[00:00:01] Speaker 02:
Case number 15-5325, Aqua Alliance Appellant versus United States Bureau of Reclamation.

[00:00:07] Speaker 03:
Mr. Keneay for the appellant, Mr. Ross for the appellate.

[00:00:41] Speaker 00:
Shall I begin?

[00:00:43] Speaker 00:
Yes.

[00:00:44] Speaker 00:
OK.

[00:00:44] Speaker 00:
Thank you.

[00:00:45] Speaker 00:
Good morning, and may it please the court.

[00:00:46] Speaker 00:
My name is Matt Kinne, and I'm representing the Appellant Aqua Alliance in this appeal.

[00:00:52] Speaker 00:
The question in this case is whether Exemption 9 of the Freedom of Information Act, FOIA, allows the government to withhold information regarding water wells.

[00:01:00] Speaker 00:
And even if it does, whether the well depth and location information at issue here may be withheld, given that there's no evidence that releasing it would cause competitive disadvantage to the well owners.

[00:01:11] Speaker 00:
The second issue is under Exemption 4, whether that allows the withholding of well depth information alone, given that this information was not given voluntarily to the government, but was actually required for these well transfer substitution permits.

[00:01:28] Speaker 00:
Now I'd like to start by addressing something that was raised at the Bureau of Reclamation's brief on page 26, note 3.

[00:01:35] Speaker 00:
And this is the state records law change that happened in June of 2015.

[00:01:39] Speaker 00:
And it bears actually on both exemption 4 and 9 because it shows now that this information is being routinely released and so can't cause competitive disadvantage.

[00:01:51] Speaker 00:
And I just want to first make sure, unless the court think there's any mootness issue, that it's absolutely not the case.

[00:01:58] Speaker 00:
The Supreme Court and U.S.

[00:02:00] Speaker 00:
Department of Justice, Justice versus Tax Analysts, 492 U.S.

[00:02:05] Speaker 00:
136 at 149 to 50, said that a party may bring suit to force release of documents, even if those documents are available from another agency or elsewhere.

[00:02:17] Speaker 00:
And then there's practical reasons why that state law doesn't suffice.

[00:02:21] Speaker 00:
One is it requires a fee with no fee waiver provision like FOIA.

[00:02:26] Speaker 00:
And it's a good check to see that all documents are released.

[00:02:30] Speaker 00:
Document release is not a perfect science, and sometimes you get some documents from one entity that you don't get from another.

[00:02:39] Speaker 00:
So now I'd like to start talking about Exemption 9 and the issue of legislative history.

[00:02:45] Speaker 03:
Before you get to that, can I just ask, do you agree that if the information in the government's possession is about the location of oil wells or the depth of oil wells, that it would be protected under Exemption 9?

[00:03:05] Speaker 00:
I don't know that the depth, I hadn't thought about whether the depth information alone, you know, if it doesn't really reveal any geophysical data about strata under the earth, I'm not sure that it would.

[00:03:18] Speaker 00:
I don't think the location alone certainly would not, because I don't think that's geologic.

[00:03:23] Speaker 03:
Because you spent a lot of time talking about Exemption 9 protecting oil wells.

[00:03:28] Speaker 00:
Yes.

[00:03:29] Speaker 03:
And I wasn't clear whether that meant that

[00:03:33] Speaker 03:
this information would be protected if it were oil well information but is not protected because it's water well.

[00:03:42] Speaker 03:
Am I wrong?

[00:03:43] Speaker 03:
Am I misunderstanding your argument?

[00:03:45] Speaker 00:
The map that showed the well location data, I don't think would be protected even if it was about oil wells.

[00:03:50] Speaker 03:
Well, then why do we have to talk about legislative history?

[00:03:53] Speaker 03:
I don't understand why you have all this lengthy argument about water wells are different than oil wells if your position is that this information isn't protected no matter what type of well it is.

[00:04:06] Speaker 00:
Well, I'm sorry if I presented the argument not as well as I could have.

[00:04:09] Speaker 00:
I'm just trying to understand.

[00:04:10] Speaker 03:
So your argument that it's not

[00:04:12] Speaker 03:
geological or geophysical when it's location or depth?

