SEA SHEPHERD LEGAL COMPLAINT Seattle, Washington 98102 · 2018-10-19 · Rose Atoll Marine National Monument, the Marianas Trench Marine National Monument, and the Case 2:18-cv-01387

COMPLAINT - 1 - SEA SHEPHERD LEGAL 226 Eastlake Ave. East, No. 108 Seattle, Washington 98102 (206) 453-0012.

DOI FOIA Complaint (FINAL).doc/092018 1612/7754-0417

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE SEA SHEPHERD LEGAL,

Plaintiff, v. DEPARTMENT OF THE INTERIOR, an agency of the United States,

Defendant.

NO. 2:18-cv-1387 PLAINTIFF SEA SHEPHERD LEGAL’S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELEF (FREEDOM OF INFORMATION ACT)

INTRODUCTION

1. This action is brought to remedy violations of the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 et seq. Specifically, it challenges the failure of the Department of the

Interior (“Federal Defendant”) to provide a legally sufficient determination within the time required

by FOIA in regard to Plaintiff Sea Shepherd Legal’s (“Plaintiff”) July 26, 2018 request for

information and a waiver of fees (“Request”), as well as Federal Defendant’s failure to disclose

promptly those records responsive to the Request.

2. In the Request, Plaintiff asked for documents in Federal Defendant’s possession

regarding Federal Defendant’s review of the Pacific Remote Islands Marine National Monument, the

Rose Atoll Marine National Monument, the Marianas Trench Marine National Monument, and the

Case 2:18-cv-01387 Document 1 Filed 09/20/18 Page 1 of 12



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Papahānaumokuākea Marine National Monument (collectively, the “Pacific Marine National

Monuments”) pursuant to Executive Orders 13792 and 13795. Specifically, Plaintiff requested all

records relating to Federal Defendant’s consultation and/or review, whether completed or ongoing,

regarding the Pacific Marine National Monuments pursuant to Executive Order 13792; and all

records relating to Federal Defendant’s consultation and/or review, whether completed or ongoing,

regarding the Pacific Marine National Monuments pursuant to Executive Order 13795. See Exhibit

A.

3. As of the date of this Complaint, Federal Defendant has not made an adequate

determination regarding the release of documents, nor has Federal Defendant provided a timeline or

other plan for compliance with the requirements of FOIA to indicate when or whether the Request

will be satisfied.

4. In addition, as of the date of this Complaint, Federal Defendant has not made a

determination on Plaintiff’s request for a waiver of fees.

5. As explained below, Plaintiff has received two written communications from Federal

Defendant, both of which fail to satisfy FOIA’s requirements.

6. The first written communication from Federal Defendant serves merely to confirm

receipt, while also amounting to an improper invocation of the extension for “unusual

circumstances” under 5 U.S.C. § 552(a)(6)(B)(i) and 43 C.F.R. § 2.19. See Exhibit B.

7. The second written communication from Federal Defendant purports to be a “partial[]

response” to Plaintiff’s Request. See Exhibit C. However, it is actually a boilerplate response

produced in connection with other FOIA requests from separate individuals. It is not responsive to

Plaintiff’s request in any way. See id.

8. Federal Defendant is unlawfully withholding a determination on Plaintiff’s Request,

including its request for a waiver of fees, and is further violating FOIA by failing to disclose

promptly any responsive records. By failing to make a timely and adequate determination, and by




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failing to disclose responsive records in a prompt fashion, Federal Defendant failed to comply with

the statutory mandates and deadlines imposed by FOIA.

9. Accordingly, Plaintiff seeks declaratory relief establishing that Federal Defendant has

violated FOIA. Plaintiff also seeks injunctive relief directing Federal Defendant to make a

determination on the Request, provide a timeline for the release of responsive, non-exempt

documents, and promptly provide the requested material free of cost.

10. Plaintiff brings this lawsuit to obtain a determination on the Request and, ultimately,

timely disclosure of critical information related to Federal Defendant’s involvement in consultation

and review of the Pacific Marine National Monuments pursuant to two Executive Orders. Given the

significant potential impact of this consultation and review on the status of the Pacific Marine

National Monuments—including a possible attempt to eliminate, reduce, or alter one or more of the

Pacific Marine National Monuments—and the strong public interest in disclosure of information that

may directly assist Plaintiff’s ongoing efforts to protect the Pacific Marine National Monuments,

Plaintiff seeks expeditious treatment of its Complaint pursuant to 28 U.S.C. § 1657.

JURISDICTION AND VENUE

11. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) (FOIA)

and 28 U.S.C. § 1331 (federal question). This Court may grant declaratory relief under 28 U.S.C.

§ 2201 et seq. (Declaratory Judgment Act) and injunctive relief under 5 U.S.C. § 552(a)(4)(B)

(FOIA). An actual, justiciable controversy exists within the meaning of the Declaratory Judgment

Act between Plaintiff and Federal Defendant. The Court has jurisdiction, upon receipt of a

complaint, “to enjoin the agency from withholding agency records and to order the production of

any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).

12. Venue is proper in this Court pursuant to 5 U.S.C. § 552(a)(4)(B), which provides

venue for FOIA cases in this district as the district in which Plaintiff resides. Plaintiff maintains a




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principal office in the Western District of Washington. Venue is also proper under 28 U.S.C. §

1391(b) because Federal Defendant is subject to personal jurisdiction in this federal district.

PARTIES

13. Plaintiff is a nonprofit public interest law organization dedicated to its mission to end the

destruction of habitat and slaughter of wildlife in the world’s oceans in order to conserve and protect

ecosystems and species. In furtherance of that mission, Plaintiff has been involved in protecting

marine life and habitat throughout the world. Plaintiff uses public outreach, education, and litigation

to advocate for greater protection of marine wildlife and habitats.

14. Plaintiff’s interests are harmed by Federal Defendant’s failure to make a determination

upon the Request (including its request for a waiver of fees), or otherwise to release the requested

documents, which prevents Plaintiff from obtaining, analyzing, disseminating and using the

requested information to advance Plaintiff’s mission of ensuring the protection of marine wildlife

and habitat in general and the Pacific Marine National Monuments in particular.

15. Federal Defendant is an agency within the meaning of 5 U.S.C. § 552(f)(1). Federal

Defendant is responsible for fulfilling Plaintiff’s Request and complying with all federal laws.

STATUTORY BACKGROUND

16. Upon receipt of a written request that “reasonably describes” the records sought and

complies with “published rules . . . and procedures to be followed,” agencies of the United States

government are required to disclose their records “promptly,” unless they can be lawfully withheld

from disclosure under one of nine specific exemptions in FOIA. 5 U.S.C. § 552(a)(3)(A).

17. FOIA provides that agencies shall “determine within 20 days . . . after the receipt of any

such request whether to comply with such request and shall immediately notify the person making

such request of such determination and the reasons therefore, and of the right of such person to

appeal to the head of the agency any adverse determination.” Id. at. § 552(a)(6)(A)(i).




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18. In “unusual circumstances,” an agency may extend the twenty-day time limit for up to

ten working days by providing written notice to the requester setting forth the unusual circumstances

and the date on which the determination is expected to be dispatched. Id. at § 552(a)(6)(B)(i).

19. In some limited circumstances, FOIA allows an agency to seek an extension potentially

beyond ten days. Specifically, FOIA requires an agency to provide written notification to the

requester: (1) offering an opportunity to limit the scope of the request so that it may be processed

within the twenty working-day limit, or (2) offering an opportunity to arrange with the agency an

“alternative time frame” for processing the request. Id. at § 552(a)(6)(B)(ii). If the agency elects

this option, it must make its FOIA Public Liaison available to the requester to assist in any disputes

with the agency. Id.

20. Following its determination as to “whether to comply with” a request for records, the

agency must then make the requested records “promptly” available, 5 U.S.C. § 552(a)(3)(A),

(a)(6)(C)(i), unless it can establish that it may lawfully withhold records, or portions of records, from

disclosure under narrowly-defined FOIA exemptions listed in § 552(b). In doing so, it must make

reasonable efforts to search for records in a manner that is reasonably calculated to locate all records

responsive to the FOIA request. Id. at § 552(a)(3)(C)-(D).

21. The statutory time limit governing the agency’s decision as to “whether to comply with”

a request for records (generally, twenty working days) also governs decisions on fee-waiver

requests. The agency may only toll the time period for purposes of a fee-waiver request if it solicits,

during the pendency of the time period, additional information “necessary to clarify with the

requester issues regarding fee assessment.” 5 U.S.C. § 552(a)(6)(A)(ii)(II). As amended, FOIA

provides that “[a]n agency shall not assess search fees . . . if the agency fails to comply with any

time limit under paragraph (6).” 5 U.S.C. § 552(a)(4)(A)(viii). Paragraph (6), of course, includes

the basic twenty-day limit, along with the possibility of tolling to request clarification on a fee-




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waiver request and the possibility of a ten-day extension for unusual circumstances.

