In this case, the United States Forest Service (USFS) and Resolution Copper Mining, LLC filed motions for summary judgment concerning a federal land exchange, with the Center for Biological Diversity (CBD) filing a cross-motion. The central issue is the USFS's handling of a land exchange involving Oak Flat, a sacred site for the San Carlos Apache Tribe in Arizona, located within the Tonto National Forest. The exchange, mandated by Congress in 2014, would transfer land from the U.S. government to Resolution Copper, which intends to mine a large copper deposit in the area. The Forest Service’s responsibility includes appraising the land’s value and ensuring that both federal and non-federal lands involved are of equal value, with the process requiring extensive tribal consultation and adherence to the National Environmental Policy Act (NEPA).

A key element in the discovery dispute in this mater involved the Forest Service’s handling of a land appraisal, completed in January 2023 but still under review. The CBD filed Freedom of Information Act (FOIA) requests to obtain documents related to the appraisal but faced delays and redactions. The Forest Service initially withheld several documents, claiming that they were draft versions or protected by FOIA Exemption 5, which covers deliberative process materials. Despite the release of some documents in 2024, the CBD argued that the Forest Service had failed to provide all the relevant information and sought further transparency.

The Court addressed whether the appraisal qualified as an “agency record” under FOIA, determining that it was indeed an agency record because the USFS had significant control over it, despite it being prepared by an external contractor. The Court noted that the Forest Service relied on the appraisal to create reports and had access to it after review by the Secretary of Agriculture, meaning the appraisal was subject to FOIA. The Court also examined the application of FOIA Exemption 4 and Exemption 5 to the withheld documents. Exemption 4 allows withholding commercial information that could harm a company's competitive standing, while Exemption 5 protects pre-decisional deliberations. The Court found that not all of the withheld information met the criteria for these exemptions.

Regarding Exemption 4, the Court found that commercial data provided by Resolution Copper, such as geologic information and mining costs, could be withheld, as its release would harm the company’s competitive position. This information was deemed “confidential,” as Resolution Copper treated it as private and protected it with confidentiality agreements. However, the Court concluded that the Forest Service had not sufficiently justified withholding all of the data from the appraiser and other third parties, and directed further review of these specific redactions. The Court ordered the agency to either release the information or provide additional justification for withholding it.

Finally, the Court turned to Exemption 5, which protects deliberative documents created during the decision-making process. The appraisal summary and technical reports were found to be part of the deliberative process, as they were pre-decisional and intended to assist in the Forest Service's decision on the land exchange. Despite the Forest Service’s concerns about public confusion and disruption of consultations with tribes, the Court rejected these claims, emphasizing that public disclosure would not harm the Tribal consultation process. The Court also addressed the Forest Service’s failure to ensure the segregability of non-exempt materials, ordering the agency to conduct further reviews to comply with FOIA’s segregability requirements.

Reach out to Caitlin Oyler, Counsel at CODISCOVR. Caitlin has over a decade of experience providing high-level advice to clients regarding all phases of the eDiscovery life cycle and managing high-profile document collections, reviews, and productions.