Reclamation bureau must release writings in dam dispute

Farmers and fishermen fiercely contest rights to water from the Klamath Project in Oregon, and the Department of the Interior’s Bureau of Reclamation is trying to draft a new plan to take their interests into account. Because the fisheries belong to Indian tribes, with whom the Department has a special interest, the Department has tried to keep some tribal writings on the project secret, saying they are internal, privileged papers.

However, a federal appeals court, sitting in Portland, says the agency cannot withhold the requested tribal correspondence. The government may have a special relationship with Indian tribes, but that does not make them government “consultants” whose records are “internal,” the court said.

The Department of the Interior’s Bureau of Reclamation operates the Klamath Project, a dam and canal system that irrigates more than 200,000 acres of farm land in southern Oregon and northern California, near the former Klamath Reservation.

Water rights in the Klamath Basin are a contentious issue. Environmentalists are protective of the river’s resources, including its fish. Farmers depend on it for irrigation.

Tribes have guaranteed water and fishing rights in the area, although even they do not agree as to how those are best served. The Klamath tribes near Upper Klamath Lake want high water levels on the lake to protect the shortnose sucker and Lost River sucker fish. The Yurok, Hoopa Valley and Karuk tribes, who live downstream, want higher rivers.

The state of Oregon adjudicates water rights for its river systems, but the federal government is obligated by its trust relationship with American Indians to assert tribal rights before the state, which has heard suits by tribes and agricultural interests as well.

A 1994 drought intensified the conflict. Klamath Basin farmers suffered severe water shortages. Many agricultural interests blamed the shortages on tribal influence at the Interior Department, saying tribal protests had kept water from being routed to irrigation use.

But Yurok fishery managers believed too much water had gone to the farmers. Their attorneys told the Department of Interior in December 1994 that they intended to sue to prevent any future diversions for agriculture when their own minimal stream flows were not met.

In 1995, the Bureau of Reclamation announced it would develop a long-term Klamath Project Operations Plan. The public would participate through a series of open public meetings in which the Klamath Water Users Protective Association, environmentalists, tribal representatives, and others would present their views.

The Interior Department did hold a series of public meetings, and according to court filings, the Klamath Project manager prepared a draft plan after the meetings were concluded. It was circulated within the Interior Department but was never made public. Concurrently, the Interior Department’s Bureau of Indian Affairs (BIA) set up separate and confidential sessions with the tribes and their attorneys to determine how they might best advocate their own interests as the project developed.

The Klamath Water Users Protective Association objected to these separate sessions with tribal interests. The association, which represents water districts, irrigation contractors, and others who draw water from the Klamath Project, filed a Freedom of Information Act request with the BIA for all written communications on the Klamath Project between the tribes and the agency between January and July 1996.

The agency denied access to the documents, claiming they revealed the deliberative process, attorney client communications, and attorney work product and would be exempt under the FOI Act’s Exemption 5 protecting internal, privileged records.

Although tribes are not United States government agencies, they acted as “consultants” to the government, it said, providing guidance at the government’s request. The communications in that sense were internal and protected by the exemption, according to the Interior Department.

The water-users group sued for the remaining documents in federal District Court in Portland. Ultimately its suit sought only seven undisclosed records — tribal memoranda for Interior’s use in developing the new Klamath plan, a departmental description of the government’s trust obligations in developing the plan, and tribal memoranda addressing claims in water rights adjudication.

After a federal magistrate advised against disclosure, the District Court ruled in October 1997 that Exemption 5 applied. Withheld records were either internal to the decisionmaking process or subject to the legal privileges enjoyed by an agency’s counsel.

The lower court said the tribal officials and counsel are not technically internal to the agency, but they were the “functional equivalent” of agency consultants because their views had been sought.

The water users appealed to the U.S. Court of Appeals sitting in Portland (9th Cir.).

The tribes are interested parties and capable advocates, not neutral government consultants, the water users told the court. Klamath Basin tribes want to take water away from agricultural interests and enjoy more instream use themselves, they said.

They said the tribes’ adversarial relationship with Interior and their “direct and personal” interest in water allocation decisions eclipse any role they might play as consultants.

The District Court’s ruling gave tribes a license to conduct secret dialogue with the BIA, influencing decisions to the detriment of the other water users, they said, resulting not only in bad policy, but in countering the FOI Act’s promise of broad disclosure.

The government responded that the United States has a “unique legal relationship” as a trustee of tribal governments. It pointed to a presidential executive order and a secretarial directive in the department manual, each requiring collaboration with Indian tribal governments in matters that affect them.

The departmental manual also requires confidential consultation with tribes unless otherwise provided by law, regulation or policy if disclosure would negatively impact a trust resource.

The Klamath Basin Tribes have a federally protected interest in fish that will be affected by the project, so their views are important, it said.

As a party to water rights adjudication before the Oregon courts and as trustee for tribal rights, the Interior Department has a regular need to exchange legal analyses and theories about tribal water rights, the government said.

It argued that the exchanges with the tribal officials and attorneys meet a “functional” test in that they play a role in the agency’s deliberative process. Open and candid discussion is necessary if the department is to receive essential information from the tribes, they said. Exemption 5 protects those discussions.

The functional test reflects a mutual understanding between the parties that required confidentiality, and is based upon the notion that an agency often needs to rely on the opinions of temporary consultants as well as its own employees, according to the government. There is no doubt that the development of the operations plan and the state water rights adjudication process demanded a consultative relationship.

A split appeals panel ruled in late August that the documents were not internal, and therefore cannot be withheld under Exemption 5, which protects only inter- or intra-agency records.

The court acknowledged that the government sought advice from the tribes, but said that the matters were ones in which the tribes had a decided interest, and their communications presumptively served that interest even if they incidentally also benefited the department.

To hold otherwise would mean that Exemption 5 would cover ex parte communications in contested proceedings between the tribes and the Department, the court said.

The court noted that the 1994 presidential memorandum directing consultation with tribal governments before agencies take actions that affect them calls for “open and candid” exchanges so that interested parties may evaluate the potential impact of the proposals for themselves.

Judge Michael Daly Hawkins dissented. He said the real question about whether an outside communication is from a consultant should center on the role the document plays in decisionmaking — not in whether some direct interest is served.

These records were requested by the agency, seeking expert advice, he said, and they should be protected as internal to protect the candid relationship with agency personnel in the course of decisionmaking. (Klamath Water Users Protective Ass’n v. U.S. Dep’t of the Interior)