Forest Guardians v. United States Department of the Interior

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 22, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

FOREST GUARDIANS, a non-profit
New Mexico corporation,

Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF
THE INTERIOR; BUREAU OF LAND
MANAGEMENT,
No. 04-2098
Defendants-Appellees.

and

NEW MEXICO PUBLIC LANDS
COUNCIL, a non-profit organization
on behalf of their respective members;
NEW MEXICO CATTLE GROWERS
ASSOCIATION, a non-profit
organization on behalf of its members,

Defendants-Intervenors.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-02-1003 JB/WDS)
Richard J. Mietz, Santa Fe, New Mexico, for Plaintiff-Appellant.

Robert D. Kamenshine, Appellate Staff, Civil Division, Department of Justice,
Washington, D.C. (Peter D. Keisler, Assistant Attorney General, Robert G.
McCampbell, United States Attorney, Leonard Schaitman, Appellate Staff, Civil
Division, Department of Justice, Washington, D.C., with him on the brief), for
Defendants-Appellees.

Before BRISCOE, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff-appellant Forest Guardians sought to obtain information and a

waiver of all search and copying fees from the Bureau of Land Management

(“BLM”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. After

the BLM refused to release the information and denied the fee waiver, Forest

Guardians sued the BLM in federal district court. 1 The district court granted

Forest Guardians’ revised request for certain redacted documents but denied the

requested fee waiver. Forest Guardians has appealed, challenging the denial of

the fee waiver. 2 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court

The district court allowed the New Mexico Public Lands Council and New
1

Mexico Cattle Growers’ Association to intervene as defendants on behalf of their
members who pledged their BLM grazing permits as collateral for loans.
2
Neither the BLM nor the intervenors appeal that portion of the district
court’s order requiring the BLM to produce the redacted documents.

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reverses and remands with instructions to grant Forest Guardians’ request for a

fee waiver under the FOIA.

II. BACKGROUND

Forest Guardians is a New Mexico nonprofit organization that seeks to

increase public awareness of land management issues confronting federal

agencies with responsibility over public land, water, and fish and wildlife

habitats. Forest Guardians’ mission is to acquire, compile, and analyze

information and data regarding natural resources on federal public lands in the

western United States, and federal activities and federally permitted activities on

those lands. As part of this mission, Forest Guardians disseminates the

information it obtains to its members, the general public, and to public officials.

The BLM operates within the United States Department of the Interior

(“DOI”). The BLM administers public lands throughout the United States which

includes issuing permits authorizing livestock grazing on certain public lands.

See 43 U.S.C. §§ 315, 315a, 315b; 43 C.F.R. § 4100.0-5 (defining grazing

permit). In these permits, the BLM sets the number of cattle that can graze on

specific land areas. See 43 C.F.R. § 4100.0-5. Ranchers often use the BLM

grazing permits as collateral, along with the value of the base property, 3 when

3
Base property is defined as “[l]and that has the capability to produce crops
or forage that can be used to support authorized livestock for a specified period of
(continued...)

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seeking to obtain loans from various financial institutions. The greater the

number of cattle the BLM allows to graze, the more valuable the particular

grazing permit and, correspondingly, the greater the value of the collateral

pledged to the lending institutions. Permit holders who obtain loans secured by

federal grazing permits execute agreements with the lending institutions called

lienholder agreements or collateral assignments. These agreements contain

various information, including the name of the permit holder, the location of the

relevant grazing allotment, the name of the lending institution, the amount of the

loan, the date of the loan, payoff dates and amounts, and any additional pledged

collateral. Typically, the lending institutions voluntarily submit these lienholder

agreements to the BLM which maintains the records on file. The BLM notifies

lienholders of record when the agency receives an application to transfer a

grazing permit from one base property to another because the lender must consent

to the transfer. See id. at § 4110.2-3(c). It is also the BLM’s practice to notify

3
(...continued)
the year” or “water that is suitable for consumption by livestock and is available
and accessible, to the authorized livestock when the public lands are used for
livestock grazing.” 43 C.F.R. § 4100.0-5. Land or water owned by a grazing
permit applicant will be deemed base property if the land or water “is capable of
serving as a base of operation for livestock use of public lands within a grazing
district” or if “[i]t is contiguous land, or, when no applicant owns or controls
contiguous land, noncontiguous land that is capable of being used in conjunction
with a livestock operation which would utilize public lands outside a grazing
district.” Id. at § 4110.2-1(a)(1)–(2).

