Is the US Government favoring environmental activists over ranchers?

This post is sort of a follow-up to a previous 3-part series of posts on this blog, “Cows vs. Fish,” that also featured some work (and help) from the Budd-Falen Law Offices in Wyoming. It was written in June, nearly three months ago, but has been making the rounds of email discussion groups during the past two days. You can probably pick up the bias by Budd-Falen’s description of Western Watersheds Project as a “radical environmental group,” but that has little to do with whether the contents and questions are accurate, or not. Other thoughts?

DATE: JUNE 25, 2013

Since 2009, Western Watersheds Project (“WWP”) has issued at least 675 Freedom of Information Act (“FOIA”) requests just to the BLM and Forest Service, related to livestock grazing on the public lands. Although I did not read all 675 requests, I did find some letters that demanded information for as many as 50 allotments in one single FOIA request. Most WWP FOIAs also wanted documents from multiple years and on multiple subjects. Many of the requests included instructions to the BLM or Forest Service offices stating that the response to WWP should be sent electronically or in a certain format. While the FOIA requires that the federal government make certain documents available, can a requester really dictate the format of the response?

Additionally, for every request, WWP argues that they should receive all information free of charge because they are:

a non-profit membership organization dedicated to protecting and conserving
the public lands and natural resources of watersheds in the American West.
WWP has over 1200 members . . . . WWP is active in seeking to protect and
improve the riparian areas, water quality, fisheries, wildlife, and other natural
resources and ecological values of western watersheds. To do so, WWP
actively participates in agency decision-making concerning BLM [Forest
Service] lands throughout the West, and the BLM’s management of livestock
grazing in Idaho, Nevada, Utah, and Wyoming.*

WWP is effective at increasing public awareness of environmental matters,
such as protection of the diverse and valuable sagebrush-steppe ecosystem,
through public education and outreach, participation in administrative
processes, litigation and other enforcement of federal environmental laws.

(*WWP uses this same language to justify its fee waiver requests in Montana, California, Arizona and New Mexico as well).

In contrast, if a rancher/permittee requests that very same information about his allotment requested by WWP, the BLM or the Forest Service will charge him $42.00 per hour for administrative search time and $.15 per page for each photocopy made. It seems backwards to me that a rancher is charged for “administrative search time” and photocopy costs to see what is in his own files, yet a group whose stated goal is to “get cows off the public lands ASAP” gets that exact same information for no charge at all (not even charging out-of-pocket costs).

In addition to the shear volume of FOIA requests and the mass of information requested in each of the individual requests by WWP, other issues are of note:

First, in addition to requesting information about individual allotments or groups of allotments, some of WWP FOIAs request documents and information about named individuals. Of the FOIAs I reviewed where WWP wanted information about named ranchers or other individual ranchers, not one of the ranchers was contacted by the BLM or Forest Service before their information was released to WWP.

Second, a great number of FOIAs requested the same information over and over. For example, in 2009, a FOIA would request all monitoring data “gathered or generated to date” for an allotment or large group of allotments. The exact same FOIA will then be filed in 2010 requesting all monitoring data “gathered or generated to date” about the same allotment or groups of allotments. The same FOIA will then be filed in 2011. There is no mention in any of these FOIAs that the BLM or Forest Service had already supplied a great deal of the requested information in the past–the agency simply has to relocate and copy the same information over and over again–all at the public’s expense.

Third, if these radical groups do not receive the information they want – for free – federal court litigation follows, again at the taxpayers’ expense. The vast amount of FOIA cases filed by environmental groups only included the filing of a federal district court complaint, a settlement agreement for the release of the requested information and the payment of attorneys fees. Fee payments were anywhere from $5000 to $50,000.

