Cause of Action Institute Submits Comment Criticizing Proposed Revisions to Department of the Interior’s FOIA Regulations

Cause of Action Institute (CoA Institute) yesterday submitted a public comment to the Department of the Interior (DOI), criticizing the agency’s proposed revisions to its Freedom of Information Act (FOIA) regulations.  DOI’s amendments, which were published in the Federal Register in the final days of 2018, have already received negative attention from media sources, which suggest that the changes are intended to frustrate public access to records.  The government, for its part, claims that the revisions are necessary to deal with the marked increase of requests during the Trump Administration and to promote efficiency in the administration of the DOI FOIA program.

CoA Institute’s comment covers a variety of topics, but three are worth highlighting.  First, DOI seeks to prohibit intra-agency forwarding of “misdirected” requests.  But this proposal runs afoul of clear statutory directives.  Under Section 552(a)(6)(A)(ii) of the FOIA, the twenty working-day time frame for responding to a request begins to run once a request is received by an “appropriate component,” that is, the agency office likely to maintain responsive records.  In computing those twenty days, an agency is permitted no more than ten days to redirect any requests that have been sent to the wrong bureau or component.  In other words, so long as the agency has received the request, it is already under an obligation to begin processing it.  This “routing requirement” was introduced by the OPEN Government Act of 2007, and it has been consistently interpreted by the Department of Justice’s (DOJ) Office of Information Policy as prohibiting agencies from refusing to honor requests that have merely been sent to an incorrect office.

Beyond the legal deficiency in the elimination of intra-agency forwarding, it is not clear whether the change would even promote the efficiency goals envisioned by the rulemaking.  By refusing to forward misdirected requests, DOI may instead create an incentive for requesters to submit nearly-identical requests to multiple bureaus.  That could increase the FOIA backlog.  The elimination of intra-agency forwarding also would unfairly require requesters to identify the precise locations where the agency should conduct its search for responsive records.

Second, DOI wants to require requesters to describe the “discrete, identifiable agency activity, operation, or program” that their records requests concern.  Such ambiguous language imposes an unacceptable burden on requesters, who need only provide a “reasonable description” of the records they seek such that a knowledgeable professional within the agency could locate responsive material with reasonable effort.  DOI would similarly refuse to accept “broad requests,” despite the fact that OIP has advised agencies for over thirty years that “[t]he sheer size or burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that request on the ground that it does not ‘reasonably describe’ records[.]”

Third, and finally, DOI proposes to change its regulatory definition of a “record” by deviating from the statutory text and importing language from the Privacy Act.  CoA Institute has diligently followed developments in how the government defines a “record” under the FOIA.  In October 2018, we filed a lawsuit against the Department of Justice, challenging guidance that would permit agencies to break a single record into multiple smaller records, redacting information that should otherwise be public and that would not meet allowable exemptions under the FOIA statute.  DOI’s proposed rule follows this troubling guidance, particularly in its use of the Privacy Act’s definition of a record as “any item, collection, or grouping of information.”

DOI’s proposed definition of a record also includes items that are “reasonable encompassed by [a] request.”  This phrase seems to contemplate a relationship between the definition of a record and an individual request.  Yet a requester may only seek the disclosure of pre-existing records.  To allow the definition of a record to vary depending on any particular request would move away from an objective standard and allow FOIA officers too much discretion in the processing of potentially responsive materials.

CoA Institute is hopeful that DOI will accept these constructive comments, and others, and make any necessary corrections before publishing its final rule.

Ryan P. Mulvey is Counsel at Cause of Action Institute

CoA Institute Highlights Problems with Presidents’ Unilateral Designation of Monuments

Washington D.C. – After President Trump yesterday signed an executive order to review previous presidents’ national monument designations under the Antiquities Act, Cause of Action Institute (“CoA Institute”) today sent a letter to Interior Secretary Ryan Zinke outlining why some designations may have been unlawful.

Signed into law over a century ago, the Antiquities Act authorizes the president to declare federal lands as part of monuments, which restricts how the lands can be used. Records obtained by CoA Institute indicate that some of President Obama’s designations may have resulted from collusion with outside environmental groups, while ignoring feedback from the local stakeholders who would be most harmed.