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the lenders when the agency takes steps that might affect the utility or value of a

grazing permit.

On July 13, 2000, Forest Guardians submitted FOIA requests to ten BLM

state offices in the West. 4 Forest Guardians sought copies of the lienholder

agreements on file with the BLM and other documents relating to the use of BLM

grazing permits as collateral for private loans. 5 Forest Guardians’ FOIA requests

4
Substantially identical requests were submitted to the BLM offices in
Arizona, California, Colorado, Idaho, Montana, New Mexico, Oregon, Nevada,
Utah, and Wyoming.
5
More specifically, Forest Guardians requested the following materials:

(a) Copies of all documents, which are “collateral assignments” of all
grazing permits for all grazing allotments in the state. This includes,
but is not limited to, any and all “notices of lienholder’s interest,”
“promissory notes,” or any and all other documents which refer to the
use of a federal grazing permit as a lien or collateral security for a
loan. In particular we are interested in the [sic] knowing the names
of allotments, permit holders, names of lending institutions and the
amount of money involved in each individual agreement.

(b) Any and all letters from financial/lending institutions concerning
livestock grazing on BLM lands. In particular, we are interested in
any letters from lending institutions, which address BLM
management efforts to restore degraded land.

(c) Any and all letters from the BLM to financial/lending institutions
concerning management of livestock grazing on public lands.

(d) Any and all BLM databases which identify which permits on
which allotments are utilized as collateral. Any and all BLM memos,
letters of communication which address the use of BLM grazing
permits as collateral security for loans.

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each asked for a waiver of any fees associated with processing the request.

Ultimately, all of the BLM offices refused to provide the documents, claiming the

information fell under Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6). 6 The

BLM offices also denied the requested fee waiver, concluding that because the

requested records related only to a private transaction between a permit holder

and a financial lending institution, the records did not concern the operations or

activities of the BLM. As a consequence, the BLM determined that the records

were not likely to contribute to the public’s understanding of the BLM’s

operations or activities, much less contribute significantly.

In response to the BLM’s rejection, Forest Guardians filed an

administrative appeal with the DOI, limited to the BLM’s refusal to disclose the

lienholder agreements and the denial of the fee waiver request. When the DOI

failed to respond, Forest Guardians filed a complaint seeking declaratory and

injunctive relief in United States District Court for the District of New Mexico.

Forest Guardians filed a motion for summary judgment. In its motion,

Forest Guardians limited the scope of relief sought to (1) an identification (for

each BLM field office) of the names of the financial institutions involved in the

practice of lending using BLM grazing permits as collateral, and (2) aggregated

6
This provision exempts an agency from providing “personnel and medical
files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

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financial information (by field office) as to the total dollar amount of loans

secured by BLM grazing permits. Forest Guardians emphasized that it did not

believe any of the information contained in the lienholder agreements is exempt

under the FOIA, but for purposes of the present litigation it elected to limit the

scope of relief sought.

The district court granted in part and denied in part Forest Guardians’

motion for summary judgment. The court concluded that the BLM failed to

demonstrate that release of the redacted lienholder agreements sought by Forest

Guardians would constitute a “clearly unwarranted invasion of personal privacy”

so as to outweigh the legitimate public interest served by disclosure of the

requested information. The court therefore ordered the BLM to redact any

personal financial or other information from the requested lienholder agreements

and to release, organized by field office, redacted copies of the lienholder

agreements which disclose: (1) the identities of all institutional lenders using

BLM grazing permits as collateral, and (2) the amount of each loan involved.

The court then determined that the BLM properly denied Forest Guardians’

request for a fee waiver. Although it recognized that the redacted lienholder

agreements are related to the operations and activities of the BLM and likely to

contribute to the public’s understanding of the operations and activities of the

BLM, the court determined that any such contribution would not be significant.

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On appeal Forest Guardians argues that the district court erred in concluding that

Forest Guardians failed to satisfy the criteria necessary to qualify for a FOIA fee

waiver. 7

III. STANDARD OF REVIEW

The grant or denial of summary judgment is reviewed de novo applying the

same legal standard used by the district court. Simms v. Oklahoma ex rel. Dep’t

of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.