In May, 2013, the Chairman of the Committee on Oversight and Government Reform for the U.S. House of Representatives, the Ranking Members of the Committee on Environment and Public Works and the Committee on the Judiciary for the U.S. Senate sent a letter to the Environmental Protection Agency (“EPA”) strongly questioning EPA’s practice of “readily grant[ing] FOIA fee waivers for liberal environmental groups – effectively subsidizing them – while denying fee waivers and making the FOIA process difficult for states and conservative groups.” It is clear from the above research that the EPA is not the only agency who engages in such practice. Ranchers who should have the information that is kept in their files are forced to pay excessive amounts for information while radical environmental groups pay no fees for using this exact same information to file substantial numbers of administrative appeals and federal court litigation against these ranchers. With these radical groups, it is not a matter of providing fair public information; it is a matter of pushing a political agenda being subsidized by the taxpayers.

While there is no question that FOIA is an important statute to allow the public to get information from the federal government, this short essay points out the serious inequities in how the statute is implemented. Individuals are forced to pay search time and copy costs for the information gathered about them and located in their own files, while radical environmental groups can get the same documentation for free to use in litigation against the federal agency and rancher. Is that really the purpose of FOIA?

19 thoughts on “Is the US Government favoring environmental activists over ranchers?”

  1. Either it is free to all citizens or the same cost to all citizens/groups.

    The cost approach would seem to be the better approach in terms of limiting redundant requests for the same information from the same organization. I’d even vote for charging double the cost for the first redundant request, quadruple for the second redundant request and so on exponentially.

    Redundant requests would seem to be highly disrespectful of the taxpayer.

    How is it possible that I livingin Chile have a clearer view of thesething going
    in theplace where you live and do no see them.THERE IS A SAYING THat says that you can fool one person one time but never all the persons all the time. Let me tell this is not true anymore just watch what has happened to the forest industry since the spotted owl syndrome. How is it possible that after the authorities declares vast forest lands that were beeng logged to stop all operations in order to protect the survival of the spotted owl
    But what happened with this rulingn it seems that the same people who were benefitted with this ruling did nothing to take care of the spotted owls and see how it was developing,did not do the work that had to be done After some 10 years later somebody discovers the the spotted owls instead of increasing they have even decreased more.
    What was the problem, a new specie of owl moved in to the area victimizing the spotted owls and it ws probable that if measures were n o taken the spotted owl woul dsissapear
    So some smart environmentalist foundthe solution that shooting down the new owls
    would solve the problem. And they started to shoot them even giving prizes for each one killed. It did not take a long time that people started complaining that this was a butchery
    and had . to stop. the logical outcome of this outcome was to resume work as before
    but they managed to bypass this regulation and there are even less spotted owls in these regions because the other owl keep coming in and victimizing thespotted owl.
    It seems nobody complained and the situation is still the same
    But what happened next is really unbelievable. A nonprofit organization asked for permission to log these forest to help another organization that would help somebody
    and last but not least they ask to be able to kill up to 82 spotted owls in the operationthey were about to do.
    Can you believe this?
    But we the logging and sawmill industry is to be blamed also because they never formed a solid front to fight this and never used lobbying in which our opponents became very strrong
    . SO here it is for beter or worse,lets unity as firmly as a rock and from now on fight back
    to avoid these situations and remember that our opp onents are smart people at least smarter than us so chapeau for them in the meantime.

  3. My experience has been that sometimes groups say that they are giving the information to “the public” when they mean their own affiliated organizations and nothing as simple as posting it to a website for the general public.

    Given this administration’s desire for transparency, I think when FS people have to produce a FOIA, they should just post the contents on the internet so that everyone can see them.

    I would also have a “panel of stakeholders” weigh on the need to respond to X Treme FOIAs.. like the one that was “everything about roads everywhere.” According to my model, if a FOIA is very large, the FS would estimate a cost and the panel could weigh in on whether it was reasonable expenditure for taxpayers. Right now my understanding is that these are negotiated without knowledge of the costs, and without any public knowledge of the negotiations that take place. The findings of the panel would be taken into consideration in any future FOIA litigation.

