Department Of Interior, et al. v. Klamath Water Protective Users, etc. (03/05/2001)

By: Nardy Bickel, Medill News Service

Questions presented

Are documents submitted by Indian Tribes at the request of the Department of the Interior during ongoing administrative and adjudicative proceedings involving water rights, and allocations affecting the tribes' interests, exempt under the Freedom of Information Act as ""inter-agency or intra-agency memorandums or letters?""

Brief

Indian tribes who own natural resource holdings in the United States are, in a way, like a 15-year-old with a driver's permit: they can only use it under supervision.

Tribes are not in sole possession and control of their resources because the United States holds legal title to them and tribes have to work with, and sometimes rely on, the United States to represent their interests in settlements or administrative proceedings. Sensitive information that flows between tribes and the government are, therefore, essential to the tribes interests.

Nearly fifty tribes and pueblos, including the Klamath Basin Tribes, in southern Oregon and northern California, are currently in litigation or negotiation involving water rights.

For the Klamath Basin Tribes, the waters are not only a source of sustenance, irrigation and income, but also part of their tradition. ""Our cultures have been bonded to the lakes and marshesÉ since the beginning of time. Klamath Lake is the largest in our ancestral lands. Many of our spiritual traditions and beliefs are tied to this beautiful place"" reads a page of the Klamath Tribes web site.

The Klamath River runs 250 miles from southern Oregon to the Pacific Ocean. Mining, irrigation systems, diversions and farming changes have contributed to the sedimentation, pollution and reduced flow of the water. Today, at least some fish species are endangered, which could compromise the environment that today attracts thousands of tourists a year.

To solve these problems, in 1995, the Bureau of Reclamation of the U.S. Interior Department announced it would prepare the ""Klamath Project Operation Plan"" (KPOP), a long-term plan for the operation of the Klamath Project, which facilities store and deliver water from the Klamath River and Lost river systems to approximately 230,000 acres of irrigated land. In a separate matter, the Department had filed claims on behalf of the Klamath Tribes in a water adjudication process established by the state of Oregon.

In the development of the KPOP, disagreements between the tribes and irrigators led the latter to fear their water allocations would be cut and knew the tribes and the Interior Department's Bureau of Indian Affairs were exchanging information regarding the KPOP.

When the draft KPOP, which was to be ready in 1996, was not released, the Klamath Water Users Protective Association, composed mostly of public irrigation projects, decided to take action and filed several Freedom of Information Act (FOIA) requests to gain access to information exchanged between the Tribes and the Department .The Department released some documents but withheld others, leaving only seven documents in question.

The U.S. District Court in Oregon concluded that the documents were exempt from disclosure under the FOIA because they qualified as ""inter-agency or intra-agency memorandums or letters,"" under the so-called functional test. Using that test, the judge decided that the documents were provided to the agency by the tribes at the agencys request and ""played a role in the agencys deliberations with regard to the current water rights adjudication and/or the anticipated Plan of Operations.""

A divided 9th Circuit Court of Appeals panel reversed, the 2-1 majority concluding that the matters with respect to which the Department sought advice were of the tribes interest and therefore could not be exempted. The majority found that the fact that the department requested the information ""makes no difference becauseÉ consultation with the tribes is not similar to the Ôadvice from staff assistants and exchange of ideas among agency personnel that forms the object of exemption five.""

In dissent, Judge Michael Hawkins criticized the majority, saying its decision ""which marginally advances the cause of open government, winds up punishing entities theGovernment has a fiduciary duty to protect.""

Trying to put the case in perspective, Hawkins wrote that the Bureau of Reclamation ""is not the final arbiter of water rights in either the KPOP or the Oregon adjudication. The bureau is only one of many involved in the formulation of the KPOP and in that process its role concentrated on safeguarding the interests of the Tribes within the broader scheme of the KPOP.""

The U.S. Solicitor General urged the U.S. Supreme Court to grant certiorari in the case. Under basic agency principles, the Solicitor General argued, the Interior Department ""is under a duty to the beneficiary not to disclose to a third person information which he acquired asee where he should know that the effect of such disclosure would be detrimental to the interest of the beneficiary.""

The Association, in urging the Court not to take the case, explained that ""the approaches and management advocated by the tribes within these disputes is often detrimental to association members, since the tribes demands would make water unavailable for irrigation."" The Association argued that since the tribes are interested parties and ""capable advocates,"" not neutral advisers or consultants to the United States, and therefore, the information they sent to the Department should be public.

The case worries Native American communities. Samuel Gollis, attorney for the Easter Shoshone Tribe of Wind-River Reservation, said the case ""is of significance to just about all American Indian tribes in the country"" because it could jeopardize the the United States seeks with the tribes.

In an amicus brief supporting the United States certiorari petition, Gollis explained that to ensure that the water rights held in for them by the United States are properly protected, tribes traditionally engage in regular consultations with the federal government. The tribes ""are deeply troubled that the practical result of the Ninth Circuit decision will be to stifle, if not end, the open and candid exchange of views and information between Indian tribes and the federal government that is vital to the governments proper exercise of responsibility to protect tribal resources,"" the amicus states.

On Sept. 26, 2000, the U.S. Supreme Court granted certiorari in the case, and on March 5, 2001, the Court unanimously held that there is no exemption under the federal Freedom of Information Act for the correspondence between Indian tribes and the Bureau of Indian Affairs.

""All of this boils down to requesting that we read an 'Indian' exemption into the statute, a reading that is out of the question,"" wrote Justice David Souter for the Court.

In so holding, the Court rejected the tribes' argument that the documents are exempt from FOIA's disclosure requirements as ""inter-agency or intra-agency memorandums or letters."" The Court said the tribes were not like consultants essentially playing the same part in an agency's deliberative process as documents prepared by agency personnel,in that consultants do not represent their own interests, as the tribes do.