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Howling at the Man: FOIA as a Tool for Truth in Managing a Controversial Species

By Environmental Law Journal posted 12-10-2020 09:42 AM

  

Published in Michigan Environmental Law Journal, Fall 2020, Vol. 38, No. 1, Issue 108 [view full issue].
Cite: 38 Mich Env Law J 1 (2020)

Rebecca Millican

by Rebecca Millican, Partner, Olson, Bzdok, & Howard[1]

I signed up for animal law as a 3L in my last quarter of law school without much thought as to what “animal law” meant or where its roots in the law lie. I chose the class out of personal interest and (if I am being honest), to balance out a slate of bar exam-driven selections like negotiable instruments. Animal law proved to be one of the most dynamic, thought-provoking courses of my law school career, however. What I quickly learned was that “animal law” borrows substance and tools from many areas of the law and repurposes them to advance the welfare of and strengthen protections for animals of all kinds and in all places.

A few years later, and not long after I started at my current firm, an interesting little case came through the door which would illustrate how nearly any area of the law might be employed in the name of animal interests. Nancy Warren, Ontonagon County resident and advocate for wolves for more than 25 years, had routinely used information requests under the state’s Freedom of Information Act[2] (FOIA) to gather data used to assess the Michigan Department of Natural Resources’ (DNR) wolf management activities and to engage in outreach and education about these important apex predators. But Warren had been recently stymied in her efforts to obtain information from the DNR relating to its wolf management activities, and was seeking legal support in filing a formal FOIA appeal. The FOIA law itself does not contain any provisions related to animals, but for individuals seeking information about how the state of Michigan manages its wildlife or the rates of prosecution for charges of animal cruelty, for example, FOIA can be a powerful tool to learn what the government is doing, and why.[3]

Even before her FOIA appeal, Warren was known to officials at DNR. She served on the Michigan Wolf Management Roundtable, which was convened in 2006 to craft principles and recommendations to DNR for inclusion in the state’s wolf management plan, and she sits on the DNR’s Wolf Management Advisory Council. But over the years, Warren emerged as an unofficial watch dog over state officials on matters concerning wolves, and FOIA was often her weapon of choice.

The Controversy over Wolves in Michigan

For those readers unfamiliar with the history and controversy of wolves in Michigan, some background on wolf management is useful to understanding the tenor of the case. Across the United States, wolves were baited and trapped, bounty hunted and maligned into near extinction in the late 19th and early 20th centuries.[4] They were nearly entirely eradicated from Michigan’s Lower Peninsula by the 1930s and the Upper Peninsula (UP) by the 1960s.[5] Legal protection for wolves in Michigan actually predated the passage of the federal Endangered Species Act by eight years.[6] According to the DNR, limited numbers of animals began moving into the Upper Peninsula and sightings were reported in the decades after the passage of the Endangered Species Act (ESA) in 1973.[7] The total population was estimated at around 20 animals in 1992; this year’s survey identified a minimum of 695 wolves in 143 packs.[8] The population appears to have stabilized, staying steady at 600 to 700 animals over the past decade.[9]

With the rebound in population came an increased interest in more active management of wolves. In 2009, the Michigan legislature acted to remove state legal protections for the species, and in 2012, the U.S. Fish and Wildlife Service removed wolves of the western Great Lakes states from the federal endangered species list, paving the way for the state to regulate wolves as any other game.[10] The next year, state officials authorized a recreational wolf hunt, which resulted in the taking of 23 wolves from three UP management units.[11]

A pair of referenda in 2014 left little doubt as to the public’s opposition to further recreational wolf hunts, but opponents were outmaneuvered by the state legislature, which shortly before the election had placed authority to establish game species and hunting seasons with the Natural Resources Commission.[12] But later that year wolves were returned to the federal endangered species list by a federal district court in Washington, D.C.[13] That decision was upheld on appeal in 2017.[14] Currently, wolves may be killed only to protect human life from an imminent threat; private

citizens may no longer kill wolves in defense of livestock or pets, and DNR officials may not engage in lethal management measures.[15]

