United States District Court, D. Arizona
Honorable Bruce G. MaCdonald United States Magistrate Judge.
pending before the Court is Defendant United States Fish and
Wildlife Service's (“Defendant” or
“USFWS”) Motion for Summary Judgment (Doc. 38)
and Plaintiff Center for Biological Diversity's
(“Plaintiff” or “CBD”) [Cross-]Motion
for Summary Judgment (Doc. 49). Defendant has filed a
Statement of Facts Supporting Motion for Summary Judgment
(“SOF”) (Doc. 39), and Plaintiff has also filed a
Response to Defendant's Statement of Facts in Support of
their Motion for Summary Judgment (“SSOF”), as
well as a Statement of Facts in Support of their Motion for
Summary Judgment (“XSOF”). Each Party has
responded to the opposing summary judgment motion, and
subsequently replied. As such, the motion is fully briefed
and ripe for adjudication.
discretion, the Court finds this case suitable for decision
without oral argument. See LRCiv. 7.2(f). The
Parties have adequately presented the facts and legal
arguments in their briefs and supporting documents, and the
decisional process would not be significantly aided by oral
argument. . . .
The Law Enforcement Management Information System
is responsible for determining whether or not the imports or
exports are in compliance with the laws and regulations
enforced by USFWS. Def.'s SOF (Doc. 39), Hyde-Michaels
Decl. (Exh. “1”) at ¶ 4. This oversight and
enforcement includes, but is not limited to compliance with
the Endangered Species Act, 16 U.S.C. §§ 1531,
et seq. Id. USFWS determines whether imports or
exports should be allowed to enter into or depart from the
United States. Id.
Enforcement Management Information System
(“LEMIS”) database is used by USFWS's Office
of Law Enforcement to, among other operational needs: record,
process and store investigations, intelligence, import and
export data, and other programmatic data. Id.,
Exh. “1” at ¶ 2. The LEMIS information is
used inter alia to track species being imported or
exported; monitor quotas of a particular species; intervene
in illegal trade and the unlawful commercial exploitation of
fish, wildlife, and plants; facilitation of the legal trade
of fish and wildlife, and their parts and products; and to
prevent the importation of invasive, injurious, or otherwise
harmful species. Def.'s SOF (Doc. 39), Exh.
“1” at ¶ 2.
LEMIS data are derived from USFWS Form 3-177, the
“Declaration for Importation or Exportation of Fish and
Wildlife.” Id., Exh. “1” at ¶
3. USFWS must clear all wildlife that are imported into or
exported from the United States, irrespective of form-whether
wildlife are alive, whole, in parts, or as processed
products. Id., Exh. “1” at ¶¶
3-4; 50 C.F.R. § 14.52. In order to obtain clearance of
such wildlife, an importer or exporter is statutorily
required to file a Form 3-177. Id., Exh.
“1” at ¶ 5; Pl.'s SSOF (Doc. 46),
Cummings Decl. (Exh. “2”) at ¶ 13. Form
3-177 is similar to, but more detailed than, the United
States Customs and Border Protection (“CBP”)
declaration forms. Def.'s SOF (Doc. 39), Exh.
“1” at ¶ 3. Greater detail is demanded due
to the unique information USFWS is required to collect in
order to make authoritative and sound judgment on whether the
species of fish or wildlife is correctly identified, requires
additional permits, or is in violation of any domestic or
foreign law or regulation in order for the USFWS to clear the
shipment for import and export. Id. USFWS inputs the
information provided by Form 3-177 submitters into its LEMIS
database. Id., Exh. “1” at ¶ 6.
Prior LEMIS Data Releases by USFWS
requests for LEMIS data by members of the public have
occurred since at least 2001. Pl.'s SSOF (Doc. 46),
Peyman Decl. (Exh. “4”) at ¶ 7. From 2001
until approximately mid-2014 or 2015, USFWS released LEMIS
data without exemption. Id., Adkins Decl. (Exh.
“3”) at ¶¶ 11-12 & Exh.
“4” at ¶ 7 & Goyenechea Decl. (Exh.
“9”) at ¶ 7. During the 2014 to 2015 time
period, USFWS began withholding more than one (1) or two (2)
fields of data from the LEMIS database. Pl.'s SSOF (Doc.
46), Cummings Decl. (Exh. “2”) at ¶ 39 &
Exh. “4” at ¶ 9. The withholdings varied
from request to request. See id., Exh.
“2” at ¶ 30 (USFWS withheld quantity;
customs document number; name of carrier; air waybill and
bill of lading number; foreign CITES permit and U.S. permit
numbers; declared value of wildlife; and foreign
importer/exporter data pursuant to Exemption 4) & Exh.