22. If the agency fails to make a determination on a document request within twenty

working-days, or within the limited additional time permitted upon proper notification of “unusual

circumstances,” the requester is deemed to have constructively exhausted administrative remedies

and may seek judicial review. Id. at § 552(a)(6)(C)(i).

FACTUAL BACKGROUND

23. On July 26, 2018, Plaintiff submitted the Request via electronic mail to Federal

Defendant reasonably describing all documents of which Plaintiff sought disclosure. See Exhibit A.

24. On July 27, 2018, Federal Defendant sent a letter, via electronic mail, to confirm receipt

of the Request. See Exhibit B. In this letter, Federal Defendant confirmed that the Request “was

received in the Office of the Secretary FOIA office on July 26, 2018[.]” Id.

25. The twentieth working day following July 26, 2018 was August 23, 2018.

26. In its July 27 correspondence, Federal Defendant stated that it could not yet make a

determination regarding the Request. Id. In this letter, Federal Defendant ostensibly invoked the

additional ten-day period for “unusual circumstances.” Id. Federal Defendant further claimed that it

was “in the process of determining” whether it would grant Plaintiff’s request for a waiver of fees.

Id.

27. In its letter, Federal Defendant did not ask for any additional information needed to

clarify the Request, either in terms of the documents at issue or in terms of the fee-waiver request.

28. Because Federal Defendant did not set forth “the date on which a determination is

expected to be dispatched” in connection with its claim of “unusual circumstances,” the extension

for “unusual circumstances” is statutorily unavailable. See 5 U.S.C. § 552(a)(6)(B)(i) (providing

that the twenty-day period “may be extended by written notice to the person making such request

setting forth the unusual circumstances for such extension and the date on which a determination is




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expected to be dispatched.”) (emphasis added).

29. Regardless, even if Federal Defendant had properly invoked the ten-day extension—and

it has not—the additional days have passed. Federal Defendant acknowledged that it received the

Request on July 26. As stated above, the twentieth working day following July 26, 2018 was August

23, 2018. The tenth additional working day thereafter fell on September 7. This accounts for the

intervening Labor Day holiday. September 7 has long since passed, and Federal Defendant has yet

to make a determination.

30. On September 14, Plaintiff wrote Federal Defendant regarding this situation. See

Exhibit D.

31. On September 18, Federal Defendant sent an email communication to Plaintiff,

apparently in response to Plaintiff’s September 14 correspondence. See Exhibit C.

32. However, this communication does not in any way amount to a determination

regarding Plaintiff’s Request. The September 18 communication was actually an email

(containing a letter) to several other FOIA requesters. See id. Federal Defendant then forwarded

this email and letter to Plaintiff. Id.

33. The letter, dated September 17 and addressed to no one in particular, reads in part as

follows: “We are writing to partially respond to your national monument-related FOIA request(s)

on behalf of the Office of the Secretary. We have released 1,603 pages of records related to the

Secretary’s review of certain National Monuments designated or expanded under the Antiquities

Act of 1906 at https://www.doi.gov/foia/os/national-monuments-review-executive-order-13792.”

Id.

34. The hyperlink set forth in the letter includes a list of folders containing documents

responsive to other FOIA requests. See Exhibit E. Whereas Plaintiff’s Request asked for

documents relating to Executive Order 13792 and Executive Order 13795, the linked webpage

contains documents relating only to the former Executive Order, bearing the title “National




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Monuments Review (Executive Order 13792).” Id. In addition, whereas Plaintiff’s Request

sought documents specifically related to the Pacific Marine National Monuments, the “categorized

records” displayed on the linked webpage do not include any categories pertinent to the Pacific

Marine National Monuments. Id. Of the nineteen categories, nine correspond to other National

Monuments (e.g., Bears Ears National Monument, Giant Sequoia National Monument). Id. There

is no category corresponding to any of the Pacific Marine National Monuments. Id. Moreover,

whereas Plaintiff’s Request was received by Federal Defendant on July 26, 2018, the link contains

a host of “records released before May 2018.” Id. While some of these records may be relevant to

Plaintiff’s request, it is clear that these documents were released in response to other FOIA

requests relating to different matters.

35. Upon information and belief, Federal Defendant constructed and populated the

aforementioned webpage in response to litigation initiated in November 2017 by Natural

Resources Defense Council and other groups. See Exhibit F. On March 20, 2018, the court in that

litigation ordered “that defendants Department of Interior (DOI) and Bureau of Land Management

(BLM) shall review 1,500 pages of potentially responsive records per month and release the

responsive documents. DOI and BLM may make these releases available on the Interior website,

but BLM and DOI MUST identify within each release the documents that are responsive to

plaintiffs’ six particular FOIA requests.” Id.

36. Upon information and belief, Federal Defendant is now referring FOIA requesters,

including Plaintiff, to this webpage whenever it receives a request relating to National Monuments

and/or Executive Order 13792.

37. As of the date of this Complaint, Plaintiff has not received a legally sufficient

determination on its Request for records. The September 17 communication and associated

webpage are not responsive to Plaintiff’s Request, but to other requests that are concerned with,

inter alia, different National Monuments. In addition, Plaintiff has not received a determination




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on its request for a waiver of fees.

38. Plaintiff believes and alleges that Federal Defendant is unlawfully withholding a

determination on its Request (including its request for a waiver of fees).

39. Federal Defendant has offered no reasonable explanation for its delay, and it has failed

to estimate when, or to indicate whether, it will comply with its obligations under FOIA.

40. Because Federal Defendant has “fail[ed] to comply with the applicable time limit

provisions,” Plaintiff has constructively exhausted its administrative remedies with respect to the

requested documents. 5 U.S.C. § 552(a)(6)(C)(i).

FIRST CLAIM FOR RELIEF

Violation of Freedom of Information Act Failure to Respond with a Determination

41. Plaintiff herein incorporates all allegations contained in the preceding paragraphs.

42. FOIA provides that any person may obtain promptly those agency records that are not

subject to the FOIA disclosure exemptions. 5 U.S.C. § 552 (a)(3)(A).

43. Plaintiff properly requested records within the control of Federal Defendant.

44. Federal Defendant failed to provide Plaintiff with a determination as to whether Federal

Defendant has any non-exempt records responsive to the Request and whether it intended to release

such records within the required timeframe. Id. at §§ 552(a)(6)(A)(i); 552(a)(6)(B).

45. Federal Defendant failed to properly invoke and comply with FOIA’s provision

allowing a ten working-day extension for “unusual circumstances.” Id. at § 552(a)(6)(B)(i).

46. Federal Defendant failed to properly invoke and comply with FOIA’s provision

permitting an extension of potentially greater than ten working days by offering Plaintiff an

opportunity to arrange with the agency an alternative time frame for processing the request or a

modified request. Id. at § 552(a)(6)(B)(ii).

47. Federal Defendant did not provide Plaintiff with a determination on its request for a




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waiver of fees within the required timeframe, nor did Federal Defendant ask Plaintiff for additional

information “necessary to clarify with the requester issues regarding fee assessment.” 5 U.S.C. §

552(a)(6)(A)(ii)(II). As a result of this and the other statutory violations enumerated above, Federal

Defendant is now precluded from imposing fees. Id. at § 552(a)(4)(A)(viii).

48. Federal Defendant’s failure to comply with FOIA is subject to judicial review under 5

U.S.C. § 552(a)(4)(B).

49. Accordingly, Plaintiff is entitled to injunctive and declaratory relief with respect to a

determination on the Request.

SECOND CLAIM FOR RELIEF

Violation of Freedom of Information Act Failure to Disclose Records Promptly

50. Plaintiff herein incorporates all allegations contained in the preceding paragraphs.

51. FOIA requires Federal Defendant to process the Request described herein and to

promptly provide responsive records, or any reasonably segregable portion of a record not subject to

specified FOIA exemptions.

52. Federal Defendant violated Plaintiff’s rights under FOIA when it failed to promptly

disclose records, or to disclose reasonably segregable portions of lawfully exempt records, that are

responsive to the Request.

53. Federal Defendant’s failure to comply with FOIA is subject to judicial review under 5

U.S.C. § 552(a)(4)(B).

54. Accordingly, Plaintiff is entitled to injunctive and declaratory relief with respect to

Federal Defendant’s obligation to disclose responsive records promptly.




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PRAYER FOR RELIEF

Plaintiff respectfully requests that the Court enter judgment providing the following relief:

1. Declare that Federal Defendant violated FOIA by failing to make a determination

on Plaintiff’s Request (including the request for a waiver of fees) within the statutory

deadlines.

