Amicus Curiae Brief — Department of Interior v. Klamath Water Users Protective Assn.

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No. 99-18 nu 2 7 OAAN

In The

Supreme Court of the United States

S

UNITED STATES DEPARTMENT OF THE INTERIOR

AND BUREAU OF INDIAN AFFAIRS,

Petitioners,

KLAMATH WATER USERS

PROTECTIVE ASSOCIATION,

Respondent.

o

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF AMICI CURIAE OF THE UTE INDIAN TRIBE,

BLACKFEET INDIAN TRIBE, SHOSHONE-PAIUTE

INDIAN TRIBES AND SAN JUAN SOUTHERN

PAIUTE TRIBE-IN SUPPORT OF PETITIONERS

¢

JEANNE S. WHitTeING* Rosert S. THompson, III

*Counsel of Record Office of General Counsel

Top J. SmrrH Ute Indian Tribe

Wurreinc & SMITH P.O. Box 190

1136 Pearl Street, Suite 203 Fort Duchesne, Utah 84026

Boulder, Colorado 80302 (435) 722-5161

(303) 444-2549 Troy WoopwarpD

Blackfeet Legal Department

P.O. Box 849

Browning, Montana 91745

(406) 338-7777

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

| ea "

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........ccccccccccccsees ii

IDENTITY AND INTEREST OF AMICI CURIAE ... 1

STATEMENT OF THE CASE...............sceeeees 3

i PREP POLIT TITTT TTT TTT TT Te Tre 3

B. Nature and Disposition of the Proceedings Below

PE CE eee re eee Eee PET TTT TT CTT TTT ELT 5

SUMMARY OF ARGUMENT................+-5005: 7

REASONS FOR ISSUING THE WRIT............... 7

A. The Ninth Circuit “Direct Interest” Test Conflicts

With the “Functional” Test Most Recently

Applied by the D.C. Circuit in Public Citizen... 7

1. The relationship between former Presidents

and the Archivist in Public Citizen is virtually

indistinguishable from the relationship

between the Klamath Basin Tribes and the

Department in Klamath..................+. 8

2. The Ninth Circuit’s determination that the

Tribes’ interest in the matters under consider-

ation by the Department negates their capacity

to consult directly conflicts with the determina-

tion of that issue in Public Citizen ........... 11

3. This Court must resolve the two conflicting

standards for determining when to apply

Exemption 5 to FOIA’s disclosure require-

GREED ccc cccvccccccesccccscscesesecocsceces 17

B. The Klamath Decision Has Broad Ramifications

Throughout the Nation For Indian Tribes and For

Those In Proceedings Involving or Affecting

EE ED ocncccccnccsceveneccnseesennesss 17

GES ccc cccndcdteveuessivccetescnvesecocs 20

li

TABLE OF AUTHORITIES

Page

Cases

Arizona v. California, 373 U.S. 546 (1963), decree

entered, 376 U.S. 340 (1964) ...........cceeceeeceees )

Arizona v. San Carlos Apache Tribe, 463 U.S. 545

t.. BPP ee 9

Brockway v. Department of Air Force, 518 F.2d 1184

ae SS , Pee. TC 7

CNA Financial Corp. v. Donovan, 830 F.2d 1132

CL. Cle. GERM P. ov cccsccvevcseccccecsssneunas 7,9, 11

County of Madison v. United States Department of

Justice, 641 F.2d 1036 (1st Cir. 1981). te eeeeeeees 15, 16

Dow Jones & Co., Inc. v. Department of Justice, 917

P28 SVE GAC. Cie, BOGE. oc cccccscccsseseses 7, 10, 11

Formaldehyde Institute v. Dep’t of Health and Human

Services, 889 F.2d 1118 (D.C. Cir. 1989)...... 7, 11, 16

General Electric Company v. United States Environ-

mental Protection Agency, 18 F.Supp. 138

CEADENGD. BOG oo cccvcccvccececeeseseeuuiesieeeeaan 11

In re Rights to Use Water In Big Horn River, 753 P.2d

76 (Wyo. 1988), aff'd by an equally divided court,

Wyoming v. United States, 492 U.S. 406 (1989)...... 19

Klamath Water Users Protective Association v.

Department of the Interior, 189 F.3d 1034 (9th Cir.

MITT hh passim

Morton v. Mancari, 417 U.S. 535 (1974) .............. 12

Nevada v. United States, 463 U.S. 110 (1983)........... 9

Oklahoma Tax Comm‘n v. Citizen Band Potawatomi

Indian Tribe, 498 U.S. 505 (1991)...............006- 12

er ee rm -

TABLE OF AUTHORITIES - Continued

Page -

Public Citizen, Inc. v. Department of Justice, 111 F.3d

a +++» passim

Ryan v. Department of Justice, 617 F.2d 781 (D.C.

