Department of the Interior v. Klamath Water Users Protective Ass'n
532 U.S. 1, 121 S.Ct. 1060 (2001)

David Harder
Environment and Natural Resources Division
U.S. Department of Justice
Denver, Colorado

The unanimous Court in Klamath allowed the plaintiff Association, an entity with interests directly adverse to a number of Indian Tribes in Oregon and California, to use the Freedom of Information Act, 5 U.S.C. 552 (FOIA), to compel the release of work product and deliberative process documents exchanged between the Tribes and the United States. The Court reached this conclusion even though the Tribes and the U.S. were co-parties in underlying litigation and they had signed an agreement to consult over the development of the United States’ plan to operate an irrigation project affecting tribal interests. The decision is very important for attorneys who are aligned in litigation or negotiations with the United States against third parties, as well as those who represent Tribes in federal regulatory settings of almost any type.

The Klamath case concerned documents relating to the water rights held in trust by the United States for several Tribes in the Klamath Basin in southern Oregon and northern California. The seven documents ultimately at issue arose from two related proceedings in which the Tribes and the FOIA plaintiff were directly at odds: an Oregon general stream adjudication and the development of an operations plan for the Bureau of Reclamation’s Klamath Irrigation Project. The Oregon water rights proceeding will determine the water rights of the Klamath Tribe and the Bureau of Reclamation, as well as that of the Association that was the plaintiff in this FOIA litigation. Six of the documents were submitted by or on behalf of the Klamath Tribes to the Bureau of Indian Affairs (BIA) when the BIA was determining what claims it would file on the Tribes’ behalf in the adjudication and/or working with the Tribes regarding the development of the operations plan and its affect on the Tribes’ water rights. One of the documents was a draft memo prepared by a BIA official about the development of the Plan that was shared with attorneys for the Klamath and Yurok Tribes as part of agreed upon tribal-federal consultation.

Pursuant to FOIA Exemption 5, a federal agency may withhold "inter-agency or intra- agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). In other words, to qualify for Exemption 5 a document’s "source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." 121 S.Ct. at 1065. The Klamath Court addressed only the first prong of this statutory exemption – whether the documents at issue were "intra-agency" – and a line of cases that had treated communications between agencies and external parties (e.g. agency consultants) as within the exemption.

The district court agreed that the first prong of Exemption 5 protected tribal communications with the United States over how federal actions would affect tribal trust assets. Pursuant to the trust relationship, the consultative actions between the Tribes and the United States were sufficiently like federal communications with its own consultants to fall within the exemption. All of the documents were found to be privileged against discovery as work product or deliberative process documents or both.

A divided panel of the Ninth Circuit reversed because the Tribes "have a direct interest in the subject matter of the consultation." 189 F.3d 1034, 1038. Rather than view the tribal-federal relationship as essentially consultative, the court of appeals viewed it as adversarial and found that the United States’ view of Exemption 5 "would extend exemption 5 to shield what amount to ex parte communications in contested proceedings between the Tribes and the Department." Id. The Court granted certiorari because of "the decision’s significant impact on the relationship between the Indian tribes and the Government," 121 S.Ct. at 1065, and unanimously affirmed.

The Court squarely rejected the arguments of the United States and the numerous amici Tribes. The Court found that the purpose of the communications between the Tribes and the Department was for the Tribes to gain a competitive advantage when the Interior Department made decisions about water resources. Id. at 1068. The Court stressed the adversity between the Association and the Tribes regarding water rights matters. Id at 1064, 1068. In this case, the "Tribes are self-advocates at the expense of others seeking benefits" to a limited resource. Id. at 1068; see also id. at n.4. The Court acknowledged the Interior Department’s trust obligations to the Tribes and that "confidentiality in communications with tribes is conducive to a proper discharge of its trust obligation." Id. at 1067. Nonetheless, the Court found that the Government’s arguments "boil[ed] down to requesting that we read an ‘Indian trust’ exemption into the statute, a reading that is out of the question for reasons already explained. There is simply no support for that exemption in the statutory text . . . ." Id. at 1069.

The Court’s decision places Tribes and the United States in a difficult position regarding written communications over tribal resources held in trust or managed by the United States. Exemption 5 protection is no longer available for communications between the United States and Tribes regarding government decisions involving scarce resources where the Tribe is pursuing its legitimate interests with its trustee but in competition with other parties. Water rights and land claims litigation are obvious examples where Tribes must recognize that many documents will not warrant Exemption 5 protection after Klamath. The Court’s reasoning may limit the breadth of the holding though. Exemption 5 would arguably still be available when tribal communication with the Interior Department concerns a tribal asset, like timber or natural gas, that is not the subject of some allocation process. Also, where Tribes act as consultants, as opposed to self-interested advocates, communications might nevertheless be protected. As of late September, there had been no significant decisions applying Klamath.

Klamath did not address any of the other eight FOIA exemptions that may provide a basis for the affected agency to consider withholding communications with Tribes. None of the other exemptions has the "government document" requirement found in Exemption 5 and so Klamath is not implicated. None of the other exemptions, though, involve large numbers of documents that lawyers typically send to the United States. Particularly relevant to practitioners may be Exemption 4 that precludes release of "commercial or financial information that is privileged or confidential." The terms of this exemption have received a fairly broad reading. See, e.g., Utah v. Department of the Interior, 256 F.3d 967 (10th Cir. 2001). Exemption 3 incorporates other federal statutes that specifically protect certain classes of information from release. See, e.g., Indian Gaming Regulatory Act § 17(a), 25 U.S.C. § 2716(a); Indian Mineral Development Act § 4(c), 25 U.S.C. § 2103(c). Exemption 7 prevents the release of law enforcement related records in certain well-defined instances.

At both oral argument and in its opinion, 121 S.Ct. 1069-70 & n.7., the Court suggested that legislation may be needed to restore broad Exemption 5 protection to tribal-federal communications regarding trust assets that are the subject of some sort of contested proceeding or decision making. The enactment of an "Exemption 3 statute," to be incorporated by reference into the FOIA, could provide a simple solution. Such a statute would address a gross inequity created by Klamath: the Association can utilize a large committee of individual lawyers in litigation to attack tribal water rights and they can share work product documents, but tribal and federal attorneys who are jointly pursuing claims and contests cannot share work product documents without them being subject to disclosure under a FOIA request.

David Harder is an attorney in the Environment and Natural Resources Division of the U. S. Department of Justice in Denver, Colorado, and represents the United States in the Oregon general stream adjudication of the Klamath Basin. The views expressed in this article are the views of the author and do not necessarily represent those of the Department of Justice or the United States.