Case Law Details
Friends of Etna Turpentine Camp v. US Fish and Wildlife Service
Project Description:
The project is a 13.5-mile extension of the Suncoast Parkway, a tolled four-lane divided highway in Florida, carried out by the Florida Department of Transportation (FDOT). The new highway would pass through the location of the Etna Turpentine Camp, a former turpentine still complex and town in the early 1900s that was discovered in the 1990s and listed on the National Register of Historic Places in 2009. Because the project area was habitat for the eastern indigo snake (a threatened species) and the gopher tortoise (a candidate species for federal listing), FDOT applied to the U.S. Fish and Wildlife Service (FWS) for an incidental take permit. FWS prepared an EA, biological opinion, and FONSI, and issued the incidental take permit in July 2017. FWS and the State Historic Preservation Officer also entered into a historic preservation memorandum of agreement to mitigate unavoidable impacts to the Etna Turpentine Camp. FDOT began construction of the project in February 2018.
2019 WL 5110654, WL 38527322019
2019 WL 5110654, WL 38527322019
U.S. District Court – Florida
08/16/2019
Suncoast Parkway II
Highway
Case Summary
In August 2017, the plaintiff submitted a Freedom of Information Act (FOIA) request to FWS seeking documents related to the biological opinion, the incidental take permit, and the historic preservation consultation process. Over the next several months, the plaintiff’s attorney communicated numerous times with FWS staff regarding the status of the FOIA request. In December 2017, the plaintiff’s attorney sent a letter to FWS threatening litigation if it did not receive the requested documents. A couple weeks later, the plaintiff filed this lawsuit, in which it sought a court order compelling FWS to produce the requested documents. Over the next few months, FWS produced three batches of documents in response to the FOIA request, which rendered the lawsuit moot. The plaintiff then filed a motion for attorneys’ fees under FOIA. The court held that the plaintiff was not entitled to attorneys’ fees because it did not demonstrate that its lawsuit caused FWS to produce the documents. (In a separate lawsuit, the plaintiff challenged the incidental take permit and alleged that FWS violated NEPA. The plaintiff voluntarily dismissed that case in July 2018 after the court denied the plaintiff’s motion for a preliminary injunction and held that the plaintiff did not show a likelihood of success.)
Key Holdings
Freedom of Information Act Attorneys’ Fees. The court held that the plaintiff was not entitled to attorneys’ fees because it did not show that its litigation caused FWS to change position and produce documents in response to its FOIA request. The court explained that the mere chronology of the agency’s document production—all documents were produced after the letter threatening litigation, and most documents were produced after the lawsuit was filed—was insufficient to prove that the litigation caused the document production. The court noted other facts that made it at least as likely that FWS would have produced the documents anyway: Before the litigation threat, FWS staff sent numerous emails to the plaintiff indicating that they were processing the request and providing an update on its progress.
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