St PE EAUAUEREE cen ecéoccootcdoccecceces 7, 12, 13

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .... 12

Seminole Nation v. United States, 316 U.S. 286 (1942) ..... 3

Shoshone Tribe v. United States, 299 U.S. 476 (1937) ..... 3

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971)........ 7

United States v. Cherokee Nation, 480 U.S. 700 (1987) . .3, 10

United States v. Mitchell, 463 U.S. 206 (1983).......... 3

United States v. Oregon, 44 F.3d 758 (9th Cir. 1994),

cert. denied, 516 U.S. 943 (1995) ................05.. 4

United States v. United States Fidelity & Guaranty

oo occ ccccccccceccocceces 13

United States v. White Mountain Apache Tribe, 784

eee ta acces cccccecocees 4

Winters v. United States, 207 U.S. 564 (1908).......... 4

Worcester v. Georgia, 31 U.S. 515 (1832).............. 12

Wu v. National Endowment for Humanities, 460 F.2d

EEE re 8

STATUTES

Freedom of Information Act, Exemption 5, 5

et coc eceseceescoeccseece ss 1,5

Indian Self-Determination and Education Assis-

tance Act, 25 U.S.C. §§ 450a-450n................. 12

ie

iv

TABLE OF AUTHORITIES - Continued

Page

Executive OrpERS AND MANUALS

Department of the Interior, Department Manual:

Part 512 American Indian and Native Alaskan

Programs, Departmental Responsibilities for

Indian Trust Resources § 2.4.B (1995) .............. 3

Exec. Order No. 13084, 63 Fed. Reg. 27655 (1998) ..3, 10

—- =

IDENTITY AND INTEREST OF AMICI CURIAE!

The United States’ Petition for Writ of Certiorari seeks

this Court’s review of the decision in Klamath Water Users

Protective Association v. Department of the Interior, 189 F.3d

1034 (9th Cir. 1999) (“Klamath”).2 Therein, the Court of

Appeals for the Ninth Circuit held that documents

exchanged between the Klamath Basin Tribes and the

United States acting as the Tribes’ trustee are not pro-

tected from disclosure under Exemption 5 to the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552(b)(5).

Amici include four Indian tribes, each of which is

involved, together with the United States, in the negotia-

tion or litigation of their water right claims. The Ute

Indian Tribe of the Uintah and Ouray Reservation holds

water rights in the Green River Basin, a sub-basin of the

Colorado River. The Blackfeet Indian Tribe of the Black-

feet Reservation is located in Montana on the U.S.-Cana-

dian border. It holds water rights in the Missouri River

Basin and in the Hudson River Basin. The Shoshone

Paiute Tribes of the Duck Valley Reservation have water

rights in Nevada and Idaho from the Owyhee River

within the Snake River Basin. The San Juan Southern

1 The parties’ have written consent to the filing of this brief.

Counsel for a party did not author this brief in whole or in part.

No person or entity, other than the Amici Curiae, their members,

or their counsel made a monetary contribution to the

preparation and submission of this brief.

2 The decision is included in the Petitioner’s Appendix at

la-30a. The unreported decision of the district court is found at

Pet. App. at 3la-32a, and the magistrate’s findings and

recommendations are at Pet. App. at 33a-71a.

Paiute Tribe claims water rights in the Little Colorado

River Basin within Arizona.

The water rights of each Tribe are subject tp a pend-

ing basin-wide, state general stream adjudications. Each

is currently negotiating with the respective States within

the context of the adjudications to resolve the complex

issues surrounding the nature and extent of the Tribes’

water rights. In the course of negotiations, the United

States, through the Bureau of Indian Affairs (“BIA”), has

participated and worked with the Tribes in negotiations

and in preparation for potential litigation. The BIA has

requested and received from the Tribes extensive infor-

mation including tribal views on the nature, extent and

legal grounds in support of their water right claims,

information similar to that provided by the Klamath

Basin Tribes in their correspondence that was the subject

of the Klamath case. The Tribes’ documents were provided

to the BIA with the understanding that the documents

were confidential and privileged and would not be sub-

ject to public disclosure, especially to parties who oppose

or seek to limit the extent of the Tribes’ water rights. The

Tribes maintain a significant interest in ensuring that the

information exchanged between themselves and the fed-

eral agency acting as their trustee concerning a broad

array of issues involved in the negotiation, litigation and

settlement of their water right claims remains out of the

reach of adversaries, except within traditional litigation

discovery rules. As a result of Klamath, amici’s previously

exchanged confidential communications with their trustee

regarding their water rights, as well as other natural

resource issues, may now be subject to public disclosure.

