News & Events

Monthly Meetings

  • General Membership Meetings  Second Thursday of the month
    November to April
  • 7:00pm
  • Lord of The Seas Lutheran Church
    1250 Key Deer Blvd. Big Pine Key
  • Annual Meeting for Elections of Officers & Advisors held in January

Upcoming Events

Dear Friends, Neighbors, and Supporters,    
The Planning Commission Meeting is this Wednesday, Octo

         Keys Wildlife Post-Irma:  Important Update  (Round-table Discussion)
 
7:00 PM, Thursday, November 8, 2018


 Lord of the Seas Lutheran Church, 1250 Key Deer Blvd., Big Pine Key
 
 
Keys Wildlife Post-Irma:  Important Updates
 
The Thursday, November 8thmeeting of the Key Deer Protection Alliance will be a lively round-table discussion on the status of the Key deer and other local wildlife.
 
Attendees will be invited to share their personal observations regarding what they currently see on Big Pine Key and other islands in the Lower Keys, conditions that may be affecting the health and long-term survival of local animals, birds, plants, and trees.  
 
Of particular interest will be the results of the most recent population estimate for the surviving Key deer herd by wildlife researchers at Texas A&M.  Also discussed will be the current status review by USFWS, which has the potential to result in a down-listing of the Key deer.
 
The meeting will be held at 7:00 PM at Lord of the Seas Lutheran Church, 1250 Key Deer Blvd., Big Pine Key.  The public is invited.
 


  



Update from KDPA Meeting; for the entire documents email: lindahall@visi.com

FOIA Appeal to USFWS;

August 16, 2018

BY E-MAIL

Freedom of Information Act Appeals Officer

U.S. Department of the Interior

Office of the Solicitor

1849 C Street, NW, Mail Stop 6556

Washington, D.C. 20240

Email: FOIA.Appeals@sol.doi.gov

Re: Freedom of Information Act Appeal (FWS/R4/RF/2017-00946)

Dear Sir or Madam,

On behalf of Last Stand and the Key Deer Protection Alliance, I am writing to appeal the partial denial of a Freedom of Information Act (“FOIA”) request made on June 17, 2017 to the United States Fish and Wildlife Service (“FWS”) for documents pertaining to National Key Deer Refuge. In particular, Last Stand and the Key Deer Protection Alliance appeal (1) the determination that two records comprising approximately 221 pages are exempt in their entirety from disclosure under Exemption 5 of FOIA, 5 U.S.C. §§ 552(b)(5), and (2) the failure to release any “reasonably segregable” portions of records for which exemptions are claimed, as required by 5 U.S.C. § 552(b). Last Stand and Key Deer Protection Alliance also challenge the adequacy of the agency’s search because FWS provided neither permits nor National Environmental Policy Act (“NEPA”) documentation for the mechanical vegetation thinning work in the National Key Deer Refuge in response to the June 17, 2018 request.

This appeal is submitted pursuant to 43 C.F.R. § 2.57. We expect a determination of this appeal within 20 days (excepting Saturdays, Sundays, and legal public holidays), as provided by statute and regulation, 5 U.S.C. § 552(a)(6)(A)(ii) and 43 C.F. R. § 2.62. We have attached copies of the following documents to this letter in chronological order:

• our initial June 17, 2017, FOIA request to Tiffany McClurkin, FWS FOIA Coordinator (Attachment A);

• a follow up letter to Vicki Mott, of the United States Department of the Interior on March 14, 2018 (Attachment B);

• an email chain between Tiffany McClurkin and Jason Totoiu of the Everglades Law Center culminating in a March 21, 2018 email indicating that an initial partial release of documents had been sent by Federal Express (Attachment C);

• an April 5, 2018 email from Tiffany McClurkin indicating that a second partial release had been sent via Federal Express and

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• our initial June 17, 2017, FOIA request to Tiffany McClurkin, FWS FOIA Coordinator (Attachment A);

• a follow up letter to Vicki Mott, of the United States Department of the Interior on March 14, 2018 (Attachment B);

• an email chain between Tiffany McClurkin and Jason Totoiu of the Everglades Law Center culminating in a March 21, 2018 email indicating that an initial partial release of documents had been sent by Federal Express (Attachment C);

• an April 5, 2018 email from Tiffany McClurkin indicating that a second partial release had been sent via Federal Express and that additional potentially responsive documents “currently being routed through the proper channels for review” (Attachment D); and

• the FWS’s May 25, 2018 letter “complet[ing]” its response to our request and withholding two documents pursuant to FOIA Exemption 5 (Attachment E).