[00:04:17] Speaker 03:
I'm trying to break out location and depth.

[00:04:19] Speaker 00:
I guess one of the reasons it's wrapped up is because in the oil and gas area, some of that information, perhaps if it could lead to a competitive disadvantage for the well owners,

[00:04:35] Speaker 00:
I think then, you know, if that fact were present, then you could definitely say, if this is an oil well, it's definitely protected, because that... I don't understand.

[00:04:41] Speaker 03:
I mean, maybe a competitive disadvantage might come into Exemption 4 based on obligations to disclose, but Exemption 9 says nothing about competitive disadvantage.

[00:04:51] Speaker 03:
It says, is it geophysical or geological information about wells, including maps?

[00:04:58] Speaker 02:
Yeah.

[00:04:58] Speaker 03:
And so I'm trying to figure out which part of Exemption 9

[00:05:02] Speaker 03:
you think has not been met here.

[00:05:05] Speaker 03:
I thought it was wells are supposed to mean oil wells, but if that's not the issue, is your argument focused on geological and geophysical?

[00:05:14] Speaker 00:
Well, it's a two-part question.

[00:05:16] Speaker 00:
And my reference to competitive disadvantage was actually in the legislative history of Exemption 9 talking about that's the kind of technical information that would cause disadvantage that Congress was trying to get at when it passed that language.

[00:05:29] Speaker 00:
Our argument is an alternative.

[00:05:32] Speaker 00:
And I guess I went with the argument that it doesn't apply to water wells at all first, because that seems like sort of a threshold question.

[00:05:39] Speaker 00:
But I do admit it's much easier to talk about, well, let's assume it could apply to water wells.

[00:05:45] Speaker 00:
Is this geologic or geophysical information?

[00:05:49] Speaker 00:
And I guess our point is that it's not.

[00:05:51] Speaker 00:
It doesn't meet the definition for that.

[00:05:52] Speaker 03:
Neither location nor depth.

[00:05:54] Speaker 00:
Right.

[00:05:54] Speaker 03:
Neither one is geological or geophysical.

[00:05:56] Speaker 00:
Right.

[00:05:57] Speaker 00:
I think the location data is the most obviously clear that it's not.

[00:06:02] Speaker 00:
That's geographical data about the location.

[00:06:05] Speaker 00:
The government has conceded in the context of the exemption for that it doesn't cause competitive disadvantage or cause any problem for well owners.

[00:06:13] Speaker 00:
So that is the easiest.

[00:06:15] Speaker 00:
But I would say even the depth information is likewise not such information.

[00:06:19] Speaker 00:
We have the Black Hills case, which found that it was not the kind of

[00:06:25] Speaker 02:
If maps are the type of information that can't be discussed, how can you make the argument that location isn't protected?

[00:06:37] Speaker 02:
I mean, a map describes locations.

[00:06:40] Speaker 00:
Because what Exemption 9 states is it's geological or geophysical information, including maps.

[00:06:49] Speaker 00:
So it has to be maps that reveal geologic and geophysical information.

[00:06:53] Speaker 00:
And again, the legislative history refers to seismic maps.

[00:06:57] Speaker 00:
So what they're talking about is maps that might show where you could find an oil strike or a gas strike.

[00:07:04] Speaker 00:
And in this context,

[00:07:06] Speaker 00:
it would reveal nothing of that sort.

[00:07:08] Speaker 00:
You can't swoop in and compete for water wells.

[00:07:11] Speaker 00:
They can only be drilled if you own the property.

[00:07:14] Speaker 00:
Knowing that someone has a water well on their property and how deep it's going to be drilled is not going to help.

[00:07:20] Speaker 00:
You can't make a claim on that person's property.

[00:07:23] Speaker 03:
Again, put aside competition, which isn't anywhere in the text.

[00:07:26] Speaker 03:
But how does knowing well depth not reveal geophysical

[00:07:32] Speaker 03:
information that shows where the aquifers are or where the water is flowing, how deep down you have to go before you get to water.

[00:07:42] Speaker 03:
So I don't know why that wouldn't be quintessential geophysical information.

