Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 1 of 27
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`Erin Hogan-Freemole, OSB # 212850
`Crag Law Center
`3141 E. Burnside St.
`Portland, Oregon 97214
`971-417-6851
`erin@crag.org
`
`David A. Bahr OSB # 901990
`Bahr Law Offices, P.C.
`1035 ½ Monroe Street
`Eugene, OR 97402
`(541) 556-6439
`davebahr@mindspring.com
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`Plaintiff’s Counsel
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`
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`UNITED STATES DISTRICT COURT
`DISTRICT OF OREGON
`PORTLAND DIVISION
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`GREATER HELLS CANYON COUNCIL, a
`non-profit Oregon Corporation,
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`UNITED STATES DEPARTMENT OF AGRI-
`CULTURE, an Executive Department of the
`United States of America; and UNITED STATES
`FOREST SERVICE, an Administrative Agency
`of the United States Department of Agriculture,
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`Plaintiffs
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`Defendants
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`Case No.:
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`COMPLAINT
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`Freedom of Information Act
`(5 U.S.C. § 552)
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`
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`INTRODUCTION
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`1.
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`In this action, brought pursuant to the Freedom of Information Act (“FOIA” or
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`“the Act”), 5 U.S.C. § 552, or, in the alternative, the Administrative Procedure Act (“APA”), 5
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`U.S.C. §§ 701–706, the Greater Hells Canyon Council (“the Council”) challenges the unlawful
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`acts and omissions of the U.S. Forest Service (“Forest Service” or “the Agency”) and the U.S.
`COMPL. FOR DECLARATORY & INJUNCTIVE RELIEF - 1
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 2 of 27
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`Department of Agriculture (“USDA”) (collectively, “Defendants”) in relation to the Council’s
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`FOIA requests filed in 2015 and 2021.
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`2.
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`As background to this Complaint, the “Forest Management Direction for Large
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`Diameter Trees in Eastern Oregon and Southeastern Washington” (“Eastside Screens” or
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`“Screens”) is a set of rules adopted by the Forest Service which barred logging large, old trees on
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`six National Forests throughout eastern Oregon and Washington. The Screens generally pro-
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`scribed the cutting and removal of trees measuring over 21 inches in diameter at breast height
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`(“the 21-inch rule”). As part of its work to monitor, protect, and advocate for public lands in this
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`area, the Council has long had an interest in the proper and lawful application of the Eastside
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`Screens.
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`3.
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`In 2015, the Council submitted a FOIA request for agency documents pertaining
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`to the Forest Service’s implementation of, and any potential amendments to, the Eastside
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`Screens.
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`4.
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`Despite numerous inquiries from the Council, the Forest Service did not complete
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`its response to this request for nearly six years—until April of 2021—and it withheld or redacted
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`many of the requested documents without legally adequate explanation.
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`5.
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`In July 2021, the Council timely appealed the Forest Service’s unlawful response
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`to its 2015 request, but as of this complaint’s filing date, the agency has not made a final decision
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`nor even substantively responded to the Council’s appeal as required by FOIA.
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`6.
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`In January 2021, the Forest Service released the “Forest Plans Amendment to For-
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`est Management Direction for Large Diameter Trees in Eastern Oregon and Southeastern Wash-
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`ington” (“Screens Amendment”), amending the Eastside Screens and revoking the 21-inch rule.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 2
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 3 of 27
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`7.
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`Shortly after the Screens Amendment’s release, the Council submitted two FOIA
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`requests for Forest Service records related to the preparation and completion of the Screens
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`Amendment Environmental Assessment (“EA”) and Decision Notice (“DN”)/Finding of No Sig-
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`nificant Impact (“FONSI”).
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`8.
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`The Council’s 2021 FOIA requests explained that it wished to publicly illuminate
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`and understand the basis for and potential impacts of the Screens Amendment, which removed
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`the Forest Service’s longstanding prohibition on logging large trees across more than 7 million
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`acres of national forestlands on 6 national forests.
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`9.
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`Out of over 39,000 pages of responsive records the Forest Service says it re-
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`viewed, it partially or fully redacted 226 pages and entirely withheld 22,870 pages (approxi-
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`mately 60% of the total pages reviewed) plus 2.47 gigabytes of raw data, shape files and data
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`files, releasing in full only 15,874 pages (only 40% of the total pages reviewed) of records.
