Unreported / Non-Citable
Background
Plaintiff Ecological Rights Foundation (EcoRights) filed two Freedom of Information Act (FOIA) lawsuits against the United States Fish and Wildlife Service (FWS) regarding records for the County of San Luis Obispo's Lopez Project and the 2025 Lopez Dam habitat conservation plan. The first request, submitted February 17, 2026, covered January 1, 2025 through the request date; EcoRights filed EcoRights I on April 9, 2026, asserting five FOIA claims including constructive denial, unlawful withholding, inadequate search, failure to use a tracking system, and failure to provide an estimated completion date. FWS answered and produced records with redactions under Exemptions 5 and 6, and the parties proposed competing summary judgment schedules.
EcoRights submitted a second FOIA request on June 26, 2026, covering February 18, 2026 through the date of FWS's search and seeking additional record categories. EcoRights filed EcoRights II on July 28, 2026, asserting five parallel claims plus a sixth pattern-or-practice delay claim referencing FWS's handling of the first request. FWS answered on September 9, 2026, and issued its final determination with Exemption 5 and 6 redactions. The court related the cases and ordered joint case management, but EcoRights moved to consolidate under Rule 42(a). FWS did not oppose consolidation but requested preservation of fee objections and clarification that fee eligibility would be analyzed separately for each case.
The Court’s Holding
The court granted the motion to consolidate under Federal Rule of Civil Procedure 42(a), finding both actions involve common questions of law and fact: they name the same parties, concern the same Lopez Project and habitat conservation plan, assert parallel FOIA claims, and the pattern-or-practice claim in EcoRights II references the first request. FWS did not dispute commonality. Consolidation will facilitate coordinated case management and summary judgment briefing, reducing duplication while preserving distinct issues such as the additional record categories and pattern-or-practice claim in EcoRights II. The court found no material prejudice or delay from consolidation, as both cases are before the same judge, answers have been filed, and no dispositive motion schedule has been set.
The court declined to rule on FWS's fee-related requests. First, it held that FWS's non-opposition to consolidation is not a concession on fee eligibility, entitlement, or reasonableness, and no fee motion is currently before the court. Second, it held that consolidation does not merge the suits or alter fee analysis: consolidated cases retain separate identities, and FOIA fee eligibility is assessed claim-by-claim based on relief obtained. The court preserved all parties' fee arguments without resolving them, declining to prescribe whether future fee motions must analyze the actions separately or together. Case No. 3:26-cv-03061-TSH is designated the lead docket; the other case is administratively closed, and a case management conference is set for November 19, 2026.
Key Takeaways
- Two FOIA actions concerning the same project and habitat conservation plan with overlapping subject matter and parallel claims were consolidated under Rule 42(a) to promote judicial economy.
- Consolidation does not merge separate lawsuits into a single cause of action; each case retains its independent identity for appeal and fee eligibility purposes.
- The court declined to adjudicate fee issues prematurely, preserving all parties' arguments regarding fee eligibility, entitlement, and reasonableness for future resolution on a developed record.
- FOIA fee eligibility is assessed on a claim-by-claim basis tied to the relief obtained, not globally across consolidated cases.
- The lead docket (3:26-cv-03061-TSH) will govern all future filings, and the second case is administratively closed without requiring a consolidated complaint.
Why It Matters
This order clarifies the relationship between Rule 42(a) consolidation and FOIA fee-shifting under 5 U.S.C. § 552(a)(4)(E), confirming that consolidation for case management efficiency does not waive fee defenses or alter the claim-specific eligibility analysis required by Ninth Circuit precedent. The decision provides practical guidance for litigants in related FOIA cases: courts will consolidate overlapping actions to avoid duplicative briefing and inconsistent rulings on search adequacy and withholdings, but will preserve the structural separation necessary for proper fee adjudication. The ruling also illustrates how pattern-or-practice claims in successive FOIA suits can reinforce commonality for consolidation while remaining distinct for merits and fee purposes.