Moreover, any future exchange of information will be

strictly limited because of the very real threat of dis-

closure. The result will be a substantial chilling effect on

the progress of negotiated settlements and coordination

of litigation efforts.

e

STATEMENT OF THE CASE

A. Background

The United States holds Indian lands and their

resources in trust, and is bound by an explicit duty to

assist tribes in the protection, management and use of

their lands and resources. See United States v. Cherokee

Nation, 480 U.S. 700, 707 (1987); United States v. Mitchell,

463 U.S. 206, 225 (1983). The trust relationship requires the

federal government to act in accordance with “the most

exacting fiduciary standards” where any tribal interest is

implicated. See Seminole Nation v. United States, 316 U.S.

286, 296-297 (1942); Shoshone Tribe v. United States, 299 U.S.

476, 497-498 (1937). To properly carry out its legally man-

dated trust responsibility, federal policy requires agencies

to “establish regular and meaningful consultation and col-

laboration with Indian tribal governments in the develop-

ment of regulatory practices on Federal matters that

significantly or uniquely affect their communities,” Exec.

Order No. 13084, 63 Fed. Reg. 27655 (1998), and to keep

the consultations confidential, see Department of the Inte-

rior, Department Manual: Part 512 American Indian and

Native Alaskan Programs, Departmental Responsibilities

for Indian Trust Resources § 2.4.B (1995).

The Department of the Interior (“Department”),

through the Bureau of Reclamation, administers the

Klamath Project. The Project irrigates lands in the

Klamath River Basin in Oregon and California. Four

Klamath Basin Tribes, the Klamath Tribe in Oregon, and

the Yurok, Hoopa Valley, and Karuk Tribes in California

have water rights in the Basin. Klamath, 189 F.3d at 1035.

In 1995, the Department announced it would develop a

long-term plan for the operation of the Project (the

“KPOP”). Id. To assist in fulfilling its trust obligation, and

in development of the KPOP, the Department entered into

a Memorandum of Agreement with the Klamath Basin

Tribes formalizing the Tribes’ roles as consultants to the

Department. Id. at 1036. In accordance with the MOA, the

BIA requested documents from the Tribes which were

utilized to assure that as the Department deliberated and

developed the KPOP, the Klamath Basin Tribes’ rights

and interests would be understood and protected, and

that positions taken in the KPOP process were consistent

with positions taken on behalf of the Klamath Tribe in the

water right adjudication established by the State of Ore-

gon. Id. at 1035-36. The KPOP will be finally developed

and implemented by the Bureau of Reclamation following

input, comment and review not only from the BIA and

Tribes, but from other federal agencies, water users and

other affected parties. Id. at 1047 (Hawkins, J., dissent-

ing).

As noted above, the Department, as trustee, through

a different agency, the BIA, also is required to assert the

water right claims of the Klamath Tribe in a general

stream adjudication proceeding before the Oregon

Department of Water Resources. Id. at 1036. See United

States v. Oregon,-44 F3d 758 (9th Cir. 1994), cert. denied,

516 U.S. 943 (1995). See also United States v. White Moun-

tain Apache Tribe, 784 F.2d 917, 920 (9th Cir. 1986). To

fulfill its legal obligations, the BIA requested and

received documents prepared by the Tribe detailing the

Klamath’s claims to water in the Basin and possible legal

theories to be used in the Oregon adjudication. Klamath,

189 F.3d at 1036. The information received from the Tribe

was used by the BIA as it analyzed the facts and circum-

stances and ultimately determined what water right

claims it would file in Oregon on behalf of the Tribe. Id. at

1041-42 (Hawkins, J. dissenting).

B. Nature and Disposition of the Proceedings Below

In 1996, the Klamath Water Users Protective Associa-

tion (“Association”) filed a broadly stated FOIA request

to the BIA “for documents provided to or received from

the Klamath Basin Tribes pertaining to water resource

issues in the Klamath River Basin.” Id. at 1036. In

response, the Association was provided with numerous

documents, and only seven were withheld by the BIA

pursuant to FOIA’s Exemption 5. Id. That exemption pro-

tects from disclosure documents that are “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). Six of

the seven documents were provided by the Tribes in

response to requests by the government. They included

documents detailing the Klamath Tribe’s position on its

water right claims in the ongoing Oregon general stream

* The Association is a group of water users who are

supplied with water from the Klamath Project and were

involved in the public meetings regarding the KPOP. It had

substantial disagreements with the positions taken by the

Klamath Basin Tribes in the KPOP deliberative process. See

Klamath, 189 F.3d at 1035.

adjudication, correspondence to the BIA from tribal attor-

neys for each of the Tribes expressing legal opinions on

tribal resources and the extent of tribal water rights, and

a memo to the BIA from a tribal biologist. See Klamath,

189 F.3d at 1041-42 (Hawkins, J., dissenting) (for a

detailed description of the seven documents).

