No. 99-1871 

In the Supreme Court of the United States 

UNITED STATES DEPARTMENT OF THE INTERIOR AND 
BUREAU OF INDIAN AFFAIRS, PETITIONERS 

v. 

KLAMATH WATER USERS PROTECTIVE ASSOCIATION 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

JOINT APPENDIX 

SETH P. WAXMAN 

Solicitor General 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

Counsel of Record 
for Petitioners 

ANDREW M. HITCHINGS 

Somach, Simmons & Dunn 
400 Capitol Mall 
Suite 1900 
Sacramento, CA 95814 
(916) 446-7979 

Counsel of Record 
for Respondent 

PETITION FOR WRIT OF CERTIORARI FILED: 
MAY 22, 2000 

CERTIORARI GRANTED: SEPTEMBER 26, 2000 

TABLE OF CONTENTS 

Page 

United States District Court for the District of 

Oregon, Docket Entries .............................................. 

1 

United States Court of Appeals for the Ninth Cir- 
Circuit, Docket Entries .............................................. 
4 

Complaint for Declaratory and Injunctive Relief ......... 
11 

FOIA request of Feb. 27, 1996, from Paul S. 

Simmons to Director, Office of Administration, 
Bureau of Indian Affairs, Department of the 
Interior .......................................................................... 24 

Letter of Mar. 26, 1996 from Paul S. Simmons to 

Kate Vandemoer, Department of the Interior ....... 
26 

FOIA request of Mar. 26, 1996, from Paul S. 

Simmons to Director, Office of Administration, 
Bureau of Indian Affairs, Department of the 
Interior .......................................................................... 28 

FOIA request of July 3, 1996, from Paul S. 

Simmons to Director, Office of Administration, 
Bureau of Indian Affairs, Department of the 
Interior .......................................................................... 30 

Declaration of Scott Bergstrom ........................................ 

33 

Excerpts of index to documents withheld in response 
to FOIA requests ......................................................... 
40 

White House memorandum of Apr. 29, 1994, to 
heads of executive departments and agencies 
regarding government-to-government rela- 
tions with Native American Tribal Govern- 
ments .............................................................................. 49 

United States Department of the Interior Order 

No. 3175 ......................................................................... 
52 

Excerpt of Part 512 of the Department of the Interior 

Departmental Manual ................................................. 55 

(I) 

II 

Table of Contents—Continued: 
Page 

Memorandum of Agreement for the Goverment-to- 
Government Relationship in the Development 
of Klamath Project Operations Plan ........................ 
59 

Declaration of David A. Solem .......................................... 
66 

Declaration of Paul S. Simmons ........................................ 
74 

Memo to the files from James K. Bryant ........................ 
83 

Letter dated Dec. 27, 1994, from Marvin Garcia, 

Chairman of the Klamath Tribe, to Bruce Babbitt, 
Secretary of the Interior ............................................ 

89 
FOIA request of Feb. 5, 1996, from Richard A. Cross 
to Michael Ryan and James Bryant, Bureau 
of Reclamation .............................................................. 
102 

Letter dated Mar. 4, 1996, from Michael J. Ryan, 

Area Manager, Bureau of Reclamation, Depart- 
ment of the Interior, to Richard A. Cross ............... 

106 
Letter dated Mar. 15, 1996, from Richard Cross 
to Roger Patterson and Michael Ryan, Bureau of 
Reclamation .................................................................. 115 

Letter dated Sept. 12, 1996, from Elwood H. Miller, 

Jr., Director, Department of Natural Re- 
sources of the Klamath Tribes, to Bruce Babbitt, 
Secretary of the Interior ............................................ 
119 

Letter dated Feb. 23, 1996 from Elwood H. Miller, 

Jr., Director, Department of Natural Resources of 
Klamath Tribes, to Patricia Beneke, Assistant 
Secretary for Water and Science, John Leshy, 
Solicitor, and Eluid Martinez, Commissioner 
of Reclamation, Department of Interior .................. 

124 
White House memorandum dated Oct. 4, 1993, to 
heads of departments and agencies regarding 
the Freedom of Information Act ............................... 136 

III 

Table of Contents—Continued: 
Page 

Office of the Attorney General memorandum dated 

Oct. 4, 1993, to heads of departments and 
agencies regarding the Freedom of Information 
Act .................................................................................. 138 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF OREGON (MEDFORD) 

Civil Docket No. 96-CV-3077 

KLAMATH WATER USERS 

v. 

DEPARTMENT OF INTERIOR, ET AL. 

DOCKET ENTRIES 

_________________________________________________ 

DOCKET 
DATE NUMBER PROCEEDINGS 

_________________________________________________ 

10/22/96 1 

COMPLAINT (Cause Code: 

05:0552fi) Receipt # 7599 
(cwm) [Entry date 
10/23/96] 

* * * * * 

12/4/96 10 

ANSWER by Defendants 

to complaint [1-#1] (cwm) 
[Entry date 12/15/96] 

* * * * * 

3/31/97 21 

NOTICE by Defendants of 

filing of Vaughn Index 
(cwm) [Entry date 
04/01/97] 

(1) 

2 

_________________________________________________ 

DOCKET 
DATE NUMBER PROCEEDINGS 

_________________________________________________ 

3/31/97 22 

MOTION by Defendant 

FOR SUMMARY JUDG- 
MENT (cwm) [Entry date 
04/03/97] 

* * * * * 

4/15/97 25 

RESPONSE by Plaintiff to 

MOTION FOR SUMMARY 
JUDGMENT [22-1] (cwm) 
[Entry date 04/21/97] 

* * * * * 

6/19/97 44 

FINDINGS AND RECOM- 
MENDATION THAT DE- 
FENDANTS’ MOTION 
FOR SUMMARY JUDG- 
MENT [22-1] SHOULD BE 
GRANTED (Counsel noti- 
fied) (cwm) [Entry date 
06/24/97] 

* * * * * 

8/4/97 48 

OBJECTION to FINDINGS 

AND RECOMMENDA- 
TION by Plaintiff [44-1] 
(cwm) [Entry date 
08/05/97] 

* * * * * 

3 

_________________________________________________ 

DOCKET 
DATE NUMBER PROCEEDINGS 

_________________________________________________ 

10/16/97 53 

ORDER by Honorable 

Michael R. Hogan ADOPT- 
ING FINDINGS AND 
RECOMMENDATION [44- 

1] and GRANTING MO- 
TION FOR SUMMARY 
JUDGMENT [22-1] Signed 
10/16/97 (counsel notified) 
(wk) [Entry date 10/22/97] 

10/28/97 54 JUDGMENT DISMISSING 

CASE (counsel notified) 
(wk) 

* * * * * 

12/24/97 58 

NOTICE OF APPEAL to 

Court of Appeals by Plain- 
tiff from judgment Receipt 
# 8400 (wk) 

4 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 97-36208 

KLAMATH WATER USERS 

v. 