CoA Institute President and CEO John Vecchione: “Major decisions impacting Americans’ livelihoods, vast public lands, natural resources, and property rights are currently left to the sole discretion of the president. This is contrary to most of our system of government. Presidents failed to substantiate many designations in any meaningful way, beyond the use of a few magic words on the face of the proclamations. Unchecked discretion and lack of recourse to remedy overbroad proclamations has resulted in misuse of the Antiquities Act and undue restrictions on future use of vast swaths of federal lands.”

CoA Institute has submitted more than 10 Freedom of Information Act (“FOIA”) requests to various agencies and executive branch offices involved with national monument declarations.

Evident from government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.  More recent designations, such as the Northeast Canyons and Seamounts Marine National Monument and the expansion of the Cascade-Siskiyou National Monument have even been made in direct contravention of longstanding statutory frameworks established by Congress and trusted by local stakeholders.

To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several of our concerns.

For example, it appears that third-party environmental groups knew about a forthcoming monument designation in the Atlantic Ocean prior to August 2015. However, local fishermen—who would be directly and adversely impacted by the designation— were notified only 12 days before the September meeting. As indicated in records we have reviewed, local fishermen were given only 250 words in a press release informing them of the meeting and seeking input on a then-undefined proposal. In contrast, third party organizations had enough in-depth information in advance of the meeting to build online petitions supporting a monument in the Atlantic Ocean that were pushed out to their members nationwide.

As part of our ongoing oversight, CoA Institute continues to investigate:

  • The role certain Members of Congress played in lobbying President Obama to take unilateral action under the Antiquities Act;
  • Potential collusion between outside groups and the Obama Administration to declare national monuments;
  • Lack of transparency regarding monument designations;
  • Pretextual public hearings relating to predetermined monument designations;
  • The continued acquisition of private lands in and around existing national monuments to expand such monuments; and
  • The legality of agency rulemakings to enforce Antiquities Act designations.

The full letter can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

CoA Institute Files Lawsuit to Obtain Communications Surrounding Interior’s Decision to Exclude Atlantic from Oil and Gas Leasing Program

Washington, DC – Today, Cause of Action Institute (CoA Institute) filed a complaint in federal court against the U.S. Department of the Interior (DOI) to find out whether DOI’s decision to withdraw the Atlantic Outer Continental Shelf (OCS) from the 2017-2022 Oil and Gas Leasing Program was politically motivated.  In August, CoA Institute filed a Freedom of Information Act (FOIA) request for related communications, but DOI failed to turn over any responsive records. Meanwhile, DOI is busily finalizing the new Five-Year Program.

When DOI released its Draft Proposed Program (DPP) in January 2015, it included one lease sale in the Atlantic Region. The inclusion of the Atlantic in the DPP enjoyed broad support. Members of the congressional delegations from affected East Coast states, including Senator Tim Kaine of Virginia, supported the inclusion of the Atlantic Planning Areas.

On March 15, 2016, DOI announced its decision to withdraw the Atlantic Planning Areas from the Program. Within months – just after Kaine became the Democratic Vice Presidential running-mate – he also reversed course and said he opposed offshore energy development, citing objections from the Department of Defense (DoD). DOI, meanwhile, has insisted that the withdrawal of the Atlantic Planning Areas was not predominantly attributable to the DoD’s comment on 5% of the proposed area.

CoA Institute today sued DOI for all communications concerning the Atlantic OCS and the 2017-2022 OCS Oil and Gas Leasing Program between or among DOI and its bureaus, as well as communications about the program between the White House, DoD, and the office of Senator Kaine.

CoA Institute Vice President John Vecchione: “When the Department of the Interior reverses course without explanation on including the Atlantic in the new Five-Year Program, it raises questions about whether the reversal was political.  Although DOI claims its decision was based on opposition from the public, the states, and the military, the available record appears to show otherwise.  Americans deserve to know whether their government is favoring special interest groups rather than making decisions based on the facts.  That’s why CoA Institute is determined to shed light on DOI’s opaque decision to withdraw the Atlantic Planning Areas from the 2017-2022 Program.”

