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Rocky Mountain Wild, Inc. v. U.S. Forest Serv., No. 15-0127, 2016 WL 362459 (D. Colo. Jan. 29, 2016) (Martinez, J.)


Rocky Mountain Wild, Inc. v. U.S. Forest Serv., No. 15-0127, 2016 WL 362459 (D. Colo. Jan. 29, 2016) (Martinez, J.)

Re: Request for Forest Service's communications with third parties regarding ski-oriented development

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

  • Litigation Considerations:  "[T]he Court finds [plaintiff's evidence] insufficient to create a presumption of bad faith or general lack of trustworthiness."  The court finds that "[plaintiff] points to no FOIA requests pending when any of this evidence was generated."
  • Procedural Requirements, Searching for Responsive Records:  The court holds that "summary judgment for the Forest Service is not appropriate."  First, "the Court finds under the unique circumstances of this case that the Forest Service reasonably interpreted the November 2014 request, even under a duty of liberal construction."  The court explains that, "in isolation, [plaintiff's second] request could not be reasonably interpreted as limiting itself to third-party communications."  "But the Forest Service is correct that the context of [plaintiff's first] request is relevant to the [second] request."  The court finds that "the Forest Service unsurprisingly interpreted the [second] request for 'all as-yet undisclosed agency records...including communications between [the Forest Service and various third parties]' as an extension of the [first] request’s temporal scope, rather than a new request with an independent scope."  However, the court also finds that "[n]onetheless, when an agency learns that it has misunderstood the scope of a request, it has a duty to adjust its records search accordingly."  "Through an honest misunderstanding, the Forest Service apparently performed a too-narrow records search (i.e., for 'communications' only), and has also chosen to withhold certain records as outside of the scope of the search (i.e., intra-agency communications)."  "However, having learned of its misunderstanding, the Forest Service cannot continue to insist on that misapprehension as the proper interpretation of [plaintiff's] request."  Also, the court finds that "the Forest Service cannot continue to withhold such documents as non-responsive" because, "[a]s already explained above . . . , this position is a misunderstanding of [plaintiff's] request."  Additionally, "the Court cannot grant summary judgment to the Forest Service on the question of whether the Forest Service adequately searched for communications with third parties."  "The Court will order the Forest Service to search the individuals and locations named in [plaintiff's] Specific Requests, both for responsive third-party communications as well as responsive intra-agency communications, and any other responsive record, whether embodied in a communication or not."
  • Litigation Considerations, Vaughn Index/Declaration & Exemption 5, Attorney-Client Privilege:  "[T]he Court is satisfied that the Forest Service properly withheld the documents [under Exemption 5] logged on [some] Vaughn indices, and summary judgment to the Forest Service is granted to that extent."  However, the court finds that "the Forest Service’s other Vaughn . . . contains nothing but generic (if not boilerplate), conclusory assertions."  The court finds that "[s]uch descriptions 'frustrate[]' this Court's 'responsibility to conduct de novo review.'"
  • Exemption 6:  "[T]he Court will grant summary judgment to the Forest Service to the extent it has redacted information under Exemption 6."  The court relates that "the [Forest] Service redacted data such as employees' cell phone numbers, personal e-mail addresses, and so forth."  The court finds that "[plaintiff] has made no objection to these redactions, and thus has effectively [conceded] Defendants' motion as to Exemption 6."
  • Litigation Considerations:  "The Court finds that it need not definitively decide whether a pattern or practice claim exists."  "Although certain circuits recognize it, [plaintiff] has not presented evidence sufficient to establish it under the law of those circuits."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 6
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, Vaughn Index/Declarations
Procedural Requirements, Searching for Responsive Records
Updated January 13, 2022