DEPARTMENT OF INTERIOR, ET AL. 

DOCKET ENTRIES 

_________________________________________________ 

DATE PROCEEDINGS 

_________________________________________________ 

* * * * * 

6/29/98 Filed original and 15 copies Appellant 

Klamath Water Users opening brief 
(Informal: n) 45 pages and five excerpts of 
record in 3 volumes; served on 6/26/98 [97- 
36208] (hh) 

* * * * * 

8/17/98 Filed original and 15 copies appellees DOI 
and Bureau of Indian Affairs’ 62 pages 
brief; served on 8/12/98 [97-36208] (hh) 

* * * * * 

5 

_________________________________________________ 

DATE PROCEEDINGS 

_________________________________________________ 

3/3/99 ARGUED AND SUBMITTED TO Andrew 

J. KLEINFELD, Michael D. HAWKINS, 

William W. Schwarzer [97-36208] (br) 

8/31/99 FILED OPINION: REVERSED (Ter- 
minated on the Merits after Oral Hearing; 
Reversed; Written, Signed, Published. 
Andrew J. KLEINFELD; Michael D. 
HAWKINS, dissenting; William W. 
Schwarzer, author.) FILED AND 
ENTERED JUDGMENT. [97-36208] (hh) 

* * * * * 

10/15/99 [3772950] Filed original and 50 copies 

Appellee DOI petition for rehearing with 
suggestion for rehearing en banc; 15 

p.pages, served on 10/14/99 (PANEL AND 
ALL ACTIVE JUDGES) [97-36208] (hh) 

10/22/99 Received original and 50 copies Amici 

Curiae National Congress of American 
Indians, et al., amici brief of 8 pages; 
served on 10/21/99 (deficient: motion 
pending/PANEL) [97-36208] (hh) 

6 

_________________________________________________ 

DATE PROCEEDINGS 

_________________________________________________ 

10/22/99 Filed Amici Curiae National Congress of 

American Indians, et al., motion for leave 
to file brief amici curiae in support of 
defts/aples’ petition for rehearing with 
suggestion of rehearing en banc; served 
on 10/21/99 [3777446] (to PANEL only) 
(hh) 

10/22/99 Received original and 50 copies Amici 

Curiae Lummi Nation, Zuni Indian Tribe, 
Pechanga Indian and Tohono O’Odham 
Nation’s amici curiae brief of 8 pages; 
served on 10/21/99 (deficient: motion 
pending/PANEL) [97-36208] (hh) 

10/22/99 Filed Amici Curiae Lummi Nation, Zuni 

Indian Tribe, Pechanga Indian and 
Tohono O’Odham Nation’s motion for 
leave to file brief as amici curiae sup- 
porting the US’s petition for rehearing 
and suggestion for rehearing en banc; 
served on 10/21/99 [3777473] (to PANEL 

only) (hh) 

7 

_________________________________________________ 

DATE PROCEEDINGS 

_________________________________________________ 

11/3/99 Filed order (Andrew J. KLEINFELD, 

Michael D. HAWKINS, William W. 
Schwarzer,): Lummi Nation, et al, and 
National Congress of American Indians, 
et al, motions for leave to file brief as 
amici curiae in support of defts-aples’ 
petition for rehearing and petition for 
rehearing en banc are GRANTED. The 
clerk shall file the briefs. [97-36208] (hh) 

11/3/99 Filed original and 50 copies Amici Na- 
tional Congress of American Indians, et 
al., amici curiae brief of 8 pages; served on 
10/21/99 (PANEL AND ALL ACTIVE 
JUDGES) [97-36208] (hh) 

11/3/99 Filed original and 50 copies Amici Lummi 

Nation, Zuni Indian Tribe, Pechanga In- 
dian and Tohono O’Odham Nat.’s amici cu- 
riae brief of 8 pages; served on 10/21/99 
(PANEL AND ALL ACTIVE JUDGES) 

[97-36208] (hh) 

12/22/99 Filed order (Andrew J. KLEINFELD, 

Michael D. HAWKINS, William W. 
Schwarzer,): . . . The petition for 
rehearing and petition for rehearing en 
banc is DENIED. [97-36208] (hh) 

8 

_________________________________________________ 

DATE PROCEEDINGS 

_________________________________________________ 

12/27/99 Filed aples DOI and Bureau of Indian 

Affairs’ motion for a stay of the mandate; 
served on 12/23/99 [3817702] (to PANEL) 
(hh) 

* * * * * 

1/26/00 Filed order (Andrew J. KLEINFELD, 

Michael D. HAWKINS, William W. 
Schwarzer,): The motion of aples for a 90- 
day stay of the mandate, to 3/28/00, is 

GRANTED. The unopposed motion of aplt 
for an ext of time within which to file a 
request for attys’ fees until 14 days after 
the deadline for aples to file a petition to 
the US Supreme court for a writ of cer- 
tiorari, or until 14 days after the disposi- 
tion of any such filed petition, is 

GRANTED. [97-36208] (hh) 

3/16/00 Filed DOI and Bureau of Indian’s consent 
motion for a further stay of the mandate, 
served on 3/15/00 [3869303] (LEAD 

JUDGE) (sm) 

3/16/00 Received letter from the Supreme Court 
dated 3/10/00 re: extending the time to file 
petn for writ of cert to and including 
4/20/00. (to AJK) [97-36208] (crw) 

9 

_________________________________________________ 

DATE PROCEEDINGS 

_________________________________________________ 

4/12/00 Filed order (Andrew J. KLEINFELD, 

Michael D. HAWKINS, William W. 
Schwarzer,): The consent motion for a 
further stay of the mandate, to 4/27/00, is 

GRANTED. [97-36208] (hh) 