The Association brought suit in federal district court

insisting it was entitled to view all seven of the withheld

documents. The Ninth Circuit, in a 2-1 decision over a

strong dissenting opinion by Justice Hawkins, reversed

the district court and ordered disclosure of the seven

documents. Klamath, 189 F.3d at 1039. The court refused

to consider how the documents were employed in the

agency decision making process, rejecting what it

described as the District of Columbia Circuit’s “expansive

interpretation” of Exemption 5. Id. at 1038. Instead, the

Ninth Circuit adopted a “direct interest” test which pre-

cludes application of Exemption 5 because the Klamath

Basin Tribes provided advice (at the Department's

request) on matters in which “the Tribes had their own

interest and the communication presumptively served

that interest.” Id. As noted by the dissent, the result of

this cursory test is, ipso facto, that the fiduciary relation-

ship between Indian tribes and the United States is “a

barrier to the application of the exemption .. . .” Id. at

1046. The result directly conflicts with the decision in

Public Citizen, Inc. v. Department of Justice, 111 F.3d 168

(D.C. Cir. 1997), in which the court unequivocally rejected

any notion that an outside consultant’s interest in the

subject matter before an agency automatically precludes

application of Exemption 5.

¢

SUMMARY OF ARGUMENT

The Ninth Circuit decision in Klamath, 189 F.3d 1034,

directly conflicts with the test for applying Exemption 5

developed primarily by the Court of Appeals for the

District of Columbia and most recently applied in Public

Citizen v. DOJ, 111 F.3d 168. The Ninth Circuit decision, if

not reviewed and reversed, will quash the vital exchange

of confidential information between Indian tribes and the

federal agencies entrusted with the responsibility to pro-

tect and represent their interests. Therefore, the Court

should grant the United States’ request and issue a Writ

of Certiorari to review the Klamath decision.

S

REASONS FOR ISSUING THE WRIT

A. The Ninth Circuit “Direct Interest” Test Conflicts

With the “Functional” Test Most Recently Applied

by the D.C. Circuit in Public Citizen.

~ Public Citizen is the most recent in a long line of

federal court decisions in which Exemption 5 has been

applied to communications between outside consultants

and federal agencies if “created for the purpose of aiding

the agency’s deliberative process.” Dow Jones & Co., Inc. v.

Department of Justice, 917 F.2d 571 (D.C. Cir. 1990). Accord

Formaldehyde Institute v. Dep’t of Health and Human Ser-

vices, 889 F.2d 1118 (D.C. Cir. 1989); CNA Financial Corp. v.

Donovan, 830 F.2d 1132 (D.C. Cir. 1987); Ryan v. Depart-

ment of Justice, 617 F.2d 781 (D.C. Cir. 1979); Soucie v.

David, 448 F.2d 1067 (D.C. Cir. 1971). See also Brockway v.

Department of Air Force, 518 F.2d 1184 (8th Cir. 1975);

Wu v. National Endowment for Humanities, 460 F.2d 1030

(5th Cir. 1972). Exemption 5 was applied in Public Citizen

to a FOIA request for correspondence between former

Presidents and the Federal Archives, 111 F.3d 168, not-

withstanding the fact that the former Presidents had a

direct interest in the Archivist’s ultimate determinations

which made them potential adversaries. Id. at 171-72.

Contrary to the majority view in Klamath, 189 F.3d at

1038, the facts in Public Citizen present precisely the same

issues presented to the Klamath court, and that court's

abandonment of the “functional” test in favor of a “direct

interest” test directly conflicts with Public Citizen.

1. The relationship between former Presidents and

the Archivist in Public Citizen is virtually indis-

tinguishable from the relationship between the

Klamath Basin Tribes and the Department in

Klamath.

In Public Citizen, the court considered a FOIA request

for correspondence submitted by former Presidents

Reagan and Bush to the Federal Archives regarding

restrictions upon the release of certain electronic commu-

nications produced during each Presidents’ administra-

tion. 111 F.3d at 169-70. The Archivist must consult with a

former President when considering allowing access to

records which the President has designated restricted.