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`10.
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`The Council timely appealed the Forest Service’s response to its 2021 requests,
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`but as of this complaint’s filing date, the agency has neither made a final decision nor substan-
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`tively responded to the Council’s appeal as required by FOIA.
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`11.
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`The Defendants’ unlawful withholding of responsive records and failure to timely
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`respond to the Council’s FOIA requests and administrative appeals violate FOIA or, in the alter-
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`native, the APA.
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`12.
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`The Defendants’ failure to disclose the requested documents or respond to the
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`Council’s appeal causes concrete and ongoing injuries to the Council, as it relies on such public
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`records in its ongoing public outreach, education, and government “watchdog” efforts.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 3
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 4 of 27
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`13.
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`The Council seeks injunctive relief requiring the disclosure of all non-exempt por-
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`tions of the requested documents and a judicial declaration that the Defendants violated FOIA or,
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`in the alternative, the APA.
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`14.
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`Should the Council prevail, it will seek an award of reasonable attorneys’ fees and
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`litigation costs pursuant to FOIA, 5 U.S.C. § 552(a)(4)(E), the Equal Access to Justice Act, 28
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`U.S.C. §§ 2412 et seq., or other applicable authorities.
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`JURISDICTION AND VENUE
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`15.
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`This Court has jurisdiction over this matter pursuant to 5 U.S.C. § 552(a)(4)(B)
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`and 28 U.S.C. § 1331 because this action arises under FOIA and the APA.
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`16.
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`Venue is proper in this Court pursuant to 5 U.S.C. § 552(a)(4)(B) which provides
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`venue for FOIA cases in this District because the agency records in question are located in this
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`district. Further, the Forest Service office responding to the Council’s FOIA’s requests is in this
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`judicial district. For these reasons, venue is also proper in this Court pursuant to 28 U.S.C.
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`§§ 1391(b)(2) and (e) because a significant portion of the events, and the people and records to
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`which they pertain, are located in Oregon and defendants are federal agencies. Assignment in
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`this judicial division is proper for the same reasons.
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`17.
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`18.
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`Declaratory relief is appropriate under 28 U.S.C. § 2201.
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`Injunctive relief is appropriate under 28 U.S.C. § 2202 and 5 U.S.C.
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`§ 552(a)(4)(B).
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`PARTIES
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`19.
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`Plaintiff GREATER HELLS CANYON COUNCIL is a regional nonprofit organi-
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`zation based in La Grande, Oregon with approximately 1,000 members. For over 50 years, the
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`Council’s mission has been to connect, protect, and restore the wild lands, waters, native species
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`INJUNCTIVE RELIEF - 4
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 5 of 27
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`and habitats of the greater Hells Canyon region, ensuring a legacy of healthy ecosystems for fu-
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`ture generations. The Council organizes groundtruthing events, monitoring programs, and volun-
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`teer opportunities in the forests which will be affected by the Screens Amendment.
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`20.
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`To achieve its goals, the Council often requests information regarding federal pro-
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`grams and activities through FOIA. The Council uses this information to inform the public of
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`federal actions impacting the Greater Hells Canyon area by presenting the material to its mem-
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`bers and supporters, as well as members of other conservation organizations, through its newslet-
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`ter, social media, blog, and email alerts; participating in other public forums, such as local gov-
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`ernment hearings; and encouraging its members and supporters to participate in federal deci-
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`sionmaking.
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`21.
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`The Council uses information obtained through FOIA requests to ensure that tim-
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`ber sales and other management actions on public lands comply with federal laws including the
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`National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600–1614, the National Environ-
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`mental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370h, and the Endangered Species Act
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`(“ESA”), 16 U.S.C. §§ 1531–1544.
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`22.
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`The Council and its staff, members, and supporters have been actively involved in
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`commenting on, objecting to, and in some instances, litigating Forest Service projects throughout
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`the areas which will be affected by the Screens Amendment, for which the Council provided de-
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`tailed comments.
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`23.
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`The Defendants’ continuing failure to properly disclose the requested records or
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`respond to the Council’s appeal harms the Council’s ability to obtain and use public information
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`in its ongoing public outreach, environmental education, and government “watchdog” efforts.
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`24.