[00:07:48] Speaker 03:
Just focus on depth right now.

[00:07:49] Speaker 00:
Okay well I think for instance the reason the Black Hills case didn't find it and that was and that even was in the context of

[00:07:59] Speaker 00:
of coal borehole, but still it found that depth information.

[00:08:04] Speaker 00:
The definition, we provided the dictionary definition of geologic, and it's not showing.

[00:08:12] Speaker 03:
I'm asking why it's not geophysical to show where the aquifers are within, below the surface of the earth, where water is and where water is not.

[00:08:23] Speaker 00:
Because I think the definition of geophysical refers to

[00:08:30] Speaker 00:
more of the structure of the underground.

[00:08:35] Speaker 03:
That would be exactly what it would be showing, what it shows where the water aquifers are and where others strata are not.

[00:08:42] Speaker 00:
Well, it doesn't, it's not, it's only telling you how deep that water is, but.

[00:08:49] Speaker 03:
It doesn't say how much information in Exemption 9, it just says, does it reveal geophysical information?

[00:08:55] Speaker 00:
Well, when your honor asked why are we only talking about that, I guess that's the other reason then is the question of whether it can apply in the context of a water well at all.

[00:09:05] Speaker 03:
Well, that's why I asked up front.

[00:09:06] Speaker 03:
So if this were revealing the depth of an oil well, it's geophysical whether it's an oil well or water well.

[00:09:12] Speaker 03:
It either is or isn't geophysical, but it would be the same.

[00:09:15] Speaker 03:
That wouldn't turn on the nature of the well that's on top.

[00:09:18] Speaker 03:
Either depth is or is not.

[00:09:22] Speaker 03:
geophysical.

[00:09:22] Speaker 00:
Well, our argument is that it's not, but if you disagree with that, then I guess we would be left with the other argument about whether it applies to water wells or not.

[00:09:30] Speaker 03:
And then what do you do with the Supreme Court decision in Milner, which was... Milner versus Department of the Navy, which was pretty emphatic, that we don't look to the tax until we find... to the legislative history until we find textual ambiguity?

[00:09:48] Speaker 03:
Well... Wonderful.

[00:09:51] Speaker 00:
So I guess there are different cases which say different things.

[00:09:56] Speaker 00:
You also have cases, and we cited in our brief, which says if the statute is clear and not at odds with the legislative history, then- Which case is that?

[00:10:09] Speaker 03:
Well, the government's actual case, we cited one, but also in the- What is your case that says that it has to be both textually unambiguous and consistent with legislative history?

[00:10:20] Speaker 00:
Well, like the Burlington Northern case was the one I was going to cite from the Bureau's brief at page 1011.

[00:10:25] Speaker 00:
And it says, quote, absence of clearly expressed legislative intent to the contrary is only when you are considering the plain language alone.

[00:10:35] Speaker 00:
And we have the Washington Post case, the Supreme Court case there, where they found it to be ambiguous.

[00:10:40] Speaker 03:
The text was ambiguous.

[00:10:44] Speaker 00:
Well, here we have the term Wells.

[00:10:50] Speaker 00:
It's ambiguous because we don't even know whether it means all wells or some wells.

[00:10:56] Speaker 00:
And the legislative history is so clear about what it applies to.

[00:11:00] Speaker 02:
So if the statute says a person shall not do something, it's ambiguous because we don't know whether it's referring to male persons or white persons or...

[00:11:13] Speaker 02:
Well, if the legislative history said this statute was really only intended to protect

[00:11:32] Speaker 00:
women, then that was something you should take into account when you're interpreting the statute or if it referred to people over the, so if it said persons and it was in a retirement context somehow in legislative history said, this is for persons over the age of 65, certainly I think you would take that into account when reading it.

[00:11:51] Speaker 00:
Whereas if someone came in and they're 45 years old and tried to claim a government benefit and said, oh, it just said persons.

[00:11:57] Speaker 00:
You say, yeah, well, but we're looking at the legislative intent

[00:12:01] Speaker 00:
And the Supreme Court has used the committee reports quite extensively to interpret the meaning of FOIA.