The Archivist must ensure that he meets the duty to

publically disclose the records as quickly and completely

as possible, while protecting the interests of the Presi-

dent. Id. at 170. The court held that the communications

=

~

between the former Presidents and the Archivist regard-

ing the release of restricted presidential communications

were

precisely the type that Exemption 5 was

designed to protect. If it is to effectively deliber-

ate, an agency may need or want to ‘enlist the

\_ help of outside experts skilled at unraveling

_ [the] knotty complexities’ of ‘problems outside

their ken.’ CNA Financial Corp., 830 F.2d at 1162.

The former President clearly qualifies as an

expert on the implications of disclosure of Presi-

dential records from his administration.

Id. at 171.

This Court is only too familiar with the “knotty com-

plexities” of Indian water right claims, see, e.g., Winters v.

United States, 207 U.S. 564 (1908); Arizona v. California, 373

U.S. 546 (1963), decree entered, 376 U.S. 340 (1964); Arizona

v. San Carlos Apache Tribe, 463 U.S. 545 (1983); Nevada v.

United States, 463 U.S. 110 (1983). Indian tribes like the

Klamath Basin Tribes possess a unique expertise regard-

ing their water rights and other natural resources that is

essential to the Department’s deliberations any time

those resources are affected or at issue. The Department

must consult with affected tribes to enable it to effectively

“unravel” the “knotty complexities” involved in allocat-

ing water and assuring both the protection of tribal inter-

ests and reconciliation of those interests with other

parties’ interests.

Much as the Klamath Basin Tribes have natural

resource rights which the Bureau and Depart-

ment have a duty to reconcile with other parties’

claims to water, the ex-President has “rights and

privileges” in records that the Archivist has to

10

reconcile with duties to the public to make

records available. The mandated consideration

that the Bureau and Department have to give to

the Klamath Basin Tribes’ claims virtually

requires that they consult the Tribes, much as

the Archivist consulted the ex-President, to seek

their particular expertise concerning their

rights, and how they wish to assert them in the

KPOP and Oregon adjudication.

Klamath, 189 F.3d at 1045 (Hawkins, J., dissenting). The

Klamath Basin Tribes, as did the ex-Presidents in Public

Citizen, clearly qualify as outside experts with whom the

Department is expected (indeed is legally required pur-

suant both to federal law and policy)* to consult and

whose function as a consultant is an essential component

of the agency’s deliberative process protected under

Exemption 5. To hold otherwise is directly contrary to the

purposes of the Exemption and the test applied in Public

Citizen.

* The Department was explicitly bound to consult with the

Klamath Basin Tribes pursuant to federal policy, see Exec. Order

No. 13084, 63 Fed. Reg. 27655; DM Part 512 § 2.2, and

agreement, see Memorandum of Agreement for the

Government-to-Government Relationship in the Development

of the Klamath Project Operations Plan (cited at Klamath, 111

F.3d at 1041). Moreover, the Department is legally obligated to

consult with the Indian tribes pursuant to its responsibilities as

a trustee. See, e.g., U.S. v. Cherokee Nation, 480 U.S. at 707. See

also Dow Jones, 917 F.2d at 575 (recognizing implicit consultative

relationships).

a

11

2. The Ninth Circuit’s determination that the

Tribes’ interest in the matters under consider-

ation by the Department negates their capacity

to consult directly conflicts with the determina-

tion of that issue in Public Citizen.

In support of its conclusion that the Presidents’ con-

sultations were precisely the type to be protected by

Exemption 5, the Public Citizen court focused on the role

the disputed documents played in the agency’s delibera-

tive process, not the identity and interests of the docu-

ment’s author.

While Public Citizen is doubtless right that a

former President is not an agency under FOIA,

[5 U.S.C.] §§ 551 (1), 552 (f), records of commu-

nications between an agency and outside con-

sultants qualify as “intra-agency” for purposes

of Exemption 5 if they have been “created for

the purpose of aiding the agency’s deliberative

process.” Dow Jones & Co., Inc. v. Department

of Justice, 917 F.2d 571, 575 (D.C. Cir. 1990)

(emphasis in original); CNA Financial Corp. v.

Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987). It

is “irrelevant” whether the author of the docu-

ments is a “regular agency employee or a tem- _

porary consultant.” Formaldehyde Institute v. °

Dept. of Health and Human Svcs., 889 F.2d 118,

1122 (D.C. Cir. 1989) (citations omitted).

Public Citizen v. DOJ, 111 F.3d at 170. See also General

Electric Company v. United States Environmental Protection

Agency, 18 F.Supp. 138 (D.Mass. 1998) (state agency quali-

fied as outside consultant for purposes of Exemption 5).