The complaint can be found here
Exhibits can be found here
The August 2016 FOIA request can be found here

REPORT: Ethical Violations and Retaliation: How to Get Promoted at the Bureau of Indian Affairs

According to a Department of the Interior, Office of the Inspector General (DOI OIG) report  and numerous complaints filed by Bureau of Indian Affairs (BIA) employees, Jeanette Hanna, the former Regional Director of the Eastern Oklahoma Regional Office of the BIA, mismanaged tribal trust funds, abused her authority, retaliated against employees, steered contracts, and had an inappropriate relationship with a government contractor that created a conflict of interest.  The DOI OIG report reveals that there were at least 17 formal complaints, 2 separate DOI OIG investigations, and 4 different reviews by the BIA and the DOI Office of Policy, Management and Budget (PMB) of Hanna’s behavior between 2005 and 2011.  Just how badly must a federal employee behave before getting fired?

In November 2009, the BIA placed Hanna on detail in Washington, DC, while the Office of the Assistant Secretary for Indian Affairs (AS-IA) reviewed her alleged ethical violations.  Hanna remained on detail for more than 500 days longer than allowed by agency rules.  However, no action was ultimately taken by the AS-IA, so the DOI OIG initiated an investigation in August 2011 after receiving information that BIA officials failed to act on the complaints against Hanna.

During the AS-IA’s formal review of the complaints against Hanna, investigators interviewed BIA employees who were “physically shaking” because they were so afraid Hanna might retaliate against them.  As the AS-IA discovered, Hanna had previously installed 40 “extra” security cameras with live feeds she used to monitor employees in her regional office, and the initial AS-IA report confirmed that Hanna engaged in retaliation and harassment of employees.  However, this report appears to have been ignored by higher ups at the AS-IA, who dismissed the findings as “minor personnel issues” and just so happen to be friends with Hanna.

Hanna not only fostered a hostile work environment.  The DOI OIG’s report ultimately found that the failure of the BIA and AS-IA to ensure Hanna followed agency spending procedures cost the government nearly $200,000.  After reviewing travel vouchers from Hanna’s detail filed by the AS-IA (to whom she had been assigned even though it was the AS-IA investigating her), investigators found an almost complete failure to comply with tax laws and agency regulations.  In sum, Hanna was reimbursed over $130,000 in travel costs, as she often traveled between Oklahoma and DC, with her $117-a-night hotel room sitting empty for weeks for at a time.  Perhaps even more outrageous, Hanna decided she required an agency-provided SUV for the over-two-year detail in DC “because of the snow,” as she later explained to investigators.

Following the DOI OIG’s referral, the U.S. Attorney’s Office (USAO) for the District of Columbia declined to prosecute this case.  While the USAO might have determined that the evidence did not warrant a criminal prosecution (even though Hanna still owes significant back taxes on her travel reimbursements), it is disturbing that such blatant disregard for agency regulations and federal law has warranted no punishment for Hanna.

To read the full story, see our investigation analysis here.

Cause of Action Statement on Senate’s confirmation of Sally Jewell for Secretary of the Interior

Cause of Action on the Senate’s Confirmation of Sally Jewell for Secretary of the Interior

Yesterday, the Senate voted to confirm the nomination of Sally Jewell for Secretary of the Interior.

Executive Director Dan Epstein:

“As the new Secretary of the Interior, we expect Sally Jewell to bring the accountability, transparency and oversight the Department of Interior desperately needs. We have seen the overreaching effects from Secretary Salazar’s decision to shut down the Drakes Bay Oyster Company and we ask that Secretary Jewell re-evaluate the future of this sustainable, family-run business. The Department of Interior cannot continue a pattern of corruption and abuse of power and we hope Secretary Jewell can hold this agency accountable going forward.”

For more information on Drakes Bay Oyster Company and their lawsuit against Secretary Salazar, the National Parks Service, and the Department of the Interior, click here.

New York Times: Oyster Farm Caught Up in Pipeline Politics

DBOCoyster_NYT

Oyster Farm Caught Up in Pipeline Politics

By NORIMITSU ONISHI

POINT REYES NATIONAL SEASHORE, Calif. — Seen from a nearby hilltop, the Drakes Bay Oyster Company is a cluster of shacks with faded white walls. One patched roof appears at risk of being blown away by the next Pacific squall. A dozen workers on a small weather-beaten dock were busy handling a batch of oysters harvested on a recent morning, separating the mollusks on a single rusty conveyor belt.

But this modest, family-run business just north of San Francisco lies at the center of an increasingly convoluted battle pitting longtime allies against one another and uniting traditional foes. Its fate — whether Drakes Bay will be allowed to remain on public land here or forced to close, as demanded by the federal government — has drawn the attention of a little-known, well-financed watchdog group in Washington, a United States senator from Louisiana, Tea Party supporters, environmentalists, sustainable-food proponents and celebrity chefs.