[00:12:09] Speaker 00:
And then you have on top of it that these FOIA exemptions must be narrowly construed.

[00:12:15] Speaker 00:
So when you take that admonition and you have legislative history which says, this is about oil and gas wells, I do think that there is enough ambiguity in the term well that the court can look at this legislative history and

[00:12:31] Speaker 00:
talk about it, and use it to interpret the statute.

[00:12:38] Speaker 00:
I think I'm about at my two minute that I'd reserve for rebuttal, so if there's no more questions now, I'll stop.

[00:12:44] Speaker 00:
Thank you.

[00:13:02] Speaker 01:
May it please the Court, Carl Ezekiel Ross, on behalf of the U.S.

[00:13:05] Speaker 01:
Bureau of Reclamation.

[00:13:07] Speaker 01:
Your Honor, the Bureau of Reclamation respectfully requests that the Court affirm the District Court's decision for two reasons.

[00:13:12] Speaker 01:
First, because the plain language of the Freedom of Information Act and the canons of statutory interpretation support a finding that Exemption 9 applies to water wells.

[00:13:21] Speaker 01:
And secondly, because a finding that Exemption 9 applies to both well location and depth information is consistent with the plain language of the text and with this Court's rulings.

[00:13:32] Speaker 01:
And finally, in the alternative, the Bureau requests that the Court respectfully determine that the Bureau properly applied Exemption 4.

[00:13:40] Speaker 01:
First, the plain language of the Freedom of Information Act and canons of statutory interpretation support a finding that Exemption 9 applies to water wells.

[00:13:48] Speaker 01:
both the Supreme Court in Milner and the Supreme Court in Park and Fly versus Dollar Park and Fly Inc.

[00:13:55] Speaker 01:
stated that the statutory construction must begin with the language employed by Congress, the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.

[00:14:04] Speaker 01:
In this particular case, the appellant is asking that this court take the plain and unambiguous language of geological and geophysical information, including maps concerning wells, and determine that that information is ambiguous simply because Congress chose not to provide an exhaustive list.

[00:14:22] Speaker 01:
This court has repeatedly rejected attempts in the past to do such, and specifically rejected an attempt recently this year in SAC v. U.S.

[00:14:30] Speaker 01:
Department of Defense.

[00:14:32] Speaker 01:
In that particular case, the Freedom of Information Act provision in question dealt with educational institutions and the amount of duplication fees that should be applied to educational institutions.

[00:14:44] Speaker 01:
The appellant in that case argued, similar to the appellant in this case, that because Congress chose not to provide an exhaustive list of what qualifies as an educational institution, that the court should look past the plain language of the statute and actually look at the legislative history to determine that educational institutions would only apply to teachers and not students.

[00:15:06] Speaker 01:
This court specifically rejected the attempt to go past the plain language and try to create an exhaustive list through, quote, snippets of congressional legislative history and said that because the text of the statute, quote, refers to educational institutions without drawing a line between teachers and students, this court would not do so.

[00:15:26] Speaker 01:
And this court should similarly reject the appellant's request now that it goes past the plain language

[00:15:32] Speaker 01:
of exemption nine, which says that it applies to maps including wells, and now determining what an exhaustive list of the type of wells that should apply under that exemption based on snippets or small parts of the legislative history.

[00:15:46] Speaker 03:
Can you explain to me how location of oil wells is either geologic or geophysical information?

[00:15:52] Speaker 03:
I'm sorry, of any well, oil, well, water, well, how is location geologic or geophysical?

[00:15:59] Speaker 01:
Well, Your Honor, the court need not look much further than, to answer the court's direct question, the appellant actually argues that the surface maps that show the location on the surface, it's not geological or geophysical information because it shows where information is on the surface and it's not subterranean.

[00:16:18] Speaker 01:
And essentially, he requested this court find what Congress chose not to do and add provisions into this exemption that it only applies to subterranean information.

[00:16:28] Speaker 01:
and this court and public employees for environmental responsibility.

[00:16:32] Speaker 03:
I'm just trying to understand what, I mean, not every surface map is geologic information, is it?

