Washington, D.C. – ForestWatch filed suit this week seeking to compel the U.S. Forest Service to release public documents. The documents, kept secret for months, relate to a controversial plan to log trees and remove vegetation across extensive areas of Los Padres National Forest in Santa Barbara, Ventura, San Luis Obispo, Monterey, and Kern counties.
The suit also asks the court to refer the matter to the U.S. Office of Special Counsel—an independent federal investigative and prosecutorial agency—to examine systemic abuses in how Los Padres officials respond to requests from the public, citing “arbitrary and capricious conduct of Forest Service personnel.”
Los Padres ForestWatch, an environmental nonprofit organization based in Santa Barbara, California, filed the legal action in U.S. District Court for the District of Columbia following a series of requests the group filed under the Freedom of Information Act (FOIA) this summer. Those requests asked the Forest Service to disclose several documents pertaining to a controversial plan called the Ecological Restoration Project.
The project is the largest mechanical alteration of land in the history of Los Padres National Forest, and one of the largest projects proposed for any national forest in the country. Heavy industrial equipment would be used to clear vegetation and extensively log trees across 235,000 acres of national forest land in five counties.
The Forest Service has hired out-of-state consultants to prepare a minimal study of the plan’s impacts to endangered species, trails and camps, and more than one thousand cultural sites important to local Tribes. The brief study is funded by Pacific Gas & Electric, an investor-owned utility responsible for several of California’s largest and deadliest wildfires. More than three thousand people and eighty community organizations voiced concerns over the project during the plan’s initial public comment period.
At the beginning of the comment period, ForestWatch submitted a formal FOIA request to the Forest Service to help the organization and its experts better understand the project and formulate technical comments and recommendations for the agency to consider. The ForestWatch request sought a copy of the contract between the Forest Service and DJ&A (the out-of-state consultant), records relating to PG&E’s funding of the study, and other records related to the project.
ForestWatch also sought expedited processing of the request because the documents were critical to help ForestWatch and other members of the public better understand the proposal and submit comments during a short 30-day comment window. Expedited processing shortens the time frame from 20 days to 10 days for an agency to respond to a FOIA request.
Andrew Madsen—the Public Information Officer for Los Padres National Forest—initially granted ForestWatch’s request for expedited processing, but then missed the shortened deadline to release the requested records. Only after ForestWatch posted to social media about the Forest Service’s delay did Mr. Madsen provide ForestWatch with 18 records, stating that no other records existed. Two weeks later (and seven weeks after initially filing its request), ForestWatch learned that the Forest Service possessed many more records about the project, but instead of making them available to ForestWatch and the public, Mr. Madsen transferred the request to the Forest Service’s headquarters in Washington, D.C. where an immense backlog of FOIA requests meant the documents would languish for months, if not years.
On September 29, 2022, two days after the end of the public comment period, ForestWatch submitted a second request for the records, and again asked for expedited processing. Nearly one month later, the Forest Service responded that they needed an additional ten days to respond. After those ten days plus another four, the agency provided ForestWatch with several dozen additional documents but again notified ForestWatch that many additional documents were kept hidden and sent to Washington, D.C. headquarters for further review.
The FOIA is one of the hallmarks of federal government oversight and accountability. The fundamental purpose of the law is to ensure governmental transparency by establishing the public’s right to access federal agency records. The law imposes strict deadlines for releasing records in response to FOIA requests. Upon receipt of a request, the FOIA requires agencies to issue a determination within 20 workdays, and to make requested records “promptly available.” The law also requires agencies to provide an estimated date of completion and to conduct a search reasonably calculated to uncover all relevant documents.
According to the ForestWatch lawsuit, the Forest Service initially approved ForestWatch’s request for expedited processing but then did not provide the group with an estimated date of completion, did not conduct an adequate search for records, and indefinitely delayed the processing of ForestWatch’s request by transferring it to the agency’s Washington, D.C. headquarters.
In requesting referral of this matter to the government’s Office of Special Counsel, the lawsuit cites the Forest Service’s “arbitrary or capricious policy, pattern and/or practice of denying the organization’s legal right to promptly receive records to which it is entitled under FOIA.” The agency regularly misses deadlines, delays production of public records, unlawfully keeps certain public records hidden from the public, and transfers FOIA requests to other offices in an apparent attempt to evade release of public records. The records pertain to a wide variety of issues in Los Padres National Forest that have high levels of public interest. To address issues like this, the FOIA includes a provision authorizing a judge to refer the matter to the Office of Special Counsel, which has special power to investigate and make binding recommendations for corrective actions and disciplinary action to ensure agencies properly comply with the FOIA.
The Forest Service has thirty days to respond to the lawsuit.
ForestWatch is represented by Maya Kane of Southwest Water and Property Law LLC and Travis Stills of Energy & Conservation Law.
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