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`The Council and its staff, members, and supporters are thus directly injured by the
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 5
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 6 of 27
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`Defendants’ failure to comply with FOIA, and a favorable outcome of this litigation will redress
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`that injury. The Council brings this suit on behalf of itself, its staff, and its members.
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`25.
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`Defendant UNITED STATES FOREST SERVICE is an agency within the USDA
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`entrusted with the management of our national forests. The Forest Service is in possession, cus-
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`tody, or control of the records sought by the Council and, as such, is subject to FOIA pursuant to
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`5 U.S.C. § 552(f). The Forest Service’s Regional Office in Portland, Oregon received and re-
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`sponded to the Council’s FOIA requests, unlawfully withholding thousands of pages of respon-
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`sive records and failing to demonstrate the adequacy of its records search.
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`26.
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`The Forest Service is obligated to respond to administrative appeals of its FOIA
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`determinations within 20 business days of receipt. 7 C.F.R. § 1.9(b). The Forest Service
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`acknowledged receipt of the Council’s appeal on November 22, 2021, but at the time of this
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`complaint’s filing has not issued a decision.
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`27.
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`Defendant UNITED STATES DEPARTMENT OF AGRICULTURE is an
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`agency of the executive branch of the United States government. The USDA, through the Forest
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`Service, is in possession, custody, or control of the records sought by the Council and, as such, is
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`subject to FOIA pursuant to 5 U.S.C. § 552(f). The USDA’s Office of the General Counsel must
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`review and approve the Forest Service’s denial of any FOIA appeal.
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`LEGAL BACKGROUND
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`28.
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`FOIA’s “basic purpose” is “to open agency action to the light of public scrutiny.”
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`U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 772 (1989) (quoting
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`Dep’t of the Air Force v. Rose, 425 U.S. 352, 272 (1976)). It was enacted “to ensure an informed
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`citizenry, promote official transparency, and provide a check against government impunity.”
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`Transgender Law Ctr. v. Immigr. & Customs Enf’t, 33 F.4th 1186 (9th Cir. 2022).
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 6
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 7 of 27
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`29.
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`In response to a FOIA request, an agency must conduct a reasonable search to
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`find any responsive records. Hamdan v. U.S. Dep’t of Just., 797 F.3d 759, 770 (9th Cir. 2015).
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`The agency bears the burden of demonstrating, “beyond a material doubt,” that its search was
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`“reasonably calculated to uncover all relevant documents.” Transgender Law Ctr., 33 F.4th at
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`*11-13 (quoting Hamdan, 797 F.3d at 770).
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`30.
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`To achieve its goals of government transparency and accountability, FOIA “estab-
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`lish[es] a general philosophy of full agency disclosure unless information is exempted under
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`clearly delineated statutory language.” S. Rep. No. 813, at 3 (1st Sess. 1965). Federal agencies
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`must make records in their possession or control available to the public upon request, unless one
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`of FOIA’s specific and narrowly construed exemptions applies. 5 U.S.C. § 552(a) –(b).
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`31.
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`Consistent with FOIA’s purpose of encouraging disclosure, these exemptions are
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`discretionary, not mandatory. 7 C.F.R. § 1.5(e) (stating that USDA agencies may make discre-
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`tionary releases of exempt records if not otherwise specifically prohibited); Chrysler Corp. v.
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`Brown, 441 U.S. 281, 291 (1979). Withholding a record is permissible “only if the agency rea-
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`sonably foresees that disclosure would harm an interest protected by an exemption.” 5 U.S.C.
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`§ 552(a)(8)(A).
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`32.
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`An agency bears the burden of proving that any document—or portion thereof—it
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`seeks to withhold falls within one of FOIA’s nine specific exemptions. 5 U.S.C. § 552(a)(4)(B).
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`Agencies may not justify nondisclosure with conclusory or generalized allegations of confidenti-
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`ality. See Shannahan v. I.R.S., 672 F.3d 1142, 1148 (9th Cir. 2012).
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`33.
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`FOIA Exemption 5, 5 U.S.C. § 552(b)(5), (“Exemption 5”) allows a federal
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`agency to withhold records that it would not have to disclose in civil discovery, including inter-
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`or intra-agency memoranda or letters covered by the deliberative process privilege (“DPP”).
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 7
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 8 of 27
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`34.