“3” at ¶ 12 (releasing quantity and foreign
importer/exporter data) & Schubert Decl. (Exh.
“5”) at ¶ 4 (2015 FOIA request, response
withheld U.S. importers/exporters, foreign
importers/exporters, air waybill, and declared value data)
& Exh. “9” at ¶ 7 (releasing quantity
and foreign importer/exporter data). USFWS had previously
released both quantity and foreign importer/exporter data to
CBD in response to a FOIA request. Id., Exh.
“3” at ¶12.
CBD's Current FOIA Request
Original Request and Response
February 24, 2016, Plaintiff filed a Freedom of Information
Act (“FOIA”) request with USFWS seeking LEMIS
data for: date of import/export; port of clearance; purpose
code; customs document number; name of carrier; air waybill
of bill of lading number; transportation code; number of
cartons of wildlife; United States importer/exporter; foreign
importer/exporter; scientific and common name of species;
foreign Convention on International Trade in Endangered
Species of Wild Fauna and Flora (“CITES”) permit
and United States permit numbers; description code; source
code; country of origin; quantity/unit, and declared value.
Pl.'s Opp. to Mot. to Intervene (Doc. 28), Uhlmann Decl.,
CBD FOIA Request 2/24/2016 (Exh. “A”) at 1-2;
Def.'s SOF (Doc. 39), Hyde-Michaels Decl. (Exh.
“1”) at ¶ 2. In response to this request,
USFWS provided the following LEMIS data fields: species;
wildlife description; number of cartons; country of origin;
country of import/export; purpose of import/export; source;
dates; ports of clearance; transportation code; and name of
United States importer/exporter. See Pl.'s Opp.
to Mot. to Intervene (Doc. 28), Uhlmann Decl., USFWS Response
to CBD's FOIA Request 3/4/2016 (Exh. “B”) at
2. Pursuant to FOIA Exemption 4, which exempts confidential
commercial information, USFWS withheld LEMIS data fields
containing: declared value; quantity; foreign
importer/exporter; name of carrier; bill of lading number;
customs document number; and permit number. Id.,
Uhlmann Decl., Exh. “B” at 2. On April 8, 2016,
CBD appealed USFWS's decision to withhold the following
LEMIS data fields: declared value; quantity; foreign
importer/exporter; bill of lading number; customs document
number; and permit numbers. Id., Uhlmann Decl., CBD
FOIA Appeal 4/8/2016 (Exh. “C”) at 2. USFWS did
not respond to CBD's FOIA appeal within twenty (20) days.
Answer (Doc. 35) at ¶ 9.
The Instant Litigation
August 9, 2016, CBD filed the instant litigation to challenge
the Exemption 4 withholdings. See Compl. (Doc. 1).
On November 25, 2016, USFWS noticed the submitters of LEMIS
data through a notice (the “Notice”) in the
Federal Register on November 25, 2016 (81 Fed. Reg. 85255)
and pursuant to 43 C.F.R. 2.27(b). Def.'s SOF (Doc. 39),
Hyde-Michaels Decl. (Exh. “1”) at ¶ 11. The
Notice solicited views from submitters of Form 3-177
regarding the Exemption 4 data and contained instructions for
submitters, as well as apprised them of the legal standards
applicable in this case. Id. Ultimately,
approximately thirty-two (32) submitter companies were deemed
by USFWS to have provided sufficient information, and
warranted exemption. Id., Exh. “1” at
¶ 14. During this litigation USFWS and CBD negotiated a
rolling release of all data that USFWS had deemed not subject
to exemption. Id., Exh. “1” at ¶
21. USFWS has provided CBD with all relevant information,
except for the Exemption 4 information that is currently the
subject of this litigation. Id. Through this
litigation CBD seeks the release of the following data
fields: 1) foreign importer/exporter; 2) United States permit
number; 3) quantity; and 4) name of carrier. Pl.'s SSOF
(Doc. 46), Cummings Decl. (Exh. “3”) at ¶
STANDARD OF REVIEW
Freedom of Information Act was enacted to facilitate public
access to Government documents.” United States
Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct.
541, 547, 116 L.Ed.2d 526 (1991) (citations omitted).
“The statutory scheme provides public access to
government information ‘shielded unnecessarily'
from the public and establishes a ‘judicially
enforceable public right to secure such information from
possibly unwilling official hands.'” Watkins v.
United States Bureau of Customs and Border Protection,
643 F.3d 1189 (9th Cir. 2011) (quoting Department of Air
Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48
L.Ed.2d 11 (1976)). “The basic purpose of FOIA is to
ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to
hold the governors accountable to the governed.”
