DEPARTMENT OF THE INTERIOR v. KLAMATH WATER USERS PROTECTIVE ASSOCIATION

Legal Principle at Issue

Whether communications between the Department of Interior and Indian tribes regarding water allocations qualified as "inter-agency or intra-agency" documents. The central legal question was if these documents, which would normally be privileged in civil discovery, were exempt from disclosure under FOIA Exemption 5.

Action

Affirmed (includes modified). Petitioning party did not receive a favorable disposition.

Facts/Syllabus

The Department of the Interior's Bureau of Reclamation administers the Klamath Irrigation Project, which uses water from the Klamath River Basin to irrigate parts of Oregon and California. After the department began developing the Klamath Project Operation Plan to provide water allocations among competing uses and users, the department asked the Klamath and other Indian Tribes (Basin Tribes or Tribes) to consult with the Bureau of Reclamation on the matter. A memorandum of understanding between those parties called for assessment, in consultation with the Tribes, of the impacts of the Plan on tribal trust resources. During roughly the same period, the Interior Department's Bureau of Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe in an Oregon state-court adjudication intended to allocate water rights. Since the Bureau of Indian Affairs is responsible for administering land and water held in trust for Indian tribes, it consulted with the Klamath Tribe, and the two exchanged written memorandums on the appropriate scope of the claims ultimately submitted by the Government for the benefit of the Tribe. 

Respondent Klamath Water Users Protective Association (Association) is a nonprofit group, most of whose members receive water from the Klamath Irrigation Project and have interests adverse to the tribal interests owing to scarcity of water. The Association filed a series of requests with the Bureau of Indian Affairs under the Freedom of Information Act, seeking access to communications between the Bureau and the Basin Tribes. The Bureau of Indian Affairs turned over several documents, but withheld others under the attorney work-product and deliberative process privileges that are said to be incorporated in FOIA Exemption 5, which exempts from disclosure "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." 

The Klamath Water Users Protective Association sued the Bureau of Indian Affairs under FOIA to compel release of the documents. The U.S. District Court for the District of Oregon granted the Government summary judgment. The U.S. Court of Appeals for the Ninth Circuit reversed, ruling out any application of Exemption 5 on the ground that the tribes with whom the department has a consulting relationship have a direct interest in the subject matter of the consultations. The Ninth Circuit said that to hold otherwise would extend Exemption 5 to shield what amount to ex parte communications in contested proceedings between the tribes and the department.