    I think many people would be shocked to see how broad some FOIA’s are. Sometimes they are school projects.

    In addition to posting EAJA fees, it would be interesting to require the FS to show who asks for what information, how much it costs the FS to provide, and whether the individual or organization pays for it, and how it is made available to “the public,” and to post this information annually on their website.

    Of course, I guess folks could FOIA payments of EAJA fees.. I wonder what happened to that Congressional request?

  4. @Sharon
    Sharon: I’m in complete agreement with your approach. Post all FOIA requests and results online — then, if there are duplicate (or more) requests, just post links (can probably be automated fairly easily). Same with EAJA awards and amounts. Simple to do, costs a lot less, and anybody who is interested has everything accessible. Just as if the whole process were transparent.

    Automated Google searches can inform ranchers and Enviros whenever their name comes up in these types of communications, taking care of that problem, too. In the interim — until the USFS and BLM can learn basic website design and maintenance — we could use Gil’s approach and charge everyone the same. Which seems like the fair, logical and American thing to do.

  5. What is most interesting regarding FOIA abuse letter – given a law firm produced it – is the total lack of reference to “the law.” Law is all about statutes, their interpretation, and precedent. Not a single legal authority is cited that supports the authors position(s).

    One problem with this, and typically all posts, is that we never truly see the full picture which would be provided if we could see a court’s response/analysis of this issue, if one had been cited. All we see is this one advocate’s “side” of the issue, potential mechanical solutions, and some ramblings about what the law “could be.” Nothing addresses what the law “is” or the reasons that is so.

    While it might initially seem “fair” for all to be treated equally, there are numerous policy reasons that allow for exceptions in the law, in this case waiving a fee. I don’t have time to research those reasons, but they, and other information, might be found at the link below (thank you to mr. google).

  6. @Craig
    Craig: This isn’t a legal issue so much as an ethical and commonsense issue. The law seems — on the surface — blatantly unfair, and as presented by actual lawyers. Disregarding the legal issues, are the stated facts accurate? I’m not sure there’s much logic or actual “reasoning” behind many policies, so that doesn’t seem to be a good place to look for backing on this kind of stuff. Same with a lot of laws.

    Can you say what it is you do for a living?

  7. Why not make all public lands grazing allotments public information? Post all of them to a searchable website. Why should anyone using public lands be entitled to complete privacy? If you don’t want those “radicals” knowing your business, don’t use public lands.

  8. @Guy Knudsen
    I think that is one point that everyone on this blog agrees with — full government transparency on all public documents, with information readily available on stable easy-to-navigate websites.

    The surprising thing to me is that I had assumed that all government allotments were public knowledge, just as with timber sales and reforestation contracts. Weren’t/aren’t grazing allotments also included in land sales agreements? Or is the FOIA used because these files are difficult to locate, costly to duplicate, or for some other reason? I have never heard that such agreements were “private” before; is that something new, or just something I never knew?

  9. @ursula

    Well, I think that makes sense if it applies to everyone “using” public lands, like hikers, hunters, firewood collectors, everyone who uses outfitter guides, skiers, etc.

    Actually, that way wouldn’t be bad because if the FS knew who everyone was, then they could potential collect appropriate and helpful fees.

    Guy, the FS has many many records about everything. That’s why I think it would be helpful to have a FACA committee determine what needs to go into “The People’s Database” thanks to PALS, NEPA and appeal documents are relatively easy to find.

    If a group could establish a list (say all grazing and special use permits)(plus what many of us would like to see; how many acres impacted by vegetation projects) then the FS would be able to make these available to everyone. Right now, much of people’s time is used copying documents for FOIAs that are not available to the public (despite the claims used in justifying why fees should not be charged).