2. Order Federal Defendant to provide Plaintiff with a final determination on its

Request;

3. OrderFederalDefendanttoconductsearchesthatarereasonablycalculatedtolocate

allrecords—uptothedatewhenthesearchesareconducted—responsivetotheRequestat

nocosttoPlaintiff;

4. Process and release all records responsive to the Request at no cost to Plaintiff

within twenty days from the date of such order;

5. Retain jurisdiction of this action to ensure the processing of the Request and to

ensure that no agency records are wrongfully withheld;

6. Award Plaintiff costs, including reasonable attorney fees and litigation costs in this

action, pursuant to 5 U.S.C. § 552(a)(4)(E); and

7. Grant Plaintiff any relief that the Court deems just and proper.

Dated this 20th day of September 2018

s/ Brett W. Sommermeyer Brett W. Sommermeyer (WA Bar No. 30003) SEA SHEPHERD LEGAL 226 Eastlake Ave. East, No. 108 Seattle, WA 98102 Phone: (206) 504-1600 Email: [email protected]




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s/ Catherine E. Pruett Catherine E. Pruett (WA Bar No. 35140) SEA SHEPHERD LEGAL 226 Eastlake Ave. East, No. 108 Seattle, WA 98102 Phone: (206) 504-1600 Email: [email protected] Attorneys for Plaintiff SEA SHEPHERD LEGAL


Exhibit A

Case 2:18-cv-01387 Document 1-1 Filed 09/20/18 Page 1 of 6

Saving marine wildlife and habitats by enforcing, strengthening and developing protective laws, treaties, policies and practices worldwide

www.seashepherdlegal.org – +1 206.453.0012 2226 Eastlake Avenue East, #108, Seattle, WA 98102

Sea Shepherd Legal is a 501(c)(3) Nonprofit – EIN 47-2272507

Sea Shepherd Legal

July26,2018Submitted via Email Ms. Clarice Julka Office of the Secretary FOIA Contact United States Department of the Interior 1849 C Street NW Washington, DC 20240 [email protected] Re: Freedom of Information Act Request for Records Regarding Review of Four Marine

National Monuments (Pacific Remote Islands Marine National Monument, Rose Atoll Marine National Monument, Marianas Trench Marine National Monument, and Papahānaumokuākea Marine National Monument) Under Executive Orders 13792 and 13795

Dear Ms. Julka: I am writing on behalf of Sea Shepherd Legal (“SSL”) with a request for records maintained by the Department of Interior (“DOI”) regarding DOI’s review of the Pacific Remote Islands Marine National Monument, the Rose Atoll Marine National Monument, the Marianas Trench Marine National Monument, and the Papahānaumokuākea Marine National Monument (collectively, the “Pacific Marine National Monuments”) pursuant to Executive Orders 13792 and 13795. Consistent with SSL’s mission and pursuant to 43 C.F.R. Part 2 and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, I respectfully request the following records from the DOI:

1. All records relating to the DOI’s consultation and/or review, whether completed or ongoing, regarding the Pacific Marine National Monuments pursuant to Executive Order 13792 (entitled “Review of Designations Under the Antiquities Act”).1 This request includes records relating to cost-benefit analysis, environmental considerations, legal analysis, communications with other federal agencies and state, tribal, and local governments, and any other records bearing a connection to review of the Pacific Marine National Monuments under Executive Order 13792. This request also includes any DOI findings, conclusions, reports, or recommendations, whether final or tentative, relating to the Pacific Marine National Monuments under Executive Order 13792.

1 Executive Order 13792, Review of Designations Under the Antiquities Act, 82 FR 20429 (April 26, 2017).




Sea Shepherd Legal

2. All records relating to the DOI’s consultation and/or review, whether completed or ongoing, regarding the Pacific Marine National Monuments pursuant to Executive Order 13795 (entitled “Implementing An America-First Offshore Energy Strategy”).2 This request includes records relating to cost-benefit analysis, environmental considerations, legal analysis, communications with state, tribal, and local governments, and any other records bearing a connection to review of the Pacific Marine National Monuments under Executive Order 13795. This request also includes any DOI findings, conclusions, reports, or recommendations, whether final or tentative, relating to the Pacific Marine National Monuments under Executive Order 13795.

The items specifically requested are not meant to be exclusive of any other documents that, although not specially requested, have a reasonable relationship to the subject matter of this request. “Documents” and “records” include, but are not limited to, all permits, agreements, contracts, surveys, field notes, correspondence, minutes, memoranda, maps, plans, drawings, emails, reports, databases, emails, faxes, and notes. This request includes all documents that have ever been within your custody or control, including all inter- and intra-agency documents, whether they exist in agency working, investigative, retired, electronic mail, or other files currently or at any other time.

REQUEST FOR FEE WAIVER SSL requests that the DOI waive all fees in connection with the procurement of this information pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). As demonstrated below, the nature of this request meets the test for fee waiver as expressed in FOIA, 5 U.S.C. § 552(a)(4)(A)(iii). In deciding whether the fee waiver criteria are satisfied, SSL respectfully reminds the DOI that FOIA is inclined toward disclosure and that the fee waiver amendments were enacted to allow further disclosure to nonprofit, public interest organizations. See 132 Cong. Rec. S. 14270-01 (statement of Sen. Leahy) (“[A]gencies should not be allowed to use fees as an offensive weapon against requesters seeking access to Government information.”). Furthermore, the federal appellate courts have interpreted this fee waiver section broadly, holding that the section is to be “‘liberally construed in favor of waivers for noncommercial requesters.’” Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (quoting McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir.1987) (citing Sen. Leahy)); accord Forest Guardians v. U.S. Dep't of Interior, 416 F.3d 1173, 1178 (10th Cir. 2005).

I. The present disclosure is in the public interest because it will significantly contribute to public understanding of the operations or activities of government.

The requested disclosure will contribute to public understanding of the operations or activities of the government. 5 U.S.C. § 552(a)(4)(A)(iii).

2 Executive Order 13795, Implementing an America-First Offshore Energy Strategy, 82 FR 20815 (April 28, 2017).





Sea Shepherd Legal

A. The subject of the disclosure concerns “the operations and activities of the

government.” The requested information pertains to the DOI’s consultation and review regarding four Marine National Monuments pursuant to two Executive Orders signed by President Trump. The Marine National Monuments at issue—the Pacific Remote Islands Marine National Monument, the Rose Atoll Marine National Monument, the Marianas Trench Marine National Monument, and the Papahānaumokuākea Marine National Monument—cover diverse areas of U.S. territory throughout the Pacific. These Monuments share a bipartisan legacy. While President George W. Bush established all four Monuments, President Obama supported their continuity and expanded two of the four (the Papahānaumokuākea Marine National Monument and the Pacific Remote Islands Marine National Monument). There can be no question that the DOI’s analyses of these Marine National Monuments qualify as “operations and activities of the government.” In Executive Order 13792, President Trump claimed that Monument designations “have a substantial impact” on public lands and waters, while emphasizing the importance of “public outreach and proper coordination” in making such designations.3 With this in mind, the President asked the Secretary of the Interior, coordinating with the Secretary of Commerce in the case of Marine National Monuments, to “conduct a review of all Presidential designations or expansions of designations under the Antiquities Act made since January 1, 1996.”4 In Executive Order 13795, President Trump described the review of Marine National Monuments and National Marine Sanctuaries as necessary to “implementing a plan that ensures energy security and economic vitality for decades to come.”5 Among other things, President Trump directed DOI to consult with the Secretary of Commerce in an effort to “conduct a review of all designations and expansions of National Marine Sanctuaries, and of all designations and expansions of Marine National Monuments under the Antiquities Act of 1906[.]”6 Agency actions pursuant to Executive Order are clearly “operations and activities of the government.” The consultations and reviews here are no exception.

B. The disclosure is “likely to contribute significantly to public understanding” of government operations or activities.

The present disclosure by the DOI will provide the public a better understanding of how the DOI and other government actors perceive the relative benefits and costs of the Pacific Marine National

3 Supra n. 1 at § 1. 4 Id. at § 2. 5 Supra n. 2 at § 1. 6 Id. at § 4.




Sea Shepherd Legal

Monuments. The requested records will also facilitate an understanding of whether the DOI, as currently constituted, perceives any legal infirmity regarding these Monuments’ creation and expansion. SSL is a public interest organization that will utilize this information to gain a better understanding of how the DOI approaches the Antiquities Act and the marine areas created under that legislation. We inform, educate and counsel the public—via legal action, our website, our weblog, and ongoing training and capacity-building activities—on risks to marine wildlife and habitat. SSL works to achieve its goals through policy work, education, and litigation. Accordingly, SSL is an effective vehicle to disseminate information on the DOI’s consultation and review of the Pacific Marine National Monuments. Perhaps most importantly, this FOIA request will help SSL fulfill its well-established function of public oversight of government action. Public oversight of agency action is a vital component in our democratic system and is the bedrock principle upon which FOIA is built. As the DOI knows, Executive Orders 13792 and 13795 have garnered significant attention in the press and no small amount of concern among conservation organizations. The present request responds to the public’s call for more information.

