FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL DIVERSITY; 

DEFENDERS OF WILDLIFE; SIERRA

CLUB,

Plaintiffs-Appellees, No. 09-17233

v. D.C. No.  4:07-cv-00629-JMR UNITED STATES DEPARTMENT OF

AGRICULTURE, Wildlife Services, OPINION

Animal and Plant Health

Inspection Service,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

John M. Roll, Chief District Judge, Presiding

Argued and Submitted

November 1, 2010—San Francisco, California

Filed December 2, 2010

Before: Arthur L. Alarcón and Pamela Ann Rymer,

Circuit Judges, and David G. Trager,

Senior District Judge.*

Opinion by Judge Rymer

*The Honorable David G. Trager, Senior United States District Judge

for the Eastern District of New York, sitting by designation. 

19151
COUNSEL

John S. Koppel, U.S. Department of Justice, Washington,

D.C., for the appellant.

Matt Kenna, Western Environmental Law Center, Durango,

Colorado, for the appellees.

OPINION

RYMER, Circuit Judge:

The United States Department of Agriculture (USDA)

appeals the district court’s grant of summary judgment in

favor of the Center for Biological Diversity, which required

the USDA, under the Freedom of Information Act (FOIA), to

disclose the GPS coordinates of wolf depredations to which

it had responded. The district court held that the coordinates

were not exempt from disclosure under FOIA Exemption 3 or

Exemption 6. We have jurisdiction under 28 U.S.C. § 1291,

and we reverse. Exemption 3 applies because Section 8791 of

the Food, Conservation, and Energy Act of 2008 (FCEA)

exempts from disclosure such geospatial data and applies to

this case even though it took effect after the USDA withheld

the coordinates.

I

The facts are largely not in dispute. The USDA operates the

Wildlife Services program (WS) through the Animal and

Plant Health Inspection Service (APHIS). The WS program

reduces crop and livestock depredations caused by the Mexi19154 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
can wolf, along with birds, rodents, and other predators. The

WS enters into agreements with individuals, referred to as

ranchers or cooperators, to access their land to remove or capture the wolves. 

The Center for Biological Diversity and other conservation

groups (collectively, the Center) are concerned about the

reduced number of Mexican wolves remaining in the wild and

believe that WS removals limit the growth of the species. As

a result, the Center submitted a FOIA request to APHIS that

included, in relevant part, a request for the specific GPS coordinates where wolf depredations had occurred in order to

evaluate the WS program. GPS coordinates are collected by

WS staff members while on rancher property investigating

depredations. 

APHIS provided the city and state where each depredation

had occurred, but withheld the specific GPS coordinates, citing FOIA Exemption 6 for the personal privacy of the ranchers involved. APHIS also provided records describing specific

instances of WS activity, wolf complaint investigations, and

reports on depredations, though all with GPS data redacted. 

The Center then brought suit under FOIA against the

USDA, APHIS, and WS (collectively, the USDA) for withholding the GPS coordinates. The parties filed cross-motions

for summary judgment. 

The district court granted the Center’s motion for summary

judgment and denied that of the USDA. Center for Biological

Diversity v. Wildlife Services, 649 F. Supp. 2d 974, 975 (D.

Ariz. 2009). The court held inapplicable FOIA’s Exemption

3 for matters exempted from disclosure by certain other statutes. Id. at 980. Regarding a prohibition in Section 8791 of

the FCEA on disclosure by the USDA of certain geospatial

information, 7 U.S.C. § 8791(b)(2)(B), the district court noted

that “Wildlife Services responded to the Conservation

Groups’ requests for records before the FCEA’s effective

CENTER FOR BIOLOGICAL DIVERSITY v. USDA 19155
date.” Id. The court reasoned that “absent Congress’ ‘express

command,’ statutes are only to be applied prospectively.” Id.

(citing Martin v. Hadix, 527 U.S. 343, 345 (1999)). As a

result, the district court concluded that “section 1619 of the

FCEA [codified as Section 8791] cannot be applied retroactively to cover the conduct at issue in the instant case.” Id.

The district court also concluded that Exemption 6 did not

apply. Id. at 977-79. The USDA timely appealed.