I. Background: June 17, 2017 FOIA Request and the Response of FWS

On June 17, 2017, Last Stand and the Key Deer Protection Alliance requested that FWS provide, pursuant to FOIA:

• any and all draft and/or final “step down management plans” prepared pursuant to the National Wildlife Refuge System Improvement Act (“NWRSIA”) for the National Key Deer Refuge, including but not limited to any draft and/or final habitat management plans;

• any and all records related to the Bartram’s Scrub-Hairstreak Butterfly/Pineland Croton Project on Big Pine Key, Florida within the National Key Deer Refuge, specifically including, but not limited to:

• any and all surveys and/or monitoring data for the Bartram’s Scrub Hairstreak within the National Key Deer Refuge. This includes any baseline population studies, counts, or surveys that were performed prior to this project as well as any monitoring data collected during and after the project;

• any and all draft and/or final categorical exclusions, environmental assessments, environmental impact statements, and/or any other documents prepared pursuant to the NEPA for this project;

• any and all draft and/or final biological evaluations, biological assessments, biological opinions, and/or any other documents prepared pursuant to Section 7 of the Endangered Species Act for this project; and

• any and all draft and/or final compatibility determinations for this project pursuant to the NWRSIA.

FWS provided two partial releases of documents to Last Stand and the Key Deer Protection Alliance by Federal Express in late March and early April 2018. In an April 5, 2018 email indicating that the second partial release had been sent via Federal Express, FWS noted that additional potentially responsive documents were “currently being routed through the proper channels for review.” On May 25, 2018, FWS sent a letter “complet[ing]” its response to the June 17, 2017 FOIA request and stating that the Southeast Regional Office had located two additional documents comprising 221 pages. However, FWS claimed both documents –

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unnamed and undescribed – were exempt from disclosure in their entirety under pursuant to Exemption 5 of FOIA. Specifically, the FWS stated (on page 1 of its May 25, 2018 letter) that, “[t]he information redacted pursuant to Exemption 5 includes privileged information involving discussions on matters of policy between subordinates and superiors and were used to guide the Agency in the decision making process.”

II. The FWS’s Assertion of FOIA Exemption 5 is Overbroad.

FWS’s May 25, 2018 letter fails to specify in any way what precisely the two documents being withheld in their entirety are – even in broad categories (e.g., memoranda between employees or consultants, emails with attachments, draft reports). This makes it extremely difficult to determine the propriety of the asserted exemption with respect to the documents and does not satisfy the agency’s obligation to demonstrate the applicability of the claimed exemptions to particular documents. Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973).

FOIA Exemption 5 applies only to intra-agency and interagency records. 5 U.S.C. § 552(b)(5). Communications to and from parties outside the government are not inter-agency or intra-agency documents and must be disclosed. Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 12 (2001). FWS has failed to demonstrate that each of the withheld documents is actually an intra- or inter-agency record, including whether any of the documents developed within the agency and/or exchanged among sister agencies was also copied to any other party. Any records circulated beyond an “agency” would likely be ineligible for Exemption 5. See id. Moreover, the deliberative process privilege “must be construed as narrowly as is consistent with efficient government operation.” Army Times Pub. Co., 998 F.2d 1067, 1069 (D.C. Cir. 1993) (citing Wolfe v. HHS, 839 F.2d 768, 773 (D.C. Cir. 1988)). EPA may not invoke the deliberative process privilege unless it can demonstrate both that the documents are “pre-decisional” – i.e., that the materials were “generated before the adoption of an agency policy” – and also “deliberative” – i.e., that they “reflect the give-and-take of the consultative process.” Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 616 (D.C. Cir. 1997) (quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). FWS has failed to meet its burden to demonstrate that each of the withheld documents is actually pre-decisional and deliberative – reflecting the give-and-take of the consultative process. See Coastal States, 617 F.2d at 866 (citing Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975) (burden is on agency)).

At the very least, FWS must individually list the two documents withheld in connection with its ruling on this appeal to demonstrate the applicability of Exemption 5. See Vaughn v. Rosen, 484 F.2d 820; King v. Department of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (holding that to demonstrate a record may be withheld, agency must provide “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply”) (internal quotation omitted).