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`Records withheld pursuant to Exemption 5’s DPP must possess three characteris-
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`tics. The record must: (1) document a communication between or among federal agency employ-
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`ees; (2) be pre-decisional; and (3) constitute a direct part of the deliberative process.
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`35. Within a privileged document, any reasonably segregable portions that do not re-
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`flect the agency’s deliberative process must be separated and disclosed. The agency must estab-
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`lish that all reasonably segregable portions of a document have been segregated and disclosed,
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`and that any withheld records are within the scope of the claimed exemption.
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`36.
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`FOIA imposes strict deadlines on federal agencies. Within twenty working days
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`of receiving a FOIA request, the agency must make a final decision that notifies the requestor the
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`scope of the documents that the agency will produce, the scope of the documents that the agency
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`believes exempt from disclosure, the reasons for any withholdings, and of the requester’s right to
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`appeal any adverse determination. 5 U.S.C. §§ 552(a)(3)(A), 552(a)(6)(A)(i).
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`37.
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`Congress has set forth the circumstances in which federal agencies may obtain
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`more time to make the determination required by 5 U.S.C. § 552(a)(6)(A)(i). In two very limited
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`circumstances the agency may toll the twenty business-day deadline for making that determina-
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`tion. 5 U.S.C. § 552(a)(6)(A)(ii) (providing for up to a ten-day tolling period to allow an agency
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`to seek information from a requester). Additionally, the agency may extend the twenty business-
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`day deadline for making that determination for an additional ten business days by providing a
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`written notice to the requester that sets forth the “unusual circumstances” that justify the deadline
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`extension and the date on which the agency expects to make the determination. 5 U.S.C.
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`§ 552(a)(6)–(B)(ii). The statute includes a specific definition of the term “unusual circum-
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`stances.” 5 U.S.C. § 552(a)(6)(B)(iii). And when the agency notifies a requester of unusual cir-
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`cumstances and the need for additional time, the agency’s written notification “shall provide the
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 9 of 27
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`person an opportunity to limit the scope of the request so that it may be processed within that
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`time limit or an opportunity to arrange with the agency an alternative time frame for processing
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`the request or a modified request.” 5 U.S.C. § 552(a)(6)(B)(ii). Moreover, an agency asserting
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`that unusual circumstances prevent its compliance with FOIA’s deadlines “shall make available
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`its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester
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`and the agency.” Id.
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`38.
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`If an agency denies all or part of a FOIA request, the requestor may appeal to the
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`head of that agency. 5 U.S.C. § 552(a)(6)(A)(i). The agency must “make a determination with
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`respect to [the] appeal within twenty [working] days” after receiving the appeal. 5 U.S.C.
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`§ 552(a)(6)(A)(ii); 7 C.F.R. § 1.9(b) (incorporating statutory deadline into USDA’s FOIA regula-
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`tions).
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`39.
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`Failure to timely respond to a FOIA request or appeal is itself a violation of the
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`statute, regardless of the request’s final outcome. 5 U.S.C. § 552(a)(6)(A)(ii). See Or. Nat. De-
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`sert Ass’n v. Gutierrez, 409 F.Supp.2d 1237, 1248 (D. Or. 2006), aff’d in part, rev. on other
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`grounds, Or. Nat. Desert Ass’n v. Locke, 572 F.3d 610 (9th Cir. 2009); see also Our Children’s
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`Earth Found. v. Nat’l Marine Fisheries Serv., 85 F.Supp.3d 1074, 1089-1090 (N.D. Cal. 2015)
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`40.
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`A requestor has “exhausted his administrative remedies,” 5 U.S.C.
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`§ 552(a)(6)(C)(i), and may sue in federal district court if the agency does not resolve an appeal
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`within twenty working days of receipt. 5 U.S.C. § 552(a)(6)(A)(ii).
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`41.
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`A federal district court has jurisdiction “to enjoin the agency from withholding
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`agency records and to order the production of any agency records improperly withheld from the
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`complainant.” 5 U.S.C. § 552(a)(4)(B).
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 9
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 10 of 27
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`42.
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`Agency action arising under FOIA has also been subject to judicial review under
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`the APA. See, e.g., Gutierrez., 409 F.Supp.2d at 1248 (finding that violation of FOIA’s decision
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`deadline constitutes APA violation for an agency action that is not in accordance with the law).
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`43.