4/17/00 Filed Supreme Court order (SC Date: 
04/10/00), granting application for a 
further extension of time within which to 
file a petition for writ of certiorari to and 
including 05/20/00 (CASEFILE) [97-36208] 
(sm) 

4/17/00 Filed DOI and Bureau of Indian’s consent 
motion to stay the mandate until 05/27/00. 
Served on 4/14/00 [3891935] (LEAD 

JUDGE) (sm) 

4/25/00 Filed order (Andrew J. KLEINFELD,): 

Aples’ consent motion for a further stay of 
mandate, to 5/27/00, is GRANTED. [97- 
36208] (hh) 

5/30/00 Received notice from Supreme Court: 
petition for certiorari filed Supreme Court 
No. 99-1871 filed on 5/22/00. [97-36208] 
(sm) 

* * * * * 

10 

_________________________________________________ 

DATE PROCEEDINGS 

_________________________________________________ 

10/2/00 Received notice from Supreme Court, 
petition for certiorari GRANTED on 
9/26/00. Supreme Court No. 99-1871 
(PANEL) (hh) 

11 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

Civil Action No. 96-3077-CO 

KLAMATH WATER USERS PROTECTIVE 
ASSOCIATION, PLAINTIFF 

v. 

UNITED STATES DEPARTMENT OF THE 
INTERIOR; UNITED STATES BUREAU 
OF INDIAN AFFAIRS, DEFENDANTS 

COMPLAINT FOR DECLARATORY AND 
INJUNCTIVE RELIEF 

(Freedom of Information Act; 
Administrative Procedure Act) 

[Oct. 22, 1996] 

Plaintiff Klamath Water Users Protective Asso- 
ciation (hereinafter ‘plaintiff ’) alleges as follows: 

JURISDICTION AND VENUE 

1. This is an action brought under the Freedom of 
Information Act (5 U.S.C. § 552 et seq.), as amended, 
and the Administrative Procedure Act (5 U.S.C. § 551 
et seq.), as amended, to enjoin the United States 
Department of Interior and the United States Bureau 

12 

of Indian Affairs (hereinafter “Defendants”) from with- 
holding from public disclosure certain records within 
their possession and control, and to direct that Defen- 
dants disclose such records to Plaintiff and grant Plain- 
tiff ’s related fee waiver requests. 

2. This court has jurisdiction over the claims against 
the Defendants pursuant to 5 U.S.C. § 552(a)(4)(B), 
5 U.S.C. § 702, and 28 U.S.C. §§ 1331, 1361, 2201-2202. 

3. Venue of this action properly lies within the Dis- 
trict of Oregon, pursuant to 5 U.S.C. § 552(a)(4)(B) and 
28 U.S.C. section 1391(e). 

PARTIES 

4. Plaintiff Klamath Water Users Protective Asso- 
ciation, also known as Klamath Water Users Associa- 
tion, is a tax-exempt, non-profit corporation organized 
under the laws of the State of Oregon and section 
501(c)(5) of the Internal Revenue Code. Plaintiff ’s 
principal place of business is located in Klamath Falls, 
Klamath County, Oregon. Plaintiff is an association of 
individuals, firms, and public entity districts and public 
entity corporations who are located in Oregon and 
California within the Upper Klamath River Basin, as 
defined in the Klamath River Basin Compact. Plain- 
tiff ’s members receive water from facilities constructed 
as part of the United States Bureau of Reclamation’s 
(“Reclamation”) Klamath Project. Plaintiff ’s purposes 
include the protection of its members’ common inter- 
ests in the use of water for irrigation, and the provision 
of information to its members and the persons repre- 
sented by its members. Plaintiff has the legal authority 
to bring this action. 

13 

5. Defendant Department of Interior is an agency of 
the United States government. Defendant Bureau of 
Indian Affairs is a Bureau within the Department of 
Interior, under the supervision of the Secretary of Inte- 
rior. Defendants have possession of the records to 
which Plaintiff seeks access. 

GENERAL ALLEGATIONS 

6. In February of 1995, Reclamation, an agency 
within the Department of Interior, announced that it 
would develop a plan, to be known as the Klamath Pro- 
ject Operations Plan (“KPOP”), to describe the future 
operation of the Klamath Project. Reclamation pro- 
posed in the KPOP, irrespective of state law concerning 
the diversion, appropriation, and distribution of water, 
to reallocate water away from agricultural use. Recla- 
mation and Defendant Department of Interior repre- 
sented to Plaintiffs and the public that the process for 
developing the KPOP would be an open, public process. 

7. On information and belief, Plaintiff alleges that 
before, during, and after the development of the pro- 
posed KPOP, and at all relevant times, numerous per- 
sons, agencies, tribes and organizations attempted to 
influence Reclamation to make decisions that would 
allocate water away from irrigation use within the 
Klamath Project. Such persons included representa- 
tives of the Klamath Tribes, the Hoopa Valley Tribe, 
the Yurok Tribe, and the Karuk Tribe, including their 
attorneys and consultants (hereinafter collectively 
referred to as “Klamath Basin Tribes”). Such persons 
also included and include employees of Defendant 
Bureau of Indian Affairs. On information and belief, 
Plaintiff alleges that in the development of the pro- 
posed KPOP, Reclamation either proposed to quantify 

14 

federal reserved water rights and water rights 
acquired under state laws or proposed to allocate water 
to instream use for the benefit of Klamath Basin Tribes 
based on considerations other than water rights. 

8. Reclamation informed the Plaintiff and the public 
that it would release a draft KPOP for public comment 
in February of 1996, and a final KPOP in March of 1996. 
Reclamation did not issue a KPOP as planned and 
represented. Upon information and belief, Plaintiff 
alleges that Reclamation’s Area Manager prepared a 
draft KPOP in February of 1996 to be released for 
public comment, but release was withheld because of 
objections of dissatisfied persons within the Defendant 
Bureau of Indian Affairs or Defendant Department of 
the Interior who persuaded the United States Secre- 
tary of the Interior and/or the Office of the Secretary to 
prevent such release. 