III. FWS’s Failure to Release Reasonably Segregable Portions of Records it Deems Exempt Violates FOIA.

The FWS has violated the clear, unambiguous, and unqualified statutory requirement to release any “reasonably segregable,” non-exempt portions of records that contain other, exempt material.

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5 U.S.C. § 552(b). According to FWS regulations, FWS will “segregat[e] and releas[e] . . . nonexempt information, unless the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases.” 43 C.F.R. §2.25. However, FWS’s May 25, 2018 letter does not state whether it made any attempt to determine whether there are any reasonably segregable, non-exempt portions of any of the records being withheld. In one sentence (on page 1 of the May 25, 2018 letter) it says that “documents” are being withheld, but in the next it refers only to “information redacted,” suggesting that portions of the withheld documents may be “reasonably segregable.”

We note that it is very likely that such reasonably segregable portions of records do exist. For example, internal memoranda or communications between FWS and other agencies or outside technical consultants are likely to include substantial non-deliberative technical materials. These would include technical analyses of raw data, or records otherwise representing the objective application of scientific techniques or reasoning to a particular issue, which are essentially factual in nature and do not reflect any internal decision making processes. See Assembly of California v. United States Department of Commerce, 968 F.2d 916 (9th Cir.1992) (holding that “adjusted” data from 1990 Census did not fall within the deliberative privilege exception in Exemption 5 because, inter alia, they were not “deliberative” in nature, but, rather, factual); see also Petroleum Information Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1435 (D.C.Cir.1992) (holding that objective acreage estimates based on manipulation of raw data were not protected under the deliberative process privilege). Even if a document is pre-decisional, courts have upheld a distinction between “materials reflecting deliberative or policy-making process on the one hand, and purely factual, investigative matters on the other,” confirming that the exemption protects the former, not the latter. See EPA v. Mink, 410 U.S. 73, 89-91 (1973), superseded by statute on other grounds, 5 U.S.C. § 552(b)(1). Those portions of a document which are not exempt must be disclosed unless they are “inextricably intertwined” with the exempt portions. Ryan v. Dept. of Justice, 617 F. 2d 781, 790-91 (D.C. Cir. 1980); Vaughn v. Rosen, 484 F.2d at 825 (“an entire document is not exempt merely because an isolated portion need not be disclosed”)(citing EPA v. Mink, 410 U.S. at 93).

IV. The Search Appears to Have Been Inadequate

Last Stand and Key Deer Protection Alliance also challenge the adequacy of FWS’s search in response to the June 17, 2018 FOIA request. See Oglesby v. U.S. Dep’t. of Army, 920 F.2d 57, 67-68 (D.C. Cir. 1990), overruled in part on other grounds, 79 F.3d 1172 (D.C. Cir. 1996). Although page 2 of one document released in response to the June 17, 2017 request – the 2016 Cooperative Recovery Initiative Annual Report for the Bartram’s Hairstreak Project in the National Key Deer Refuge (Attachment F) – stated that “[c]oordination, permitting, compliance was completed prior to implementation of mechanical vegetation thinning treatments on 46 acres during August-September 2015,” no permits, NEPA compliance documents (for example, a categorical exemption worksheet), or NWRSIA compatibility determinations for the mechanical vegetation thinning in the National Key Deer Refuge were provided. The FWS’s National Refuge Handbook (Attachment G) outlines the general rules and policies that govern the agency’s compliance with NEPA with regard to activities in national refuges.

V. Conclusion

We respectfully request a prompt resolution to this appeal, in the interests of a full and fair opportunity for public participation in decision making regarding ongoing clearing of globally

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critically imperiled pine rockland habitat in the National Key Deer Refuge. Please contact me at (718) 809-3126 or ansley@evergladeslaw.org if I can provide any further information that would be of use in adjudicating this appeal.

