FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY;
DEFENDERS OF WILDLIFE; SIERRA
CLUB,
Plaintiffs-Appellees, No. 09-17233
v.
D.C. No.
4:07-cv-00629-JMR
UNITED STATES DEPARTMENT OF
AGRICULTURE, Wildlife Services, OPINION
Animal and Plant Health
Inspection Service,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted
November 1, 2010—San Francisco, California
Filed December 2, 2010
Before: Arthur L. Alarcón and Pamela Ann Rymer,
Circuit Judges, and David G. Trager,
Senior District Judge.*
Opinion by Judge Rymer
*The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
19151
19154 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
COUNSEL
John S. Koppel, U.S. Department of Justice, Washington,
D.C., for the appellant.
Matt Kenna, Western Environmental Law Center, Durango,
Colorado, for the appellees.
OPINION
RYMER, Circuit Judge:
The United States Department of Agriculture (USDA)
appeals the district court’s grant of summary judgment in
favor of the Center for Biological Diversity, which required
the USDA, under the Freedom of Information Act (FOIA), to
disclose the GPS coordinates of wolf depredations to which
it had responded. The district court held that the coordinates
were not exempt from disclosure under FOIA Exemption 3 or
Exemption 6. We have jurisdiction under 28 U.S.C. § 1291,
and we reverse. Exemption 3 applies because Section 8791 of
the Food, Conservation, and Energy Act of 2008 (FCEA)
exempts from disclosure such geospatial data and applies to
this case even though it took effect after the USDA withheld
the coordinates.
I
The facts are largely not in dispute. The USDA operates the
Wildlife Services program (WS) through the Animal and
Plant Health Inspection Service (APHIS). The WS program
reduces crop and livestock depredations caused by the Mexi-
CENTER FOR BIOLOGICAL DIVERSITY v. USDA 19155
can wolf, along with birds, rodents, and other predators. The
WS enters into agreements with individuals, referred to as
ranchers or cooperators, to access their land to remove or cap-
ture the wolves.
The Center for Biological Diversity and other conservation
groups (collectively, the Center) are concerned about the
reduced number of Mexican wolves remaining in the wild and
believe that WS removals limit the growth of the species. As
a result, the Center submitted a FOIA request to APHIS that
included, in relevant part, a request for the specific GPS coor-
dinates where wolf depredations had occurred in order to
evaluate the WS program. GPS coordinates are collected by
WS staff members while on rancher property investigating
depredations.
APHIS provided the city and state where each depredation
had occurred, but withheld the specific GPS coordinates, cit-
ing FOIA Exemption 6 for the personal privacy of the ranch-
ers involved. APHIS also provided records describing specific
instances of WS activity, wolf complaint investigations, and
reports on depredations, though all with GPS data redacted.
The Center then brought suit under FOIA against the
USDA, APHIS, and WS (collectively, the USDA) for with-
holding the GPS coordinates. The parties filed cross-motions
for summary judgment.
The district court granted the Center’s motion for summary
judgment and denied that of the USDA. Center for Biological
Diversity v. Wildlife Services, 649 F. Supp. 2d 974, 975 (D.
Ariz. 2009). The court held inapplicable FOIA’s Exemption
3 for matters exempted from disclosure by certain other stat-
utes. Id. at 980. Regarding a prohibition in Section 8791 of
the FCEA on disclosure by the USDA of certain geospatial
information, 7 U.S.C. § 8791(b)(2)(B), the district court noted
that “Wildlife Services responded to the Conservation
Groups’ requests for records before the FCEA’s effective
19156 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
date.” Id. The court reasoned that “absent Congress’ ‘express
command,’ statutes are only to be applied prospectively.” Id.
(citing Martin v. Hadix, 527 U.S. 343, 345 (1999)). As a
result, the district court concluded that “section 1619 of the
FCEA [codified as Section 8791] cannot be applied retroac-
tively to cover the conduct at issue in the instant case.” Id.
The district court also concluded that Exemption 6 did not
apply. Id. at 977-79. The USDA timely appealed.
II
In FOIA cases, we employ a two-step standard of review
for summary judgment. Lion Raisins Inc. v. U.S. Dep’t of
Agric., 354 F.3d 1072, 1078 (9th Cir. 2004). First, the court
reviews de novo whether an adequate factual basis exists to
support the district court’s decision. Id. Second, the court
reviews the district court’s conclusions of fact for clear error,
while legal rulings, including its decision that a particular
exemption applies, are reviewed de novo. Lane v. Dep’t of
Interior, 523 F.3d 1128, 1135 (9th Cir. 2008).