While FOIA’s “dominant objective” may be “disclosure,

not secrecy,” Klamath, 189 F.3d 1037 (citations omitted),

4

12

efficient government operations require open

discussions among all government policy-

makers and advisors, whether those giving

advice are officially part of the agency or are

solicited to give advice only for specific projects.

Ryan v. DOJ, 617 F.2d at 790 (emphasis added). Exemption

5 seeks to assure federal agency access to complete, accu-

rate and candid information regardless of its source.

In reaching its determination that the correspondence

from the ex-Presidents was aiding the Archivist’s deliber-

ative process and, therefore, protected from disclosure

under Exemption 5, the court considered and rejected

several challenges,> including the claim that the former

Presidents’ “distinct and independent interest” in deter-

mining the time frame and restrictions on the public

disclosure of certain presidential records made them

adversaries rather than consultants, thereby removing the

documents from Exemption 5’s purview. Id. at 171.6 While

> The court described these challenges as “false

dichotomies.” Id. at 171.

6 The court in Public Citizen noted that “the former

President in this context can hardly be viewed as an ordinary

private citizen,” acknowledging his continuing power to assert

executive privilege. 111 F.3d at 170. Although not abie to avail

themselves of executive privilege, Indian tribes have never been

viewed as ordinary private citizens. Their unique political

status has long been recognized by the judiciary, see, e.g.,

Worcester v. Georgia, 31 U.S. 515 (1832); Morton v. Mancari, 417

U.S. 535 (1974), and Congress, see, e.g., 25 U.S.C. §§ 450a-450n

(The Indian Self-Determination and Education Assistance Act).

Moreover, their status as sovereigns further distinguishes

Indian tribes from ordinary citizens or organizations. See, e.g.,

Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498

U.S. 505, 509-10 (1991); Santa Clara Pueblo v. Martinez, 436 U.S.

3 -

the former Presidents clearly advocated their positions

regarding the release of documents which they had previ-

ously restricted, the Public Citizen court rejected any

notion that “the consultative relationship is . . . mutually

exclusive with any” other relationship, including that of

advocate. Id. Moreover, the court concluded, “[t]he poten-

tial for an adversary relationship” between the ex-Presi-

dents and the Archivist, “is not enough to negate one of

consultation.” Id. The Presidents’ independent and direct

interest in protecting certain communications from dis-

closure, in the court's view, did not preclude the Archiv-

ist from seeking their expertise in resolving issues related

to those same communications. Id.” See also Ryan v. DOJ,

617 F.2d 781 (senators, who have a direct interest in

selecting federal court judges, treated as outside consul-

tants in responding to Justice Department questionnaire

inquiring about procedures for selecting and recommend-

ing potential federal judge nominees).

The Klamath court turns the Public Citizen analysis on

its head. The court refused to even consider whether the

documents at issue aided the BIA or Department in their

deliberations regarding the impact of the KPOP, and the

basis and extent of water right claims to be filed on behalf

of the Klamath Tribe in Oregon. See Klamath, 189 F.3d at

1045 (Hawkins, J., dissenting). Instead, it limited its

inquiry solely to determining whether the Tribes had an

interest in the matters about which the Department

49, 58 (1978); United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506, 511-12 (1940). -

7 In fact, the Public Citizen court expressly relied upon the

Archive’s explanation of its need to consult with the former

Presidents. Id.

14

sought advice. Id. at 1038. Contrary to Public Citizen, the

Ninth Circuit found that any interest in the matter under

agency consideration establishes a “direct interest” which

is mutually exclusive, and cannot coincide with the role

of consultant.

While it is true that the Department requested

the advice of the Tribes, the matters with respect

to which it sought advice were matters in which

the Tribes had their own interest and the com-

munications presumptively served that interest,

even if they incidentally benefitted the Depart-

ment. Thus, we conclude . . . these documents

do not qualify for exemption.

Id. In stark contrast to the D.C. Circuit's rejection of

exclusivity, 111 F.3d at 171, the Klamath court concluded

that a party’s interest in the matters before an agency

precludes its acting as a consultant to the agency.

To bolster its refusal to follow Public Citizen and its

predecessors, the Klamath court highlighted what it

claims is a distinguishing factor:

[T}his case differs from Public Citizen v. Depart-

ment of Justice, on which the Department relies,

in that it presents not simply ‘the potential for

an adversary relationship’ but a clear and pre-

sent conflict with respect to the subject matter of

the documents, which is for the Department to

resolve.