[00:16:38] Speaker 01:
Your honor, if the map is concerning wells and it shows where the location of that well is, then under the ordinary language, it may not, it could be geophysical information.

[00:16:50] Speaker 01:
It may not be a geological information where it's showing exactly where it is in the ground.

[00:16:54] Speaker 01:
The depth information would be that.

[00:16:56] Speaker 03:
I got the depth information, right.

[00:16:58] Speaker 01:
But the information showing exactly even where it is on the surface could be considered geophysical information.

[00:17:04] Speaker 01:
And in this court,

[00:17:06] Speaker 01:
Well, this court's recent decision in public employees for environmental responsibility versus Hopper, while it was under the context of the EPA and its requirement that it take a hard look at, quote, geological and geophysical information, the court said that they failed to do so when it was looking at the surface of the oceanic surface and whether particular structures that were being created

[00:17:28] Speaker 01:
would be able to withstand the effect on the oceanic surface.

[00:17:32] Speaker 01:
And so in that particular case, the information that was being discussed was not subterranean, but it was surface information, even though it was oceanic information.

[00:17:41] Speaker 03:
So it was the composition of the surface of the

[00:17:45] Speaker 03:
their underwater earth, but it was composition of it, whether it was rocky, sandy, that type of stuff, which sounds geologic.

[00:17:54] Speaker 03:
But I'm assuming you could have, you know, in this day with Google Maps, you could just look at any given area and see here's all the subdivisions, here's all the houses, here's all the streets, and there's a water well.

[00:18:05] Speaker 03:
Just looking at that, and that wouldn't be geologic information, would it?

[00:18:08] Speaker 01:
Your honor, just looking at Google Maps to say that there is something that's there may not be considered geological information, but maps showing actual location, whether it's on the actual surface or slightly below the surface, if we're looking at the ordinary meaning of those terms.

[00:18:25] Speaker 01:
could be considered geological or geophysical information.

[00:18:29] Speaker 01:
It's the government's position.

[00:18:30] Speaker 01:
It is geological or geophysical information where it's showing exactly where the water well starts, even if that map is showing where that water well starts above the surface and not subterranean.

[00:18:42] Speaker 03:
So if you have an ordinary map of a subdivision, maybe from a satellite, and that shows the houses, the streets,

[00:18:53] Speaker 03:
and also where some water wells are on property because it's a really good satellite.

[00:19:00] Speaker 03:
Would that be protected under Exemption 9, that entire map?

[00:19:03] Speaker 01:
Your Honor, I don't know about the entire map.

[00:19:06] Speaker 01:
In this specific case, the only information that was withheld, there's lots of information that was disclosed.

[00:19:12] Speaker 01:
The information that was withheld was specific information regarding the actual well location, specifically not necessarily other parts of a map, and information regarding the well depths specifically.

[00:19:25] Speaker 03:
Well, you disclose all of the map except you black out the parts.

[00:19:28] Speaker 03:
where the wells are and you say Exemption 9, then everyone's going to know exactly where the wells are, right?

[00:19:33] Speaker 01:
That's correct, Your Honor.

[00:19:35] Speaker 01:
That's correct.

[00:19:35] Speaker 03:
It doesn't seem helpful.

[00:19:37] Speaker 01:
That's correct.

[00:19:37] Speaker 01:
So I guess in the example that you gave, yes, the information that would be included on the map that shows where the water well reaches the surface or a surface map that shows exactly where the water well is located would also fall into that information, Your Honor.

[00:19:53] Speaker 03:
Is that not information just publicly available in this day and age?

[00:19:59] Speaker 03:
People not just see this from, usually FOIA is not protecting stuff that's already just publicly seeable.

[00:20:07] Speaker 01:
That's correct, Your Honor, but in this particular case, although Pellin points to the fact that there is now a law in California that indicates that some of this information is publicly available through, at the time that law was not in place and at the time that these FOIA exemptions were applied, that law was, and the request was made, and these apply.

[00:20:27] Speaker 03:
Yeah, but the government will usually, if something happens, if it's protecting something, and then during the course of FOIA litigation,

[00:20:33] Speaker 03:
It's learned that information is now publicly available.

