Black Hills Clean Water All. v. U.S. Forest Serv., Nos. 20-5034, 21-5072, 2024 WL 626481 (D.S.D. Feb. 14, 2024) (Piersol, J.)

Black Hills Clean Water All. v. U.S. Forest Serv., Nos. 20-5034, 21-5072, 2024 WL 626481 (D.S.D. Feb. 14, 2024) (Piersol, J.)

Re:  Requests for records concerning exploratory gold drilling

Disposition:  Granting in part and denying in part plaintiff’s consolidated motion for attorney fees and costs

• Attorney Fees, Eligibility:  “The Court must first decide whether Plaintiff has ‘substantially prevailed’ in BHCWA1[, the first case of the two consolidated cases,] and BHCWA2[, the second case of the two consolidated cases,] and is therefore ‘eligible’ to receive fees.”  “The Agency concedes, and the Court concludes, that Plaintiff is eligible for attorney fees in BHCWA1 because it substantially prevailed through this Court’s June 30, 2022 Order granting relief to Plaintiff on several grounds.”  “However, the Agency argues that Plaintiff did not substantially prevail in BHCWA2 and is not eligible for attorney fees in that case.”  “In BHCWA2, Plaintiff did not obtain relief through a judicial order, written agreement, or consent decree.”  “Instead, Plaintiff claims eligibility for attorney fees in BHCWA2 under the second provision of the statute, 5 U.S.C. § 552(a)(4)(E)(ii)(II), arguing that the Agency made ‘a voluntary or unilateral change in position’ after the lawsuit was filed because the Agency produced additional documents during litigation.”  The court states that “[it] is bound by the Eighth Circuit’s holding” and therefore “must apply the ‘catalyst theory’ to decide whether Plaintiff substantially prevailed in BHCWA2.”  “Under the ‘catalyst theory,’ Plaintiff must demonstrate a causal link between the BHCWA2 lawsuit and the Agency’s disclosure of information or change in position.”  “Here, Plaintiff filed its administrative appeal in BHCWA2 on March 16, 2021.”  “In an update on May 11, 2021, the Agency explained to Plaintiff that there was a backlog of appeals.”  “The Agency issued a partial response on July 8, 2021, disclosing 2,601 pages and explaining the basis for redactions on 26 pages.”  “Plaintiff filed the lawsuit in BHCWA2 on October 21, 2021.”  “The Agency completed its response to the appeal approximately one month later, on November 19, 2021.”  “There is no indication that the lawsuit caused the Agency to provide the information on November 19, 2021.”  “The Agency had begun processing the appeal and had even made a partial response to the appeal before the lawsuit was filed.”  “The additional information provided by the Agency in August of 2022 was discovered in a supplemental search that was conducted in accordance with this Court’s June 22, 2022 Order issued in BHCWA1.”  “The limited discovery that Plaintiff was allowed to conduct in BHCWA2 resulted in production of information that was either non-substantive or publicly available.”  “[T]here is no indication that the Agency notified Plaintiff before the BHCWA2 lawsuit was filed that the appeal would be denied without further information, and there is no showing that the Agency changed its position in response to the lawsuit in BHCWA2.”  “Based on the record before this Court, the Court cannot conclude that the BHCWA2 lawsuit caused the Agency to release additional documents.”  “There was never a time that the Agency suggested no additional responsive records existed.”  “The Agency’s timeline of events shows the Agency was processing Plaintiff’s appeal before Plaintiff filed its lawsuit on October 21, 2021.”  “It appears that the Agency’s production of records in BHCWA2 either was part of the normal administrative process or more likely was due to this Court’s Order in BHCWA1, and not because of the second lawsuit.”  “With no evidence to suggest a causal nexus exists between the filing of Plaintiff’s action in BHCWA2 and the Agency’s surrender of additional information, the Court concludes that Plaintiff has not ‘substantially prevailed’ and is thus not eligible for attorney fees in BHCWA2.” 
  
  “In contrast, Plaintiff substantially prevailed before this Court in BHCW1 by obtaining relief through a judicial order. 5 U.S.C. § 5(a)(4)(E)(ii)(I).”  “Because Plaintiff is eligible for attorney fees in BHCWA1, the Court must turn to the second step and determine whether Plaintiff is entitled to attorney fees in that case.”
   
• Attorney Fees, Entitlement:  “[T]he Court concludes that Plaintiff is entitled to attorney fees in BHCWA1.”  Regarding the public benefit factor, the court finds that “[t]he public has a strong interest in and significantly benefits from the requested information about mining activities in the Black Hills.”  “Given the purpose of Plaintiff’s organization to oversee agency compliance with federal environmental policies and procedures, the Court concludes that Plaintiff provided a significant public benefit by requesting the information in BHCWA1.”  “BHCWA1 also had the additional benefit of correcting a nondisclosure position that was contrary to law and the public interest.”  Regarding the commercial benefit factor, the court finds that “Plaintiff is a public interest environmental group dedicated to preventing destructive mining in the Black Hills National Forest in order to protect the region’s resources.”  “There is no indication that Plaintiff undertook the FOIA request for commercial purposes.”  Regarding plaintiff’s interest in the records, the court finds that “[t]his is not a case where a plaintiff is using the FOIA to subsidize personal gain.”  “Instead, [plaintiff] is seeking to benefit the public interest in maintaining the Black Hills National Forest for future generations.”  Regarding the reasonableness of the agency’s withholdings, the court finds that “[l]itigation revealed that the Agency lacked a legal justification for many of its withholdings.”  “The few withholdings ultimately allowed were for reasons other than initially claimed by the Agency.”
   
• Attorney Fees, Calculations:  The court finds that “Plaintiff combined the legal work on the motions for attorney fees instead of separating the time spent on each motion as it did with the underlying litigation.”  “Thus, the Court will require Plaintiff to submit a supplemental brief explaining its reasonable costs and attorney fees solely related to preparing the motion for attorney fees in BHCWA1.”  “Defendants will have an opportunity to respond.”