II

In FOIA cases, we employ a two-step standard of review

for summary judgment. Lion Raisins Inc. v. U.S. Dep’t of

Agric., 354 F.3d 1072, 1078 (9th Cir. 2004). First, the court

reviews de novo whether an adequate factual basis exists to

support the district court’s decision. Id. Second, the court

reviews the district court’s conclusions of fact for clear error,

while legal rulings, including its decision that a particular

exemption applies, are reviewed de novo. Lane v. Dep’t of

Interior, 523 F.3d 1128, 1135 (9th Cir. 2008).

III

FOIA “was enacted to facilitate public access to Government documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164,

173 (1991) (citations omitted). There is therefore a “strong

presumption in favor of disclosure.” Id. However, FOIA contains a number of exemptions. 5 U.S.C. § 552(b). Under

Exemption 3, FOIA does not apply to matters that are specifically exempted from disclosure by certain other statutes. 5

U.S.C. § 552(b)(3). 

In determining the applicability of Exemption 3, “[f]irst, we

determine whether the withholding statute meets the requirements of Exemption 3. Then, we determine whether the

requested information falls within the scope of the withholding statute.” Carlson v. U.S. Postal Serv., 504 F.3d 1123,

1127 (9th Cir. 2007). In this case, there is also the third issue

19156 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
of whether the withholding statute, Section 8791, can be

applied here even though it took effect after the withholding

at issue.

A

The parties do not dispute that Section 8791 meets the

requirements of Exemption 3. We therefore assume without

deciding that it does. See Zanoni v. U.S. Dep’t of Agric., 605

F.Supp.2d 230, 236-37 (D.D.C. 2009) (reasoning that Section

8791 satisfies the requirements of Exemption 3).

B

[1] The requested GPS coordinates fall within the scope of

Section 8791’s prohibition on disclosure. Section 8791(b)(2)

prohibits disclosure of “geospatial information” maintained

by the USDA about “agricultural . . . operations” for which

“information [is] provided by an agricultural producer” to the

USDA “concerning the agricultural operation” “in order to

participate in programs of the Department.” 7 U.S.C.

§ 8791(b)(2)(A), (B). 

These elements are satisfied here. First, there is no dispute

in this case that the GPS coordinates are “geospatial information.” Second, the GPS data concerns “agricultural operations,” a term that includes livestock production under 7

U.S.C. § 8791(b)(1), because it concerns depredations that

limit the ranchers’ livestock production. Third, the “agricultural producer,” the rancher, provides information to the

USDA “concerning the agricultural operation” when he

reports his loss of livestock by wolf depredations to the

USDA. Fourth, the rancher reports this information “in order

to participate in programs of the Department,” namely the WS

program that captures or removes the wolves. 

The Center argues that the legislative history of Section

8791 indicates that it was intended to apply only to propriCENTER FOR BIOLOGICAL DIVERSITY v. USDA 19157
etary information and only to private land. Yet when, as here,

the text of a statute is clear, it is not necessary to turn to legislative history. See United States v. Gonzales, 520 U.S. 1, 6

(1997). Regardless, the history does not suggest that Section

8791 was not intended to apply to GPS data like that at issue

in this case. To the extent Section 8791 was a reaction against

Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224

(D.C. Cir. 2008), that suggests it was intended to prohibit disclosure of GPS data like that at issue here, because Multi Ag

required the release of a database used with GPS technology.

Multi Ag, 515 F.3d at 1226-27, 1233. Though an earlier,

deleted provision of the FCEA was concerned with the disclosure of “proprietary and or confidential business information,”

H.R. Rep. No. 110-627, at 867 (2008), that provision was not

enacted and thus has no bearing on our analysis. As a result,

the requested GPS coordinates fall within the scope of Section

8791’s prohibition on disclosure.

C

[2] Section 8791 applies in this case despite taking effect

after the USDA withheld the GPS coordinates. In Landgraf,

the Supreme Court described a two-step analysis for determining the applicability of legislation enacted after the acts

that gave rise to the suit. Landgraf v. USI Film Products, 511

U.S. 244, 280 (1994). First, courts must “determine whether

Congress has expressly prescribed the statute’s proper reach.”

Id. If so, that controls. Id. Second, absent such express language, courts must “determine whether the new statute would

have retroactive effect, i.e., whether it would impair rights a

party possessed when he acted, increase a party’s liability for

past conduct, or impose new duties with respect to transactions already completed.” Id. If the statute would operate

retroactively in that way, it does not apply absent clear congressional intent favoring such a result. Id. 

