Feds Can Withhold GPS|Data on Wolf Attacks

(CN) - Federal law allows the Department of Agriculture to keep secret the exact locations of livestock killings by Mexican gray wolves in the Southwest, the 9th Circuit ruled Thursday. Environmentalists had argued that the law doesn't apply, because it went into effect after the government denied their request for GPS coordinates.

The appellate panel in San Francisco reversed a lower court's ruling that required the agency to disclose the GPS coordinates of wolf attacks on ranches and farms in New Mexico and Arizona.

The Tucson-based Center for Biological Diversity, Defenders of Wildlife and the Sierra Club asked for the coordinates under the Freedom of Information Act in 2008. They argued that the federal Wildlife Services Program, which includes the removal or capture of wolves that prey on livestock, limits the growth of the Mexican wolf species, which was reintroduced to the area in the 1990s.

The agency released information about the program's wolf-complaint investigations and wolf killings, but redacted the GPS data, arguing that "geospatial information" was exempt under FOIA's privacy provisions and by the Food, Conservation, and Energy Act of 2008 (FCEA).

The environmental groups challenged the government's stance in a lawsuit against the USDA, the Wildlife Services Program and the Animal and Plant Health Inspection Service.

A federal judge ordered the agencies to disclose the data, finding that the FCEA trumped the FOIA exemption, and the FCEA didn't apply, either, because it became law after the Wildlife Service denied the groups' request.

A three-judge appellate panel reversed, saying the GPS data clearly falls under a FCEA provision "intended to prohibit disclosure of GPS data like that at issue."

Environmentalists had argued that legislative history suggests the provision applies only to "proprietary information and only to private land."

"Yet when, as here, the text of a statute is clear, it is not necessary to turn to legislative history," Circuit Judge Pamela Rymer wrote. She said the requested GPS coordinates fall within the scope of FCEA's ban on the disclosure of "geospatial information" that the USDA maintains for its agricultural programs.

Rymer also disagreed with the federal court's finding that the FCEA exemption does not apply because it was enacted after the agency refused to disclose the coordinates.

"Here, the Center seeks the prospective relief of an injunction directing the USDA to provide it with certain information," she wrote. The FCEA exemption "merely affects the propriety of this prospective relief and is therefore not impermissibly retroactive when applied in this case," the judge added.

Rymer cited a 2002 decision involving the same parties, in which the 9th Circuit held that there is "no impermissible retroactive effect in applying [the FCEA exemption] to the Center's pending FOIA action," Rymer wrote.

"[T]he only action the Center took was to request information and file suit," she explained. "It engaged in no other action in reliance on then-existing law. We have already explicitly rejected the theory that there is an impermissible retroactive effect just because 'the Center had a right to the information when it filed its suit ... and it loses that right by application of the new exemption.'"

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