9. In February and March of 1996, Plaintiff sub- 
mitted to Defendants, under the Freedom of Informa- 
tion Act, written requests for access to certain docu- 
ments within Defendants’ possession, and for a waiver 
of associated fees. These written requests sought docu- 
ments evincing communications that occurred between 
Defendants and the Klamath Basin Tribes from Janu- 
ary 15, 1996 through February 29, 1996, and that 
related to water resource issues in the Klamath River 
Basin. Copies of these written requests are attached 
hereto as Exhibit 1, and are incorporated herein by 
reference. 

10. By letter dated June 25, 1996, Defendants issued 
a partial denial of Plaintiff ’s February and March 1996 
requests. Among other things, said denial reveals 
frequent contact and communication between the 

15 

Klamath Basin Tribes and the Defendant Bureau of 
Indian Affairs immediately before, during and after the 
draft KPOP was being reviewed within the Depart- 
ment of Interior. In their denial, Defendants alleged 
that most of the requested documents were exempt 
from disclosure pursuant to 5 U.S.C. § 552(b)(5) (herein- 
after “FOIA exemption 5”). Defendants also denied 
Plaintiff ’s request for a fee waiver. This fee waiver 
denial was based upon Defendant’s erroneous deter- 
mination that the information requested was primarily 
in Plaintiff ’s commercial interest. As a result, Defen- 
dants wrongfully determined that Plaintiff ’s request 
does not meet the statutory fee waiver test set forth in 
5 U.S.C. § 552(a)(4)(iii) and the United States Depart- 
ment of Interior regulations (hereinafter “DOI regula- 
tions”) 43 C.F.R. § 2.21(a)(1)(ii). Defendants, therefore, 
erroneously applied the provisions of DOI regulations 
43 C.F.R. § 2.20(b) in determining the amount of fees 
applicable to Plaintiff ’s request, and issued a cor- 
responding Bill for Collection in the amount of $95.47, 
which Plaintiff has not paid pending resolution of this 
litigation. A copy of Defendants’ June 25, 1996 denial 
(without the released documents) is attached hereto as 
Exhibit 2, and is incorporated herein by reference. 

11. By letter dated July 18, 1996, Plaintiff timely 
filed an administrative appeal to Defendants’ denial in 
accordance with 5 U.S.C. § 552(a)(6)(A), and DOI regu- 
lations 43 C.F.R. § 2.18. A copy of this appeal (without 
enclosures) is attached hereto as Exhibit 3, and is 
incorporated herein by reference. 

12. By letter dated August 20, 1996, Defendants 
issued a final denial of Plaintiff ’s February and March 
1996 Freedom of Information Act requests for the 

16 

withheld records and Plaintiff ’s corresponding fee 
waiver request. A copy of this final denial is attached 
hereto as Exhibit 4, and is incorporated herein by 
reference. 

13. Subsequent to the decision not to release the 
draft KPOP that had been planned for release in 
February or March of 1996, Reclamation commenced a 
new effort to prepare a KPOP. Reclamation also 
announced certain other decisions or plans with respect 
to water resources in the Klamath Basin that affect the 
interests of Plaintiff and its members. 

14. By letters dated July 3, 1996, Plaintiff submitted 
to Defendants, under the Freedom of Information Act, 
written requests for access to certain documents within 
Defendants’ possession, and for a waiver of associated 
fees. These written requests similarly sought docu- 
ments evincing communications that occurred between 
Defendants and the Klamath Basin Tribes from 
January 1, 1996 through January 14, 1996, and March 1, 
1996 through July 3, 1996, and that related to water 
resource issues in the Klamath River Basin. Copies of 
these written requests are attached hereto as Exhibit 
5, and are incorporated herein by reference. 

15. By letter dated August 2, 1996, Defendants 
denied Plaintiff’s request for a fee waiver associated 
with Plaintiff ’s July 3, 1996 Freedom of Information 
Act requests. This denial was based upon Defendants’ 
erroneous determinations that the information re- 
quested was primarily in Plaintiff ’s commercial inter- 
est, and was primarily informative to a narrow segment 
of persons rather than the general public. As a result, 
Defendants wrongfully determined that Plaintiff ’s 
request does not meet the statutory fee waiver test set 

17 

forth in 5 U.S.C. § 552(a)(4)(A)(iii) and DOI regulations 
43 C.F.R. § 2.21(a)(1)(ii). Defendants, therefore, 
erroneously applied the provisions of DOI regulations 
43 C.F.R. § 2.20(b) in determining the amount of fees 
applicable to Plaintiff ’s request, and issued a corre- 
sponding Bill for Collection in the amount of $240.29. 
Plaintiff paid this amount under protest and with 
Defendants’ agreement that the payment would be 
refunded if Plaintiff ’s waiver request was upheld in an 
administrative appeal or litigation. Copies of Defen- 
dants’ August 2, 1996 denial and the corresponding Bill 
for Collection are attached hereto as Exhibit 6, and are 
incorporated herein by reference. 

16. By letter dated August 5, 1996, Plaintiff timely 
filed an administrative appeal to Defendants’ fee waiver 
denial in accordance with 5 U.S.C. § 552(a)(6)(A), and 
DOI regulations 43 C.F.R. § 2.18. A copy of this appeal 
(without enclosures) is attached hereto as Exhibit 7, 
and is incorporated herein by reference. 

17. By letter dated September 6, 1996, Defendants 
issued a final denial of Plaintiff ’s July 3, 1996 fee waiver 
request. A copy of this final denial is attached hereto as 
Exhibit 8, and is incorporated herein by reference. 

18. By letter dated September 4, 1996, Defendants 
issued a partial denial of Plaintiff ’s July 3, 1996 Free- 
dom of Information Act requests, wherein Defendants 
similarly alleged that most of the requested documents 
were exempt from disclosure pursuant to FOIA ex- 
emption 5. The denial reveals frequent contacts 
between Defendants and the Klamath Basin Tribes that 
relate to the vital interests of Plaintiff and its members. 
A copy of Defendants’ September 4, 1996 denial 

18 

(without the released documents) is attached hereto as 
Exhibit 9, and is incorporated herein by reference. 

19. By letter dated September 13, 1996, Plaintiff 
timely filed an administrative appeal to Defendants’ 
partial denial in accordance with 5 U.S.C. § 552(a)(6)(A), 
and DOI regulations 43 C.F.R. § 2.18. A copy of this 
appeal (without enclosures) is attached hereto as Exhi- 
bit 10, and is incorporated herein by reference. 