II. Obtaining the information is of no commercial interest to SSL. SSL is a 501(c)(3) nonprofit, public interest environmental law firm with a mission to save marine wildlife and habitats by enforcing, strengthening, and developing protective laws, treaties, policies, and practices worldwide. SSL works on a range of matters from ensuring proper governmental agency action to developing innovative policy approaches to encourage greater protections for marine wildlife and ecosystems. Under FOIA, a commercial interest is one that furthers a commercial, trade, or profit interest as those terms are commonly understood. See, e.g., OMB Fee Guidelines, 52 Fed. Reg. 10017-18. Such interests are not present in this request. In no manner does SSL seek information from the DOI for commercial gain or interest. Upon request and free of charge, SSL will provide members of the public with relevant information obtained from the DOI.

*****

Based upon the foregoing, SSL asks that this FOIA request be classified within the DOI’s fee waiver category and that the DOI send the requested information as required by law. We look forward to your reply within twenty working days as required by FOIA. 5 U.S.C. § 552(a)(6)(A)(i). If the responsive records are voluminous, please contact me to discuss the proper scope of the response. If any exemption from FOIA’s disclosure requirement is claimed, please describe in writing the general nature of the document and the particular legal basis upon which the exemption is claimed. We respectfully remind DOI that, pursuant to the FOIA Improvement Act of 2016, Congress amended FOIA





Sea Shepherd Legal

to authorize withholding “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”7 In other words, the technical application of an exemption is no longer sufficient to justify withholding; the agency must also identify a foreseeable harm or make a determination that disclosure is affirmatively illegal. Should any document be redacted, please indicate the location of the redaction through the use of black ink and provide a ledger with as much information as possible regarding the redacted information. Please provide any and all non-exempt portions of any document that may be partially exempt, as required by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

To expedite our review of the records, we kindly ask that you upload responsive documents to FOIA Online or send responsive documents via electronic mail to the address listed below. Should physical delivery be necessary, please send all materials to 2226 Eastlake Avenue East, #108, Seattle, WA 98102. You may call me at (206) 504-1600 if you have any further questions about this request. Thank you for your prompt attention to this matter. Sincerely, s/Nicholas Fromherz Nicholas Fromherz Senior Attorney Sea Shepherd Legal (206) 504-1600 [email protected]

7 FOIA Improvement Act of 2016 (Public Law No. 114-185) (codified at 5 U.S.C. § 552 (a)(8)(A)(i)(I)).


Exhibit B


United States Department of the Interior OFFICE OF THE SECRETARY

Washington, DC 20240

IN REPLY REFER TO:

7202.4-OS-2018-01436

July 27, 2018

Via email: [email protected]

Nicholas Fromherz

Senior Attorney

Sea Shepherd Legal

2226 Eastlake Avenue East, #108

Seattle, WA 98102

Dear Mr. Fromherz:

On, July 26, 2018, you filed a Freedom of Information Act (FOIA) request seeking the following:

Request for records maintained by the Department of Interior (“DOI”) regarding DOI’s

review of the Pacific Remote Islands Marine National Monument, the Rose Atoll

Marine National Monument, the Marianas Trench Marine National Monument, and the

Papahānaumokuākea Marine National Monument (collectively, the “Pacific Marine

National Monuments”) pursuant to Executive Orders 13792 and 13795. Consistent with

SSL’s mission and pursuant to 43 C.F.R. Part 2 and the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, I request the following records from the DOI:

All records relating to the DOI’s consultation and/or review, whether completed

or ongoing, regarding the Pacific Marine National Monuments pursuant to

Executive Order 13792 (entitled “Review of Designations Under the Antiquities

Act”).1 This request includes records relating to cost-benefit analysis,

environmental considerations, legal analysis, communications with other federal

agencies and state, tribal, and local governments, and any other records bearing

a connection to review of the Pacific Marine National Monuments under

Executive Order 13792. This request also includes any DOI findings,

conclusions, reports, or recommendations, whether final or tentative, relating to

the Pacific Marine National Monuments under Executive Order 13792.



Executive Order 13795 (entitled “Implementing An America-First Offshore


mailto:[email protected]

Mr. Nicholas Fromherz 2

Energy Strategy”).2 This request includes records relating to cost-benefit

analysis, environmental considerations, legal analysis, communications with

state, tribal, and local governments, and any other records bearing a connection

to review of the Pacific Marine National Monuments under Executive Order

13795. This request also includes any DOI findings, conclusions, reports, or

recommendations, whether final or tentative, relating to the Pacific Marine

National Monuments under Executive Order 13795.

The items specifically requested are not meant to be exclusive of any other

documents that, although not specially requested, have a reasonable relationship to

the subject matter of this request. “Documents” and “records” include, but are not

limited to, all permits, agreements, contracts, surveys, field notes, correspondence,

minutes, memoranda, maps, plans, drawings, emails, reports, databases, emails,

faxes, and notes. This request includes all documents that have ever been within your

custody or control, including all inter- and intra-agency documents, whether they exist

in agency working, investigative, retired, electronic mail, or other files currently or at

any other time.

Your request was received in the Office of the Secretary FOIA office on July 26, 2018, and

assigned control number OS-2018-01436. Please cite this number in any future communications

with our office regarding your request.

We have classified you as an “other-use” requester. As such, we may charge you for some of our

search and duplication costs, but we will not charge you for our review costs; you are also entitled

to up to 2 hours of search time and 100 pages of photocopies (or an equivalent volume) for free.

See 43 C.F.R. § 2.39. If, after taking into consideration your fee category entitlements, our

processing costs are less than $50.00, we will not bill you because the cost of collection would be

greater than the fee collected. See 43 C.F.R. § 2.37(g)

Fee Waiver

You have asked for a waiver of all FOIA processing fees. Please be advised that we are in the

process of determining whether or not your entitlements are sufficient to enable us to process your

request, or if we will need to issue a formal determination on your request for a fee waiver.

You can expect to hear from us promptly regarding the outcome of this search.

You have asked for copies of agency records. According to our regulations, you may choose the

format of disclosure for such records. Unless you specify otherwise, the Office of the Secretary will

provide copies of responsive records electronically via email or CD-ROM as scanned PDF images

when the responsive records exceed 50 pages.


http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=0fc3ab3499768eebc2e3691c8cf88dec&rgn=div5&view=text&node=43:1.1.1.1.2&idno=43#43:1.1.1.1.2.7.5.3



Because we will need to consult with one or more bureaus of the Department in order to properly

process your request, the Office of the Secretary FOIA office is taking a 10-workday extension

under 43 C.F.R. § 2.19. For the same reason, we are placing your request under the “Complex”

processing track. See 43 C.F.R. § 2.19.

In the interim, if you have any questions regarding the status of your request, or any of the issues

discussed in this letter, you may contact Cindy Sweeney by phone at 202-513-0765, by fax at 202-

219-2374, by e-mail at [email protected] or by mail at U.S. Department of the Interior, 1849 C

Street, NW, MS-7328 MIB, Washington, D.C. 20240. You also may seek dispute resolution

services from our FOIA Public Liaison, Clarice Julka.

Sincerely,

Clarice Julka

Office of the Secretary

FOIA Officer


https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=0fc3ab3499768eebc2e3691c8cf88dec&rgn=div5&view=text&node=43:1.1.1.1.2&idno=43%20-%2043:1.1.1.1.2.4.5.2


Exhibit C


Wednesday, September 19, 2018 at 1:16:48 PM Bolivia Time

Page 1 of 1

Subject: Fwd: Na(onal Monument-related FOIA RequestsDate: Tuesday, September 18, 2018 at 8:36:25 AM Bolivia TimeFrom: [email protected] on behalf of OS, OS FOIATo: Nick FromherzAHachments: Na(onal Monument Produc(on Release LeTer - 9.17.pdf

---------- Forwarded message ----------From: OS, OS FOIA <[email protected]>Date: Mon, Sep 17, 2018 at 2:35 PMSubject: Na(onal Monument-related FOIA RequestsTo: OS FOIA OS <[email protected]>Cc: Benjamin Schreiber <[email protected]>, "Benton Peterson (USADC)" <[email protected]>,"[email protected]" <[email protected]>, "Damon Taaffe (USADC)"<[email protected]>, "[email protected]" <[email protected]>, "[email protected]" <[email protected]>, "[email protected]" <[email protected]>,"[email protected]" <[email protected]>, Joshua Hanson <[email protected]>, KennethVanWey <[email protected]>, Kevin Bogardus <[email protected]>, "[email protected]"<[email protected]>, "Miguel, Ken" <[email protected]>, Ryan Sklar <[email protected]>,"[email protected]" <[email protected]>, "[email protected]"<[email protected]>, "U.S. Department of the Interior" <[email protected]>

Dear Requester,

We are writing to partially respond to your national monument-related FOIA request(s) on behalf of the Office of the Secretary.We have released records related to the Secretary’s review of certain National Monuments designated or expanded under theAntiquities Act of 1906 at https://www.doi.gov/foia/os/national-monuments-review-executive-order-13792. The newlyreleased documents are located at the bottom of the page under “Categorized Records.” Each month, the DOI will uploadadditional .zip files to each of the categories for which responsive documents have been released. The categories will enableyou to locate the documents responsive to the information sought in the FOIA requests that you submitted. If necessary, theDepartment may also add additional categories to ensure that requesters can identify the categories of documents responsive totheir requests.

