W. Energy Alliance v. BLM, No. 13-2814, 2015 WL 1344472 (D. Colo. Mar. 23, 2015) (Blackburn, J.)
Re: Request for records concerning peer review process used in developing "A Report on National Greater Sage–Grouse Measures"
Disposition: Denying plaintiff's motion for attorney fees and costs
- Attorney Fees, Entitlement: The court "conclude[s] that an award of fees and costs is not justified" because "[t]hree of the four relevant factors weigh against an award of fees and costs" and "BLM cooperated in resolving this case quickly after the case was filed." First, the court "find[s] and conclude[s] that the public benefit factor weighs against an award of attorney fees." The court explains that "there is no showing that this peer review information will provide a substantial public benefit" because "the current record demonstrates, at most, a minimal, incidental, industry focused, and speculative public benefit" and "[plaintiff] makes no specific showing that the peer review information at issue here had a significant influence in [plaintiff's] effort" "to require more transparency and accountability for Endangered Species Act data and science." Second, the court finds that "the second and third factors weigh against an award of attorney fees and costs." The court explains that "it is clear the [plaintiff] seeks to achieve a benefit for its members by obtaining the FOIA information and using it to challenge regulations of its industry which its members oppose." "The record demonstrates use of the FOIA material primarily for such purposes." While the court finds that the fourth "factor weighs in favor of an award of fees and costs" given that "the information sought by the [plaintiff] was released by the BLM shortly after this case was filed" and "[n]othing in the record demonstrates a reasonable basis in law for this delay," on balance the court concludes an award “is not justified.”