Even as the status of wolves in Michigan seemed to be ever up in the air, Warren was always working to ensure that misinformation was corrected and that the public and state officials charged with managing wolves were well informed. On multiple occasions, Warren’s dogged pursuit of depredation reports,[16] e-mails, and other information from the DNR revealed that locals, legislators, and even DNR staff and managers had misled the public about the true nature of many wolf encounters and the reasons to resume recreational wolf hunting. In one example from the spring of 2013, DNR furbearer specialist Adam Bump claimed that wolves had been appearing in backyards and porches and that people pounding on their sliding glass doors were unable to deter the animals.[17] Warren was skeptical about this tale, and so immediately submitted a FOIA request for documents relating to such incidents. When the request turned up zero responsive records, Bump was forced to retract his statement.[18]

Later that same year, as the recreational hunt was scheduled to open, Warren had assembled a sheaf of records through FOIA that showed the majority of wolf depredations in the UP were occurring at a single farm in Ontonagon County, thus dispelling the notion that wolves were a menace across the region.[19] In particular, DNR records of depredation events at that location revealed that cattle were not well cared-for, dead animals were not properly buried, and guard donkeys provided to the owner to protect against wolf attacks (at taxpayer expense) were so badly neglected that two of the three animals were found dead on the property. Given the conditions at this farm, it was little wonder wolves were attracted to the area, Warren argued.

Even after the 2014 court ruling when wolves seemed safe for the time being, Warren kept at her public education campaigns, regularly requesting DNR reports of depredation and other encounters, documentation of payments made to farmers for the loss of livestock, and communications that might shed light on the DNR’s current thinking on wolves. But after Warren’s vocal opposition to the 2013 hunt, she began to notice a perceptible shift in DNR staffers’ attitudes towards sharing information.[20]

The FOIA Request that Proved Controversial

The FOIA request that would eventually become the subject of litigation was one in a series of requests made by Warren, periodically seeking depredation reports for incidents occurring in Ontonagon County. But unlike prior responses from the DNR, on this occasion the request was denied in part and records were returned to Warren with redactions concealing the township, range, and section information describing the location of the reported depredation, as well as the name of the individual making the report. The Department’s written response to Warren’s inquiry stated that “information of a personal nature (i.e., names, addresses, and personal identifiers of private individuals)” was required to be redacted under Section13(1)(a) of the FOIA.[21]

Warren next filed an administrative appeal to then-DNR Director Keith Creagh, pursuant to Section 10(1)(a) of the statute.[22] That provision provides for an informal, expedited appeal to an agency or department head upon the filing of a written statement identifying the reasons to overturn the FOIA denial. The department must provide a written decision within 10 days.[23]

Court of Claims Quote

Warren contended that township, range, and section information was not “personally identifying” because it does no more than identify a location; within any one section multiple property owners may be found. Warren also pointed out that the livestock purportedly lost to wolves may be grazing on rented land. Director Creagh upheld the DNR’s partial denial of Warren’s FOIA request and the redaction of township, range, and section information, claiming that the redacted information “can be used to discern or discover personal information; namely, an individual’s or individuals’ name(s), address(es), and property interests, or when combined with other personal or identifying information can be connected to a specific individual.” Upon receipt of Director Creagh’s decision, Warren sought legal counsel and was eventually referred to our firm.

Warren’s administrative appeal correctly zeroed in on the critical issue in the case—the applicability of the statutory exemption—and the same question was the focus of the subsequent action against the DNR. The “personally identifiable information” (PII) exemption provides that “[a] public body may exempt from disclosure as a public record under this act any of the following: (a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”[27] The Michigan Supreme Court has defined personal information in this context as information that is “intimate, embarrassing, private, or confidential.”[28]A decision of a department head under Section 10(1)(a) is appealable under Section 10(1)(b) of the FOIA.[24] A civil action against a state agency must be brought in the Court of Claims, and should be verified as required by the Court of Claims Act.[25] Note that any such claim must be brought within 180 days after the agency’s final determination, but where the appeal also seeks reversal of a fee determination, that timeline is shortened to 45 days.[26]