189 F.3d at 1038. Once again, the court misreads Public

Citizen, wherein the potential adversarial relationship

was between the former Presidents and the agency itself.

111 F.3d at 171, accord Klamath, 189 F.3d at 1044 (Hawkins,

15

J., dissenting). In Klamath, a potential adversarial relation-

ship existed between the Tribes and another party inter-

ested in the outcome of the KPOP and Oregon’s general

stream adjudication, the Association. 189 F.3d at 1038. In

fact, the relationship between the Tribes and the Depart-

ment was by no means adversarial; it was cooperative.

Had the majority followed the analysis utilized in Public

Citizen, it would have looked to the Department's expla-

nation of its need to consult with the Tribes and recog-

nized that rather than being adversaries, the Tribes were

“sharing proposed strategies” with the Department and

assisting BIA employees in “understand[ing] the Tribes’

natural resource rights and formulat[ing] policy accord-

ingly.” Klamath, 189 F.3d at 1045 (Hawkins, J., dissenting).

While the Klamath court also appears to recognize a

potential for an adversarial relationship between the

Tribes and Department within the KPOP process, see

Klamath, 189 F.3d at 139, that potential was no greater

than the potential in Public Citizen that the Presidents’

relationship with Archivist would become adversarial.

Such “potential” without “any movement in that direc-

tion”, Public Citizen v. DOJ, 111 F.3d at 171, was insuffi-

cient to overcome the Klamath Basin Tribes’ role as a

consultant regarding their rights and interests in the

Klamath River Basin.®

® The Klamath court's reliance on County of Madison v.

United States Department of Justice, 641 F.2d 1036 (1st Cir. 1981), is

equally misplaced. There, the crucial factor in the decision not

to apply Exemption 5 was that the documents involved related

to litigation between the Oneida Nation and the United States,

where they were “past and potential adversaries, not coopted

colleagues.” Id. at 1040 (the Nation had sued the United States

in the Claims Court and was seeking to determine how a

16

The result of the Ninth Circuit's “direct interest” test

undermines any ability of Indian tribes to confidentially _

share information regarding their natural resources with

any federal agency. Nothing prepared by an Indian tribe

for consideration by a federal agency can fall within the

protective sphere of Exemption 5 because Indian tribes

always have a “direct interest” in their natural resources and

federal agency actions affecting those resources. The “direct

interest” test abandons any consideration of the function

the documents play within the agencies’ deliberative pro-

cess, see Klamath, 189 F.3d at 1044 (Hawkins, J., dissent-

ing). It cripples the ability of Indian tribes to effectively

consult with their trustee in a confidential forum. It

undermines the ability of all federal agencies, particularly

the BIA, to fulfill their legally mandated trust respon-

~ sibilities. And, it impacts every party to any proceeding

in which a federal agency is required to protect or assert

tribal interests and is unable to confidentially communi-

cate with the affected Indian tribe.

As pointed out by the dissent in Klamath: “[I)n an

effort which marginally advances the cause of open gov-

ernment, [the majority] winds up punishing entities the

settlement of that litigation might affect its land claim).

Importantly, the documents were not provided at the request of

the United States, but were initiated by the Nation in an effort to

procure its own advantage. Id. at 1041-42 (“[T]he Oneidas

approached the government with their own interests in mind.”).

The County of Madison court found this factor a “crucial”

difference between its case and others (like Klamath) where the

government requests information from outside consultants to

aid in policy deliberations. Id. But see Formaldehyde Institute, 889

F.2d at 1124 (rejecting as “shortsighted” a claim that “there can

be no Exemption 5 coverage because the outside reviews were

not solicited by” the agency.).

a

17

government has a fiduciary duty to protect.” 189 F.3d at

1039. Such a gross departure from the pufposes of

Exemption 5 and the underpinnings of the trust relation-

ship demands issuance of the Writ of Certiorari and this

Court’s review.

3. This Court must resolve the two conflicting

standards for determining when to apply

Exemption 5 to FOIA’s disclosure requirements.

Klamath and Public Citizen present two conflicting

standards for evaluating the application of Exemption 5

which cannot be reconciled. Public Citizen's well-reasoned

and consistently applied test developed over the past 25

or more years correctly focuses the inquiry on the pur-

poses for which Exemption 5 was included in FOIA,

while the result in Klamath stands as a barrier to an

agency’s need to make decisions with as much informa-

tion as possible provided in a candid manner. By paying

no heed to the purpose for which the document is

required by the agency, the “direct interest” test conflicts

with the purposes for which Exemption 5 was crafted.

