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Rocky Mountain Wild, Inc. v. United States Forest Service

United States Court of Appeals, Tenth Circuit

January 5, 2018

ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation, Plaintiff - Appellant,
UNITED STATES FOREST SERVICE, a federal agency; UNITED STATES DEPARTMENT OF AGRICULTURE, a federal agency, Defendants-Appellees.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-00127-WJM-CBS)

          Travis E. Stills of Energy and Conservation Law (and Matthew Sandler of Rocky Mountain Wild, Denver, Colorado, on the briefs), Durango, Colorado, for Plaintiff -Appellant.

          Karl L. Schock, Assistant United States Attorney (and Robert C. Troyer, Acting United States Attorney, on the brief), Denver, Colorado, for Defendants - Appellees.

          Before, PHILLIPS, KELLY, and McHUGH, Circuit Judges.

          KELLY, Circuit Judge.

          Plaintiff-Appellant Rocky Mountain Wild appeals from the district court's determination of law that Defendant-Appellee U.S. Forest Service has no duty under the Freedom of Information Act (FOIA) to disclose unseen documents in possession of third-party contractors. Rocky Mountain Wild, Inc. v. U.S. Forest Serv., 230 F.Supp.3d 1245, 1246 (D. Colo. 2017). The question on appeal is whether the documents are "agency records" within the meaning of FOIA. We have jurisdiction under 28 U.S.C. § 1291 and affirm because the documents were not created, obtained, or controlled by the Forest Service.


         The underlying dispute arises from Rocky Mountain Wild's FOIA request concerning a land exchange proposal called the Wolf Creek Project. Aplee. Supp. App. 2-4. The project proponent, the Leavell-McCombs Joint Venture (LMJV), wanted to exchange privately owned land for federal land within the Rio Grande National Forest. Id. at 2-3. LMJV and the Forest Service entered into a Memorandum of Understanding (MOU) whereby LMJV agreed to hire a third-party contractor to prepare an environmental impact statement (EIS) for the proposed exchange. Aplt. App. 145. They selected Western Ecological Resource, Inc., to prepare the EIS in accordance with the MOU, and LMJV and Western Ecological entered into an employment agreement to that effect. Id. at 101. After distributing a draft for public comment, the Forest Service published the final EIS, and Rocky Mountain Wild filed its FOIA request that same day. Aplee. Supp. App. 3-4.

          Rocky Mountain Wild and the Forest Service were able to agree on the disclosure of all requested materials except for one category: documents in Western Ecological's (and 13 subcontractors') possession that were never shared with the Forest Service. Rocky Mountain Wild, 230 F.Supp.3d at 1246-47. The Forest Service filed a motion for a determination of law regarding its obligation under FOIA to produce these records, and the district court ruled that the Forest Service has "no duty, under the circumstances, to disclose third-party contractors' records that it has never seen or relied upon." Id. at 1246. Specifically, the district court assumed (for the sake of argument) that the Forest Service created the records, id. at 1248, and held that "the Forest Service does not exercise sufficient 'control' to make those records 'agency records' for FOIA purposes, " id. at 1252.


         Whether an agency has improperly withheld a record from a FOIA request is a question of law that we review de novo. See Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). Here, the Forest Service argues that the contractor documents were not improperly withheld, because they are not "agency records" subject to FOIA. To be "agency records, " (1) "an agency must 'either create or obtain' the requested materials" and (2) "the agency must be in control of the requested materials at the time the FOIA request is made." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (quoting Forsham v. Harris, 445 U.S. 169, 182 (1980)). The burden is on the agency to demonstrate that the requested materials are not agency records. Id. at 142 n.3.

          A. Whether the Forest Service Created or Obtained the Requested Materials

         The first issue is whether the Forest Service created or obtained the requested materials. By FOIA's terms, an "agency" "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f)(1) (2012). "In general, FOIA . . . does not apply to private companies, persons who receive federal contracts or grants, private organizations, or state or local governments." H.R. Rep. No. 112-689, at 5 (2012) (footnote omitted).

         Here, private contractors - not the Forest Service - created the requested materials. For a private organization to be considered "federal" for FOIA purposes, there must be "substantial federal supervision of the private activities" apart from the supervision "necessary to assure compliance" with agency goals. Forsham, 445 U.S. at 180 n.11. "A critical element in distinguishing an agency from a contractor is the power of the Federal Government 'to control the detailed physical performance of the contractor.'" United States v. Orleans, 425 U.S. 807, 814 (1976) (quoting Logue v. United States, 412 U.S. 521, 528 (1973)). Taking "action to compel compliance with federal standards" or fixing "specific and precise conditions to implement ...

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