Ken Salazar, the secretary of the interior, decided against extending the oyster farm’s lease in November, and gave the Lunnys, the owners, 90 days to shut down. The Lunnys and their supporters sued, eventually winning a reprieve from a federal appeals court to continue operating until mid-May; the court is expected to decide then whether the lawsuit can move forward.

With the deadline looming, the battle has only intensified. On Friday, Representative Doc Hastings, a Washington State Republican who is chairman of the House Natural Resources Committee, addressed a letter to Mr. Salazar requesting documents related to his decision and questioning its basis. A couple of weeks earlier, Alice Waters, the owner of Chez Panisse in Berkeley, Calif., and the pioneer of the locavore movement, led a food group in filing an amicus brief urging the court to allow the farm to stay in business.

Patricia Unterman, co-owner of the Hayes Street Grill in San Francisco, a restaurant that serves local seafood and endorsed the brief, said the oyster farm was “such a rare and beautiful use of land and water” in an area with a long history of agriculture.

Ms. Unterman said she and other proponents of sustainable food had long enjoyed good relations with environmentalists, another powerful group in Northern California. “That’s why I was so astounded by what seemed to me a very doctrinaire and unnuanced approach to the Drakes Bay Oyster Company,” she said of the environmental groups’ opposition to the oyster farm.

Neal Desai, an associate director of the National Parks Conservation Association, a longtime opponent of the oyster farm, said he did not object to ranching in the park, which the government allows. But the oyster farm has no legal standing, he said, adding, “There are rules, there are policies and there are contracts.”

The Lunnys have kept on farming, though they have slowed down production because of the uncertainty and reduced their work force to 21 from 30. As a busload of visitors descended on the oyster shack, Kevin Lunny, who owns the farm with his siblings, said he had been taken aback by developments in the case, particularly the recent inclusion of his farm in a Republican energy bill in Congress.

Under the bill, the Energy Production and Project Delivery Act of 2013, permits for the nearly 2,000-mile Keystone XL pipeline would be expedited, the Arctic National Wildlife Refuge in Alaska would be opened for gas and oil development, more offshore drilling would be allowed — and the oyster farm’s operating permit would be extended for at least 10 years.

“Now people are saying we’re connected to right-wing groups, that we’ll have offshore drilling and it’ll be Drakes Bay Oyster’s fault that the Keystone pipeline gets built,” Mr. Lunny said. “And we’re saying: ‘Where does this come from? Oh, my gosh.’ Other groups that we may or may not agree with have taken up the cause.”

Mr. Lunny’s grandparents moved to Point Reyes in the 1940s to start a cattle ranch business that the family still runs, two decades before a national park was created here. Then in 1972, as Congress mandated that parts of the park be designated as wilderness, the federal government paid the oyster farm’s previous owners $79,200 for their property; they were allowed to continue farming for 40 more years, until last November, after which the area would become the first marine wilderness on the West Coast.

The Lunnys bought the oyster farm in 2004 and soon began lobbying to have the lease extended beyond 2012. Senator Dianne Feinstein of California, a Democrat, championed their cause, writing a bill in 2009 that gave the interior secretary the authority to extend the farm’s permit for 10 years.

Scientists at the National Park Service criticized the Lunnys’ environmental record, particularly in a 2007 report that indicated that the farm had harmed a nearby colony of harbor seals. But the Park Service backpedaled after outside scientists pointed out flaws in its research.

Cause of Action, a government watchdog group in Washington, quickly became the main supporter of the Lunnys’ lawsuit to reverse the interior secretary’s decision. Dan Epstein, the organization’s executive director, said he had been drawn to the case because of the Park Service’s problematic science, and decided to lead the lawsuit as a matter of government overreach and accountability.

“Oftentimes, the regulatory state has impacts that affect small businesses potentially more than big businesses,” he said. “The Drakes Bay Oyster Company, they’re not like a big company that can just afford to hire lawyers when dealing with government decision-making.”

Opponents of the farm, however, dismiss any talk of the little guy versus the state. Cause of Action, they say, is a stalking horse for big business interests, pointing out that Mr. Epstein once briefly worked for a charitable foundation run by Charles G. Koch, one of the two billionaire brothers who have financed many conservative causes.