Sincerely,

S. Ansley Samson


This Month's Meeting discussions included:

For the following entire documenats please email :lindahall@visi.com


2. Habitat Conservation Plan

for Florida Key Deer

(Odocoileus virginianus clavium)

and other Protected Species on

Big Pine Key and No Name Key,

Monroe County, Florida

Prepared for:

U.S. Fish and Wildlife Service

1339 20th Street

Vero Beach, Florida 32960-3559 (email for the entire document)


3. MORBIDITY AND MORTALITY FACTORS IN KEY DEER

(ODOCOILEUS VIRGINIANUS CLAVIUM) 

     ABSTRACT: The population health of endangered Key deer (Odocoileus virginianus clavium) was

monitored from 10 February 1986 to 28 September 2000 by necropsy of animals that were killed

by vehicles, euthanized because of terminal injuries or disease conditions, or found dead. The

predominant mortality factor during the period was collision with motor vehicles; however, several

infectious diseases were diagnosed, including infections with Arcanobacterium pyogenes, Haemonchus

contortus, Salmonella spp., and Mycobacterium avium subsp. paratuberculosis. During

the period monitored, the only infectious disease that was thought to have affected population

dynamics was haemonchosis. Nevertheless, several of the observed diseases have potential to

impact viability of the Key deer population under appropriate environmental conditions.


Florida Key deer (Odocoileus virginianus

clavium) are the smallest race of

North American white-tailed deer and

have been listed as endangered since 1967

because of habitat loss and fragmentation,

diminishing numbers, and concern for loss

of genetic diversity. Key deer distribution

is restricted to approximately 12 islands

(keys) of the Lower Florida Keys (Florida

USA), with the majority of the population

residing on Big Pine and No Name Keys

(2444N, 8120W). Deer numbers were

estimated at fewer than 100 animals in the

1940s and 1950s (Allen, 1952; Dickson,

1955; US Fish and Wildlife Service, 1985),

but the population had increased by the

early 1970s to an estimated 350–400 deer

(Silvy, 1975; Klimstra et al., 1978). However,

further study indicated that the Key

deer population was declining (Humphrey

and Bell, 1986).

Records of deer mortality have been

kept continuously since 1969 by personnel

at the National Key Deer Refuge (NKDR);

however, causes of death were assigned to

general categories by NKDR staff primarily

by case history or circumstantial evidence.

The Southeastern Cooperative Wildlife

Disease Study (SCWDS) began to assist

with assessment of Key deer health in 1986

through examination of samples submitted

from road kills or releasable animals examined

by NKDR biologists.

In November 1996, an emaciated adult

doe was presented to a NKDR biologist

for examination and abnormal appearing

ileum and associated ileocecal lymph node

were submitted to SCWDS. Subsequent

histopathology and polymerase chain reaction

diagnostic procedures revealed infection

with Mycobacterium avium subsp.

paratuberculosis (Quist et al., 2002). The

morphologic diagnosis of Johne’s disease in

this animal provided the impetus for more

detailed study of morbidity and mortality

factors in Key deer. Reported herein is

health-related information for Key deer

with emphasis placed on animals examined

from February 1997 to September 2000.  for the rest of this document email:

lindahall@visi.com


4, KDPA Letter to USFWS Regarding Down-listing?De-Listing of Key Deer

for this letter email:

lindahall@visi.com


5. Raol Lopez's Two Post-Irma Reports on Salinity with Population Estimates

  

Florida Key Deer Hurricane Post-Irma Report

Post-Hurricane Irma 

Salinity and Abundance Analyses 

I. D. Parker, M. Grassi, R. R. Lopez, N. J. Silvy and B. L. Pierce 

Texas A&M Natural Resources Institute

578 John Kimbrough Blvd.

College Station, TX 77843

Florida Key Deer 

Post-Hurricane Irma 

Salinity and Abundance Analyses

Overview 

Hurricane Irma was a Category 4 storm when the eye of the storm passed through the center of the Florida Key deer (hereafter Key deer) range on 10 September 2017 (Fig. 1). The passage of Hurricane Irma caused significant property damage, impacts to vegetation and water resources, and direct mortality to wildlife populations. In this report, we synthesize post-Hurricane Irma salinity and Key deer abundance estimates. This provide refuge managers with population trend information useful in Key deer management efforts. 


Methods salinity measurements 

Stormsurge from Hurricane Irma flooded many freshwater sources with saline ocean water. Freshwater is critical for Key deer and relatively limited throughout their range (approximately 270 freshwater sources). Key deer require water less than 5 parts per thousand (ppt) for long-term persistence, but can survive on water up to 15 ppt in the short-term. This makes changes in quality and availability of freshwater sources a monitoring priority.

For the following entire documents please email :lindahall@visi.com

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