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.
from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-00127-WJM-CBS)
E. Stills of Energy and Conservation Law (and Matthew Sandler
of Rocky Mountain Wild, Denver, Colorado, on the briefs),
Durango, Colorado, for Plaintiff -Appellant.
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.
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.
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.
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.
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.
Whether the Forest Service Created or Obtained 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).
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 ...