United States District Court, M.D. Florida, Jacksonville Division
REPORT & RECOMMENDATION
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.
plaintiff, Friends of Etna Turpentine Camp, Inc.
(“Etna”), brought this action under the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552,
seeking disclosure of information maintained by the
defendants, the United States Department of the Interior and
the United States Fish and Wildlife Service (collectively,
“FWS”). Following the FWS's final disclosure
of information, the Court denied as moot Etna's motion
for summary judgment and denied without prejudice the
FWS's motion to dismiss. Docs. 29, 30.
the Court is Etna's motion for an award of $18, 150 in
attorney's fees and $447.20 in costs, Doc. 31, the
FWS's response, Doc. 32,  and Etna's reply, Doc. 34.
With the motion, Etna provides billing records, Doc. 31-1,
declarations of its lawyers (Robert Hartsell and Heidi
Mehaffey), Docs. 31-2, 31-3, and a declaration of an expert
on rates (Marcy Lahart), Doc. 31-4.
threshold issue is whether Etna is eligible for
attorney's fees and costs under the FOIA, which requires
a determination of whether Etna meets its burden of showing
it “substantially prevailed” in this action.
See 5 U.S.C. § 552(a)(4)(E)(i) (quoted). The
motion was referred to the undersigned for a report and
recommendation on an appropriate resolution. Doc. 33.
Etna Turpentine Camp is a federally designated historical
site in Citrus County, Florida. Doc. 1 ¶ 10. In a
related action, this Court described the Etna Turpentine
Hidden within the Withlacoochee State Forest is the Etna
Turpentine Camp, which was lost to time until its discovery
in the early 1990s and listed on the National Register of
Historic Places in December 2009. Etna was a turpentine still
complex and town in the early 1900s. Recent data recovery
excavations discovered the intact foundation of a turpentine
still, as well as items scattered throughout what was the
camp and home sites of its workers. The items include bricks,
ceramic, glass, coins, toys, pencils, and hearty cups (or
fragments of them), which were used to collect the resin from
pine trees to produce the turpentine.
Doc. 46 at 1 in Friends of Etna Turpentine Camp, Inc., v.
U.S. Dep't of the Interior, etc.,
Etna is a nonprofit Florida corporation formed for the
“protection of historical, air, water, natural and
cultural resources” of the Etna Turpentine Camp. Doc. 1
¶ 5. Defendant FWS is a bureau within defendant United
States Department of the Interior. Doc. 1 ¶¶ 7, 8;
Doc. 6 ¶¶ 7, 8.
this FOIA action is a permit for a state project issued in
July 2017 by the FWS to the Florida Department of
Transportation. See generally Doc. 1. In the related
action, this Court described the permit, the project, and the
“section 106” review:
Etna is located near and adjacent to a power line and gas
pipeline easement (the construction of which actually lead to
its discovery), but is about to be lost to a highway, as it
sits in its direct path.
The Suncoast Parkway is a toll road that runs north from
Tampa, coming up through Pasco County and currently ending at
U.S. Highway 98 in Hernando County, just south of Citrus. The
Florida Department of Transportation, through the Florida
Turnpike Enterprise …, is building the Suncoast
Parkway II, which will start where the Suncoast Parkway
currently ends and travel 13.5 miles north, coming up through
the Withlacoochee State Forest and the Etna Turpentine Camp,
while traveling adjacent to the existing power line and gas
pipeline easement on the edge, but within, the state forest.
The terminus is at State Road 44, an existing east to west
corridor that can take a traveler west to Crystal River (both
the city and the river that connects to the Gulf of Mexico)
or East to Inverness and then an Interstate 75 interchange,
located just north of the start of Florida's Turnpike.
The FWS prepared an Environmental Assessment in May 2016,
addressing, among other things, the need for the project, the
impacts, mitigation, and the alternatives, including a no
action alternative. It incorporates the State's Habitat
Conservation Plan, which also addresses impacts on the
species, mitigation measures, and consideration of
alternatives. The FWS issued a biological opinion in July
2017 laying out the history of its review, including the
State's Habitat Conservation Plan, an assessment of
impacts on the species in the action area and mitigation, as
well as noting the Section 106 review. … The FWS then
issued its [Finding of No. Significant Impact] in July 2017,
reviewing its analysis and findings as to the species and
Etna, and ultimately issued the permit shortly thereafter.
Doc. 46 at 1-2, 4 in 5:18-cv-291.