The Court should issue the Writ of Certiorari to resolve

the conflicting standards for evaluating the applicability

of Exemption 5, and to assure the continuing ability of

federal agencies to confidentially consult with and fulfill

their legal responsibilities to Indian tribes.

B. The Klamath Decision Has Broad Ramifications

Throughout the Nation For Indian Tribes and For

Those In Proceedings Involving or Affecting Tribal

Interests.

As a consequence of its role as trustee, the BIA cur-

rently represents the interests of many Indian tribes in

18

numerous judicial and administrative proceedings, both

formal and informal. These proceedings involve not only

tribal water rights, but tribal rights in land, minerals,

timber, fish and wildlife, and other resources. The BIA

regularly seeks tribal expertise as it attempts to under-

stand the rights and interests of the tribes it répresents.

Tribes are intimately familiar with their lands and

resources that are held in trust for them by the United

States. Federal agencies are often located hundreds of

miles from tribal lands, and important decisions regard-

ing them are often made by people without firsthand

knowledge of the resources they have a duty to protect.

Tribal input and expert advice are crucial when federal

policy affects tribal resources.

Within the specific context of water rights, the

Klamath decision will have a disastrous effect, and its

impacts will be felt throughout almost every western

state. Currently there are 18 ongoing proceedings in

which the water rights of various Indian tribes are at

issue. They involve most of the western states, including

Arizona, California, Idaho, Montana, Nevada, New Mex-

ico, Oregon, Utah, Washington, and Wyoming, as well as

many of the Nations’ most important river systems

including the Colorado, Missouri, Snake and Columbia

Rivers. As in Klamath, the BIA prepares and submits

claims for tribal water rights, and, perhaps most impor-

tantly, negotiates with and on behalf of tribes in settle-

ment discussions.

The need for the BIA to communicate confidentially

with those it represents cannot be overstated, and the

impact of exposing these communications extends well

beyond the agency decision making process. Without an

exchange of complete and accurate information between

Oe ee Be ae ee eo ee + a et ee

—- ememeree

19

Indian tribes and their trustee, the likelihood of settling

tribal claims and avoiding years upon years of costly

litigation, see, e.g., In re Rights to Use Water In Big Horn

River, 753 P.2d 76 (Wyo. 1988), aff'd by an equally divided

court, Wyoming v. United States, 492 U.S. 406 (1989),

becomes more remote. The fact that parties who oppose

tribal claims or maintain opposing interests will have

access to any documents exchanged between an Indian

tribe and a federal agency will inevitably force tribes to

stop sharing information to the detriment not only of

Indian tribes and the United States, but ultimately to all

those involved in any litigation, negotiations or settle-

ment discussions involving tribal claims or interests.

Finally, the impact of the Klamath decision is not lim-

ited to water rights proceedings or to the western United

States. Any exchange of documents between an Indian

tribe and a federal agency regarding a tribe’s resources,

whether it be water, minerals, timber, fish and wildlife, or

land will be subject to disclosure. Tribes throughout the

country are affected. For example, in the east, most

recently in New York, the United States represented the

Seneca Nation and the Cayuga Indian Nation in land

claims asserted against state and counties. In these land

claim cases, the United States and Tribes, as they do in

water right proceedings, worked together in a cooperative

relationship to identify, prepare and pursue tribal aborigi-

nal claims to land taken in violation of federal law, often

hundreds of years ago. These claims are steeped in a

complex historic and legal web that requires confidential -

communication and consultation between the United

States and the affected tribes as they prepare and pursue

their claims and strategy. Obviously, the Tribes have a very

direct interest in the outcome of the land claim cases, and

20

the Ninth Circuit’s “direct interest” test, if applied, would

render cooperation between Indian tribes and their federal

representatives virtually impossible.

S

CONCLUSION

For the reasons stated above, this Court should grant

the petition for writ of certiorari.

Respectfully submitted,

JEANNE S. WHiITEING*

*Counsel of Record

Top J. SmrtrH

Wuiteinc & SMITH

1136 Pearl Street, Suite 203

Boulder, Colorado 80302

(303) 444-2549

Rosert S. THompson, III

Office of General Counsel |

Ute Indian Tribe

P.O. Box 190

Fort Duchesne, Utah 84026 '

(435) 722-5161

Troy WoopwarD

Blackfeet Legal Department

P.O. Box 849

Browning, Montana 91745

(406) 338-7777

Counsel for Amici Curiae

Ute Indian Tribe of the Uintah

and Ouray Reservation, Blackfeet

Indian Tribe of the Blackfeet

Reservation, Shoshone-Paiute

Indian Tribes of the Duck Valley

Reservation, San Juan Southern

Paiute Tribe