Colo. Wild Pub. Lands v. U.S. Forest Serv., No. 21-2802, 2024 WL 1555865 (D.D.C. Apr. 10, 2024) (Cooper, J.)

Colo. Wild Pub. Lands v. U.S. Forest Serv., No. 21-2802, 2024 WL 1555865 (D.D.C. Apr. 10, 2024) (Cooper, J.)

Re:  Request for records concerning agency’s evaluation of a proposed land exchange in San Juan National Forest, including third-party appraisals of the relevant parcels

Disposition:  Granting defendant’s motion to dismiss; denying as moot plaintiff’s motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal & “Policy or Practice” Claims & Vaughn Index/Declaration; Attorney Fees:  The court relates that “[w]ith all outstanding records now in [plaintiff’s] hands, the Service reasonably gathers that there is nothing left of this dispute.”  “And still, [plaintiff] remains unsatisfied.”  “In opposing the motion to dismiss, [plaintiff] first contends that the Forest Service failed to demonstrate that it fully satisfied its FOIA duties with respect to the specific record requests at issue.”  “Next, it asserts that this case remains live because the voluntary release of these contested records perpetuates the Service’s supposed illegal ‘pattern[s] and practice[s] of denying access to agency records until well after the administrative procedures close’ and inadequately explaining its initial FOIA decisions when releasing records during litigation.”  “Finally, even if the present dispute is indeed moot, [plaintiff] urges the Court to enter judgment in its favor anyway.”  The court finds that, “[b]y continuing to litigate, it seems [plaintiff] is having a hard time accepting ‘yes’ for an answer.”  “For starters, the Court fails to see how the Forest Service’s declaration that it released all records for which the Court did not award it summary judgment does not moot this case.” Additionally, the court finds that “[plaintiff’s] various complaints over how the Forest Service released these records are similarly unavailing.”  “It whin[]es that the Forest Service did not provide a new Vaughn Index when releasing the records.”  “But agencies are not required to file a Vaughn Index . . . and it is doubtful that one would be useful here given that the Service clearly explained that the only redactions remaining are the personal materials (other than realtor contact information) lawfully withheld under Exemption 6.”  “There is also no requirement that agencies file an ‘updated reissuance response letter’ with the Court, as [plaintiff] suggests.”  “But, for good measure, the Service now has done so.”  “[Plaintiff] also protests that [defendant] sent the reissuance letter, signed by [its] Deputy Director . . . , to the counsel who handled the administrative appeal rather than to litigation counsel.”  “Yet the fact that [defendant’s declarant] did not herself sign the reissuance letter is immaterial because she still had personal knowledge of its contents.”  “And it makes no difference that she sent the letter to appeal counsel.”  “Producing the records in this manner was perfectly sensible, and, regardless, the Forest Service has now sent the letter to [plaintiff’s] litigation counsel as well."
  
  “The efforts to keep the case alive with late-breaking ‘policy-or-practice’ claims fare no better.”  “[Plaintiff] now maintains that ‘[u]nlike the policy applicable to appraisals that the Court declared unlawful’ in its prior opinion, the Forest Service’s delayed release of these records perpetuates its ‘pattern and practice of denying access to agency records until well after the administrative procedures close.’”  “It also takes issue with the Service’s ‘production via the administrative appeals process instead of through litigation as well as the inadequate agency statements regarding the release.’”  “To the extent these are truly new claims, [plaintiff] offers no reasoned account for why it did not raise them when it moved for summary judgment on its policy-or-practice claim that the Forest Service was withholding appraisal records until after it had finalized land exchanges.”  “Accordingly, the Court will not expand the dispute by entertaining these contentions, as it is well-established that a plaintiff ‘cannot keep [a] case alive indefinitely by shifting [its] legal theories at the last minute.’”
  
  “As a final entreaty, [plaintiff] urges the Court to award it summary judgment ‘without further consideration of Defendant’s unsupported motion to dismiss.’”  “Of course, the Court cannot simply skip over the ‘threshold’ issue of mootness and pass judgment on stale disputes.”  “And, once again, it fails to see how doing so here would materially advance [plaintiff’s] interests.”  “The Court suspects that [plaintiff’s] insistence on a ruling on its now-moot motion for summary judgment is motivated by a fear that the Forest Service’s ‘voluntary’ release of the records may be a covert effort to minimize ‘recovery in the upcoming statutory attorney’s fees phase of this litigation.’”  “Such fears are unwarranted because, under FOIA, a plaintiff is eligible for attorney’s fees and costs when it ‘substantially prevail[s],’ meaning its ‘suit yields relief in the form of “a judicial order, or an enforceable written agreement or consent decree” or “a voluntary or unilateral change in position by the agency.”’”  “It is patently obvious that the Service’s release of the remaining records was a response to this litigation and, more specifically, this Court’s prior decision.”  “A formal entry of judgment would therefore be just that:  a mere formality devoid of consequence.”  “More importantly, any fight over attorney’s fees is a skirmish for another day.”  “For now, it is enough to recognize that the current campaign concluded when the Forest Service waived the white flag by releasing the remaining records.”