Please see the attached production release letter for additional information about this release.

-- Department of the InteriorOffice of the Secretary, FOIA Office1849 C Street, NW, MS-7328Washington, D.C. [email protected](202) 513-0765 - phone(202) 219-2374 - fax

-- Department of the InteriorOffice of the Secretary, FOIA Office1849 C Street, NW, MS-7328Washington, D.C. [email protected](202) 513-0765 - phone(202) 219-2374 - fax





























https://www.doi.gov/foia/os/national-monuments-review-executive-order-13792

https://www.doi.gov/foia/os/national-monuments-review-executive-order-13792



1


WASHINGTON, DC 20240

September 17, 2018 Re: National Monument-related FOIA Requests Dear Requester: We are writing to partially respond to your national monument-related FOIA request(s) on behalf of the Office of the Secretary. We have released 1,603 pages of records related to the Secretary’s review of certain National Monuments designated or expanded under the Antiquities Act of 1906 at https://www.doi.gov/foia/os/national-monuments-review-executive-order-13792. The newly released documents are located at the bottom of the page under “Categorized Records.” If you click on each of the topical categories, you find a series of .zip files that contain all of the released documents (in PDF format) that are responsive to that topic. The files are in chronological order and labeled according to their release date. Each month, the DOI will upload additional .zip files to each of the categories for which responsive documents have been released. The categories will enable you to locate the documents responsive to the information sought in the FOIA requests that you submitted. If necessary, the Department may also add additional categories to ensure that requesters can identify the categories of documents responsive to their requests.

You will find that some portions of these documents have been redacted. If a portion of a document is being withheld pursuant to one of the exemptions listed in the FOIA (5 U.S.C. § 552(b)), the applicable exemption has been marked on the face of the document in the redacted area. An explanation of each of the potentially applicable exemptions are explained below. Portions of the released documents may have been withheld pursuant to Exemption 3 of the FOIA (5 U.S.C. § 552(b)(3)). Exemption 3 allows the withholding of information prohibited from disclosure by another federal statute provided that either the statute “(A) requires that matters be withheld from the public in such a manner as to leave no discretion on the issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3) (emphasis added). Under 16 U.S.C. § 470hh (Archaeological Resources Protection Act of 1979), the release of information pertaining to the nature and location of certain archaeological resources is prohibited. See Hornbostel v. U.S. Dep’t of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D.C. Cir. Aug. 25, 2004). Any documents not releasable under the FOIA because they contain maps pertaining to particular archeological resources have withheld in part under Exemption 3 of the FOIA Portions of the released documents may have been redacted pursuant to Exemption 5 of the


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FOIA (5 U.S.C. § 552 (b)(5)) under the following privileges:

Attorney Client Privilege Attorney Work Product Confidential Commercial Information Deliberative Process

Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party... in litigation with the agency.” 5 U.S.C. § 552 (b)(5). As such, the Exemption 5 “exempt[s] those documents... normally privileged in the civil discovery context.” National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). The exemption incorporates the privileges that protect materials from discovery in litigation. These privileges include deliberative process, confidential commercial information, attorney work-product, and attorney-client. See id.; see also Federal Open Market Committee v. Merrill, 443 U.S. 340, 363 (1979) (finding a confidential commercial information privilege under Exemption 5). Attorney-Client Privilege The attorney-client privilege protects “confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice” and is not limited to the context of litigation. Mead Data Cent., Inc. v. United States Dep’t of the Air Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977). Moreover, although it fundamentally applies to confidential facts divulged by a client to his/her attorney, this privilege also encompasses any opinions given by an attorney to his/her client based upon, and thus reflecting, those facts, as well as communications between attorneys that reflect confidential client-supplied information. See Elec. Privacy Info. Ctr. v. United States Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 114- 15 (D.D.C. 2005). Where we reasonably foresaw that disclosure would harm an interest protected by Exemption 5, those portions of the documents have been withheld pursuant to the attorney-client privilege of Exemption 5 because they constitute confidential communications between agency attorneys and agency clients, related to legal matters for which the client sought professional legal assistance and services. Public dissemination of them would most certainly have a chilling effect on communications between agency clients and attorneys.

Attorney Work-Product Privilege As incorporated into Exemption 5, the attorney work-product privilege protects from disclosure any materials prepared by or for a party or its representative (including their attorney, consultant, surety, indemnitor, insurer, or agent) in anticipation of litigation or for trial. See Judicial Watch, Inc. v. United States Dep’t of Justice, 432 F3d 366, 369 (D.C. Cir. 2005). The privilege applies once specific claims have been identified that make litigation probable; the actual beginning of litigation is not required. See Hertzberg v. Veneman, 273 F. Supp. 2d 67, 75 (D.D.C. 2003). Its purpose is to protect the adversarial trial process by insulating litigation preparation from scrutiny, as “[i]t is believed that the integrity of our system would suffer if adversaries were entitled to probe each other’s thoughts and plans concerning the case.” Coastal States Gas Corp. v. United States Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). The privilege extends to administrative, as well as judicial proceedings. See Exxon Corp. v. United States Dep’t of Energy, 585 F. Supp. 690, 700 (D.D.C. 1983). Once the determination is made that documents are protected from disclosure by the attorney work-product privilege, the entire contents of those documents are exempt from disclosure under FOIA. See Judicial Watch, 432 F3d at 370-71.


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Where we reasonably foresaw that disclosure would harm an interest protected by exemption 5, those portions of the documents have been withheld pursuant to Exemption 5 under the attorney work-product privilege because they consist of notations and comments made by Department of the Interior attorneys in reasonable anticipation of litigation. As such, they contain conclusions, opinions, and recommendations of agency attorneys and are being withheld under the attorney work- product privilege of Exemption 5. Confidential Commercial Information Privilege When the government enters the marketplace as an ordinary commercial buyer or seller, the government information is protected from competitive disadvantage under Exemption 5. Government Land Bank v. General Services Administration, 671 F.2d 663, 665 (1st Cir. 1982). Exemption 5 prevails “where the document contains ‘sensitive information not otherwise available,’ and disclosure would significantly harm the government’s commercial interest.” Id. at 666; see also Merrill, 443 U.S. at 363.

Pursuant to the confidential commercial information privilege, conference call codes and passcodes have been withheld under Exemption 5. This information constitutes “intra-agency” documents because they are only shared with members of the Department of the Interior for the purpose of conducting official government business. Moreover, this information qualifies as “confidential commercial information” because the government entered the marketplace as an ordinary commercial buyer. In line with Land Bank and Merrill, the information is “sensitive and not otherwise available.” If the information was released, the government’s financial interest would be significantly harmed. The conference calls would no longer be private since unknown, non-governmental parties would have the ability to listen in to the calls. The funds spent on purchasing the information would therefore be wasted, and the information would be of no use. Where we reasonably foresaw that the release of this information would significantly harm the government’s financial interest by publicizing sensitive information, the Office of the Secretary withheld it in accordance with Exemption 5 of the FOIA.

Deliberative Process Privilege The deliberative process privilege “protects the decisionmaking process of government agencies” and “encourages the frank discussion of legal and policy issues” by ensuring that agencies are “not forced to operate in a fishbowl.” Mapother v. United States Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (citing Wolfe v. United States Dep’t of Health & Human Services, 839 F.2d 768, 773 (D.C. Cir. 1988)). Three policy purposes have been advanced by the courts as the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action. See Coastal States Gas Corp. v. United States Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The deliberative process privilege protects materials that are both predecisional and deliberative. Mapother, 3 F.3d at 1537; Access Reports v. United States Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991); Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). A “predecisional” document is one “prepared in order to assist an agency decision maker in arriving at his decision,” and may include “recommendations, draft documents, proposals,


4

suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Maricopa Audubon Society v. United States Forest Service, 108 F.3d 1089, 1093 (9th Cir. 1997). A predecisional document is part of the “deliberative process” if “the disclosure of [the] materials would expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).

The deliberative process privilege does not apply to records created 25 years or more before the date on which the records were requested. Where we reasonably foresaw that disclosure would harm an interest protected by exemption 5, those portions of the documents have been withheld pursuant to the deliberative process privilege of Exemption 5 because they are both predecisional and deliberative. They do not contain or represent formal or informal agency policies or decisions. They are the result of frank and open discussions among employees of the Department of the Interior. Therefore, their content has been held confidential by all parties. Public dissemination of this information would have a chilling effect on the agency’s deliberative processes; it would expose the agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine its ability to perform its mandated functions. Portions of the uploaded documents may have been redacted pursuant to Exemption 6 of the FOIA (5 U.S.C. § 552 (b)(6)) because they fit certain categories of information:

Personal telephone numbers

Personal e-mail addresses Personal names and information relating to medical care

Exemption 6 allows an agency to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The courts have held that the phrase “similar files” involves all information that applies to a particular person. Hertzberg v. Veneman, 273 F. Supp. 2d 67, 85 n.11 (D.D.C. 2003). To determine whether releasing requested information would constitute a clearly unwarranted invasion of personal privacy, we are required to perform a “balancing test.” This means that we must weigh the individual’s right to privacy against the public’s right to disclosure.