20. On information and belief, Plaintiff alleges that 
Defendants received Plaintiff ’s September 13, 1996 
administrative appeal on September 16, 1996. Defen- 
dants have failed to make a final determination with 
respect to said appeal within the applicable time limit 
provisions of 5 U.S.C. § 552(a)(6)(A)(ii), and therefore, 
pursuant to 5 U.S.C. § 552(a)(6)(c), Plaintiff has ex- 
hausted its administrative remedies. 

21. Plaintiff has no commercial purpose or interests, 
and will not profit from the information requested. 
Plaintiff directly and indirectly provides information 
and resources for several thousand persons interested 
in the water resources of the Klamath River basin. The 
information requested, if disclosed by Defendants, will 
be maintained in Plaintiff ’s library and made available 
to any member of the public. Thus, any persons 
desiring to review the requested information would be 
able to learn about and understand Defendants’ activi- 
ties. 

22. Plaintiff has exhausted its administrative reme- 
dies as to each claim for relief asserted herein. 

19 

23. Plaintiff has employed attorneys to represent it 
in this action, and has incurred and will continue to 
incur expenses for attorneys’ fees and costs herein. 

FIRST CLAIM FOR RELIEF 

(FOIA Violation - Injunction - Withheld Records) 

24. Plaintiff realleges and incorporates by reference, 
as if fully set forth herein, the allegations of paragraphs 
1 through 23 of this complaint. 

25. Pursuant to the Freedom of Information Act, 5 
U.S.C. § 552(a)(3), Plaintiff has a right of access to all of 
the records requested in the aforementioned Freedom 
of Information Act requests. The requested records 
were and are identifiable records within the meaning of 
the Freedom of Information Act. Defendants’ refusals 
to disclose the requested records were and are wrong- 
ful decisions without adequate legal basis, and Plaintiff 
is entitled to the relief provided by the Freedom of 
Information Act. 

26. Unless Defendants are restrained and enjoined 
from their wrongful refusal to disclose the requested 
records, and are directed to disclose such records to 
Plaintiff, Plaintiff will be irreparably injured. 

27. Plaintiff has no plain, speedy or adequate 
remedy at law. 

SECOND CLAIM FOR RELIEF 

(FOIA Violation - Injunction - Fee Waiver) 

28. Plaintiff realleges and incorporates by reference, 
as if fully set forth herein, the allegations of paragraphs 
1 through 27 of this complaint. 

20 

29. Pursuant to the Freedom of Information Act, 5 
U.S.C. § 552(a)(4)(A)(iii), and the DOI regulations 43 
C.F.R. § 2.21(a)(1)(ii), Plaintiff was and is eligible for a 
waiver of fees related to Defendants’ disclosure of the 
requested records. Defendants’ refusals to waive the 
fees were and are wrongful decisions without adequate 
legal basis, and Plaintiff is entitled to the relief pro- 
vided by the Freedom of Information Act. 

30. Unless Defendants are restrained and enjoined 
from their wrongful refusal to grant Plaintiff ’s request 
for a waiver of fees, Plaintiff will be irreparably injured. 

31. Plaintiff has no plain, speedy or adequate 
remedy at law. 

THIRD CLAIM FOR RELIEF 

(FOIA Violation - Judicial 
Declaration - Withheld Records) 

32. Plaintiff realleges and incorporates by reference, 
as if fully set forth herein, the allegations of paragraphs 
1 through 31 of this complaint. 

33. An actual controversy has arisen and now exists 
between Defendants and Plaintiff regarding the appli- 
cation of FOIA exemption 5 to each of the requested 
records that Defendants have withheld from disclosure. 
Plaintiff, therefore, desires a judicial declaration that 
the provisions of FOIA exemption 5 do not apply to any 
or all of the requested records that Defendants have 
withheld from disclosure. 

21 

FOURTH CLAIM FOR RELIEF 

(FOIA Violation - Judicial 
Declaration - Fee Waiver) 

34. Plaintiff realleges and incorporates by reference, 
as if fully set forth herein, the allegations of paragraphs 
1 through 33 of this complaint. 

35. An actual controversy has arisen and now exists 
between Defendants and Plaintiff regarding the appli- 
cation of 5 U.S.C. § 552(a)(4)(A)(iii), and the DOI regu- 
lations 43 C.F.R. §§ 2.21(a)(1)(ii) and 2.20(b), in the con- 
text of Defendants’ determinations as to Plaintiff ’s fee 
waiver requests. 

Plaintiff, therefore, desires a judicial 
declaration that Plaintiff ’s Freedom of Information Act 
requests meet the criteria for granting a fee waiver 
under the Freedom of Information Act and said DOI 
regulations, and that Defendants must grant Plaintiff ’s 
requested fee waivers. 

FIFTH CLAIM FOR RELIEF 

(APA Violation) 

36. Plaintiff realleges and incorporates by reference, 
as if fully set forth herein, the allegations of paragraphs 
1 through 35 of this complaint. 

37. Defendants’ refusal to disclose the requested 
records and waive the corresponding fees, and Defen- 
dants’ determinations with respect to such actions, are 
arbitrary and capricious, not supported by evidence, 
and inconsistent with law. 

38. Unless Defendants are restrained and enjoined 
from such arbitrary and capricious actions with respect 
to Plaintiff ’s Freedom of Information Act requests, 
Plaintiff will be irreparably injured. 

22 

39. Plaintiff has no plain, speedy or adequate 
remedy at law. 

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff prays for judgment and 
relief as follows: 

ON THE FIRST AND FIFTH CLAIMS FOR RELIEF: 

1. For a temporary, preliminary, and permanent 
injunction prohibiting Defendants from withholding 
from Plaintiff the requested records referred to and 
described herein. 

2. For a temporary, preliminary, and permanent 
injunction directing Defendants to disclose and make 
available to Plaintiff the requested records referred to 
and described herein. 

ON THE SECOND AND FIFTH CLAIMS FOR 
RELIEF: 

3. For a temporary, preliminary, and permanent 
injunction directing Defendants to grant the requested 
fee waivers related to Plaintiff ’s Freedom of Infor- 
mation Act requests. 

ON THE THIRD CLAIM FOR RELIEF: 

4. For a judicial declaration that the provisions of 
FOIA exemption 5 do not apply to any or all of the 
requested records that Defendants have withheld from 
disclosure, and that Defendants, therefore, have vio- 
lated the Freedom of Information Act. 