Because the facts of Warren’s FOIA request and administrative appeal were uncontroverted, the parties filed cross motions for summary disposition under MCR 2.116(C)(10). On the points that mattered most—the disclosure of the name of the depredation complainant and the township, range, and section of the reported incident—Judge Cynthia Diane Stephens sided with Warren.[29]

The Final Decision, the Fees, and the Future

Judge Stephens first looked to the two-part test in Michigan Federation of Teachers in determining whether the PII exemption should apply. As described in that case, the information must first be “of a personal nature”; second, it must be determined that public disclosure of the information “would constitute a clearly unwarranted invasion of an individual’s privacy.”[30]

Regarding the township, range, and section information, the Court held that such location information “is simply not ‘personal.’” The Court found that township, range, and section “does not expressly identify an individual’s home address or telephone number. Nothing about the information expressly refers to a particular person.” The Court distinguished the case from Michigan Federation of Teachers, wherein the Michigan Supreme Court clarified that the PII exemption generally applies to home addresses and telephone numbers, the release of which “constitutes an invasion of privacy, since it serves as a conduit into the sanctuary of the home.”[31] Judge Stephens rejected as overbroad DNR’s argument that location information needed to be redacted in this instance because within the redacted township, range, and section there is only one farm and that information, when combined with other information, could be used to determine the address of an individual. Further, the Court found no support for an interpretation of the exemption that would extend to information that merely has the potential to reveal personal information, and declined to entertain the Department’s speculation about the uses to which the release of the depredation location information could be put. Rather, the Court held firm in applying FOIA caselaw mandating a narrow interpretation of the exemptions and holding that future uses of information requested pursuant to FOIA was not relevant to the application of an exemption.[32]

The Court of Claims also agreed with Warren’s position that the names of the individuals reporting a depredation event fall outside of the PII exemption. The Court cited ESPN, Inc v. Mich State University for the rule that a name, by itself, is not information of a personal nature, and explained that it must look to the nature of the information “associated with the name” in the requested materials to determine whether a person’s name is adequately “personal” in that context.[33] Here, the Court observed that “[t]he depredation reports simply note a wolf depredation event and contain brief information about the livestock lost or injured in the incident. The individual making the report is not necessarily the property owner or the owner of the livestock.” Accordingly, the Court determined the reports did not reveal details about where the reporter lives or any other significant information about the person making the report.

Because neither the name of the individual contacting DNR to make a depredation report, nor the location of a depredation event (as described by township, range, and section) met the definition of information of a personal nature, the Court of Claims concluded that it need not analyze whether release of such information would “constitute a clearly unwarranted invasion of privacy” and the information redacted by DNR did not fall within the PII exemption under Section 13(1)(a) of the FOIA.[34] Consequently, the Department was ordered to provide Warren with the redacted information.

DNR Redaction QuoteConsistent with the statute’s pro-disclosure objectives, an award of reasonable attorney’s fees is available to a prevailing FOIA appellant when litigation is “reasonably necessary to compel the disclosure” and has a “substantial causative effect on the delivery of the information to the plaintiff.”[35] The award may include fees, costs, and all disbursements relating to the success of the action.[36] While Nancy Warren prevailed only in part (the Department successfully defended the fee imposed for the search and production of records and on Warren’s challenge to the DNR’s position that no records exist related to the use of non-lethal wolf control measures), the Court found she was successful on the central issue of the PII exemption, and so ordered an award of fees corresponding to that claim.

Ultimately, Warren’s case was as much about obtaining the specific set of depredation reports she had requested on that occasion as it was about setting the parties’ expectations about the confines of permissible disclosures going forward. So long as wolves persist as a subject of controversy, Warren will continue her work bringing awareness and understanding to the public, and, where necessary, countering misinformation—especially that coming from state officials charged with conservation, protection, and management of the state’s natural resources.

