Interior Department must release tribal comments

Interior Department must release tribal comments

• A federal appellate panel ruled that comments submitted by Indian tribes over a water use dispute in the Klamath River Basin are not exempt from disclosure

Comments solicited by the Department of the Interior from Indian tribes about water use plans in the Klamath River Basin in Oregon cannot be protected as internal records and must be disclosed, a divided panel of the U.S. Court of Appeals sitting in Portland (9th Cir.) ruled in late August.

Reversing a lower court’s decision, the panel held that the department must grant a Freedom of Information Act request made by the Klamath Water Users Protective Association, a nonprofit association of river basin water users. The association requested comments submitted by the tribes during the department’s drafting of a long-term plan for the Klamath Project, which was to be operated by the Bureau of Reclamation.

The appeals court said that even though the Department of the Interior sought the tribes’ advice, the tribes had their own interests, which undoubtedly were served by the comments, even if the comments also benefitted the department. Ruling otherwise would allow the department to have outside, secret communications with preferred parties, the court said.

A dissenting judge said that the FOI Act’s Exemption 5, which protects the candid exchange of opinions in agency decisionmaking, should protect records the agency relies upon if release might endanger the ability of the agency to gain such opinions in the future. If an agency has a special need for “temporary consultants,” it should be able to seek them out, he said.

The Klamath tribes have asked the department to maintain high lake levels near their upper Klamath Lake fisheries. Yurok, Hoopa Valley and Karuk Tribes have sought release of more water into the Klamath River to benefit their downstream fisheries. The water users group has objected to both requests saying they would reduce water for other users.

A federal trial court in Portland had ruled in October 1997 that the Department of the Interior could withhold the records.

(Klamath Water Users Protective Ass’n v. Department of the Interior; Counsel: Andrew Hitchings, Sacramento, Calif.)

© 1999 The Reporters Committee for Freedom of the Press

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