  10. @BobZ. This exactly what I mean about the missing the “big picture.” You assume that “the letter” by the firm of attorneys is the “whole truth.” Is it?
    For your information, I’m a law student, emphasizing in natural resources law. And no, I’m not a naive 24 year old, this is a second career for me. My background involves reaseach studying decision making and backcountry guiding. More importantly, I have actually (emphasis intended) studied FOIA and state Public Records Acts/Sunshine Laws while working in one of the state’s attorney general’s office recently. What is your expertise related to FOIA?

    Why do you assume that the letter is the whole truth? Have you investigated other information? Do you know the legislative history of why certain compromises were made regarding FOIA? Have you ever looked at committee meeting minutes to see the range of discussion? Ever seen transcripts of floor debates? Ever read the purpose of a law or Act? Your comment that little reasoning goes into FOIA and laws is pure fluff. The outcome, imperfect laws, is a natural result of the inherent complexity in the human condition, limited information and requisite compromise.

    My point is that you all are discussing “the law” and making a tremendous number of presumptions regarding FOIA, and many laws in other discussions, with out a full understanding of those laws. When folks discuss fire ecology here “authority”, there is often arguments of over the data itself, the methodology used to achieve the data, and the interpretation of the results. I only ask folks to take this professional type of behavior and extend it to topics with which they are unfamiliar.
    The greatest of enemies is hubris.

  11. @bobzybach
    Bob, I don’t know the answer to your questions. But I have heard several times from environmental attorneys I know that the USFS is usually quickly responsive to FOIA requests (which helps keep them inexpensive) whereas with BLM it can be like getting blood from a stone (and may involve getting a court to enforce it, which is time-consuming and a waste of taxpayers’ money, since then BLM may have to pay attorney’s fees for something that could have been almost free). But like you said, full transparency and available information on easy-to-use websites would be the optimal solution, and would pretty much eliminate the use of FOIAs in general. The link that Craig provided has a lot of information (thanks!) It seems that if ranchers are being charged more for FOIA requests (as the Budd-Falen text suggests, though not containing supporting facts for the allegations), then it would appear that ranchers are being identified as “commercial interests” for FOIA purposes. If I were representing ranchers in my practice, I would suggest simply forming a non-profit public interest group (something like “Preserve our Ranching Heritage”), and making FOIA requests through that group, to get into the fee waiver category. Nothing in the FOIA laws favor “radical environmental groups” (as Budd-Falen implies), but they do favor public interest groups. I fail to see how there’s any inherent unfairness or bias in the laws. Maybe Budd-Falen should take a look at the reference Craig posted, and thereby could be a more effective legal advocate for rancher clients.

  12. @Craig
    Craig: I know very little about FOIA and have hardly any experience with it. What in the world would ever make you think I believe this post is the “whole truth?!?” And why are you using quotes as if I ever said such a thing? That’s called a straw man. And you destroyed him. But that’s not me, and that’s not what I said. Nor did I say anything about the “reasoning” behind FOIA, “fluffy” or not — again, those are your words, not mine. My comment was in regards to “policies” in general, not FOIA in particular. How is that missing your “big picture?”

    Thank you for providing some of your background. As you seemed to suspect, I was guessing you were a law student and I did think you might be younger. If you would use your last name here (or anywhere) that might give you more of the “authority” you seek.

    I can think of a lot of enemies greater than “hubris” — and false assumptions would definitely be on that list. Misrepresentations, too.

  13. @Guy Knudsen
    Thanks, Guy: One of the key things I do when I post other people’s work is to be sure and send them a link to the post and invite them to comment. Given your suggestion and Craig’s link, I will also contact the Budd-Falen firm again and encourage them to read (and maybe even respond) to the idea of forming a public interest group to reduce FOIA costs. Full transparency, as filtered along the lines Sharon suggests, would certainly resolve the issue and save everyone a lot of time and money.