Since the Court of Claims was able to resolve the case on the “personal nature” prong of the PII test, it did not have to reach the issue of whether the disclosure of the redacted information would be justified. But in the two years since the case was decided, it has become clear that the public airing of depredation reports serves the core purpose of FOIA, shedding light on where depredation incidents are concentrated and the circumstances surrounding those losses. Such revelations in turn assist the public in assessing whether DNR is faithfully carrying out its conservation and management duties. A lengthy Bridge Michigan report last year, drawing on the magazine’s own FOIA requests and Warren’s work, examined the circumstances surrounding DNR’s killing of wolves in Ontonagon County in 2016.[37] The report concluded that DNR sought permission from the federal government to take wolves with a history of threatening humans shortly after it agreed to a three-fold increase in the valuation of the beef being raised on the problem farm previously identified by Warren as a depredation hot spot. Contrary to the official narrative about the dangers posed by the particular wolves targeted, it appeared that the high cost of reimbursing the producer for losses from depredation, together with political pressure from a state senator, likely influenced the DNR’s actions. The Bridge article has the potential to lead to true accountability, after Michigan Attorney General Dana Nessel announced her department would be looking into the Department’s handling of public records related to killing of wolves.[38]

As the Bridge piece points out, the transparency of DNR’s management decisions and the availability of public records through FOIA continue to be critically important as the U.S. Fish & Wildlife Service once again prepares to de-list the gray wolf, throwing management of the species back to the states. Given the turbulent history of Michigan wolves in recent years, it is anything but clear what their fate will be (lawsuits challenging de-listing are anticipated), however I am confident a certain Yooper advocate will be doing her part behind the scenes to ensure that the public is educated on the issues and that decision-makers are held to account.

Whether in the context of animal welfare, wildlife management, other animal-related interests (or something altogether different), I encourage readers to identify local, state, and federal agencies who may be involved in such issues, and send out a FOIA request. You might ask for records you already know are of interest to you, or even documents you are not sure exist, but seem like they should. FOIA practice has a certain Forrest Gump box of chocolates quality—you never know what you might turn up. Knowledge and information are powerful, so as citizens and advocates, let’s make use of this tool!


[1] In accordance with the MELJ’s mission statement regarding publication of viewpoint articles, the positions and opinions advanced within this piece are those of the author; they do not purport to represent the Environmental Law Section’s position on any legal issue.

[2] MCL 15.231 et seq.

[3] As Warren’s case demonstrates, useful information can be obtained through FOIA, despite our state’s rating as the worst in the nation on government accountability measures. Chad Selweski, Michigan Gets F Grade in 2015 State Integrity Investigation; An honor system with no honor (November 12, 2015). However, high-level officials’ ability to avoid public release of e-mails about the Flint water crisis laid bare the statute’s shortcomings. Flint water crisis highlights lack of transparency with Michigan governments (January 26, 2016).

[4] Nature, The Wolf That Changed America. Wolf Wars: America’s Campaign to Eradicate the Wolf (September 14, 2008).

[5] The Department of Natural Resources, Wolf Biology and Identification.

[6] Id.

[7] Id.

[8] Cody Norton, Michigan wolf surveys show stable, healthy population (July 27, 2020).

[9] Id.

[10] Wolf Biology and Identification.

[11] U.S. Fish and Wildlife Service, Western Great Lakes Distinct Population Segment of the Gray Wolf (September 2014), p 5.

[12] Michigan Radio, How our attitudes figure into the wolf debate (November 24, 2014).

[13] Humane Soc’y of the US v. Jewell, 76 F Supp 3d 69 (D DC, 2014). Warren, as a member of the Humane Society of the United States (HSUS), provided an affidavit in support of organizational standing of HSUS. That affidavit documents her interactions with a pack of wolves on her Ontonagon County property and her observations relating to the deaths of three pack members.

[14] Humane Soc’y of the US v. Zinke, 431 US App DC 238 (2017). Under the Trump Administration, the U.S. Fish & Wildlife service has continued to seek delisting. A notice of proposed rulemaking that would remove gray wolves in the lower 48 states from the ESA was published in March 2019; the final federal rule was published November 3, 2020 and will become effective January 4, 2021.

