We know it has been quiet here lately, but we wanted to let you know that Chasing Horses Wild Horse Advocates (CHWHA) continues to advocate for the wild horses that call Theodore Roosevelt National Park (TRNP) in Medora, ND home! While we are grateful for the Park FINALLY initiating a wild horse management plan, there are still other areas that CHWHA is actively advocating for with respect to the amazing wild horses that call TRNP home!
We are still working with Congress to try to get a public law passed that will protect these horses in a similar fashion to the way the Shackelford Banks wild horses are protected.
The park has also stated that in the fall of this year, the next public comment period for the wild horse management plan will be opened.
To help prepare for all these aspects of our advocacy work, we submitted a FOIA (Freedom of Information Act) request earlier this year.
Then we filed an appeal for the records that were not given to us under FOIA laws.
Then we waited past the 20 day response time for the information we requested.
Now, our legal team at Eubanks and Associates is contacting the FOIA Appeals Office to see why we have not had a response in the allotted time.
We hope this help you see that we are always working in some capacity to help protect EVERY wild horse that calls TRNP home!
Please consider making a donation to help support our advocacy work! There are several ways you can help listed on our website: https://chwha.org/support-chwha/
Thank you for your support and our lawyers letter to the FOIA appeals office is posted here for you to see WHY we need Eubanks and Associates working with us to make sure we establish protection for these amazing wild horses that call Theodore Roosevelt National Park home!
FOIA/Privacy Act Appeals Office
U.S Department of the Interior
Office of the Solicitor
1849 C Street, N.W.
Washington, DC 20240
Re: Administrative Appeal of the U.S. Department of Interior’s Response to Freedom of Information Act Request No. DOI-NPS-2022-000890
Dear FOIA Appeals Officer,
We are writing on behalf of our client, Chasing Horses Wild Horse Advocates (“Advocates”), to notify your office that Advocates has yet to receive any response to their April5, 2022 Freedom of Information Act (“FOIA”) appeal in relation to Advocates’ request, DOI-NPS-2022-000890. The lack of response from the Department of Interior (“DOI”) violates the twenty-day deadline prescribed under FOIA, 5 U.S.C. § 552(a)(6)(A)(ii), and the agency’s own regulations, 43 C.F.R. § 2.62. Advocates is therefore requesting a date certain by which it can expect to receive a determination in response to its appeal.
On November 30, 2021, Advocates submitted a FOIA request to the Department of Interior seeking various records related to TRNP’s management of wild horses within the boundaries of the Park.
On January 3, 2022 (i.e., twenty working days after the request was submitted), DOI had yet to acknowledge Advocates’ request. Consequently, Advocates wrote to DOI’s FOIA office to request acknowledgement and a date-certain by which responsive disclosures would begin.
That same day, Advocates received a letter from DOI seeking “clarification” of the request. There, DOI claimed that it was unable to process Advocates’ request because it could not “determine the exact time period” for the requested records. Thus, DOI asked that Advocates “specify a time frame or duration of time” in which DOI should search for responsive records.
DOI’s clarification request did not identify any other deficiencies in the request. Advocates provided the requested clarifications by letter dated January 13, 2022. In addition to specifying date ranges for each category of the request, Advocates also identified specific examples of documents within the ambit of certain categories of records sought in the FOIA request.
On January 31, 2022, DOI made its first and only disclosure, which consisted of “103 pages of responsive material” in a single consolidated file. Although DOI claimed that Advocates’ request was “granted in full,” most of the disclosed records were already publicly available and do not respond to several categories in the request. Notably, DOI did not disclose any of the specific documents identified in Advocates’ January 13 clarification letter, nor did DOI provide any explanation as to why those documents were not produced.
On February 11, 2022, DOI issued a two-page “clarification” to its final response. That clarification, however, concerned only two of the categories in Advocates’ Request: category two (i.e., records related to removing wild horses from the TRNP) and category seven (i.e., records related to the historical importance of the TRNP herds, including specific documents identified in Advocates’ January 13 letter to DOI). As to the former, DOI claimed that “there are no NPS records responsive to the removal of horses from the park.” With respect to category seven, DOI stated that “personal notes are not subject to the Freedom of Information Act; thus there are no NPS records responsive to this section of your request.” DOI’s clarification letter does not explain why it chose to characterize information responsive to request category seven as “personal notes,” nor does it identify any statutory exemption to support its withholding.
Because Advocates has a strong basis to believe that responsive, non-exempt information has been improperly withheld by DOI, it appealed DOI’s final response on April 5, 2022. In relevant part, Advocates’ appeal asserts that DOI’s withholding of information responsive to category seven as “personal notes” not subject to FOIA is baseless, and that the agency improperly construed other portions of Advocates’ request and/or failed to conduct an adequate search for responsive information. To date, however, Advocates has not even received an official acknowledgment of its appeal, let alone a final determination.1
As DOI is well aware, FOIA provides that each agency “shall . . . make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal.” 5 U.S.C. § 552(a)(6)(A)(ii) (emphases added); see also id. § 552(a)(7)(B)(ii) (requiring agencies to make available “an estimated date on which the agency will complete action on the request”). Likewise, DOI’s own regulations provide that “[t]he basic time limit for responding to an appeal is 20 workdays after receipt,” and if the agency cannot meet that deadline, it will notify the requester of its right to seek judicial review. 43 C.F.R. § 2.62.
DOI’s twenty-working-day response window has now lapsed without any acknowledgment by the agency of Advocates’ appeal, or any timeframe in which Advocates can expect a decision. As such, Advocates is currently contemplating all available options for compelling DOI’s compliance with federal law—up to and including litigation. Of course, Advocates would prefer to avoid time-consuming and expensive litigation over DOI’s failure to heed a statutory deadline. Thus, in the interest of preventing costly litigation, Advocates formally requests that DOI act on its appeal promptly and, in the meantime, provide them with a date certain by which they can expect that decision. See 5 U.S.C. § 552(a)(7)(B)(ii).
1 Although Angela Richman, the Superintendent of Theodore Roosevelt National Park, acknowledged receiving Advocates’ FOIA appeal via email on April 12, 2022, Advocates has yet to receive any such acknowledgment from one of DOI’s FOIA Appeals Officers.
We appreciate your immediate attention this matter. Should you have any questions this appeal, please do not hesitate to contact our firm. Given the ongoing COVID-19 pandemic, the best means of promptly contacting our firm is through my email (firstname.lastname@example.org).
Matthew R. Arnold
EUBANKS & ASSOCIATES, PLLC
Chasing Horses Wild Horse Advocates is committed to advocating for a wild horse management plan and protection for these unique wild horses that call Theodore Roosevelt National Park home! We are fighting for a management plan that is guided by science especially when it comes to decisions regarding the removal of horses and the administration of birth control. Many other wild horse management plans have proven to be successful with their science-based plans. We are asking for the same for this amazing group of wild horses that call Theodore Roosevelt National Park home.