[00:20:37] Speaker 03:
The government will usually revisit its position and go ahead and release the information.

[00:20:42] Speaker 01:
Your Honor, it may, in certain circumstances, make a discretionary release in the circumstances that you described, but it's not necessary that the government is mandated to make that release subsequent, some years later, based on the change of law.

[00:21:01] Speaker 01:
And the particular change of law in question only applies, I believe, to some of the information that the appellant is asking or seeking.

[00:21:11] Speaker 03:
Did we know whether these well locations are now publicly available information, whether through California or some other mechanism?

[00:21:18] Speaker 01:
Your Honor, I believe that through a revised California law, there is some of this well location information that is now publicly available.

[00:21:26] Speaker 03:
Some, but not all, is what you're saying?

[00:21:27] Speaker 01:
I believe so, Your Honor.

[00:21:29] Speaker 03:
You believe some of it is not available under California law?

[00:21:32] Speaker 01:
I believe so, Your Honor.

[00:21:33] Speaker 01:
I mean, I know that the information that was submitted was voluntarily submitted.

[00:21:37] Speaker 01:
It was not information that was required in order for these water well transfers to be affected, and that some of the information regarding some of the surface maps, I believe, may be

[00:21:48] Speaker 01:
publicly available now.

[00:21:51] Speaker 01:
I'm not certain whether all of the depth information is publicly available as well.

[00:22:00] Speaker 03:
The Miller Declaration, what I'm very confused about is whether, for purposes of Exemption 4, whether well-depth information is required in order to process a water transfer.

[00:22:15] Speaker 03:
Because the Declaration keeps talking about well-completion information, but doesn't tell me whether well-depth information specifically is required for a water transfer.

[00:22:25] Speaker 03:
And the White Paper

[00:22:27] Speaker 03:
It implies that it's not, but then the white paper says it is required.

[00:22:31] Speaker 03:
So how are we supposed to know whether it's required or not?

[00:22:35] Speaker 01:
Well, Your Honor, the well completion reports, more specifically what the Milner Declaration is referring to, the well completion reports, included information regarding both depth and location.

[00:22:46] Speaker 01:
And so when it talks about well completion, it is referring to all of that information.

[00:22:51] Speaker 01:
And the Milner Declaration also says that it was not mandatory that this information be provided, while part of the assessment that does take place is to determine exactly how close these wells are to fleet-flowing rivers to make sure that the water that's being transferred and sold, I see my time is up, but if I may continue to finish your question.

[00:23:13] Speaker 01:
to make sure that the information that's being sold is not information that's being siphoned from a river.

[00:23:19] Speaker 01:
And so while that type of inquiry does take place, the Milner Declaration indicated that without these well completion reports showing both depth and location information, these particular water transfers have been granted in the past, and so it was not a mandatory portion.

[00:23:40] Speaker 01:
If there are no other questions, thank you.

[00:23:48] Speaker 03:
Okay.

[00:23:49] Speaker 03:
Mr. Kenna, we'll give you a minute for rebuttal.

[00:23:53] Speaker 00:
Okay, thank you.

[00:23:54] Speaker 00:
First of all, I think all the information that we're seeking is releasable now through the State Records Act, and we would not be opposed to submitting a letter brief or something to each side to determine that question.

[00:24:08] Speaker 00:
And second,

[00:24:10] Speaker 00:
On the issue of whether the well-debt information was submitted voluntarily, as Your Honor points out, Judge Millett, that the appendix of page 29 to 30, the technical information paper, clearly requires it, and the Miller Declaration never even addresses that to try and say, oh, it doesn't mean what it says what it means.

[00:24:29] Speaker 00:
And as the Reporters Committee case shows, the burden of proof is on the government to make their case.

[00:24:34] Speaker 00:
And if they do not make the case, which they did not do through a conclusory statement that was contradicted by the record, then they must lose that claim of exemption.

[00:24:46] Speaker 00:
Thank you.

[00:24:47] Speaker 02:
OK.

[00:24:48] Speaker 02:
Thank you.

[00:24:48] Speaker 02:
The case will be submitted.