[15] Wolf Biology and Identification. The DNR is authorized to carry out many non-lethal measures to minimize human-wolf conflicts. Warren’s investigatory efforts over the years have also focused on DNR’s deployment and the effectiveness of such techniques.

[16] Depredation reports document the incidence of deaths or injury to pets and livestock by wolves or coyotes. Confirmed livestock depredations may qualify the owner for compensation from federal grant monies administered by the Michigan Department of Agriculture and Rural Development (MDARD).

[17] Steve Carmody, Are people in Ironwood really afraid of wolves? (part 2) (May 9, 2013).

[18] Michigan Radio NPR, MDNR official says he misspoke when talking about Michigan wolves (November 5, 2013).

[19] Rina Miller, Foes say upcoming wolf hunt is based on one neglectful farmer’s claims (August 29, 2013). An investigation by MLive reporter John Barnes, informed in part by FOIA, also showed that the justifications offered by the DNR for the wolf hunt that year were based on “half truths” and “falsehoods.” John Barnes, Michigan’s wolf hunt: How half truths, falsehoods and one farmer distorted reasons for historic hunt (April 3, 2019).

[20] The Department’s reluctance to freely share information is particularly frustrating given that the state wolf management plan expressly recognizes that “[p]roviding prompt and professional responses to information requests is one way to increase individual understanding, dispel misconceptions, and generate support for wolf management efforts.” Michigan Department of Natural Resources, Wildlife Division, Michigan Wolf Management Plan (July 10, 2008), p 29.

[21] Even more curious, the e-mail response copied high-level DNR officials such as the heads of the wildlife division and natural resources commission–individuals who would not typically concern themselves with routine FOIA requests.

[22] MCL 15.240(1)(a).

[23] MCL 15.240(2).

[24] MCL 15.240(1)(b).

[25] Id.; MCL 600.6431(2)(d).

[26] MCL 15.240a(1)(b).

[27] MCL 15.243(1)(a).

[28] Mich Fed of Teachers v. Univ of Mich, 481 Mich 657, 676; 753 NW2d 28 (2008).

[29] Warren v. Dept of Natural Resources, unpublished order of the Court of Claims, entered May 16, 2018 (Docket No. 16-000269-MZ).

[30] Mich Fed of Teachers, 481 Mich at 675.

[31] Id. at 676-677 n 58.

[32] Rataj v. City of Romulus, 306 Mich App 735, 748-749, 752; 858 NW2d 116 (2014). In Rataj, a Detroit-area attorney sought the release of records, including video, relating to an alleged assault by a Romulus Police Department officer on an individual in custody. Records were produced with heavy redactions. In the circuit court phase of the appeal, plaintiff faced questioning about his motives in making the request, the court suggesting he intended to solicit the victim of the alleged assault to become a client or that the FOIA request was intended as discovery in a related whistle-blower case. Id. at 744. The Court of Appeals reversed the circuit court’s grant of summary disposition in favor of the City as it pertained to the application of the privacy exemption to the videorecording, emphasizing that initial and future uses of the requested information, as well as the identity of the requester himself, are irrelevant to determining whether the exemption applies. Id. at 752.

[33] ESPN, Inc v. Mich State Univ, 311 Mich App 662, 666; 876 NW2d 593 (2015) (“In order for a name to be useful, the name must normally be associated with some other information. In the context of a police report, a person’s name is useful because the report will contain information about the person’s actual or purported involvement in the incident. That is, the report will associate the name with specific facts or allegations that may or may not be information of a personal nature.”).

[34] MCL 15.243(1)(a).

[35] MCL 15.240(6); Amberg v. City of Dearborn, 497 Mich 28, 34; 859 NW2d 674 (2014).

[36] Meredith Corp v. City of Flint, 256 Mich App 703, 715; 671 NW2d 101 (2003).

[37] John Barnes, Michigan DNR said it killed wolves to protect humans. Then we got its emails (November 22, 2019).

[38] John Barnes, Dana Nessel to review Michigan DNR handling of wolf kill records (November 25, 2019).


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