1999). Judicial review of a FOIA fee waiver decision is de novo and limited to

the record before the agency. 5 U.S.C. § 552(a)(4)(A)(vii). The record before the

agency consists of, inter alia, the initial FOIA request, the agency’s response, and

any subsequent materials related to the administrative appeal. The burden of

demonstrating that the standard for obtaining a FOIA fee waiver is met rests with

the requester. Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988).

7
The record indicates that to search, copy, redact personal information, list
lending institutions, and aggregate loan amounts would cost approximately
$88,000. In a Fed. R. App. P. 28(j) letter submitted to this court, the BLM states
that Forest Guardians would be assessed the search and copying costs, but not the
redaction costs. It is not clear from the record what portion of the $88,000 is
related to redaction, but it appears that the total cost charged to Forest Guardians
would be close to $88,000.

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IV. DISCUSSION

A. FOIA Fee Waiver Standard

Under the FOIA, government agencies are directed to provide documents

for no charge or at a reduced rate “if disclosure of the information is in the public

interest because it is likely to contribute significantly to public understanding of

the operations or activities of the government and is not primarily in the

commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii); see also 43

C.F.R. § 2.19 (setting out the same two-part test under DOI regulations). Because

the BLM has never claimed that the requested documents are in Forest Guardians’

commercial interest, the resolution of this case turns on whether the information

sought by Forest Guardians would contribute significantly to the public’s

understanding of the operations or activities of the BLM.

Fee waiver requests must be made with “reasonable specificity” and contain

more than “conclusory allegations.” Judicial Watch, Inc. v. Rossotti, 326 F.3d

1309, 1312 (D.C. Cir. 2003) (quotations omitted). Legislative history shows that

the FOIA fee waiver provision “‘is to be liberally construed in favor of waivers

for noncommercial requesters.’” McClellan Ecological Seepage Situation v.

Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (quoting 132 Cong. Rec. S14,298

(Sept. 30, 1986) (statement of Sen. Leahy)); see also Judicial Watch, Inc., 326

F.3d at 1312 (agreeing with liberal construction). Despite this “liberal

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construction,” noncommercial public interest groups must still satisfy the

statutory standard to obtain a fee waiver. McClellan Ecological Seepage

Situation, 835 F.2d at 1284.

B. Application of the Standard

1. Operations or Activities of the Government

Although the redacted lienholder agreements derive from a private

transaction, the BLM directly facilitates the transaction by keeping the

agreements on file and by notifying the lender institutions of proposed permit

transfers and any agency action that might affect the value of the permit. As the

district court noted, “public funds and resources are used to facilitate the practice

of accommodating financial institutions who make private loans using the

privilege to graze on public lands as collateral.” Dist. Ct. Order at 37. The

requested records therefore have a direct connection to the operations and

activities of the BLM.

Forest Guardians also asserted that the lienholder agreements, although

recording a private business transaction, indirectly pertain to the land

management policy of the BLM by shedding light on the potential influence

private groups have over this policy. More specifically, Forest Guardians

believes that the large financial stake that lending institutions have in the value of

grazing permits may create substantial economic and political pressure on the

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BLM to maintain high levels of grazing. Materials submitted to the BLM by

Forest Guardians described the activities of the BLM related to the issuance of

grazing permits and provided information on the extent of the financial

institutions’ involvement in the collateralization of grazing permits. See, e.g.,

Appellant’s App. at 43-55. 8 By its very nature, the influence private groups may

have over the BLM’s land management policy is not likely to be out in the open

and to require Forest Guardians to provide more concrete factual support for its

assertions would be setting the bar too high. Cf. Renegotiation Bd. v. Bannercraft

Clothing Co., 415 U.S. 1, 17 (1974) (purpose of the FOIA). By submitting

documentation demonstrating the BLM’s direct facilitation of the collateralization

of grazing permits and supporting the possible influence of private groups on the

BLM’s decision-making process, Forest Guardians has shown that the requested

records relate to the operations or activities of the BLM.

8
This information was contained in an amicus brief filed by the State Bank
of Southern Utah in support of Public Lands Council’s attempt to seek Supreme
Court review in Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir.), cert.
granted, 528 U.S. 926 (1999), and aff’d, 529 U.S. 728 (2000), which discusses
the use of grazing permits as collateral and its importance to the banking industry
in the western United States. In its brief, the bank asserted, among other things,
that financial institutions hold an estimated $10 billion in loans and related credit
transactions to the public land ranching industry, with the grazing preference
rights alone worth approximately $1 billion.