(1) First, we must determine whether the individual has a discernible privacy interest in the information that has been requested.

(2) Next, we must determine whether release of this information would serve “the public interest generally” (i.e., would “shed light on the performance of the agency's statutory duties”).

(3) Finally, we must determine whether the public interest in disclosure is greater than the privacy interest of the individual in withholding.

Any information that we are withholding pursuant to this exemption consists of personal information, and we have determined that the individuals to whom this information pertains have a substantial privacy interest in it. Additionally, we have determined that the disclosure of this information would shed little or no light on the performance of the agency’s statutory duties and that, on balance, the public interest to be served by its disclosure does not outweigh the privacy


5

interest of the individuals in question, in withholding it. Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). In summation, we have determined that release of the information that we have withheld would constitute a clearly unwarranted invasion of the privacy of these individuals, and that it therefore may be withheld, pursuant to Exemption 6. Moreover, we reasonably foresaw that disclosure would harm an interested protected by Exemption 6. Portions of the enclosed documents may have been redacted pursuant to Exemption 7 of the FOIA (5 U.S.C. § 552(b)(7)). Exemption 7 of the FOIA protects from disclosure “records or information compiled for law enforcement purposes” if such records fall within one or more of six additional categories. The records withheld under Exemption 7 were compiled for law enforcement purposes and therefore meet the threshold requirement of Exemption 7.

7(C) Exemption 7(C) protects personal information in law enforcement records where release could reasonably be expected to constitute an unwarranted invasion of personal privacy. Here, releasing records you are seeking would constitute an unwarranted invasion of privacy because they identify individuals referenced in law enforcement records and the release of this information would not shed light on an agency’s performance of its statutory duties. Therefore, we are withholding records under Exemption 7(C). Ryan Sklar and Joshua Hanson, Attorney- Advisors with the Office of the Solicitor, were consulted in reaching decisions regarding withheld material. Clarice Julka, FOIA Officer, is responsible for making these decisions. If you have any questions about our response to your request, you may contact Ryan McQuighan by phone at 202-513-0765, by fax at 202-219-2374, by email [email protected], or by mail at U.S. Department of the Interior, 1849 C Street, NW, MS 7328, Washington, D.C. 20240.

Sincerely,

Clarice Julka Office of the Secretary FOIA Officer


Exhibit D





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Sea Shepherd Legal

September 14, 2018 Submitted via Email Mses. Clarice Julka & Cindy Sweeney U.S. Department of the Interior Office of the Secretary 1849 C Street, NW MS-7328 MIB, Washington, D.C. 20240 Email: [email protected] Re: Control No. OS-2018-01436 Dear Mses. Julka and Sweeney: While we appreciate your office’s letter of acknowledgement dated July 27, 2018 (“Acknowledgement Letter,” attached as Appendix A), Sea Shepherd Legal (“SSL”) is, nevertheless, troubled by the Department of Interior’s (“DOI”) treatment of this matter to date. Despite the lapse of statutory time periods, we have received neither a determination regarding our request for records nor a decision on our request for a waiver of fees. In the absence of prompt attention to these issues, SSL will be forced to consider litigation.

I. Chronology of FOIA Request and Correspondence to Date

SSL submitted its FOIA request (attached as Appendix B) via email on July 26, 2018. According to the DOI’s Acknowledgement Letter, SSL’s request “was received in the Office of the Secretary FOIA office” on the same day. Acknowledgement Letter at 2. After acknowledging the content of SSL’s request, the DOI announced its intent to invoke “a 10-workday extension under 43 C.F.R. § 2.19.” Id. at 3. As explained below, this extension is available in “unusual circumstances,” which may include the need to consult with multiple components to process the request. This was the justification that the DOI offered. With respect to SSL’s request for a waiver of fees, the DOI wrote as follows: “Please be advised that we are in the process of determining whether or not your entitlements are sufficient to enable us to process your request, or if we will need to issue a formal determination on your request for a fee waiver.” Id. at 2. The DOI has not communicated with SSL in any way since sending its Acknowledgement Letter.




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II. DOI Violated the Statutory Deadline To Make a Determination.

FOIA is designed to achieve the “goal of prompt disclosure of information.” Stonehill v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009). As such, when an agency receives a FOIA request, the default rule provides that the agency has only twenty working days in which to decide “whether to comply” with the request. 5 U.S.C. § 552(a)(6)(A)(i). Exceptions to this default, including the “unusual circumstances” exception, are “narrowly defined” so as not to undermine the overall goal of prompt disclosure. See Piper v. R. J. Corman R.R. Group, 2005 U.S. Dist. LEXIS 13042, *28 (E.D. Ky. Jun. 28, 2005) (“Under certain narrowly defined unusual circumstances, the amended FOIA grants agencies an extra ten business days to process a request if the agency provides notice of this extension to the requester.”) (internal quotation marks omitted). Here, the twentieth working day following the acknowledged date of receipt (July 26) occurred on August 23. Assuming without conceding (see below) that the DOI properly claimed an extension for unusual circumstances, the tenth additional working day fell on September 7. This accounts for the intervening Labor Day holiday. Thus, as of this writing, the DOI has violated the statutory deadline by at least five working days.

III. DOI’s Failure To Indicate “the Date on Which a Determination Is Expected To Be Dispatched” Is Fatal to Its Invocation of “Unusual Circumstances.”

The statutory authority for an extension in the event of “unusual circumstances” comes from 5 U.S.C. § 552(a)(6)(B)(i), which provides as follows:

In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) [i.e., the twenty-day period] may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph.

5 U.S.C. § 552(a)(6)(B)(i) (emphasis added). As this language reveals, the statute does not simply require the agency to provide prior written notice setting forth the unusual circumstances; it also requires the agency to set forth “the date on which a determination is expected to be dispatched.” 5 U.S.C. § 552(a)(6)(B)(i). The requirement of a date certain is reiterated in the DOI’s regulations. The relevant text of 43 C.F.R. § 2.19, the very regulation that the DOI cites in its Acknowledgement Letter, reads as follows:

(a) The bureau may extend the basic time limit, if unusual circumstances exist, by notifying you in writing of: (1) The unusual circumstances involved; and





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(2) The date by which it expects to complete processing the request. 43 C.F.R. § 2.19(a) (emphasis added). In the case at hand, the DOI has failed to satisfy its basic obligation to identify an expected date for determining its position on SSL’s request for records. The DOI’s bare assertion that it “is taking a 10-workday extension” meets neither the requirements of the statute nor those of the regulation, particularly when the latest possible date under that extension (September 7) has long since come and gone.

IV. DOI No Longer Has the Right To Deny SSL’s Request for a Waiver of Fees.

In the Acknowledgment Letter, DOI stated that it is “in the process of determining whether or not your entitlements are sufficient to enable us to process your request, or if we will need to issue a formal determination on your request for a fee waiver.” Acknowledgement Letter at 2. While SSL appreciates DOI’s need to study fee-waiver requests in light of the prevailing criteria, DOI has an obligation to proceed in accordance with the statutory timeframe. Under controlling judicial precedent, DOI’s truancy in this matter means that SSL has an absolute right to a waiver of all fees. In Bensman v. National Park Service, the court roundly rejected a DOI component’s position “that there is no time limit within which it must decide fee waivers.” Bensman v. Nat'l Park Serv., 806 F. Supp. 2d 31, 39 (D.D.C. 2011). To the contrary, the court held that the statutory time limit governing the agency’s decision as to “whether to comply with” a request for records (generally 20 working days) also governs decisions on fee-waiver requests. Id. at 38, 42. As the court observed, one of the key changes implemented through the 2007 amendments to FOIA “was to impose consequences on agencies that do not act in good faith or otherwise fail to comport with FOIA’s requirements.” Id. at 38. To this end, the 2007 amendments provide that “[a]n agency shall not assess search fees . . . if the agency fails to comply with any time limit under paragraph (6).” 5 U.S.C. § 552(a)(4)(A)(viii). Paragraph (6), of course, includes the basic twenty-day limit, along with the possibility of a ten-day extension for unusual circumstances. As in our case, the agency in Bensman breached the statutory time limit. Accordingly, the court held that the agency “cannot assess fees.” Bensman, 806 F. Supp. 2d at 42. The same holds true in the matter at hand. SSL now possesses an absolute right to a waiver of all fees associated with its FOIA request.

