Negotiations between Interior, Indian tribe are not exempt from release
MAINE–The U.S. Department of Interior must release its correspondence with the Penobscot Indian Nation regarding tribal rights to compensation for flooding of its lands by the Bangor Hydro-Electric Company power project, a federal District Court judge in Bangor ruled in mid-April.
The court rejected the government’s arguments that letters between the tribe and the agency were decisionmaking documents protected as internal records by the Freedom of Information Act’s Exemption 5. A tribe’s request for agency help is not an internal agency matter, the court said.
The court also said that Exemption 4 protecting proprietary records did not apply, and rejected Interior Department claims that release of the records would inhibit future communications from the tribe to the agency.
In 1992, at the urging of the Penobscot Nation, the Interior Department ruled that 22 islands partially flooded by a hydroelectric power project on the Penobscot River near Milford, Maine, were “reservation” lands. That meant that the Penobscots could be compensated for their use and that the Interior Department could set conditions for the project. Six years earlier the department had ruled that the islands were not reservation lands.
Bangor Hydro, facing license renewal review by the Federal Energy Regulatory Commission, asked for copies of the correspondence between the Penobscot Nation and the Interior Department, hoping to challenge the new interpretation which would require payment to the Penobscots and consultation with the Interior Department. (Bangor Hydro-Electric Co. v. Interior; Counsel: John Whittaker, Washington, D.C.)