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Center for Biological Diversity v. United States Fish and Wildlife Service

United States District Court, D. Arizona

March 30, 2018

Center for Biological Diversity, Plaintiff,
v.
United States Fish and Wildlife Service, Defendant.

          ORDER

          Honorable Bruce G. MaCdonald United States Magistrate Judge.

         Currently 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.

         In its 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. . . .

         I. FACTUAL BACKGROUND

         A. The Law Enforcement Management Information System Database

         USFWS 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.

         The Law 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.[1] 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.

         The 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.

         B. Prior LEMIS Data Releases by USFWS

         FOIA 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.

         C. CBD's Current FOIA Request

         1. Original Request and Response

         On 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.

         2. The Instant Litigation

         On 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 ¶ 31.

         II. STANDARD OF REVIEW

         “The 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) (citations omitted).

         “At 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).

         “Most 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.

         III. ANALYSIS

         A. Exemption 4

         FOIA 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).

         It is 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.” Id.

         B. Substantial ...


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