N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S.
214, 242, 96 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978)
the same time, FOIA contemplates that some information may
legitimately be kept from the public.” Lahr v.
NTSB, 569 F.3d 964, 973 (9th Cir. 2009). Accordingly,
FOIA contains nine exemptions pursuant to which information
can be withheld. See 5 U.S.C. § 552(b)(1)-(9).
“FOIA's ‘strong presumption in favor of
disclosure' means that an agency that invokes one of the
statutory exemptions to justify the withholding of any
requested documents or portions of documents bears the burden
of demonstrating that the exemption properly applies to the
documents.” Lahr, 569 F.3d at 973 (quoting
Ray, 502 U.S. at 173, 112 S.Ct. 541). Furthermore,
“[b]ecause of its overarching goal of public
disclosure, FOIA ‘exemptions are to be interpreted
narrowly.'” Watkins, 643 F.3d at 1194
(quoting Lahr, 569 F.3d at 973).
FOIA cases are resolved by the district court on summary
judgment, with the district court entering judgment as a
matter of law.” Animal Legal Defense Fund v. United
States Food & Drug Admin., 836 F.3d 987, 989 (9th
Cir. 2016) (citations omitted). The Ninth Circuit Court of
Appeals has “conclude[d] there is no principled
distinction to be drawn between [its] usual summary judgment
standard and the standard to be applied in FOIA cases.”
Id. Accordingly, summary judgment is appropriate
when, viewing the facts in the light most favorable to the
nonmoving party, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91
L.Ed.2d 202 (1986), “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A fact is
“material” if it “might affect the outcome
of the suit under the governing law, ” and a dispute is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248, 106 S.Ct.
at 2510. Thus, factual disputes that have no bearing on the
outcome of a suit are irrelevant to the consideration of a
motion for summary judgment. Id.
exempts “trade secrets and commercial or financial
information obtained from a person and privileged or
confidential” from disclosure. 5 U.S.C.
§552(b)(4). “In order to invoke Exemption 4 in the
Ninth Circuit, the government agency must demonstrate that
the information it sought to protect is ‘(1) commercial
and financial information, (2) obtained from a person or by
the government, (3) that is privileged or
confidential.'” Watkins v. United States Bureau
of Customs and Border Protection, 643 F.3d 1189, 1194
(9th Cir. 2011) (quoting GC Micro Corp. v. Defense
Logistics Agency, 33 F.3d 1109, 1112 (9th Cir. 1994)).
“The terms ‘commercial or financial' are
given their ordinary meaning. Id. (citing Pub.
Citizen Health Research Group v. FDA, 704 F.2d 1280,
1290 (D.C. Cir. 1983)). “[C[ommercial or financial
matter is ‘confidential' for purposes of the
exemption if disclosure of the information is likely to have
either of the following effects: (1) to impair the
Government's ability to obtain necessary information in
the future; or (2) to cause substantial harm to the
competitive position of the person from whom the information
was obtained.” Id. (quoting GC Micro
Corp., 33 F.3d at 1112).
undisputed that the information collected in the LEMIS
database is compelled due to the mandatory nature of the Form
3-177. “[T]here is a presumption that the
Government's interest is not threatened by disclosure
because it secure[d] the information by mandate; and as the
harm to the private interest (commercial disadvantage) is the
only factor weighing against FOIA's presumption of
disclosure, that interest must be significant.”
Critical Mass. Energy Project v. Nuclear Regulatory
Comm'n, 975 F.2d 871, 878 (D.C. Cir. 1992) (en
banc); cf. Frazee v. United States Forest Service,
97 F.3d 367, 372 (9th Cir. 1996) (although the Ninth Circuit
has not addressed the Critical Mass. distinction,
recognizing that “[i]f the information is required by
the government, then the substantial competitive harm prong
of the National Parks confidentiality test still
applies.”). “Competitive harm should not be taken
to mean simply any injury to the competitive
position[.]” Watkins, 643 F.3d at 1195
(citations omitted). Moreover, “[a]lthough the court
need not conduct a sophisticated economic analysis of the
likely effects of disclosure[, ] . . . [c]onclusory and
generalized allegations of substantial competitive harm . . .
are unacceptable and cannot support an agency's decision
to withhold requested documents.” Id.
(quotations and citations omitted) (first alteration added).
“The government need not show that releasing the
documents would cause ‘actual competitive
harm.'” Id. at 1194 (citing GC Micro
Corp., 33 F.3d at 1113). “Rather, the government
need only show that there is (1) actual competition in the
relevant market, and (2) a likelihood of substantial
competitive injury if the information were released.”