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 2. Contributing to the Public’s Understanding

FOIA fee waivers are limited to disclosures that enlighten more than just

the individual requester but will contribute to the general public’s understanding

of the government’s operations or activities. To clarify the second part of the fee

waiver test, DOI regulations direct requesters to address the following criteria:

(i) How are the contents of the records you are seeking
meaningfully informative on the Department’s or a bureau’s
operations and activities? Is there a logical connection between the
content of the records and the operations or activities you are
interested in?
(ii) Other than enhancing your knowledge, how will disclosure
of the requested records contribute to the understanding of the public
at large or a reasonably broad audience of persons interested in the
subject?
(iii) Your identity, vocation, qualifications, and expertise
regarding the requested information (whether you are affiliated with
a newspaper, college or university, have previously published
articles, books, etc.) may be relevant factors. However, merely
stating that you are going to write a book, research a particular
subject, or perform doctoral dissertation work, is insufficient,
without demonstrating how you plan to disclose the information in a
manner which will be informative to a reasonably broad audience of
persons interested in the subject.
(iv) Do you have the ability and intention to disseminate the
information to the general public or a reasonably broad audience of
persons interested in the subject?
(A) How and to whom do you intend to disseminate the
information?
(B) How do you plan to use the information to
contribute to public understanding of the Government's
operations or activities?

43 C.F.R. Part 2, App. D (b)(2)(i)–(iv).

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 In the materials submitted to the BLM, Forest Guardians asserted that the

requested records provide important information related to the BLM’s facilitation

of the collateralization of grazing permits and may show how, if at all, the BLM’s

land management policy is influenced by particular special interest groups. The

use of public funds to facilitate the collateralization of grazing permits on public

land is certainly important to the public’s understanding of the BLM. An

understanding of how the BLM makes policy decisions, including the influence of

any outside groups on this process, is also important to the public’s understanding

of the BLM. Cf. Judicial Watch, Inc., 326 F.3d at 1313-14 (noting that question

of whether documents related to IRS commissioner’s possible conflict of interest

contribute to public’s understanding of IRS operations does not depend on

whether, in fact, the commissioner had a conflict of interest). The redacted

records sought by Forest Guardians reveal the names of the particular lending

institutions, the total dollar amount of loans secured by grazing permits, and the

BLM field office to which such permits are attached. The records will therefore

inform the public of the extent of the BLM’s facilitation of the collateralization

of grazing permits by way of the BLM’s administrative policies and regulations.

Additionally, by identifying particular lenders and revealing the monetary and

geographical scope of the collateralization program, the records arguably

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elucidate the decision-making process of the BLM related to its land management

policy.

In its fee waiver request Forest Guardians explained the organization’s

mission and goals. Forest Guardians also provided a detailed explanation of the

means by which it communicates information to the public and how it planned on

disseminating the requested records. See 43 C.F.R. Part 2, App. D

(b)(2)(iv)(A)–(B). Among other things, Forest Guardians “publishes an online

newsletter, which is e-mailed to more than 2,500 people” and stated that it

“intend[s] to establish an interactive grazing web site” with the information

obtained from the BLM. By demonstrating that the records are meaningfully

informative to the general public and how it will disseminate such information,

Forest Guardians has shown that the requested information is likely to contribute

to the public’s understanding of the BLM’s operations and activities.

3. Significance of the Contribution

A fee waiver is not appropriate unless the information obtained under the

FOIA “is likely to contribute significantly to public understanding of the

operations or activities of the government.” 5 U.S.C. § 552(a)(4)(A)(iii). With

regard to this part of the fee waiver test, DOI regulations direct requesters to

address the following:

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 (i) Is the information being disclosed new?
(ii) Does the information being disclosed confirm or clarify
data which has been released previously?
(iii) How will disclosure increase the level of public
understanding of the operations or activities of the Department or a
bureau that existed prior to disclosure?
(iv) Is the information already publicly available? If the
Government previously has published the information you are
seeking or it is routinely available to the public in a library, reading
room, through the Internet, or as part of the administrative record for
a particular issue (e.g., the listing of the spotted owl as an
endangered species), it is less likely that there will be a significant
contribution from release.