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`The APA authorizes district courts to compel agency action unlawfully withheld
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`or unreasonably delayed. 5 U.S.C. § 706(1). District courts must also set aside any agency action
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`found to be arbitrary, capricious, an abuse of discretion, not in accordance with law, or made
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`without observation of required procedures. 5 U.S.C. § 706(2).
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`STATEMENT OF FACTS
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`The Council’s 2015 FOIA Request and Appeal:
`Request 2015-FS-R6-05247-F
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`On August 18, 2015, the Council1 requested records from the Forest Service’s
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`44.
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`Portland Office regarding implementation of the Eastside Screens across Region 6, including a
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`request for any and all project proposals currently under analysis and considering amendments to
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`the Eastside Screens; any and all existing lists of approved forest plan amendments to the
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`Eastside Screens in Region 6; and any and all internal communications between Region 6 per-
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`sonnel regarding potential amendments to the Eastside Screens.
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`45.
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`On September 2, 2015, the Forest Service acknowledged the Council’s request,
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`which it assigned control number 2015-FS-R6-05247-F (“2015 Request”), and stated that it
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`would advise the Council of the status of the agency’s response within 20 workdays of receipt.
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`46.
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`The Forest Service did not produce any responsive documents in 2015. Nor, de-
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`spite specific requests from the Council on August 18, 2015, and March 4, 2016; March 7, 2016;
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`1 At the time of its 2015 FOIA request the Council was known as the Hells Canyon Preservation
`Council.
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`COMPL. FOR DECLARATORY AND
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 11 of 27
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`March 8, 2016; and April 13, 2016, did the agency provide an estimated date of completion for
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`the request.
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`47.
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`On June 3, 2020, the Forest Service finally produced its first release of records in
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`response to the Council’s 2015 FOIA request. The disclosure consisted of 392 pages released in
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`full.
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`48.
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`On June 24, 2020, the Forest Service produced a second release of responsive rec-
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`ords. It released 343 pages in full, partially redacted 22 pages pursuant to FOIA Exemptions 4
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`and 5, and entirely withheld 32 pages pursuant to Exemption 5, invoking both the deliberative
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`process and the attorney-client privileges.
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`49.
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`The Forest Service did not specifically identify the documents withheld or explain
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`how either of the Exemption 5 privileges applied to the non-disclosed records.
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`50.
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`The Council repeatedly sought further updates on the status of its request, contact-
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`ing the Forest Service on August 21, 2020; October 29, 2020; December 8, 2020; February 26,
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`2021; March 6, 2021; and March 21, 2021. The Forest Service did not respond or provide an es-
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`timated completion date as requested.
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`51.
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`On March 31, 2021, the Forest Service produced its third release of responsive
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`records. It released 105 pages in full, partially redacted 91 pages pursuant to FOIA Exemptions 5
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`and 6, and fully withheld 33 pages pursuant to Exemption 5.
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`52.
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`The Forest Service did not specifically identify the documents withheld or explain
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`how either of the Exemption 5 privileges applied to the non-disclosed records.
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`53.
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`On April 26, 2021, the Forest Service produced its final release of records in re-
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`sponse to the Council’s 2015 FOIA request.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 11
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 12 of 27
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`54.
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`In its final response, the Forest Service released 8,065 pages in full, partially re-
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`dacted 1,439 pages pursuant to FOIA Exemptions 5 and 6, and fully withheld 357 pages pursuant
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`to Exemption 5.
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`55.
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`The Forest Service did not specifically identify the documents withheld or explain
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`how either of the Exemption 5 privileges applied to the non-disclosed records.
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`56.
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`On July 8, 2021, the Council administratively appealed the Forest Service’s par-
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`tial denial of its 2015 FOIA request.
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`57.
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`In its appeal, the Council noted that the Forest Service had merely recited the gen-
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`eral interests protected by the deliberative process and attorney-client privileges without explain-
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`ing how they applied to the withheld records.
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`58.
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`The Council explained that the Forest Service’s actions violated FOIA and re-
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`quested that it release the unlawfully withheld records.
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`59.
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`On July 8, 2021, the USDA acknowledged receipt of the Council’s appeal in its
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`Washington Office and assigned it control number 2021-FS-WO-00121-A. The Forest Service
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`did not provide an estimated completion date, nor did it request an extension of the 20-day statu-
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`tory deadline for appeal responses.