Facts and Procedural History
facts are from the pleadings, Docs. 1, 6, documents attached
to the complaint, Docs. 1-1-1-12, documents submitted with
Etna's motion for summary judgment and FWS's response
to that motion, Docs. 15-1-15-4, 17, and the declarations
submitted with Etna's current motion for attorney's
fees and costs, Docs. 31-1-31-4. These facts are undisputed;
the FWS incorporates into its response the factual background
in Etna's motion, and neither side requests an
evidentiary hearing. See Doc. 32 at 2 (the FWS's
response incorporating pages 2 through 5 of Etna's
August 2016, the law firm of Robert N. Hartsell, P.A., has
been legal counsel for Etna. Doc. 31-2 ¶ 8.
in 2017, Etna asked its counsel to initiate a FOIA request to
FWS for “decisional documents” supporting the
FWS's July 2017 permit to the Florida Department of
Transportation. Doc. 31-2 ¶ 9.
August 29, 2017-the month after issuance of the permit-Etna,
through counsel, submitted a written FOIA request to the FWS.
Doc. 1-1. Etna requested nine categories of information
relating to the project, the issuance of the permit, the
biological assessment that supported the permit, and the
section 106 review. Doc. 1-1 at 2-3.
the FOIA request, Etna sought a fee waiver but explained it
would pay all fees associated with the FOIA request if no
waiver was granted and wanted to avoid any delay associated
with a waiver determination. Doc. 1-1 at 3-4. To support
waiver, Etna contended the requested information concerned a
matter of public interest; specifically, highly controversial
governmental actions or inactions that allow encroaching on
and destroying the habitats of listed species and a federally
designated historical site. Doc. 1-1 at 4-6. Because the FWS
never requested fees, Etna now assumes the waiver was
granted. Doc. 31 at 2.
September 5, 2017, the FWS received Etna's FOIA request.
Doc. 1 ¶ 11; Doc. 6 ¶ 11. The same day, Tiffany
McClurkin, a FOIA coordinator with the FWS, emailed receipt
acknowledgment. Doc. 1-2 at 2.
statutory deadline for the FWS to determine whether to comply
with the FOIA request was October 2, 2017. Doc. 1 ¶ 12;
Doc. 6 ¶ 12.
October 6, 2017, Etna, through counsel, emailed Ms.
McClurkin, “Please provide a status of the fulfillment
of the … FOIA request that was submitted at the end of
August. It has been over a month and we have yet to receive
any responsive documents. Your attention to this matter is
greatly appreciated.” Doc. 1-3 at 2.
October 12, 2017, Etna, through counsel, again emailed Ms.
McClurkin for a status of Etna's FOIA request. Doc. 1-4
at 2. Counsel stated, “If the fulfillment of our
request can be expediated as to certain documents, please
produce whatever documents are available at the time
being.” Doc. 1-4 at 2. Counsel explained Etna was
particularly interested in obtaining documents in three
categories: (1) a biological assessment by FWS biologists
referenced in a particular communication; (2) any biological
assessment the FWS made, reviewed, or approved to support the
permit; and (3) a record of decisions by the FWS for the
permit and the section 106 review. Doc. 1-4 at 2. The FWS
never determined whether expedited processing would be
granted. Doc. 1 ¶ 15; Doc. 6 ¶ 15.
October 17, 2017, state entities procured the contract to
begin construction of the project. Doc. 1 ¶ 28; Doc. 31
October 20, 2017, Ms. McClurkin emailed counsel for Etna,
“Thanks for contacting my office this morning regarding
a status update of your request. Per our discussion, the
responsive records are currently with the Ecological Services
FOIA Point of Contact (POC) for review. I contacted the FOIA
POC and he is currently reviewing some of the responsive
records.” Doc. 1-5 at 2. Ms. McClurkin continued,
“I would like to apologize for any delay of response to
your FOIA; however, our office handles FOIAs on a first in,
first out basis. We hope to have a response to you soon.
Thanks so much for your patience.” Doc. 1-5 at 2.
November 1, 2017, Ms. McClurkin emailed counsel for Etna:
I am in possession and currently reviewing some of the
documents responsive to your request. This response will
serve as [our] first partial response. After my review is
complete, the responsive documents are routed internally and
then to the Solicitor for review. Upon completion of the
Solicitor's review, it is routed for signature before
sending to you. Please allow our office until November 17,
2017 to get the first partial response sent to you. We may be
able to get the response to you sooner. We will continue
working on the remaining responsive documents and release
them to you as they are reviewed/approved for release. I will
definitely keep you updated. Thanks so much for your
Doc. 1-6 at 2.