Mr. Epstein said the donors to Cause of Action, which was founded in 2011 and recognized as a nonprofit in May, “choose to remain anonymous.” The organization does not receive money directly or indirectly from the Koch brothers, he said.

To opponents, suspicions of a broader agenda were fueled when a provision to save the oyster farm was included in the Republican energy bill. Senator David Vitter of Louisiana, who introduced the bill, became interested in the oyster company because of his background in investigating the Interior Department’s scientific conclusions on offshore drilling, said a spokesman, Luke Bolar.

Amy Trainer, executive director of the Environmental Action Committee of West Marin, a local group, said the farm’s inclusion in this “drill, baby, drill piece of legislation” was very “telling.”

As for Mr. Lunny, some of his new allies, especially the big-government opponents and Tea Party supporters drawn to his fight against the federal government, make him uncomfortable. He was surprised, he said, when his oyster farm ended up in an energy bill promoting the Keystone XL pipeline.

“We realize that’s not really in our best interest,” he said.

Photo Credit: Jim Wilson/New York Times

Leading the Way in Scientific Misconduct

The Department of the Interior recently proclaimed in a blog that the agency is “Leading the Way in Scientific Integrity.”

“The Department of the Interior (DOI) has a unique role as one of the United States Government’s leading creators and consumers of scientific data and research. Ensuring the integrity of scientific research and data relied upon by the Department is critical. Policymakers rely on this science to inform policy decisions. The public counts on DOI for trustworthy scientific data, research, and analysis related to everything from earthquakes and endangered species to the environmental impacts of human activities.”

Despite the spin from the Deputy Secretary of the Interior David Hayes, the DOI’s record shows that it values politics more than scientific integrity.  In our report, “Keeping Entrepreneurship at Bay”, we explain how multiple offices within DOI “significantly lack oversight, accountability, and transparency, and as a result have gone unchecked in their manipulation of scientific data.”

The use of bad science informed the decision of former Secretary Salazar to shut down Drakes Bay Oyster Company, a small, family-run, environmentally sustainable farm located inside the Point Reyes National Seashore.

How has the DOI distorted science to fit their political agenda and try to shut down a sustainable small business? Let us count the ways:

Distort Data

  • In the draft environmental impact statement (DEIS), the National Parks Service (NPS) used data from a 1995 study on the sound impact of a 70 horsepower (HP) jet ski at the distance of two feet to make conclusions on the noise level of 20 and 40 HP oyster skiffs at fifty feet.
  • In the same DEIS, NPS used data from a 400 HP cement mixer truck that can be heard for 2.4 miles to misrepresent a ¼ HP oyster tumbler than can be heard for only 150 feet.
  • The DOI Office of Inspector General found no misconduct and declared that the data was “reasonable and justified based on mechanical similarities.”

Cover Up

  • DOI Field Solicitor Gavin Frost wrote a report that found NPS scientists violated the NPS Code of Scientific and Scholarly Conduct by “blurring the line between exploration and advocacy through research.”
  • Specifically the report found that NPS employees “mishandled” data and “refus[ed] . . . to modify their intuitive, but statistically and scientifically unproven, belief that DBOC mariculture activities” disturbed harbor seals in Drakes Estero.
  • The Frost Report concluded that NPS scientists showed “bias,” “advocacy,” a “troubling mind-set,” and a “willingness to allow subjective beliefs … to guide scientific conclusions.”
  • Frost excused the employees by labeling these actions as “administrative misconduct” instead of scientific misconduct.

Change: From “No Evidence” to “Directly Connected”

  • Even after independent analysis by Dr. Brent Stewart, an independent harbor seal behavior specialist at Hubbs SeaWorld Research Institute contracted by NPS, concluded there was “no evidence of disturbance” of harbor seals by the oyster skiffs in Drakes Bay, the U.S. Geological Survey issued a public report stating that the oyster skiffs could be directly connected, or at least associated with a flushing level of disturbance” in some seals, and the NPS in their Final EIS misrepresented Dr. Stewart’s report to conclude cause-and-effect.

Politics over Integrity

Despite the attempted victory lap by DOI on its website, the evidence shows that the only thing they are leading in is the Orwellian doublespeak they use to cover up their scientific misconduct.

 

As of May 24, 2013, Cause of Action no longer represents Drakes Bay Oyster Company, the Lunny family, or Dr. Corey Goodman and will be withdrawing as counsel from the litigation.