III
FOIA “was enacted to facilitate public access to Govern-
ment documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164,
173 (1991) (citations omitted). There is therefore a “strong
presumption in favor of disclosure.” Id. However, FOIA con-
tains a number of exemptions. 5 U.S.C. § 552(b). Under
Exemption 3, FOIA does not apply to matters that are specifi-
cally exempted from disclosure by certain other statutes. 5
U.S.C. § 552(b)(3).
In determining the applicability of Exemption 3, “[f]irst, we
determine whether the withholding statute meets the require-
ments of Exemption 3. Then, we determine whether the
requested information falls within the scope of the withhold-
ing statute.” Carlson v. U.S. Postal Serv., 504 F.3d 1123,
1127 (9th Cir. 2007). In this case, there is also the third issue
CENTER FOR BIOLOGICAL DIVERSITY v. USDA 19157
of whether the withholding statute, Section 8791, can be
applied here even though it took effect after the withholding
at issue.
A
The parties do not dispute that Section 8791 meets the
requirements of Exemption 3. We therefore assume without
deciding that it does. See Zanoni v. U.S. Dep’t of Agric., 605
F.Supp.2d 230, 236-37 (D.D.C. 2009) (reasoning that Section
8791 satisfies the requirements of Exemption 3).
B
[1] The requested GPS coordinates fall within the scope of
Section 8791’s prohibition on disclosure. Section 8791(b)(2)
prohibits disclosure of “geospatial information” maintained
by the USDA about “agricultural . . . operations” for which
“information [is] provided by an agricultural producer” to the
USDA “concerning the agricultural operation” “in order to
participate in programs of the Department.” 7 U.S.C.
§ 8791(b)(2)(A), (B).
These elements are satisfied here. First, there is no dispute
in this case that the GPS coordinates are “geospatial informa-
tion.” Second, the GPS data concerns “agricultural opera-
tions,” a term that includes livestock production under 7
U.S.C. § 8791(b)(1), because it concerns depredations that
limit the ranchers’ livestock production. Third, the “agricul-
tural producer,” the rancher, provides information to the
USDA “concerning the agricultural operation” when he
reports his loss of livestock by wolf depredations to the
USDA. Fourth, the rancher reports this information “in order
to participate in programs of the Department,” namely the WS
program that captures or removes the wolves.
The Center argues that the legislative history of Section
8791 indicates that it was intended to apply only to propri-
19158 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
etary information and only to private land. Yet when, as here,
the text of a statute is clear, it is not necessary to turn to legis-
lative history. See United States v. Gonzales, 520 U.S. 1, 6
(1997). Regardless, the history does not suggest that Section
8791 was not intended to apply to GPS data like that at issue
in this case. To the extent Section 8791 was a reaction against
Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224
(D.C. Cir. 2008), that suggests it was intended to prohibit dis-
closure of GPS data like that at issue here, because Multi Ag
required the release of a database used with GPS technology.
Multi Ag, 515 F.3d at 1226-27, 1233. Though an earlier,
deleted provision of the FCEA was concerned with the disclo-
sure of “proprietary and or confidential business information,”
H.R. Rep. No. 110-627, at 867 (2008), that provision was not
enacted and thus has no bearing on our analysis. As a result,
the requested GPS coordinates fall within the scope of Section
8791’s prohibition on disclosure.
C
[2] Section 8791 applies in this case despite taking effect
after the USDA withheld the GPS coordinates. In Landgraf,
the Supreme Court described a two-step analysis for deter-
mining the applicability of legislation enacted after the acts
that gave rise to the suit. Landgraf v. USI Film Products, 511
U.S. 244, 280 (1994). First, courts must “determine whether
Congress has expressly prescribed the statute’s proper reach.”
Id. If so, that controls. Id. Second, absent such express lan-
guage, courts must “determine whether the new statute would
have retroactive effect, i.e., whether it would impair rights a
party possessed when he acted, increase a party’s liability for
past conduct, or impose new duties with respect to transac-
tions already completed.” Id. If the statute would operate
retroactively in that way, it does not apply absent clear con-
gressional intent favoring such a result. Id.
