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Columbia Riverkeeper v. United States Army Corps of Eng'rs

United States District Court, D. Oregon

August 14, 2014


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For Columbia Riverkeeper, a non-profit Washington corporation, Plaintiff: Christopher G. Winter, LEAD ATTORNEY, Crag Law Center, Portland, OR; Lauren R. Goldberg, Miles B. Johnson, Columbia Riverkeeper, Hood River, OR.

For U.S. Army Corps Of Engineers, a United States agency, Defendant: Kevin C. Danielson, LEAD ATTORNEY, U.S. Attorney's Office, Portland, OR.

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Honorable Paul Papak, United States Magistrate Judge.

Plaintiff Columbia Riverkeeper (" CRK" ) filed this action against defendant the United States Army Corps of Engineers (the " Corps" ) and Lt. Gen. Thomas P. Bostick on August 26, 2013. On September 26, 2013, CRK amended its complaint to state a claim under the Freedom of information Act (" FOIA" ) against the Corps only. By and through its FOIA claim, CRK challenges the Corps' decision to withhold purportedly exempt materials otherwise responsive to CRK's FOIA request for documents relating to the Corps' environmental review in connection with the Morrow Pacific Project. This court has jurisdiction over CRK's action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S. C.§ 1331.

Now before the court are the Corps' motion (#27) for summary judgment and CRK's cross-motion (#32) for summary judgment as to CRK's FOIA request. I have considered the parties' motions, oral argument on behalf of the parties, and all of the pleadings and papers on file. For the reasons set forth below, each motion is granted in part and denied in part as discussed below.


I. The Parties

Plaintiff CRK is a non-profit public-interest organization incorporated under the laws of the State of Washington, with its principal place of business in Hood River, Oregon. CRK's stated corporate mission is to restore and protect the Columbia River and the ecosystem it is part of. CRK brings this FOIA action on its own behalf and on behalf of its employees and members.

Defendant the Corps is an agency of the federal Department of Defense. The Corps is in possession and control of the records CRK seeks through this FOIA action.

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II. The Parties' Dispute[1]

The Morrow Pacific Project is a proposed coal export plan pursuant to which coal would be offloaded from open railcars to river barges at the Port of Morrow in northeastern Oregon, shipped by barge along an approximately 270-mile stretch of the Columbia River from Morrow to the Pacific Ocean, and finally offloaded onto ocean-going vessels for shipment to Asian destinations. If the proposed project is implemented, some 8.8 million tons of coal will be transported in this manner annually. It is contemplated that the project will require significant in-water construction in the Columbia River.

On or around September 18, 2012, the Corps announced that it would prepare an Environmental Assessment (" EA" ) in connection with its review of the potential adverse impacts of the Morrow Pacific Project on the Columbia River ecosystem, rather than immediately prepare a more rigorous and comprehensive Environmental Impact Statement (" EIS" ). On November 2, 2012, CRK submitted a request to the Corps' Portland District office under the Freedom of Information Act, seeking documents related to the Corps' decision to prepare an EA rather than an EIS. On January 18, 2013, the Corps produced documents responsive to CRK's FOIA request, many in partially redacted form, indicating both that additional responsive documents existed and that the Corps might produce some of those additional documents in the following week. Having received no further responsive documents, however, on March 18, 2013, CRK administratively appealed the Corps' failure to produce all responsive documents in its possession and control.

On March 22,2013, the Corps responded to CRK's administrative appeal by producing additional responsive documents, some in partially redacted form, simultaneously advising CRK that it was withholding from production an additional 91 documents on the basis of FOIA Exemption 5 ( see infra ). On May 16, 2013, CRK filed a second administrative appeal, specifically assigning error to the Corps' decision to withhold 91 responsive documents from production. The Corps declined to update its responsive production, and this action followed on August 26, 2013.

The parties agree that judicial review of FOIA compliance is generally decided on summary judgment, and that it is customary in preparing summary judgment for a government agency FOIA defendant to prepare and produce a so-called " Vaughn index," see Vaughn v. Rosen, 484 F.2d 820, 826-828, 157 U.S.App.D.C. 340 (D.C. Cir. 1973), identifying the documents redacted or withheld from production, the applicable exemptions claimed by the agency, and the grounds for claiming each such exemption in connection with each redacted or withheld document. In this case the parties agreed, in light of the projected timing of the Corps' contemplated decisions in connection with the Morrow Pacific Project, to a relatively expedited briefing schedule. In particular, the parties agreed in or around early November 2013 that the Corps would provide CRK with its Vaughn index in advance of filing a summary judgment motion, to the end of narrowing the scope of the parties' dispute prior to dispositive litigation.

On December 2, 2013, the Corps produced 3 of the 91 initially withheld documents, as well as redacted copies of 50 of the remaining 88 documents. Over the following months, the Corps provided various

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draft Vaughn indexes to CRK, including the inadvertently produced draft containing the mental impressions of the Corps attorney who chiefly prepared it which was the subject of this court's " claw-back" order (#22) of March 19,2014. The Corps' apparrently final Vaughn index was provided to CRK on February 3, 2014. Following receipt of the Corps' Vaughn index, CRK agreed to limit the scope of its request for judicial review of the Corps' compliance with its FOIA request to a total of 341 pages of approximately 55 documents or collections of documents withheld by the Corps in whole or in part. The parties agree that their dispute over those 341 pages is now ripe for summary adjudication.

III. The Withheld Documents at Issue

The documents at issue in the parties' dispute are not a part of the court's record, but a majority of them[2] have been submitted for in camera review. The parties agree that the disputed documents can appropriately be grouped into the following categories: (i) draft communications plans, (ii) draft public communication materials, (iii) draft letters, ...

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