Grizzly Bear Activist Loses FOIA Challenge

     CHICAGO (CN) – Though a lawsuit prompted the disclosure of dozens more records on grizzly bear preservation efforts, it is hard to prove intentional government stonewalling, a federal magistrate ruled.
     Today there are between 1,400 and 1,700 grizzly bears on 2 percent of their historic range, down from the roughly 50,000 grizzlies that roamed the lower 48 states in the 1800s. Only an estimated 400 to 600 grizzlies remain in the Greater Yellowstone Habitat.
     Grizzly bears are currently listed as “threatened,” a label that environmentalists still contest .
     Chicago-based grizzly bear activist Robert Aland had used the Freedom of Information Act to obtain records about efforts by the U.S. Department of Interior and the U.S. Fish & Wildlife Service to remove grizzly bears from the endangered species list.
     Specifically, Aland sought documents related to the drafting of a May 2012 letter from Wyoming Gov. Matthew Mea to then-Secretary of Interior Ken Salazar requesting an expedited effort to remove protection for grizzlies; Salazar’s responsive letter; and documents discussing a 2011 9th Circuit decision that keeping grizzlies on the endangered species list.
     The agencies claim that they responded to Aland’s request and withheld just five documents based on privilege.
     It took them nearly a year to produce the documents, which they provided to Aland without an index. Only after he filed suit did the agencies find an additional 47 responsive documents and provide an index.
     Aland’s complaint says it was “clear” to him that the agencies were being “intentionally non-responsive.”
     U.S. Magistrate Judge Susan Cox disagreed, finding that Aland “provides no support for his speculation that defendants have intentionally provided non-responsive documents, or that there are more responsive records that exist, and has cited no case law that would require defendants to correlate their production to his FOIA requests by paragraph number.”
     “Perhaps more correct is that plaintiff ‘misunderstands the uses and limits of the Freedom of Information Act, and the government’s motion obscures its own best argument, which is that FOIA provides access to existing records but does not establish a research service,'” she added.
     While the agencies’ search may have been disjointed, there is no support for Aland’s assertion that Gov. Mea’s letter to Salazar must have generated more records that the agencies disclosed, the court said.
     In addition, documents discussing the effects of a sheep-grazing program on the bears’ habitat were properly withheld under the deliberative-process privilege, according to the ruling.
     These same documents discuss the agencies’ options with regard to the 9th Circuit’s grizzly bear decision, but “portions of these emails that discuss the Ninth Circuit case have not been redacted by defendants,” Cox wrote.
     “Rather, the redacted information all relates to relocating sheep grazing out of grizzly bear habitat, and how that relates to grizzly bear de-listing,” she added.
     The U.S. Fish and Wildlife Service’s sheep-grazing program is also a target of litigation by environmentalists.
     “These emails can be considered predecisional, as it appears that the agency has yet to decide what it will be doing with respect to sheep grazing in the bears’ habitat and, ultimately, what it will do prior to again attempting to de-list the grizzly bear,” Cox said.

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