23 

ON THE FOURTH CLAIM FOR RELIEF: 

5. For a judicial declaration that Plaintiff ’s Freedom 
of Information Act requests meet the criteria for 
granting a fee waiver under the Freedom of Informa- 
tion Act and said DOI regulations, and that Defendants 
must grant Plaintiff ’s requested fee waivers. 

ON ALL CLAIMS FOR RELIEF: 

6. For reasonable attorneys’ fees as provided for 
pursuant to applicable law including, but not limited to, 
5 U.S.C. § 552(a)(4)(E) and 28 U.S.C. § 2412 et seq. 

7. For costs of suit herein; and 

8. For such other relief as the Court deems just and 
proper. 

Dated: October 22, 1996 

By /s/ RICHARD S. FAIRCLO 

RICHARD S. FAIRCLO, OR Bar #75114 
of Attorneys for Plaintiff 

DE CUIR & SOMACH 

A Professional Corporation 

Dated: October 17, 1966 

By /s/ ANDREW M. HITCHINGS 

ANDREW M. HITCHINGS, CA 

Bar #154554 
of Attorneys for Plaintiff 

24 

DE CUIR & SOMACH 

A PROFESSIONAL CORPORATION 
ATTORNEYS AT LAW 
400 CAPITOL MALL 
SUITE 1900 
SACRAMENTO, CA 95814-4407 
TELEPHONE (916) 446-7979 
FACSIMILE (916) 446-8199 

February 27, 1996 

Director, Office of Administration 
Bureau of Indian Affairs 

ATTN: FREEDOM OF INFORMATION 

ACT REQUEST 

U.S. Department of the Interior 
Washington, D.C. 20240 

Dear Freedom of Information Act Officer: 

This is a Freedom of Information Act request. 

As used in this request, the term “Klamath Basin 
Tribes” means each of the Klamath Tribes, the Hoopa 
Tribe, the Karuk Tribe, the Yurok Tribe, and their 
members, officers, agents, attorneys, consultants, em- 
ployees, and any other person communicating on behalf 
of the listed Indian tribes. 

Please provide me with any writing or communi- 
cation provided to or received from the Klamath Basin 
Tribes, or any evidence or record of any communication, 
written or verbal, involving the Klamath Basin Tribes 
during the period January 15, 1996 through February 
29, 1996. This includes, but is not limited to, any letter, 

25 

memorandum, facsimile transmission, meeting notes or 
notes of telephone conversation or any other con- 
versation, meeting attendance lists, telephone logs, or 
any document of any kind, regardless of authorship, 
provided to or received from the Klamath Basin Tribes, 
or any other document that is evidence of a communi- 
cation with the Klamath Basin Tribes. 

Please notify me within ten days whether you will 
comply with this request. If any documents or record is 
not provided, please describe the document and FOIA 
exemption that you believe is applicable. 

This request is on behalf of the Klamath Water Users 
Association. The Klamath Water Users Association is a 
tax-exempt corporation organized under section 
501(c)(5) of the Internal Revenue Code and should thus 
be exempt from fees. If you determine that the request 
is not exempt from fees, then the fee category of “other 
requests” in 43 C.F.R. section 2.20(e) applies, and the 
fee schedule should be determined accordingly. Please 
advise me in advance if the cost for complying with this 
request would exceed $50. 

Cordially yours, 

/s/ PAUL S. SIMMONS 

PAUL S. SIMMONS 
Attorney 

PSS/jlp 

cc: David Zepponi 

26 

DE CUIR & SOMACH 

A PROFESSIONAL CORPORATION 
ATTORNEYS AT LAW 
400 CAPITOL MALL 
SUITE 1900 
SACRAMENTO, CA 95814-4407 
TELEPHONE (916) 446-7979 
FACSIMILE (916) 446-8199 

March 26, 1996 

Kate Vandemoer 
Office of the Assistant Secretary 
Department of the Interior 
1849 C Street, NW 
M.S. 6640 
Washington, DC 20240 

Dear Dr. Vandemoer: 

This is a Freedom of Information Act request. 

As used in this request, the term “Klamath Basin 
Tribes” means each of the Klamath Tribes, the Hoopa 
Tribe, the Karuk Tribe, the Yurok Tribe, and their 
members, officers, agents, attorneys, consultants, em- 
ployees, and any other person communicating on behalf 
of the listed Indian tribes. 

Please provide me with any writing or communi- 
cation provided to or received from the Klamath Basin 
Tribes, or any evidence or record of any communication, 
written or verbal, involving the Klamath Basin Tribes 
during the period January 15, 1996 through February 
29, 1996. This includes, but is not limited to, any letter, 

27 

memorandum, facsimile transmission, meeting notes or 
notes of telephone conversation or any other conversa- 
tion, meeting attendance lists, telephone logs, or any 
document of any kind, regardless of authorship, pro- 
vided to or received from the Klamath Basin Tribes, or 
any other document that is evidence of a communication 
with the Klamath Basin Tribes. 

Please notify me within ten days whether you will 
comply with this request. If any document or record is 
not provided, please describe the document and FOIA 
exemption that you believe is applicable. 

This request is on behalf of the Klamath Water Users 
Association. The Klamath Water Users Association is a 
tax-exempt corporation organized under section 
501(c)(5) of the Internal Revenue Code and should thus 
be exempt from fees. If you determine that the request 
is not exempt from fees, then the fee category of “other 
requests” in 43 C.F.R. section 2.20(e) applies, and the 
fee schedule should be determined accordingly. Please 
advise me in advance if the cost for complying with this 
request would exceed $50. 

Cordially yours, 

/s/ PAUL S. SIMMONS 

PAUL S. SIMMONS 
Attorney 

PSS/jlp 

cc: David Zepponi 

28 

DE CUIR & SOMACH 

A PROFESSIONAL CORPORATION 
ATTORNEYS AT LAW 
400 CAPITOL MALL 
SUITE 1900 
SACRAMENTO, CA 95814-4407 
TELEPHONE (916) 446-7979 
FACSIMILE (916) 446-8199 

March 26, 1996 

Director, Office of Administration 
Bureau of Indian Affairs 

ATTN: FREEDOM OF INFORMATION 

ACT OFFICER 

U.S. Department of the Interior 
Washington, D.C. 20240 

Re: Freedom of Information Act Request 

Dear Freedom of Information Act Officer: 

This confirms the clarification of my enclosed FOIA 
letter which I have provided to Mr. Ross Mooney. The 
request concerns water resources issues in the Klamath 
River Basin in Oregon and California. As I mentioned, 
Dr. Vandemoer may be the person in Washington with 
the most knowledge of these issues. Mr. Mooney ad- 
vised that it would be possible to obtain documents 

29 

that originate with her also. I wish to do so. I will also 
send a letter separately to her office. Thank you. 