  14. There’s an aspect of FOIA as used to support environmental litigation, that may or may not be of interest: Many courts (though not necessarily all) insist on focusing judicial review of an agency decision (in a NEPA suit) on the administrative record at the time of the decision; in other words, plaintiffs (aka “enviros”) aren’t allowed to bring in additional evidence to support their case. It’s not surprising that many in the environmental community believe that the Forest Service (the most sued agency under NEPA) finds ways to conveniently leave some information out of the administrative record, when it would be unfavorable to their desired outcome. Also, plaintiffs don’t get to actually see the administrative record until some time well after a lawsuit is filed. And, since courts limit their review only to issues specifically brought up in the complaint filed at the onset of the case (and DOJ lawyers fight vigorously to enforce this), plaintiffs are caught in a catch-22 situation: they suspect something is rotten in Denmark, and they need to include it in their complaint, but they can’t point to it specifically because the record isn’t available. Sometimes they know about a missing piece of information (not infrequently supplied anonymously by FS employees who feel that agency administrators are trying to hide something), and the question is, how to get it into the administrative record? A timely FOIA request can do that, and the resulting information can then get forced into the administrative record, e.g. by incorporating it into the formal appeal process that precedes a NEPA suit. I don’t know of any environmental groups that think of FOIA requests as a cash cow (and as I said above, the FS seems to be pretty good about fulfilling them), and also haven’t heard of them being used as a way to “harass” the agency. Mostly, they’re just another tool that has to get used, because of the way the rules are set up. Again, more transparency in agency decision-making would probably make this tool less necessary.

  15. I think the Budd-Falen letter is mostly a pretty good summary of what the law says. Following the law is not ‘abuse.’ If what they want to do is change the law they should say that. (Guy makes an excellent point about why this so-called ‘abuse’ may occur.)

    With regard to records that are about individuals, there are exemptions in FOIA that allow withholding of some commerical and financial information or records involving personal privacy. The federal Privacy Act provides a process for obtaining government records about yourself, and may prevent an agency from releasing personal information to others.

  16. What the purpose of the “panel of stakeholders?” To interpret FOIA law? That’s what the courts are for. FOIA is a civic right granted by Congress. A panel of stakeholders sounds like a great firewall installed by insiders to exclude outsiders. That’s just the kind of non-transparency that FOIA was meant to prevent.

    The Budd-Fallon memo reads like a scripted colloquy on the Senate floor – written by an attorney who knows the law well, but pretends to be naive about it and presents FOIA rights as some novel and abusive program. What a joke.

    Also, it’s unclear who was the memo written to? Probably Congress, hoping to tap into Tea Party sympathies.

  17. The problem with the freedom of Information Act is that it is like having a single car with 30,000 drivers and no process to decide whose turn it is to drive it or put gas in it or take it to the shop for repairs. So one of several things happens: 1) A group of thugs takes over the car and no one uses it but them, 2) Someone decides that if I can’t drive it, no one can and douses it with gas and torches it when no one else is looking, 3) Someone steals it and sells it on the black market, 4) An election is held and a committee is organized to raise taxes to take care of the car which requires that they have access to it at all times, 5) The car’s tires rot and the car turns into a rust pile while everyone argues over who should drive it.


    The value of the freedom of Information Act is that when the government can’t be trusted, hundreds of thousands of people can take matters into their own hands even though they don’t realize that you can’t lock a dynamic ecosystem into a static state. And don’t realize that there are things more important than appearances in managing an ecosystem. So in the end they end up destroying the very thing that they tried to save. So we end up back at #5 above with excessive fire and beetle catastrophes and have to build a new car.



  18. @TreeC123
    Tree: I don’t see where Budd-Falen is acting naive in the least, or “pretending” anything. The memo was written for ranchers and other concerned citizens, not to Congress or to “tap into Tea Party sympathies”; that’s just silly. I’m guessing liberal urban Democrat again — and maybe still a student — despite the phony name. Also, if the FOIA was meant to “prevent non-transparency” (I think that makes sense), it has been an obvious failure. Non-transparency still rules when it comes to government actions and decisions. Despite the FOIA and any other similarly intended acronyms.


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