Request and Documents Request are moot only because BLM has allegedly provided all non-exempt documents). Basin and Range Watch also is entitled to a declaratory judgment that BLM and Interior unlawfully withheld requested documents by failing to comply with the FOIA deadlines for processing the Documents Request and by failing to provide estimated completion dates. Federal defendants argue that the Ninth Circuit’s recent decision in Hajro stands for the principle that specific FOIA request claims become moot when an “‘agency produces all non-exempt documents and the court confirms the agency’s proper invocation of an exemption.’” Defs.’ MSJ at 9 (quoting Hajro, 811 F.3d at 1103). One obvious problem with this argument is that this Court has not yet confirmed that BLM properly invoked Exemption 4. More fundamentally, this statement in Hajro is dicta that relies ultimately on Perry v. Block, a 1982 D.C. Circuit case that has never been adopted in a holding by the Ninth Circuit. 684 F.2d 121 (D.C. Cir. 1982).10 Hajro involved only a claim of pattern or practice violations of FOIA, not specific FOIA request claims. See 811 F.3d at 1094-95 (listing plaintiffs’ causes of action). Even federal defendants are careful not to argue that Hajro’s dicta represents a holding. Defs.’ MSJ at 9. 10 Both Hajro and federal defendants cite Papa v. United States, 281 F.3d 1004, 1013 & n. 42 (9th Cir. 2002) in support of the argument that disclosure of non-exempt information moots FOIA claims. However, Papa’s discussion of this issue also is dicta, because the Court of Appeals found that there was no evidence all records had been produced. 281 F.3d at 1013. And, ultimately, Papa relies on a single case-Perry v. Block-for the proposition. Id. at 1013 n. 42. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 43 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 36 The supposed principle in Perry v. Block that production moots specific FOIA claims has been superseded in the practice of the Ninth Circuit’s district courts by a consistent principle that the production of documents does not moot claims for specific violations of FOIA deadlines. The court in Gilmore v. U.S. Dep’t of Energy found that a cause of action for violation of the Act’s deadlines accrued even when the underlying documents were found to be exempt from disclosure. 33 F. Supp. 2d at 1187. That court explained that “the Supreme Court appears to consider an untimely response to a FOIA request to be a separate injury to the requesting party, even if the requested document could be properly withheld.” Id. (citing Tax Analysts, 492 U.S. at 151 n.12). The cited Supreme Court case noted that “[e]ven when an agency does not deny a FOIA request outright, the requesting party may still be able to claim ‘improper’ withholding by alleging that the agency has responded in an inadequate manner.” Tax Analysts, 492 U.S. at 151 n.12. The Gilmore court also described that the legislative history of FOIA supports the view that an untimely response to a FOIA request is actionable even if requested documents are produced. Gilmore, 33 F. Supp. 2d at 1187-88. Consistent with the principle in Gilmore, numerous district courts in the Ninth Circuit have adjudicated claims of specific deadline violations. See, e.g., Brown v. U.S. Customs & Border Prot., 132 F. Supp. 3d 1170, 1172-73 (N.D. Cal. 2015) (“courts have repeatedly found that an agency’s failure to respond to a FOIA request within the statutory time limits violates FOIA and allows the aggrieved party to sue”); Our Children’s Earth Found. v. NMFS, Nos. 14- 4365 SC & 14-1130 SC, 2015 WL 4452136, at *7 (N.D. Cal. July 20, 2015) (“‘an agency’s failure to comply with the FOIA's time limits is, by itself, a violation of the FOIA’”) (quoting Gilmore, 33 F. Supp. 2d at 1187); S. Yuba River Citizens League v. NMFS, No. CIV. S-06-2845 LKK/JFM, 2008 WL 2523819, at *5 (E.D. Cal. June 20, 2008) (same); Or. Natural Desert Ass’n v. Gutierrez, 409 F. Supp. 2d 1237, 1248 (D. Or. 2006) (“an untimely response is a violation of FOIA, regardless of the final outcome of the request”); see also Long, 693 F.2d at 910 (“unreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent these abuses”). Dicta in a Ninth Circuit decision Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 44 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 37 cannot supplant the settled practice in the Circuit until the Ninth Circuit decides a case in which the issue of the mootness of specific FOIA claims is squarely presented, and, accordingly, Basin and Range Watch’s specific FOIA deadline claims are not moot. Similarly, BLM’s and Interior’s repeated failures to provide estimated completion dates are not moot. Federal defendants did not address this specific claim at all. See Defs.’ MSJ at 1- 11. However, a plaintiff states a viable claim for failure to provide estimated completion dates when the administrative process was not completed at the time the suit was filed and the agency failed repeatedly to provide an estimated completion date-even within a single FOIA request. Muttitt, 813 F. Supp. 2d at 230-31. It is indisputable that BLM and Interior failed repeatedly to respond to Basin and Range Watch’s requests for estimated completion dates for the Documents Request and the subsequent appeal. Emmerich Dec. ¶¶ 19, 21, 23, 26, 39, 42 & Ex. 6; Becker Dec. ¶¶ 12-14 & Exs. J-L. Interior has never completed processing the appeal. Defs.’ MSJ at 5. Therefore Basin and Range Watch is entitled to summary judgment on its specific claims that BLM and Interior violated FOIA’s deadline and estimated completion date requirements. 