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Friends of Etna Turpentine Camp, Inc. v. United States Fish and Wildlife Service

United States District Court, M.D. Florida, Jacksonville Division

July 9, 2019

Friends of Etna Turpentine Camp, Inc., Plaintiff,
v.
United States Fish and Wildlife Service & United States Department of the Interior, Defendants.

          REPORT & RECOMMENDATION

          PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.

         The 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.

         Before 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, [1] 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.

         The 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.

         I. Background

         The 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 Camp:

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., 5:18-cv-291-Oc-30PRL.

         Plaintiff 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.

         Underlying 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:[2]

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.

         II. Facts and Procedural History

         These 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 motion).

         A. Pre-Action Events

         Since August 2016, the law firm of Robert N. Hartsell, P.A., has been legal counsel for Etna. Doc. 31-2 ¶ 8.

         Sometime 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.

         On 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.

         With 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.

         On 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.

         The statutory deadline for the FWS to determine whether to comply with the FOIA request was October 2, 2017.[3] Doc. 1 ¶ 12; Doc. 6 ¶ 12.

         On 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.

         On 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.[4] Doc. 1 ¶ 15; Doc. 6 ¶ 15.

         On October 17, 2017, state entities procured the contract to begin construction of the project. Doc. 1 ¶ 28; Doc. 31 at 7.

         On 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.”[5] Doc. 1-5 at 2.

         On 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 continued patience!

Doc. 1-6 at 2.

         On 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 Enterprise].
Again, please expedite our request for the documents as soon as you are able. We greatly appreciate your cooperation in this matter.

Doc. 1-7 at 2.

         On 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.

         By December 1, 2017, FWS had sent no responsive documents, prompting Etna's counsel to begin drafting a warning letter. Doc. 31-2 ¶ 12.

         On December 5, 2017, Etna, through counsel, sent a warning letter to Carrie Hyde-Michaels, a FOIA Public Liaison for the FWS, requesting dispute resolution.[6]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.

         The next day, on December 6, 2017, Ms. Hyde-Michaels responded by email:

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.

         Later 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, and continued:

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 ...

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