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Friends of the Coast Fork v. Department of the Interior

ELR Citation: 27 ELR 21047
Nos. 95-35996, 110 F.3d 53/(9th Cir., 03/27/1997)

The court holds that two environmental groups are entitled to a waiver of duplication fees for documents they requested from the U.S. Fish and Wildlife Service (FWS) under the Freedom of Information Act. The groups had requested the administrative record of the FWS' decision not to list the western pond turtle as endangered or threatened. The court holds that the groups made a prima facie showing of entitlement, which the government did not satisfactorily rebut. The groups passed the multifactor balancing test that the U.S. Department of the Interior uses in deciding whether to grant a duplication fee waiver. They identified why they wanted the administrative record, what they intended to do with it, to whom they planned on distributing it, and the zoological expertise of their membership. Further, they made it clear to the FWS that they meant to challenge publicly the scientific basis for the listing denial. The FWS, however, failed to perform any balancing and based its denial on a single factor: the availability of the requested material in FWS' Portland and Sacramento reading rooms. The court holds that the documents' availability in a public reading room does not alone justify denial of a fee waiver. Appellants must travel at least 100 miles simply to look at the administrative record. Further, the record is too large and technical for appellants to take effective notes. Thus, meaningful scrutiny is impossible unless appellants have their own copy.

Counsel for Plaintiffs
David A. Bahr
Bahr & Stotter
259 E. 5th Ave., Ste. 200, Eugene OR 97401
(541) 686-3277

Counsel for Defendants
Judith D. Kobbervig, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW 5th Ave., Ste. 1000, Portland OR 97204
(503) 326-2101

Before: PREGERSON and THOMAS, Circuit Judges, and REED,* District Judge.