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`60.
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`Under FOIA and the USDA’s regulations, the final appeal decision was due on
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`August 5, 2021. See 5 U.S.C. § 552(a)(6)(A)(ii); 7 C.F.R. § 1.9(b).
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`61.
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`The Forest Service did not issue a final decision on the Council’s appeal 2021-FS-
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`WO-00121-A by August 5, 2021. In response to an inquiry from the Council, on August 6, 2021,
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`the Forest Service stated that it was unable to provide an estimated completion date for the ap-
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`peal.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 12
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`
`
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
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`

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`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 13 of 27
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`62.
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`As of the date this action was filed, almost an entire year has passed since the
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`Council filed its July 8, 2021 appeal, number 2021-FS-WO-00121-A.
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`63.
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`As of the date this action was filed, the USDA has failed to provide the Council
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`with a written notice setting forth any unusual circumstances that would justify extension of the
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`appeal determination deadline, as required by 5 U.S.C. § 552(a)(6)(B)(i), or an estimated date of
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`completion, as required by 5 U.S.C. § 552(a)(7)(B)(ii).
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`64.
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`As of the date this action was filed, the USDA has failed to make a final determi-
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`nation resolving the Council’s 2015 appeal, number 2021-FS-WO-00121-A.
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`The Council’s 2021 FOIA Requests and Appeal:
`Requests 2021-FS-R6-02689-F and 2021-FS-R6-03336-F
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`On February 26, 2021, the Council submitted a new request to the FOIA coordi-
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`65.
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`nator of the Forest Service’s Portland Office for all records related to the preparation and com-
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`pletion of the Screens Amendment EA and DN/FONSI. Specifically, the Council requested the
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`“project record” referenced in the DN/FONSI and all correspondence regarding the Screens
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`Amendment, including intra- and interagency correspondence and agency correspondence with
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`the public.
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`66.
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`On April 7, 2021, the Council submitted another FOIA request for correspond-
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`ence between the Forest Service and persons outside of the agency concerning, discussing, refer-
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`encing, and/or pertaining to the Screens Amendment. The Council specifically requested com-
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`munications between the Forest Service and the Department of Agriculture (including the Of-
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`fices of the Secretary and Undersecretary); other federal agencies; local, state, and federal
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`elected officials; and Native American tribes.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 13
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`
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
`
`

`

`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 14 of 27
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`67.
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`The Council explained that it would use the requested information to educate its
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`members and the general public and to further its mission to protect and restore Eastern Oregon
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`and Southeastern Washington’s ecosystems and wildlife habitats.
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`68.
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`On July 8, 2021, the Forest Service acknowledged both of the Council’s FOIA re-
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`quests and assigned them control numbers 2021-FS-R6-02689-F and 2021-FS-R6-03336-F (col-
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`lectively, “2021 Requests”). The agency explained that it would combine the two requests and
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`provide a “rolling” response.
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`69.
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`In its first response to the 2021 Requests, the Forest Service stated that it had re-
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`viewed 15,370 pages of responsive records. Of these, it had determined that 15,327 pages could
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`be released in full and 2 pages fully withheld pursuant to Exemption 5’s DPP. The Forest Service
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`also stated that it had partially redacted 14 pages pursuant to the DPP; these pages were, in fact,
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`entirely redacted.
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`70.
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`To justify the Exemption 5 DPP nondisclosures, the Forest Service stated that
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`draft letters are deliberative internal processes and as such must be withheld. It did not specifi-
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`cally identify the pages withheld, nor did it explain how disclosure of the contents would harm
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`an interest protected by Exemption 5’s DPP.
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`71.
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`The Forest Service stated that agency personnel had searched in every place a rea-
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`sonably knowledgeable person would know to look for electronic records pertaining to the Coun-
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`cil’s request. It did not provide further information explaining its search methods.
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`72.
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`On August 5, 2021, the Forest Service released its second response to the Coun-
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`cil’s 2021 Requests, for which the agency stated that it had reviewed 20,081 pages of responsive
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`records. Of these, the Forest Service had determined that 516 pages could be disclosed in full and
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`19,565 pages fully withheld pursuant to Exemption 5’s DPP.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 14
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`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
`
`

`

`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 15 of 27
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`73.