2. In the alternative, if claims of specific deadline violations are moot under FOIA, Basin and Range Watch is entitled to relief on those claims under the APA. The APA affords a right of judicial review of agency action (and failures to act) “for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. If the Court agrees with federal defendants that FOIA offers no adequate remedy for the alleged specific deadline violations and failures to provide estimated completion dates because those claims are mooted by an agency providing documents, then those claims are justiciable under the APA, and the Court should enter summary judgment in favor of Basin and Range Watch on the alternative claim. The Fifth Claim in Basin and Range Watch’s Complaint is offered to provide an alternative basis for judicial review of the deadline violations it claims in the first three Claims. Complaint ¶¶ 104-110 (ECF No. 1). The Fifth Claim asserts that defendants’ failure to resolve Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 45 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 38 plaintiffs’ FOIA requests and appeals within the statutory deadline is reviewable under 5 U.S.C. § 706(1), as agency action unlawfully withheld or unreasonably delayed. Id. ¶ 108. The Fifth Claim also asserts causes of action based on violations of section 706(2) of the APA because BLM’s and Interior’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or were “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or were “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C) & (D). Id. ¶ 109. In a context somewhat similar to that before the Court-where claims of both substantive and procedural deadline violations of FOIA were asserted by a requester-the court in Oregon Natural Desert Ass’n v. Gutierrez found that the requester could obtain relief under the APA for violations of FOIA’s decision deadlines. “I grant summary judgment in [plaintiff’s] favor that it is entitled to a declaratory judgment for Claim One (FOIA violation) and Claim Two (APA violation for an agency action that is not in accordance with the law).” Or. Natural Desert Ass’n, 409 F. Supp. 2d at 1248 (emphasis added). Notably, when the Ninth Circuit considered that case on appeal, it did not disturb the trial court’s ruling on the availability of jurisdiction under the APA. Or. Natural Desert Ass’n v. Locke, 572 F.3d 610, 615-16 (9th Cir. 2009) (observing without comment that ONDA’s “Claim one is a FOIA claim in which ONDA sought records and obtained a ruling in its favor. Claim two is an APA claim in which ONDA sought injunctive and declaratory relief for the same violation of the FOIA and for which it also obtained a ruling in its favor.”). As a point of interest, in that case, the federal defendant argued to the Court of Appeals that ONDA’s fourth claim should be reviewed under the APA, not the FOIA. Id. at 618 (“However, even if ONDA had brought claim four as an APA claim as Commerce argues it should have . . . .”). Federal defendants ignore this Ninth Circuit precedent and their sister agency’s position in that case that FOIA claims can be reviewed under the APA. Instead, they cite older district court or out-of-circuit cases which are non-binding. Defs.’ MSJ at 11 (citing Laroche v. SEC, No. 06-17278, 2006 WL 2868972, at *4 (N.D. Cal. Oct. 6, 2006); Lion Raisins, Inc. v. U.S. Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 46 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 39 Dep’t of Agric., 636 F. Supp. 2d 1081, 1114-15 (E.D. Cal. 2009); Walsh v. U.S. Dep’t of Veterans Affairs, 400 F.3d 535, 538 (7th Cir. 2005); Edmonds Inst. v. U.S. Dep’t of the Interior, 383 F. Supp. 2d 105, 112, n. 10 (D.C. Cir. 2005)). The Ninth Circuit’s ruling in Oregon Natural Desert Ass’n is controlling and the APA claim is properly before the Court. Therefore-if FOIA does not afford Basin and Range Watch an adequate remedy because its deadline violation claims are moot-federal defendants’ failures to issue timely final determination on Basin and Range Watch’s requests and administrative appeal constitute agency action unlawfully withheld and unreasonably delayed and is therefore justiciable pursuant to the APA, 5 U.S.C. § 706(1). In the alternative, defendants’ actions are, as noted above, in violation of FOIA’s statutory mandates and are therefore arbitrary, capricious, or an abuse of discretion or not in accordance with law and are therefore justiciable pursuant to the APA, 5 U.S.C. § 706(2). Consequently, the Court has authority to declare that federal defendants have violated the APA in addition to the relief provided by the FOIA. CONCLUSION For these reasons, Basin and Range Watch respectfully asks the Court to grant its Cross- Motion for Summary Judgment, grant the prayers for relief set forth herein and in its Complaint, and deny federal defendants’ Motion for Summary Judgment. Respectfully submitted this 9th day of August 2016. /s/ David H. Becker /s/ David A. Bahr DAVID H. BECKER, ESQ. (Pro Hac Vice) DAVID A. BAHR, ESQ. (Pro Hac Vice) Oregon Bar No. 081507 Oregon Bar No. 90199 Law Office of David H. Becker, LLC Bahr Law Offices, P.C. 917 SW Oak St., Suite 409 1035 1/2 Monroe St. Portland, Oregon 97205 Eugene, Oregon 97402 (503) 388-9160 (541) 556-6439 davebeckerlaw@gmail.com davebahr@mindspring.com // // Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 47 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 40 /s/ Christopher W. Mixson CHRISTOPHER W. MIXSON, ESQ. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Nevada Bar No. 10685 5594-B Longley Lane Reno, Nevada 89511 (775) 853-6787/Fax: (775) 853-6774 cmixson@wrslawyers.com Attorneys for Plaintiff Basin and Range Watch Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 48 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 41 CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b); LR 5-1, I certify that on the date indicated below, I filed the foregoing document(s) with the Clerk of the Court using the CM/ECF system, which would provide notification and a copy of same to counsel of record. Dated: August 9, 2016. /s David H. Becker Case 2:16-cv-00403-JCM-PAL Document 21 Filed 08/09/16 Page 49 of 49