V. SSL Has Exhausted Its Administrative Remedies and May Proceed Directly with Litigation

In light of the above statutory violations, the law allows SSL to file suit directly in federal court. As a general proposition, a FOIA requester must exhaust administrative remedies prior to suing in




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court. “But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement.” Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 182 (D.C. Cir. 2013); see also 5 U.S.C. § 552(a)(6)(C)(i) (“Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph.”). As the court explained in Citizens for Responsibility, the consequence of an agency’s failure to comply with the statutory deadline is the lifting of the exhaustion bar: “[I]f the agency has not issued its ‘determination’ within the required time period, the requester may bring suit directly in federal district court without exhausting administrative appeal remedies.” Citizens for Responsibility & Ethics in Wash., 711 F.3d at 182. In this case, the DOI has “not issued its ‘determination’ within the required time period[.]” Id. As a consequence, SSL may forgo an administrative appeal and file suit under 5 U.S.C. § 552(a)(4)(B). Should SSL substantially prevail, it will be entitled to collect its reasonable attorney’s fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E).

***** In sum, the DOI has missed the deadline to determine “whether to comply” with SSL’s FOIA request, has violated its obligation to indicate “the date on which a determination is expected to be dispatched” in connection with its claim of “unusual circumstances,” and has lost its right to assess fees. Based on these violations, SSL need not exhaust administrative remedies prior to suing in federal court. Should you wish to discuss this matter further, please contact me at the below email address or telephone number. Sincerely, s/Nicholas Fromherz Nicholas Fromherz Senior Attorney Sea Shepherd Legal (503) 836-5260 [email protected] Enclosures: Appendices A & B





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APPENDIX A



Washington, DC 20240

IN REPLY REFER TO:

7202.4-OS-2018-01436

July 27, 2018

Via email: [email protected]

Nicholas Fromherz

Senior Attorney

Sea Shepherd Legal

2226 Eastlake Avenue East, #108

Seattle, WA 98102

Dear Mr. Fromherz:

On, July 26, 2018, you filed a Freedom of Information Act (FOIA) request seeking the following:

Request for records maintained by the Department of Interior (“DOI”) regarding DOI’s

review of the Pacific Remote Islands Marine National Monument, the Rose Atoll

Marine National Monument, the Marianas Trench Marine National Monument, and the

Papahānaumokuākea Marine National Monument (collectively, the “Pacific Marine

National Monuments”) pursuant to Executive Orders 13792 and 13795. Consistent with

SSL’s mission and pursuant to 43 C.F.R. Part 2 and the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, I request the following records from the DOI:



Executive Order 13792 (entitled “Review of Designations Under the Antiquities

Act”).1 This request includes records relating to cost-benefit analysis,

environmental considerations, legal analysis, communications with other federal

agencies and state, tribal, and local governments, and any other records bearing

a connection to review of the Pacific Marine National Monuments under

Executive Order 13792. This request also includes any DOI findings,

conclusions, reports, or recommendations, whether final or tentative, relating to

the Pacific Marine National Monuments under Executive Order 13792.



Executive Order 13795 (entitled “Implementing An America-First Offshore




Energy Strategy”).2 This request includes records relating to cost-benefit

analysis, environmental considerations, legal analysis, communications with

state, tribal, and local governments, and any other records bearing a connection

to review of the Pacific Marine National Monuments under Executive Order

13795. This request also includes any DOI findings, conclusions, reports, or

recommendations, whether final or tentative, relating to the Pacific Marine

National Monuments under Executive Order 13795.

The items specifically requested are not meant to be exclusive of any other

documents that, although not specially requested, have a reasonable relationship to

the subject matter of this request. “Documents” and “records” include, but are not

limited to, all permits, agreements, contracts, surveys, field notes, correspondence,

minutes, memoranda, maps, plans, drawings, emails, reports, databases, emails,

faxes, and notes. This request includes all documents that have ever been within your

custody or control, including all inter- and intra-agency documents, whether they exist

in agency working, investigative, retired, electronic mail, or other files currently or at

any other time.

Your request was received in the Office of the Secretary FOIA office on July 26, 2018, and

assigned control number OS-2018-01436. Please cite this number in any future communications

with our office regarding your request.

We have classified you as an “other-use” requester. As such, we may charge you for some of our

search and duplication costs, but we will not charge you for our review costs; you are also entitled

to up to 2 hours of search time and 100 pages of photocopies (or an equivalent volume) for free.

See 43 C.F.R. § 2.39. If, after taking into consideration your fee category entitlements, our

processing costs are less than $50.00, we will not bill you because the cost of collection would be

greater than the fee collected. See 43 C.F.R. § 2.37(g)

Fee Waiver

You have asked for a waiver of all FOIA processing fees. Please be advised that we are in the

process of determining whether or not your entitlements are sufficient to enable us to process your

request, or if we will need to issue a formal determination on your request for a fee waiver.

You can expect to hear from us promptly regarding the outcome of this search.

You have asked for copies of agency records. According to our regulations, you may choose the

format of disclosure for such records. Unless you specify otherwise, the Office of the Secretary will

provide copies of responsive records electronically via email or CD-ROM as scanned PDF images

when the responsive records exceed 50 pages.





Because we will need to consult with one or more bureaus of the Department in order to properly

process your request, the Office of the Secretary FOIA office is taking a 10-workday extension

under 43 C.F.R. § 2.19. For the same reason, we are placing your request under the “Complex”

processing track. See 43 C.F.R. § 2.19.

In the interim, if you have any questions regarding the status of your request, or any of the issues

discussed in this letter, you may contact Cindy Sweeney by phone at 202-513-0765, by fax at 202-

219-2374, by e-mail at [email protected] or by mail at U.S. Department of the Interior, 1849 C

Street, NW, MS-7328 MIB, Washington, D.C. 20240. You also may seek dispute resolution

services from our FOIA Public Liaison, Clarice Julka.

Sincerely,

Clarice Julka

Office of the Secretary

FOIA Officer






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APPENDIX B





Sea Shepherd Legal

July26,2018Submitted via Email Ms. Clarice Julka Office of the Secretary FOIA Contact United States Department of the Interior 1849 C Street NW Washington, DC 20240 [email protected] Re: Freedom of Information Act Request for Records Regarding Review of Four Marine

National Monuments (Pacific Remote Islands Marine National Monument, Rose Atoll Marine National Monument, Marianas Trench Marine National Monument, and Papahānaumokuākea Marine National Monument) Under Executive Orders 13792 and 13795

Dear Ms. Julka: I am writing on behalf of Sea Shepherd Legal (“SSL”) with a request for records maintained by the Department of Interior (“DOI”) regarding DOI’s review of the Pacific Remote Islands Marine National Monument, the Rose Atoll Marine National Monument, the Marianas Trench Marine National Monument, and the Papahānaumokuākea Marine National Monument (collectively, the “Pacific Marine National Monuments”) pursuant to Executive Orders 13792 and 13795. Consistent with SSL’s mission and pursuant to 43 C.F.R. Part 2 and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, I respectfully request the following records from the DOI:

1. All records relating to the DOI’s consultation and/or review, whether completed or ongoing, regarding the Pacific Marine National Monuments pursuant to Executive Order 13792 (entitled “Review of Designations Under the Antiquities Act”).1 This request includes records relating to cost-benefit analysis, environmental considerations, legal analysis, communications with other federal agencies and state, tribal, and local governments, and any other records bearing a connection to review of the Pacific Marine National Monuments under Executive Order 13792. This request also includes any DOI findings, conclusions, reports, or recommendations, whether final or tentative, relating to the Pacific Marine National Monuments under Executive Order 13792.

1 Executive Order 13792, Review of Designations Under the Antiquities Act, 82 FR 20429 (April 26, 2017).




Sea Shepherd Legal

2. All records relating to the DOI’s consultation and/or review, whether completed or ongoing, regarding the Pacific Marine National Monuments pursuant to Executive Order 13795 (entitled “Implementing An America-First Offshore Energy Strategy”).2 This request includes records relating to cost-benefit analysis, environmental considerations, legal analysis, communications with state, tribal, and local governments, and any other records bearing a connection to review of the Pacific Marine National Monuments under Executive Order 13795. This request also includes any DOI findings, conclusions, reports, or recommendations, whether final or tentative, relating to the Pacific Marine National Monuments under Executive Order 13795.

The items specifically requested are not meant to be exclusive of any other documents that, although not specially requested, have a reasonable relationship to the subject matter of this request. “Documents” and “records” include, but are not limited to, all permits, agreements, contracts, surveys, field notes, correspondence, minutes, memoranda, maps, plans, drawings, emails, reports, databases, emails, faxes, and notes. This request includes all documents that have ever been within your custody or control, including all inter- and intra-agency documents, whether they exist in agency working, investigative, retired, electronic mail, or other files currently or at any other time.