[3] As for the first step, the Court in Landgraf already
CENTER FOR BIOLOGICAL DIVERSITY v. USDA 19159
addressed an effective date provision very similar1 to that in
the FCEA and concluded that it did not constitute express
direction from Congress in either direction. Id. at 257 (deter-
mining that “[t]hat language does not, by itself, resolve the
question before us”). Given the similarity of the provisions,
Landgraf indicates that the FCEA does not expressly resolve
whether or not Section 8791 applies to pending cases.
[4] As for the second step, we have already determined
that there is no impermissible retroactive effect under Land-
graf in applying a new statute to a pending FOIA case
through Exemption 3. Southwest Ctr. for Biological Diversity
v. U.S. Dep’t of Agric., 314 F.3d 1060, 1062 (9th Cir. 2002).
In Southwest, a conservation group brought a FOIA action to
compel the Forest Service to release location data concerning
an endangered bird. Id. at 1061. While the action was pending
in the district court, Congress enacted legislation permitting
such information to be withheld from the public. Id. In deter-
mining whether the statute applied in that case, we concluded
that “[t]here is no such impermissible retroactive effect here”
because “the ‘action’ of the Center was merely to request or
sue for information; it was not to take a position in reliance
upon existing law that would prejudice the Center when that
law was changed.” Id. at 1062. As a result, the new legislation
applied to the pending case through Exemption 3. Id.
[5] Southwest requires the conclusion that there is no
impermissible retroactive effect in applying Section 8791 to
the Center’s pending FOIA action. As in Southwest, the only
action the Center took was to request information and file
1
The Landgraf provision provided that “except as otherwise specifically
provided, this Act and the amendments made by this Act shall take effect
upon enactment.” Landgraf, 511 U.S. at 257. The effective date provision
in this case similarly provides “except as otherwise provided in this Act,
this Act and the amendments made by this Act shall take effect on the ear-
lier of — (1) the date of enactment of this Act; or (2) the date of the enact-
ment of [a duplicative bill also containing Section 8791].” Pub. L. No.
110-246, § 4(b), 122 Stat. 1651, 1664 (2008).
19160 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
suit. 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.” South-
west, 314 F.3d at 1062. The Center seeks to distinguish
Southwest on the grounds that it did not concern a statute with
an effective date, but this distinction is not relevant, as Land-
graf established that a similar “effective date” provision was
inconclusive. Landgraf, 511 U.S. at 257, 280.
[6] Furthermore, “[w]hen the intervening statute authorizes
or affects the propriety of prospective relief, application of the
new provision is not retroactive.” Landgraf, 511 U.S. at 273.
Here, the Center seeks the prospective relief of an injunction
directing the USDA to provide it with certain information.
Section 8791 merely affects the propriety of this prospective
relief and is therefore not impermissibly retroactive when
applied in this case.
Martin v. Hadix, 527 U.S. 343 (1999), is entirely consistent
with this conclusion. Martin does not indicate that absent
Congress’ express command, statutes are only to be applied
prospectively. In Martin, the Supreme Court applied the two-
step Landgraf framework. Martin, 527 U.S. at 353-360. In the
first step, the Court concluded that the language of a particu-
lar statute did not resolve the question of retroactivity because
it lacked an “ ‘unambiguous directive’ or ‘express command’
that the statute is to be applied retroactively.” Id. at 354 (cit-
ing Landgraf, 511 U.S. at 263, 280). That did not end the
analysis, however, but merely required the Court to proceed
to the second step. Id. at 357. There, the Court concluded that
applying that statute to pending actions would inappropriately
“ ‘attach new legal consequences’ to completed conduct.” Id.
at 358 (citing Landgraf, 511 U.S. at 270). In this case, by con-
trast, there is no such impermissible retroactive effect at this
second step, as established by Southwest. Section 8791 there-
CENTER FOR BIOLOGICAL DIVERSITY v. USDA 19161
fore applies in this case despite taking effect after the USDA
withheld the GPS coordinates.
IV
[7] Accordingly, we reverse the district court’s order grant-
ing summary judgment in favor of the Center and denying
summary judgment to the USDA. The GPS coordinates are
exempt from disclosure under FOIA because Section 8791
meets the requirements of Exemption 3, applies to the GPS
coordinates at issue, and can be applied in this case even
though it took effect after the USDA’s withholding. In light
of this conclusion, we do not reach the question of whether
Exemption 6 also applies.
REVERSED.