[3] As for the first step, the Court in Landgraf already

19158 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
addressed an effective date provision very similar1

 to that in

the FCEA and concluded that it did not constitute express

direction from Congress in either direction. Id. at 257 (determining that “[t]hat language does not, by itself, resolve the

question before us”). Given the similarity of the provisions,

Landgraf indicates that the FCEA does not expressly resolve

whether or not Section 8791 applies to pending cases. 

[4] As for the second step, we have already determined

that there is no impermissible retroactive effect under Landgraf in applying a new statute to a pending FOIA case

through Exemption 3. Southwest Ctr. for Biological Diversity

v. U.S. Dep’t of Agric., 314 F.3d 1060, 1062 (9th Cir. 2002).

In Southwest, a conservation group brought a FOIA action to

compel the Forest Service to release location data concerning

an endangered bird. Id. at 1061. While the action was pending

in the district court, Congress enacted legislation permitting

such information to be withheld from the public. Id. In determining whether the statute applied in that case, we concluded

that “[t]here is no such impermissible retroactive effect here”

because “the ‘action’ of the Center was merely to request or

sue for information; it was not to take a position in reliance

upon existing law that would prejudice the Center when that

law was changed.” Id. at 1062. As a result, the new legislation

applied to the pending case through Exemption 3. Id.

[5] Southwest requires the conclusion that there is no

impermissible retroactive effect in applying Section 8791 to

the Center’s pending FOIA action. As in Southwest, the only

action the Center took was to request information and file

1The Landgraf provision provided that “except as otherwise specifically

provided, this Act and the amendments made by this Act shall take effect

upon enactment.” Landgraf, 511 U.S. at 257. The effective date provision

in this case similarly provides “except as otherwise provided in this Act,

this Act and the amendments made by this Act shall take effect on the earlier of — (1) the date of enactment of this Act; or (2) the date of the enactment of [a duplicative bill also containing Section 8791].” Pub. L. No.

110-246, § 4(b), 122 Stat. 1651, 1664 (2008). 

CENTER FOR BIOLOGICAL DIVERSITY v. USDA 19159
suit. It engaged in no other action in reliance on then-existing

law. We have already explicitly rejected the theory that there

is an impermissible retroactive effect just because “the Center

had a right to the information when it filed its suit . . . and it

loses that right by application of the new exemption.” Southwest, 314 F.3d at 1062. The Center seeks to distinguish

Southwest on the grounds that it did not concern a statute with

an effective date, but this distinction is not relevant, as Landgraf established that a similar “effective date” provision was

inconclusive. Landgraf, 511 U.S. at 257, 280. 

[6] Furthermore, “[w]hen the intervening statute authorizes

or affects the propriety of prospective relief, application of the

new provision is not retroactive.” Landgraf, 511 U.S. at 273.

Here, the Center seeks the prospective relief of an injunction

directing the USDA to provide it with certain information.

Section 8791 merely affects the propriety of this prospective

relief and is therefore not impermissibly retroactive when

applied in this case.

Martin v. Hadix, 527 U.S. 343 (1999), is entirely consistent

with this conclusion. Martin does not indicate that absent

Congress’ express command, statutes are only to be applied

prospectively. In Martin, the Supreme Court applied the twostep Landgraf framework. Martin, 527 U.S. at 353-360. In the

first step, the Court concluded that the language of a particular statute did not resolve the question of retroactivity because

it lacked an “ ‘unambiguous directive’ or ‘express command’

that the statute is to be applied retroactively.” Id. at 354 (citing Landgraf, 511 U.S. at 263, 280). That did not end the

analysis, however, but merely required the Court to proceed

to the second step. Id. at 357. There, the Court concluded that

applying that statute to pending actions would inappropriately

“ ‘attach new legal consequences’ to completed conduct.” Id.

at 358 (citing Landgraf, 511 U.S. at 270). In this case, by contrast, there is no such impermissible retroactive effect at this

second step, as established by Southwest. Section 8791 there19160 CENTER FOR BIOLOGICAL DIVERSITY v. USDA
fore applies in this case despite taking effect after the USDA

withheld the GPS coordinates.

IV

[7] Accordingly, we reverse the district court’s order granting summary judgment in favor of the Center and denying

summary judgment to the USDA. The GPS coordinates are

exempt from disclosure under FOIA because Section 8791

meets the requirements of Exemption 3, applies to the GPS

coordinates at issue, and can be applied in this case even

though it took effect after the USDA’s withholding. In light

of this conclusion, we do not reach the question of whether

Exemption 6 also applies.

REVERSED.

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