Am. Wild Horse Campaign v. U.S. Bureau of Land Mgmt., No. 22-2971, 22-3027, 2025 WL 1148361 (D.D.C. Apr. 17, 2025) (Howell, J.)

Am. Wild Horse Campaign v. U.S. Bureau of Land Mgmt., No. 22-2971, 22-3027, 2025 WL 1148361 (D.D.C. Apr. 17, 2025) (Howell, J.)

Re: Request for records concerning certain grazing allotments and authorizations

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records; Litigation Considerations, Evidentiary Showing, Adequacy of Search:  First, the court holds that “based on a reasonable reading of the plain terms of the FOIA requests at issue, defendant reasonably construed the scope of the items sought in Group 1 and Group 2 requests.”  The court relates that “the parties primarily dispute the scope of plaintiff’s Group 1 FOIA requests.”  “Defendant argues that ‘[p]laintiff requested records concerning [an outside entity’s] grazing allotments or management and grazing authorizations,’ . . . and read these requests as ‘limited to records involving [the outside entity’s] grazing operation.’”  “In other words, defendant understood the requests to seek records concerning [the outside entity’s] grazing allotments, [the outside entity’s] management of these grazing allotments, and [the outside entity’s] grazing authorizations issued by defendant.”  “Plaintiff apparently wants the items in the Group 1 requests to be read broadly as seeking records regarding [the outside entity’s] grazing allotments and general management of the land which [the outside entity] is permitted to use for grazing, whether that management is performed by [the outside entity] or BLM, or, presumably, any other actor on these public lands, notwithstanding that each item is prefaced with limiting text of ‘[a]ll records that discuss or describe [the outside entity’s] grazing allotments or management.’”  “The record supports defendant’s reading of the requests as reasonable through simple application of normal grammatical and syntax rules.”  “A possessive noun naturally applies its possession to the whole list of items that follow it.”  “Here, defendant reasonably understood and naturally read [the outside entity] to be used as a possessive noun, with the objects to be both ‘grazing allotments’ and ‘management.’”  “Indeed, no other noun is used in these requests to suggest that plaintiff was seeking information about BLM or any other actor’s ‘management’ of any portion of the Rock Springs Allotment.”  “‘Agencies must read and interpret a FOIA request as it was drafted, “not as either [an] agency official or [the requester] might wish it was drafted.”’” “Plaintiff’s proffered reading of the requests as seeking records pertaining to management by BLM and others, of about one million acres of the public lands used by [the outside entity] is a broad expansion of the requests’ scope and is not the most natural reading, as a matter of syntax, of the requests’ plain terms.”  For similar reasons, the court rejects “Plaintiff’s complaint . . . that the separate requests in Group 2 were to be read as somehow disconnected to [the outside entity’s] own grazing authorizations despite the prefatory language so limiting the reach of each item.”  “Given defendant’s reasonable reading of the requests at issue, plaintiff’s complaints that that defendant did not search for and produce emails or other records regarding BLM’s ‘wild horse and wild horse gather operations,’ . . . to show the inadequacy of the search fall short.”
  
  Regarding custodians and locations, the court finds that “[w]ith respect to the selection of the Rock Springs Field Office, defendant has made good-faith averments that the Rock Springs Field Office was not just the ‘most likely’ location that would maintain records responsive to plaintiff’s request, but that it was the ‘only’ location . . . .”  “Based on the plain terms of the requests – rather than what plaintiff wished had been requested – [defendant] based that determination on a variety of imminently reasonable factors:  (a) the Rock Springs Field Office was the custodian of [the outside entity] documents; (b) this Field Office handles all [the outside entity] requests; (c) this Field Office is geographically the most relevant because of its location within the Rock Springs Allotment and responsibilities for handling BLM’s relationship with [the outside entity], which is the focus of plaintiff’s FOIA requests.”  “With respect to the selection of two custodians within the Rock Springs Field Office, [defendant] approached [two employees] because they were the ‘most likely’ custodians and was assured by [the two employees] that they would be the ‘only custodians with responsive records.’”  “Further, [defendant] has averred that ‘all locations likely to contain responsive materials,’ have been searched."
  