43 C.F.R. Part 2, App. D (b)(3)(i)–(iv).

To the extent the information concerns the existence of the BLM’s policy

of allowing the collateralization of grazing permits, it is not new. See id. at Part

2, App. D (b)(3)(i). The materials submitted by Forest Guardians in its initial fee

waiver request and subsequent administrative appeal demonstrate that the

existence of the program is relatively well-known. The requested records,

however, concern the scope of the program, the extent of public lands attached to

the collateralized grazing permits, and the identities of the financial institutions

involved. This information not only confirms previously released information on

the existence of the collateralization program, but clarifies its scope. See id. at

Part 2, App. D (b)(3)(ii).

Forest Guardians explained that it hopes to inform the public about the

extent of the program and the possible influence of the lending industry on the

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BLM’s land management policies. 9 The requested records are likely to increase

the public’s understanding by revealing the monetary scope of the

collateralization, identifying the specific financial lending institutions involved,

and associating the collateralized grazing permits with particular land areas.

Knowing that the BLM permits the use of grazing permits as collateral is not the

same as knowing the dollar amounts attached to particular areas of public land

and the identities of the financial institutions holding the collateral. In addition

to demonstrating the substantive impact of disclosing the requested records,

Forest Guardians asserted that it plans to make the information widely and easily

available, vastly increasing the number of people aware of the collateralization

program itself and the BLM’s facilitation of the program. Release of the records

will therefore increase the public’s understanding of the operations or activities of

the BLM. See id. at Part 2, App. D (b)(3)(iii).

The district court correctly noted that the information sought by Forest

Guardians is publicly available and this generally is a factor that weighs against

9
The district court expressed concern that Forest Guardians’ original FOIA
request was more directly related to the operations and activities of the BLM
because it sought to obtain correspondence between BLM and financial/lending
institutions concerning grazing on BLM lands. Dist. Ct. Order. at 41. While this
is no doubt true and it would be easier for Forest Guardians to demonstrate the
significant contribution of the release of such correspondence, the existence of a
prior, broader information request should not weigh against the granting of a fee
waiver request. The request for a fee waiver is distinct from a FOIA records
request and must be evaluated on its own merits.

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granting a fee waiver. See id. at Part 2, App. D (b)(3)(iv). The lienholder

agreements are not, however, “routinely available to the public in a library,

reading room, through the Internet, or as part of the administrative record for a

particular issue.” Id. The information is instead before the public “in

courthouses across the west, newspaper articles, and affidavits.” Dist. Ct. Order

at 41. The information, therefore, is publicly accessible in only the grossest

sense. See Campbell v. United States Dep’t of Justice, 164 F.3d 20, 36 (D.C. Cir.

1999) (“[T]he mere fact that material is in the public domain does not justify

denying a fee waiver; only material that has met a threshold level of public

dissemination will not further ‘public understanding’ within the meaning of the

fee waiver provisions.”).

While the requested records may be publicly available in piecemeal and

hard-to-access form, Forest Guardians plans to broadly disseminate compiled

information. In particular, Forest Guardians contends that it aims to place the

information on the Internet, establishing “an interactive grazing web site in which

members of the public will be able to click on regions of the West and obtain as

much information as they are interested in about the status of ongoing livestock

grazing on public lands.” Appellant’s App. at 59 (FOIA request letter). This type

of accessibility is qualitatively different from and exponentially greater than the

existing availability of the information sought by Forest Guardians. The DOI

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regulations appear to contemplate this level of public availability. See 43 C.F.R.

Part 2, App. D (b)(3)(iv) (asking whether information is “routinely available”).

Thus, contrary to the ruling of the district court, the existing availability of the

information does not weigh against granting Forest Guardians’ request for a fee

waiver.

Whether Forest Guardians has satisfied the third prong of the fee waiver

standard is concededly a close question. Given that Congress intended courts to

liberally construe the fee waiver requests of noncommercial entities, Forest

Guardians should get the benefit of the doubt. See McClellan Ecological Seepage

Situation, 835 F.2d at 1284. This court therefore concludes that Forest Guardians

has established that the contribution of the requested documents to the public’s

understanding of the operations or activities of the BLM is likely to be

significant.

V. CONCLUSION

For the reasons set out above, we REVERSE that part of the district

court’s judgment denying Forest Guardians’ motion for summary judgment and

REMAND with instructions to grant Forest Guardians’ request for a fee waiver

under the FOIA.

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