Cordially yours, 

/s/ PAUL S. SIMMONS 

PAUL S. SIMMONS 
Attorney 

PSS/jlp 

Enclosures 

cc: David Zepponi 

Ross Mooney 

30 

DE CUIR & SOMACH 

A PROFESSIONAL CORPORATION 
ATTORNEYS AT LAW 
400 CAPITOL MALL 
SUITE 1900 
SACRAMENTO, CA 95814-4407 
TELEPHONE (916) 446-7979 
FACSIMILE (916) 446-8199 

July 3, 1996 

Director, Office of Administration 
Bureau of Indian Affairs 

ATTN: FREEDOM OF INFORMATION 

ACT REQUEST 

U.S. Department of the Interior 
Washington, D.C. 20240 

Dear Freedom of Information Act Officer: 

This is a Freedom of Information Act request. 

As used in this request, the term “Klamath Basin 
Tribes” means each of the Klamath Tribes, the Hoopa 
Tribe, the Karuk Tribe, the Yurok Tribe, and their 
members, officers, agents, attorneys, consultants, em- 
ployees, and any other person communicating on behalf 
of the listed Indian tribes. This request concerns water 
resources on the Klamath River basin in Oregon and 
California. 

Please provide me with any writing or communi- 
cation provided to or received from the Klamath Basin 
Tribes, or any evidence or record of any communication, 
written or verbal, involving the Klamath Basin Tribes 
during the period January 1, 1996 through January 14, 

31 

1996, and the period March 1, 1996 through July 3, 1996. 
This includes, but is not limited to, any letter, 
memorandum, facsimile transmission, meeting notes or 
notes of telephone conversation or any other 
conversation, meeting attendance lists, telephone logs, 
or any document of any kind, regardless of authorship, 
provided to or received from the Klamath Basin Tribes, 
or any other document that is evidence of a com- 
munication with the Klamath Basin Tribes. This in- 
cludes copies of communications from the Klamath 
Basin Tribes to persons or agencies other than your 
office. 

It is not necessary to produce any of the following: 

1. March 5, 1996 Letter from Susie Long, Yurok 
Tribe, to Interested Parties; 

2. March 6, 1996 Letter from Richard Cross to 
Bruce Babbitt, Roger Patterson, Eluid Martinez, 
and Michael Ryan; 

3. March 4, 1996 Report Prepared by Balance 
Hydrologics, Inc. Regarding Initial Assessment 
of Pre- and Post-Klamath Project Hydrology on 
the Klamath River and Impacts of the Project on 
Instream Flows and Fishery Habitat; and 

4. March 1, 1996 Report Prepared by Trihey & As- 
sociates, Inc. Regarding Instream Flow Require- 
ments for Tribal Trust Species in the Klamath 
River. 

Please notify me within ten days whether you will 
comply with this request. If any document or record is 

32 

not provided, please describe the document and FOIA 
exemption that you believe is applicable. 

This request is on behalf of the Klamath Water Users 
Association. The Klamath Water Users Association is a 
tax-exempt corporation organized under section 
501(c)(5) of the Internal Revenue Code and should thus 
be exempt from fees. If you determine that the request 
is not exempt from fees, then the fee category of “other 
requests” in 43 C.F.R. section 2.20(e) applies, and the 
fee schedule should be determined accordingly. Please 
advise me in advance if the cost of complying with this 
request would exceed $50. 

Cordially yours, 

/s/ PAUL S. SIMMONS 

PAUL S. SIMMONS 
Attorney 

PSS/jlp 

cc: David Zepponi 

33 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF OREGON 

Civil Action No. 96-3077-CO 

KLAMATH WATERS USERS PROTECTIVE 
ASSOCIATION, PLAINTIFF 

v. 

THE UNITED STATES DEPARTMENT OF THE 

INTERIOR; THE UNITED STATES BUREAU OF 
INDIAN AFFAIRS, DEFENDANTS 

DECLARATION OF SCOTT BERGSTROM 

I, Scott Bergstrom, state: 

1. I am an Attorney-Advisor within the Office of the 
Solicitor, Division of Indian Affairs, Department of the 
Interior (“Department”), Washington, D.C. 

2. In such capacity, I am one of the attorneys advis- 
ing the Department in its development of a long-term 
operations plan for the Klamath Project. I specifically 
address issues relating to the interests and responsi- 
bilities of the Bureau of Indian Affairs and the Depart- 
ment’s fulfillment of its trust responsibility to Indian 
tribes affected by operation of the Klamath Project. As 
a consequence of this role, I am also involved in the 
claim being prepared by the Bureau of Indian Affairs to 
be filed by the United States, as trustee, on behalf of 
the Klamath Tribes (“Tribes”) in the on-going Klamath 

34 

Basin general stream adjudication (“adjudication”) in 
Oregon. 

3. All information herein is based upon my personal 
knowledge and upon information furnished to me in my 
official capacity. 

4. I have also provided legal advice to the Bureau 
of Indian Affairs and the Office of the Assistant 
Secretary-Indian Affairs (collectively, “BIA”) concern- 
ing the Freedom of Information Act (“FOIA”) requests 
submitted to the BIA by the Klamath Water Users 
Protective Association (“Association”). 

5. The case at hand, in part, requests the disclosure 
under the FOIA of documents submitted to the Depart- 
ment by representatives of the Klamath Tribes. These 
documents discuss issues relating to the Department’s 
trust responsibility to the Tribes in light of the develop- 
ment of a long-term operations plan for the Klamath 
Project and/or the presently on-going adjudication. 
The United States is a party to the adjudication, and it 
will file claims, as trustee, on behalf of the Tribes as 
well as for other federal interests. The development 
and adoption of a long-term operations plan for the 
Klamath Project must be consistent with the Depart- 
ment’s trust responsibility to the Tribes in the adjudi- 
cation. The creation and implementation of a long-term 
operations plan could result in the Department’s facing 
legal challenges. 