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`To justify the Exemption 5 DPP nondisclosures, the Forest Service stated that
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`draft maps and raw data must be withheld. It did not specifically identify any of the documents
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`withheld, nor did it explain how disclosure of the contents would harm an interest protected by
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`Exemption 5’s DPP.
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`74.
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`On September 20, 2021, the Forest Service released its third and final response to
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`the Council’s 2021 Requests, for which the agency stated that it had reviewed 3,569 pages of
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`documents in addition to 2.47 GB of raw data, shape files, and data files. Of these responsive
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`records, the Forest Service had determined that 31 pages could be released in their entirety. It
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`fully withheld 3,303 pages and the 2.47 GB of responsive records (raw data, shape files, and data
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`files) under Exemption 5’s DPP.
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`75.
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`The Forest Service did not specifically identify any of the withheld records or ex-
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`plain with any particularity how FOIA’s disclosure exemptions bar their release.
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`76.
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`To justify the nondisclosures, the Forest Service merely offered conclusory asser-
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`tions that draft maps, draft correspondence, raw data, inter-agency and draft briefing paper dis-
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`cussions on decision making matters are deliberative internal processes and as such must be
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`withheld pursuant to Exemption 5.
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`77.
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`The Forest Service withheld in full a total of 22,870 pages and 2.47 GB of raw
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`data, shape files, and data files pursuant to Exemption 5’s DPP.
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`78.
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`The Forest Service released a total of 14 pages fully redacted pursuant to Exemp-
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`tion 5’s DPP, although it mischaracterized them as “partially redacted.”
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`79.
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`The Forest Service did not include any information specific to any of the withheld
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`or redacted 22,884 pages and 2.47 GB of raw data, shape files, and data files explaining why the
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`deliberative process privilege applied to that particular record.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 15
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`
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`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
`
`

`

`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 16 of 27
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`80.
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`The Forest Service did not segregate and release any non-exempt portions of re-
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`sponsive records withheld pursuant to Exemption 5’s DPP. The 14 “partially” redacted pages
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`were, in fact, entirely redacted, and the majority of the records—constituting thousands of
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`pages—were withheld entirely.
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`81.
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`Concerned by the scope of the Forest Service’s nondisclosure, the inadequacy of
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`its justification, and the agency’s complete failure to segregate and release non-exempt portions
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`of the record, on November 18, 2021, the Council filed an administrative appeal contesting the
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`determination of the 2021 Requests, numbers 2021-FS-R6-02689-F and 2021-FS-R6-03336-F.
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`82.
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`In its appeal, the Council noted that the Forest Service had not clearly demon-
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`strated how any of the withheld or redacted documents were pre-decisional and deliberative.
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`83.
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`The Council also notified the Forest Service of its failure to segregate and release
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`non-exempt portions of records withheld pursuant to Exemption 5’s DPP.
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`84.
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`The Council’s appeal explained that the Forest Service’s actions violated FOIA
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`and requested that it release the unlawfully withheld records.
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`85.
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`On November 22, 2021, the USDA acknowledged receipt of the Council’s appeal
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`in its Washington Office and assigned it control number 2022-FS-WO-00022-A (“2021 Ap-
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`peal”). The Forest Service did not provide an estimated completion date, nor did it request an ex-
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`tension of the 20-day statutory deadline for appeal responses.
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`86.
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`Under FOIA and the USDA’s regulations, the final appeal resolution was due on
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`December 22, 2021. See 5 U.S.C. § 552(a)(6)(A)(ii); 7 C.F.R. § 1.9(b).
`
`87.
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`The USDA did not issue a final determination on the 2021 Appeal by December
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`22, 2021.
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`COMPL. FOR DECLARATORY AND
`INJUNCTIVE RELIEF - 16
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`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2725
`
`

`

`Case 3:22-cv-00980-MO Document 1 Filed 07/07/22 Page 17 of 27
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`88.
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`On May 26, 2022, the Council contacted the USDA to request a status update and
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`an estimated completion date for the 2021 Appeal. The USDA stated that it was providing all re-
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`questers with a generic estimated completion target formula of one year from the appeal date. In
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`this instance, based on the November 18, 2021, USDA generically asserted an estimated comple-
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`tion date of November 18, 2022.
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`89.
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`As of the date this action was filed,