  “To cast doubt on these assurances, plaintiff provided, in opposition to defendant’s summary judgment motion, a letter authored by Rock Springs Assistant Field Manager . . . to permittees authorized to graze on the Rock Springs Allotment, including [the outside entity], as an example of [one of the custodians] being a likely custodian of responsive records.” The court finds that “plaintiff’s point is well taken that other personnel within the Rock Springs Field Office also had communications with [the outside entity] that may be responsive to the FOIA requests at issue.”  “Defendant’s only response to plaintiff’s submission of the . . . Letter as an example of responsive communications between [the outside entity] and BLM personnel other than the two custodians in that office is that ‘[the two searched custodians] would be the only custodians of any potentially responsive records,’ . . . without otherwise making any effort to ‘explain why the remaining individual[ ] [was] excluded and not deemed likely to have responsive records, despite [his] presence on [records] discussing’ [the outside entity].”  “Plaintiff also argues in its cross-motion for summary judgment that other BLM employees, outside the Rock Springs Field Office, including BLM Wyoming State Director, the BLM Wyoming Deputy State Director, the BLM Wyoming High Desert District Manager, would also likely possess responsive records.”  “Other than this bald assertion based on plaintiff’s broad reading of its own requests, no other argument was presented.”  “At the outset, this is not a litigation strategy helpful to the Court in reaching a fair and appropriate resolution to this case.”  “Moreover, plaintiff’s belatedly submitted emails do not necessarily support plaintiff’s position that these named BLM employees outside of the Rock Springs Field Office would have records responsive to the FOIA requests at issue here.”  “Finally, plaintiff challenges the adequacy of the search for failing to search and produce records from four specific databases, for two of which defendant provided, as part of its response to the FOIA requests at issue, links to the databases available publicly on BLM’s website.”  “The first database identified by plaintiff is the Rangeland Administration System (“RAS”) database, which plaintiff argues, based on review of BLM manuals and regulations, should contain responsive records, but was not searched.”  “The reason for defendant’s confidence that responsive records housed on the RAS database would have been produced is that ‘[f]or the most part, RAS is not the location where the BLM maintains official records; rather, it is the system that is used to generate an official record,’ which when executed ‘constitutes the official record’ and ‘is placed in the permitted Grazing Case File,’ . . . or ‘appropriate Allotment File[]’ . . . .”  “This explanation for why a search of the RAS database would be redundant or less effective in uncovering responsive records than the search performed provides a reasonable basis for the manner in which defendant treated this database.” “Next, plaintiff argues that two other databases – the Assessment, Inventory, and Monitoring (“AIM”) database and Landscape Monitoring Framework (“LMF”) database – were responsive to plaintiff’s requests and were not searched and no underlying data from these databases were produced.”  “The AIM database contains datasets for uplands monitoring and datasets for monitoring perennial streams and rivers, . . . including records related to ground cover, plants, soils, stream characteristics, and other records related to physical characteristics of the land . . . .”  “The LMF database is used to assess and monitor renewable resources on BLM’s managed rangelands in western states.”  “In response to plaintiff’s FOIA request for ‘monitoring plans,’ . . . defendant explained that BLM had no current ‘monitoring plan for the Rock Springs Allotment’ and that the ‘only monitoring data collected in the allotment in recent years is’ AIM data, which ‘is not specific to grazing management or the Rock Springs Grazing Allotment.’”  “Put another way, this response suggested that no AIM data precisely responsive to the FOIA requests was available.”  “Plaintiff is not satisfied with this response, construing the fact that defendant provided plaintiff with a link to the BLM website where this data is publicly available as a concession that AIM and LMF data is responsive to the requests but nevertheless declining to release the underlying data directly to plaintiff.”  “Defendant certainly did not concede this data is responsive to plaintiff’s requests.”  “To the contrary, defendant expressly stated these datasets did not qualify as requested ‘management plans’ and were outside the scope of plaintiff’s requests since the datasets were ‘not specific to grazing management or the Rock Springs Grazing Allotment.’”  “In addition, the data were collected electronically, processed and uploaded to a national server all by a contractor, with defendant’s own access to the data through the public-facing website and just as easily available to plaintiff.”  “For both reasons, plaintiff pointing to defendant’s provision of a link to publicly accessible BLM datasets does not undermine the adequacy of the search.”  “Finally, plaintiff argues that defendant failed to search BLM’s Range Improvements System, or RIPS database, used to track the establishment and maintenance of range improvements, which are ‘man-made or man-caused features on the landscape designed and implemented for the purpose of improving the available forage, managing the season of use or use patterns and enhancing the overall rangeland health of areas available for domestic livestock use.’”  “According to plaintiff, a search of this data would be responsive to Group 2’s item 6 request for ‘all records that discuss or describe all [outside entity] grazing authorizations – improvements, assignment of range improvements, copies of range Improvement permits or co-operative agreements.’”  “This argument is both belated and insufficient to show inadequacy of defendant’s search.”  “Plaintiff mentioned RIPS for the first time only in reply, perhaps for a strategic ‘gotcha’ reason . . . and, as already noted, such belated arguments place defendant in an unfair position and are waived . . . .”  “Moreover, it is not clear that this data would be responsive to Group 2’s item 6 request.”  “To be sure, the description of RIPS uses the word ‘improvements’ as does item 6, but item 6 relates to [the outside entity’s] grazing authorizations.”  “The RIPS database seemingly relates to improvements regarding an allotment and not to an organization’s authorization to graze on the allotment.”  “To the extent the underlying records in RIPS relate to [the outside entity’s] grazing authorizations, then the underlying records were likely already produced, and any RIPS data related to BLM or others’ range improvements on these same allotments are not responsive to the Group 2 requests.”
  
  “As a final arrow in its quiver, plaintiff claims that the search terms defendant used in its search were ‘not reasonably calculated to uncover all relevant records.’”  “First, plaintiff argues that defendant’s searching the custodians’ emails with [one organizational email as the term] was too limited.”  The court finds that “[w]hile not an ‘insurmountable burden,’ . . . defendant cannot square its averment that [one individual] used no other email addresses to communicate with [defendant] without the [search term] email address given the existence of an email that shows the opposite.” “Defendant, on remand, must search the emails of its custodians for [the additional custodian name] and variations thereof.”  “Second, plaintiff argues that in addition to ‘[the outside entity]’ and ‘Rock Spring Grazing Association,’ defendant should have searched for [several other additional terms].”  “Using “[the name of the outside entity]” and “Rock Springs Grazing Association,” defendant’s search terms appropriately targeted logical variations of the association’s name in each of plaintiff’s requests may be ‘reasonably calculated to uncover all relevant documents.’”  “Indeed, defendant states that additional search terms were not necessary because ‘it was not necessary to utilize search criteria to search the Bureau’s entire computer network,’ . . . and, instead, [defendant] ‘manually went through the . . . folder [at issue] to find all responsive records.’”  “While this may seemingly contradict the declaration of [defendant], who claims that ‘[t]he identified Custodians then electronically searched the shared drive in their office, government assigned laptops, desktops, and hard drives for records,’ . . . it does not ‘raise ‘substantial doubt’ about the adequacy of the agency’s search and the veracity of [the] declarations[]’ . . . .”