The federal appeals court based in Denver has rejected the arguments from a wildlife and habitat conservation group that the U.S. Forest Service failed to conduct a legally-adequate search for records – despite disclosing 140,637 pages of documents related to a controversial roadway project.

Rocky Mountain Wild filed an open records request with the Forest Service in July 2018 seeking government documents about the Village at Wolf Creek Access Project, a proposed access road to privately-owned land near the base of Wolf Creek Ski Area in southwest Colorado. In response, the agency charged 27 employees with searching their files, ultimately producing 14,740 documents.

But Rocky Mountain Wild alleged the search did not comply with the Freedom of Information Act and sued the Forest Service in federal court. A trial judge sided with the government, and the U.S. Court of Appeals for the 10th Circuit upheld that decision last week.

“The record in this case demonstrates a herculean effort by Defendant to comply with Plaintiff’s requests. Defendant deployed a team of employees who worked full-time for months locating and reviewing responsive records,” wrote Judge Joel M. Carson III for a three-member panel of the 10th Circuit. “To hold that such an effort was unreasonable could result in such a burden on agencies that they could not both comply with FOIA and complete the core functions of their jobs.”

The underlying controversy has stretched over decades, after a 1986 land exchange in the Rio Grande National Forest led the parcel’s owner, Leavell-McCombs Joint Venture, to pursue the creation of an 8,000-person village and ski resort. Environmental groups have fought against the plan, and a federal judge blocked the land swap with the federal government in 2017.

As part of the broader vision for a village, LMJV also sought a road connecting Highway 160 to the land. In July 2018, the Forest Service released a decision approving a year-round access road. Rocky Mountain Wild then filed a FOIA request for documents related to the decision.

Twenty-seven employees who were substantially involved with the project, most of whom were based in Colorado, searched their own records or had administrative assistants perform the search. The employees provided a list of search terms they used. The Forest Service sent files to Rocky Mountain Wild on a rolling basis, ultimately providing 140,637 pages. There were also 7,757 records subject to redaction under FOIA, and the Forest Service provided an 800-page index to show what it withheld and why.

Nevertheless, Rocky Mountain Wild claimed the search was incomplete and sued for the Forest Service’s alleged noncompliance with FOIA. In March 2021, U.S. Magistrate Judge Michael E. Hegarty rejected the entirety of the group’s claims, including that the Forest Service employees used “inconsistent and narrow search terms” when scouring their communications.

“Given Plaintiff’s broad request for a large volume of potentially responsive documents, Defendant chose to let those who were most familiar with the terms and phrases used in their own documents and communications to identify the search terms reasonably likely to identify responsive documents,” Hegarty wrote in waving aside the group’s concern.

Hegarty also granted the government’s request to “claw back” two records the Forest Service inadvertently disclosed without redaction – one featuring an employee’s home phone number and the other containing confidential legal discussions.

Although Rocky Mountain Wild had since caused the documents to be released publicly online, Hegarty directed the group to “engage in reasonable efforts to remediate the disclosure” by returning the copies they had.

Rocky Mountain Wild appealed, arguing, among other things, the Forest Service had not disclosed all records that were captured in its original FOIA request. For example, only some employees searched for “LMJV,” which Rocky Mountain Wild called unreasonable given how commonly the initials were used.

“The Forest Service devoted an extraordinary amount of time, money and resources to completing this task,” Assistant U.S. Attorney Marissa R. Miller told the 10th Circuit panel last year. “The plaintiff has still failed to identify or describe a single document or class of documents it believes the agency’s search has missed.”

The appellate panel agreed with her.

“FOIA does not specify how hard an agency must look for requested records,” Carson wrote in the Dec. 30 opinion. The law does not require agencies to locate “every conceivable responsive record no matter the cost,” but rather, the search must be reasonable.

“Defendant’s decision to allow its employees to customize the terms they employed to search their own records is not inherently unreasonable, especially given that Defendant listed the terms each employee used. And that list included more than two dozen search terms with different variations of similar terms,” he added.

The panel also upheld Hegarty’s order to “claw back” the inadvertently-disclosed documents, finding Rocky Mountain Wild had not cited any rationale for why the magistrate judge would have been prohibited from doing so.

Two months before the panel’s order in the FOIA lawsuit, another federal judge in Colorado handed a win to Rocky Mountain Wild on the underlying issue, overturning the Forest Service’s approval of the access road.

The case is Rocky Mountain Wild, Inc. v. U.S. Forest Service et al.