REQUEST FOR FEE WAIVER SSL requests that the DOI waive all fees in connection with the procurement of this information pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). As demonstrated below, the nature of this request meets the test for fee waiver as expressed in FOIA, 5 U.S.C. § 552(a)(4)(A)(iii). In deciding whether the fee waiver criteria are satisfied, SSL respectfully reminds the DOI that FOIA is inclined toward disclosure and that the fee waiver amendments were enacted to allow further disclosure to nonprofit, public interest organizations. See 132 Cong. Rec. S. 14270-01 (statement of Sen. Leahy) (“[A]gencies should not be allowed to use fees as an offensive weapon against requesters seeking access to Government information.”). Furthermore, the federal appellate courts have interpreted this fee waiver section broadly, holding that the section is to be “‘liberally construed in favor of waivers for noncommercial requesters.’” Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (quoting McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir.1987) (citing Sen. Leahy)); accord Forest Guardians v. U.S. Dep't of Interior, 416 F.3d 1173, 1178 (10th Cir. 2005).

I. The present disclosure is in the public interest because it will significantly contribute to public understanding of the operations or activities of government.

The requested disclosure will contribute to public understanding of the operations or activities of the government. 5 U.S.C. § 552(a)(4)(A)(iii).

2 Executive Order 13795, Implementing an America-First Offshore Energy Strategy, 82 FR 20815 (April 28, 2017).





Sea Shepherd Legal

A. The subject of the disclosure concerns “the operations and activities of the

government.” The requested information pertains to the DOI’s consultation and review regarding four Marine National Monuments pursuant to two Executive Orders signed by President Trump. The Marine National Monuments at issue—the Pacific Remote Islands Marine National Monument, the Rose Atoll Marine National Monument, the Marianas Trench Marine National Monument, and the Papahānaumokuākea Marine National Monument—cover diverse areas of U.S. territory throughout the Pacific. These Monuments share a bipartisan legacy. While President George W. Bush established all four Monuments, President Obama supported their continuity and expanded two of the four (the Papahānaumokuākea Marine National Monument and the Pacific Remote Islands Marine National Monument). There can be no question that the DOI’s analyses of these Marine National Monuments qualify as “operations and activities of the government.” In Executive Order 13792, President Trump claimed that Monument designations “have a substantial impact” on public lands and waters, while emphasizing the importance of “public outreach and proper coordination” in making such designations.3 With this in mind, the President asked the Secretary of the Interior, coordinating with the Secretary of Commerce in the case of Marine National Monuments, to “conduct a review of all Presidential designations or expansions of designations under the Antiquities Act made since January 1, 1996.”4 In Executive Order 13795, President Trump described the review of Marine National Monuments and National Marine Sanctuaries as necessary to “implementing a plan that ensures energy security and economic vitality for decades to come.”5 Among other things, President Trump directed DOI to consult with the Secretary of Commerce in an effort to “conduct a review of all designations and expansions of National Marine Sanctuaries, and of all designations and expansions of Marine National Monuments under the Antiquities Act of 1906[.]”6 Agency actions pursuant to Executive Order are clearly “operations and activities of the government.” The consultations and reviews here are no exception.

B. The disclosure is “likely to contribute significantly to public understanding” of government operations or activities.

The present disclosure by the DOI will provide the public a better understanding of how the DOI and other government actors perceive the relative benefits and costs of the Pacific Marine National

3 Supra n. 1 at § 1. 4 Id. at § 2. 5 Supra n. 2 at § 1. 6 Id. at § 4.




Sea Shepherd Legal

Monuments. The requested records will also facilitate an understanding of whether the DOI, as currently constituted, perceives any legal infirmity regarding these Monuments’ creation and expansion. SSL is a public interest organization that will utilize this information to gain a better understanding of how the DOI approaches the Antiquities Act and the marine areas created under that legislation. We inform, educate and counsel the public—via legal action, our website, our weblog, and ongoing training and capacity-building activities—on risks to marine wildlife and habitat. SSL works to achieve its goals through policy work, education, and litigation. Accordingly, SSL is an effective vehicle to disseminate information on the DOI’s consultation and review of the Pacific Marine National Monuments. Perhaps most importantly, this FOIA request will help SSL fulfill its well-established function of public oversight of government action. Public oversight of agency action is a vital component in our democratic system and is the bedrock principle upon which FOIA is built. As the DOI knows, Executive Orders 13792 and 13795 have garnered significant attention in the press and no small amount of concern among conservation organizations. The present request responds to the public’s call for more information.

II. Obtaining the information is of no commercial interest to SSL. SSL is a 501(c)(3) nonprofit, public interest environmental law firm with a mission to save marine wildlife and habitats by enforcing, strengthening, and developing protective laws, treaties, policies, and practices worldwide. SSL works on a range of matters from ensuring proper governmental agency action to developing innovative policy approaches to encourage greater protections for marine wildlife and ecosystems. Under FOIA, a commercial interest is one that furthers a commercial, trade, or profit interest as those terms are commonly understood. See, e.g., OMB Fee Guidelines, 52 Fed. Reg. 10017-18. Such interests are not present in this request. In no manner does SSL seek information from the DOI for commercial gain or interest. Upon request and free of charge, SSL will provide members of the public with relevant information obtained from the DOI.

*****

Based upon the foregoing, SSL asks that this FOIA request be classified within the DOI’s fee waiver category and that the DOI send the requested information as required by law. We look forward to your reply within twenty working days as required by FOIA. 5 U.S.C. § 552(a)(6)(A)(i). If the responsive records are voluminous, please contact me to discuss the proper scope of the response. If any exemption from FOIA’s disclosure requirement is claimed, please describe in writing the general nature of the document and the particular legal basis upon which the exemption is claimed. We respectfully remind DOI that, pursuant to the FOIA Improvement Act of 2016, Congress amended FOIA





Sea Shepherd Legal

to authorize withholding “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”7 In other words, the technical application of an exemption is no longer sufficient to justify withholding; the agency must also identify a foreseeable harm or make a determination that disclosure is affirmatively illegal. Should any document be redacted, please indicate the location of the redaction through the use of black ink and provide a ledger with as much information as possible regarding the redacted information. Please provide any and all non-exempt portions of any document that may be partially exempt, as required by Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

To expedite our review of the records, we kindly ask that you upload responsive documents to FOIA Online or send responsive documents via electronic mail to the address listed below. Should physical delivery be necessary, please send all materials to 2226 Eastlake Avenue East, #108, Seattle, WA 98102. You may call me at (206) 504-1600 if you have any further questions about this request. Thank you for your prompt attention to this matter. Sincerely, s/Nicholas Fromherz Nicholas Fromherz Senior Attorney Sea Shepherd Legal (206) 504-1600 [email protected]

7 FOIA Improvement Act of 2016 (Public Law No. 114-185) (codified at 5 U.S.C. § 552 (a)(8)(A)(i)(I)).



Exhibit E


U.S. Department of the Interior in f w t Q 0

Home Requests eLibraries Guidance Contacts

Freedom of Information Act Program / OS FOIA Library / National Monuments Review (Executive Order 13792)

Share sC

National Monuments Review (ExecutiveOrder 13792)Records Released Before May 2018

• Part 1

• Part 2

• Part 3

• Part 4

• Part 5

• Part 6

•

• F:Ag_a

• Part 9

• Part 10

• Part 11

• Part 12

• Part 13

• Part 14

• 1:15

• Part 16

• Part 17

• Part 18

• Part 19

• Part 20

• Part 21

• Part 22

• Part 23

• Part 24

• Part 25

• Part 26

• Part 27

• Part 28

• Part 29

• Part 30

• Part 31

• Part 32

• Part 33

Videos

• Videos related to the Cascade-Siskiyou National Monument


Categorized Records

• Basin and Range NM

• Bears Ears NM

• Bears Ears Zinke Staff Correspondence

• Cason Emails

• Carrizo Plain NM

• Conservation Lands Foundation

• Earth Justice/Sierra Club

• Giant Sequoia NM

• Gold Butte NM

• Grand Staircase-Escalante NM

• Katandin Woods and Waters NM

• Meetings Held by Zinke Staff

• Mojave Trails NM

• National Monument Report

• Northeast Canyons and Seamounts NM

• NRDC

• Process for Reviewing Public Comments

• Public Comment Review

• Revievv of National Monuments under EO 13792

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Exhibit F


*****

*****

*****

*****


JS 44 (Rev. 11/15) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC ’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark ’ 460 Deportation

Student Loans ’ 340 Marine Injury Product ’ 470 Racketeer Influenced and (Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 480 Consumer Credit of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) ’ 490 Cable/Sat TV

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 850 Securities/Commodities/’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI Exchange’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 890 Other Statutory Actions’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 891 Agricultural Acts

’ 362 Personal Injury - Product Liability Leave Act ’ 893 Environmental Matters Medical Malpractice ’ 790 Other Labor Litigation ’ 895 Freedom of Information

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS Act’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) ’ 899 Administrative Procedure’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)’ 1 Original

Proceeding’ 2 Removed from

State Court’ 3 Remanded from

Appellate Court’ 4 Reinstated or

Reopened’ 5 Transferred from

Another District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


JS 44 Reverse (Rev. 11/15)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.
