What happens if FOIA decision is appealed
When Senior District Judge Richard P. Matsch made the decision that the Bureau of Land Management must release the names of the nominating parties in the North Fork Valley oil and gas leases, the decision had more than just local interest. The lawsuit brought by Western Environmental Law Center (WELC) on behalf of Citizens For A Healthy Community (CHC) challenged the legality of the national BLM policy of secrecy.
BLM policy dated Aug. 19, 1995, states, "All BLM offices hold as confidential the names of all parties that file an informal [Expressions of Interest], even though those parties may not have requested confidential treatment, until two business days following the last day of the competitive lease sale."
The Expressions of Interest require little information of the nominating party — the nominator's name, mailing address and phone number, the complete legal land description broken into parcels of 2,560 acres or less, and the name and address of any private surface owners.
The Department of Interior and the BLM contend that, armed with just that information, other competitors would "obtain an unfair advantage and will bid against the submitter."
Judge Matsch, in his Feb. 13 decision, discounted the validity of the government's argument. "That contention runs directly contrary to the purpose of the public sale process," Matsch wrote.
In other words, the BLM policy gave an unfair advantage to the party nominating the parcels because the party's identity was never revealed. That inhibits competitive bidding rather than protects it.
Judge Matsch further noted that "the identity of the submitter may be relevant to the plaintiff and others who may raise concerns about the stewardship records of that potential owner, a factor relevant to the environmental impact of the proposed sale."
Western Environmental Law Center has also filed a FOIA (Freedom of Information Act) lawsuit on behalf of the San Juan Citizens Alliance regarding a lease sale in southwestern Colorado. That case is still within the 20-day time frame that the agency can respond.
WELC attorney Kyle Tisdel said he knows that the Southern Environmental Law Center in North Carolina is very interested in the WELC lawsuit. He expects that there will be other FOIA lawsuits to follow.
"It obviously is important information for any community facing these types of oil and gas leasing decisions. I imagine the precedence set with our victory has rather long arms for certain other communities beyond just the North Fork," Tisdel said.
By April 15 the Solicitor General must decide whether to appeal the district court judgment. If the government decides to appeal the decision, the case would be heard at the 10th Circuit Court. Normally, the appeal process is lengthy.
"But FOIA appeals are aimed to be resolved quickly. There is a provision in FOIA to fast track any litigation because of the recognition that the public deserves this information. That being said, I wouldn't anticipate resolution in this year at all at the 10th Circuit," Tisdel said.
The appeal process would likely include oral arguments before a panel of 10th Circuit Court judges.
The appeal would have to address both the releasing of the names of the nominating parties in the North Fork Valley and the underlying agency policy and practice of secrecy.
"The government would also have to receive preliminary release from the 10th Circuit requesting the court to allow it to not disclose any information. Right now the district court judgment is that they have to release that information to the public. They would have to get the court to make a ruling on that — a threshhold decision up front if they would appeal. So, we would at least have some clarity as to what that decision would be fairly early on. ... the government would have to prove its likely success on the merits of the case. That can signal a court's inclination towards the ultimate conclusion of the case fairly early on if you are seeking a preliminary release," Tisdel said.
Should the BLM put the North Fork Valley leases up for sale again before the outcome of a potential government appeal, WELC would move to have the nominating party's identity released.
"The need for the information would become much more imminent if the Uncompahgre Field Office and the Colorado State Office decided to re-list the parcels in the North Fork Valley. We would use Judge Matsch's very clear decision to push for that release of information quickly if the government nominated these parcels again," Tisdel said. "Clearly one of the most important reasons we filed the lawsuit is because we believe the citizens of the North Fork Valley have the right to participate in the leasing decision on a fully informed basis."
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