November 3, 2017, counsel for Etna emailed Ms. McClurkin:
Thank you for your estimated time of turnover, however it is
imperative that we be able to review the documents as soon as
possible. This FOIA request has been pending for
approximately 66 days, and within this timeframe [the Florida
Department of Transportation] has already solicited and
accepted a bid to begin construction on the subject project,
Suncoast Parkway II, to which the FWS issued a permit for
takings. We have repeatedly asked for our request to be
expedited as it is necessary for us, as interested parties in
the preservation of the Etna Turpentine Camp listed on the
National Register of Historic Places, to review the
documentation that was the basis of the grant of the permit
to [the Florida Department] and [the Florida Turnpike
Again, please expedite our request for the documents as soon
as you are able. We greatly appreciate your cooperation in
Doc. 1-7 at 2.
November 22, 2017, Ms. McClurkin emailed counsel for Etna,
“Yesterday was my first day back in the office. I have
been on leave. The first response was just signed by the
Regional Director to be sent to the Solicitor's Office
for review. I will mail those documents to the
Solicitor's Office today so hopefully they will receive
them on Friday for review. I will check with the Program
Point of Contact (POC) on a second response. Thanks!”
Doc. 1-8 at 2.
December 1, 2017, FWS had sent no responsive documents,
prompting Etna's counsel to begin drafting a warning
letter. Doc. 31-2 ¶ 12.
December 5, 2017, Etna, through counsel, sent a warning
letter to Carrie Hyde-Michaels, a FOIA Public Liaison for the
FWS, requesting dispute resolution.Doc. 1-9 at 2-4. Etna
summarized the course of events and stated, “[O]ver 70
workdays have elapsed and many of the FOIA representatives
that we have contacted have a duty to make this request a
priority. Upon information and belief the fulfillment of the
request has made minimal progress for over three months. It
has been upon consistent communication by undersigned counsel
that we have received any status updates on the pending
request.” Doc. 1-9 at 2. Etna warned:
At this time we are placing you on notice that if we do not
have possession of responsive documents within 5 business
days of receipt of this letter of intent, we will be filing
legal action to comp[el] compliance with FOIA. We have
repeatedly requested expedited processing and informed the
FOIA Coordinator that time is of the essence in this matter
as it is pertinent we receive these documents at once since
the Suncoast Parkway II is underway and the Etna Turpentine
Camp is at risk of destruction.
Doc. 1-9 at 3. “The intent of the [letter] was to allow
the [FWS] the opportunity to avoid litigation by complying
with” the FOIA. Doc. 31-2 ¶ 13.
next day, on December 6, 2017, Ms. Hyde-Michaels responded by
We process our FOIA requests on a first in, first out basis
according to the processing track to which they are assigned.
Your request is currently 10th in Region 4's Exceptional
Voluminous track, which is the track for requests requiring
more than 60 workdays for processing.
You may narrow the scope of your request to obtain quicker
processing in your currently  assigned track or to move the
request into a faster processing track. If you have any
questions about this, please let me know and I would be happy
to assist you.
If you do not wish to narrow, our Region 4 FOIA contact will
continue to work diligently to process all requests,
including yours, in the order in which they were received
within their assigned processing track.
Please let me know if you have any further questions
regarding your request.
Doc. 1-10 at 2.
that day, counsel for Etna replied by email:
With all due respect, this is the very first time that we
have been notified of our place on a “track” and
the amount of days necessary for fulfillment. We were not
informed 20 workdays after the request was submitted and have
instead been awaiting the documents that we were informed
would be ready for disclosure on Nov. 17.
I have been communicating with the 4 FOIA contact since
October and was not informed that there would be a
substantial delay of more than 60 days until this morning.
Regardless of this new information, the request has remained
unfulfilled for more than 70 days, and as stated in my
correspondence to you yesterday, we have in fact narrowed the
scope of the request and on October 12 asked for it to be
expedited as to these documents[.]
Doc. 1-11 at 2. Counsel described the three limited
categories from the October 12, 2017, email, Doc. 1-4 at 2,
It is my understanding from the 4 FOIA contact that the
documents have already been reviewed by her and are with the
attorney for final review. This would indicate to me that the
documents are nearly ripe for disclosure, however it has been
almost a month since we ...