6. The United States and the Department have a 
trust responsibility to protect the rights and resources 
of the Indian tribes. The Supreme Court recognized 
this responsibility as early as 1831 in Cherokee Nation 

35 

v. Georgia, 30 U.S. (5 Pet.) 1 (1831). It has long been 
the policy and practice of the Department to consult 
with tribes when those rights and resources are im- 
pacted by federal actions. This policy was recently 
reiterated and confirmed by Order of the Secretary of 
the Interior on November 8, 1993. A copy of this order 
is included as Exhibit A to this declaration. Further, 
the President, by memorandum dated April 29, 1994, 
directed that each federal agency consult with tribal 
governments prior to taking actions affecting Federally 
recognized tribal governments. A copy of this memo- 
randum is included as Exhibit B to this declaration. 
The concepts of these executive memoranda have been 
incorporated into the Departmental Manual, and the 
Secretarial Order has subsequently expired of its own 
terms. A copy of the pertinent pages from the Depart- 
mental Manual is included as Exhibit C to this declara- 
tion. These concepts formed the basis of the Memoran- 
dum of Agreement for the Government-to-Government 
Relationship in the Development of the Klamath Pro- 
ject Operations Plan, signed by representatives of the 
Klamath Basin Tribes and the Department’s agencies 
involved in operations plan development, including the 
BIA. A copy of this Memorandum of Agreement is 
included as Exhibit D to this declaration. 

7. In connection with the development of water 
rights claims to be filed by the United States, as 
trustee, on behalf of the Tribes as well as the develop- 
ment of a long-term operations plan for the Klamath 
Project, the Department entered into on-going con- 
sultations, pursuant to the memoranda discussed in 
paragraph 6, with the Tribes to ensure that the Depart- 
ment would be fully informed of the Tribes’ views 
and would have the Tribes’ analysis available for its 

36 

decisionmaking. This consultation involved the discus- 
sion of legal analyses and theories regarding the scope 
of the water rights claims to be filed in the adjudication 
and the manner in which the Department’s trust re- 
sponsibility affects the operations of the Klamath 
Project. This consultation included the Tribes’ analysis 
as to the legal theories which the Department may 
advance or encounter in support of the Tribes’ interests 
in the adjudication, their analysis as to the Depart- 
ment’s trust relationship with regard to operation of 
the Klamath Project, and their analysis regarding the 
interrelationship between the development of a long- 
term operations plan and the adjudication. Consulta- 
tion continues as the Department seeks to fulfill its 
trust responsibility to represent adequately the Tribes’ 
interest in the adjudication and the development of a 
long-term operations plan. 

8. The United States and the Department have a 
common interest in protecting tribal rights and re- 
sources through the ongoing adjudication and the 
development of a long-term operations plan which is 
furthered by this consultation process. 

9. Documents identified as FOIA document no. 3/96- 
168, dated January 19, 1996; FOIA document no. 17/96- 
168, dated February 16, 1996; FOIA document no. 
18/96-168, also dated February 16, 1996; and FOIA doc- 
ument no. 19/96-168, dated February 23, 1996,1 specifi- 
cally involve and contain the Tribes’ analysis as to 
matters relating to the adjudication and/or the develop- 
ment of a long-term operations plan. The documents 

1 More specific information about these documents is provided 
in the Vaughn index. 

37 

were prepared by the Tribes as a consequence of 
consultations with the Department seeking the Tribes’ 
analysis for use by the Department in the performance 
of its official duties, i.e., in Departmental deliberations 
concerning adjudication issues as well as its trust 
responsibility in developing a long-term operations 
plan. Receipt of these documents will assist the 
Department in its deliberations and ultimately in the 
decisionmaking regarding positions to take in the on- 
going adjudication and the development of a long-term 
operations plan. The documents were produced by the 
Tribes and received by the Department prior to the 
Department’s filing of water rights claims on behalf of 
the Tribes in the adjudication and prior to the 
development of a long-term operations plan for the 
Klamath Project. 

10. The Department has used the above-described 
documents in its case preparation in connection with 
the adjudication and in addressing its trust responsi- 
bility in its development of a long-term operations plan 
for the Klamath Project. 

11. The document identified as FOIA document no. 
3/96-168 constitutes the response of Carl Ullman, an 
attorney for the Tribes, to a Solicitor’s Office request 
for legal analysis discussing issues the Department may 
address in the adjudication and in operations plan 
development. This document was submitted to the 
Department prior to the Department’s filing of claims 
on behalf of the Tribes in the adjudication, which are 
due to be filed April 30, 1997, and prior to the develop- 
ment of a long-term operations plan for the Klamath 
Project, currently scheduled to be completed in 1999. 

38 

12. The document identified as FOIA document no. 
17/96-168 constitutes the response of Carl Ullman, an 
attorney for the Tribes, to a Solicitor’s Office request 
for legal analysis addressing the issues related both to 
the adjudication and the development of a long-term 
operations plan. This document was submitted to the 
Department prior to the Department’s filing of claims 
on behalf of the Tribes in the adjudication, which are 
due to be filed April 30, 1997, and prior to the develop- 
ment of a long-term operations plan for the Klamath 
Project, currently scheduled to be completed in 1999. 

13. The document identified as FOIA document no. 
18/96-168 is identical to FOIA document no. 17/96-168. 
This document was submitted to the Department prior 
to the Department’s filing of claims on behalf of the 
Tribes in the adjudication, which are due to be filed 
April 30, 1997, and prior to the development of a long- 
term operations plan for the Klamath Project, currently 
scheduled to be completed in 1999. 

14. The document identified as FOIA document no. 
19/96-168 constitutes the response of Carl Ullman, an 
attorney for the Tribes, to a Solicitor’s Office request 
for legal analysis addressing the issues related both to 
the adjudication and the development of a long-term 
operations plan. Although this document is signed by 
Elwood Miller, Jr., Director of the Klamath Tribes’ De- 
partment of Natural Resources, I understand that Mr. 
Ullman is the author. This document was submitted to 
the Department prior to the Department’s filing of 
claims on behalf of the Tribes in the adjudication, which 
are due to be filed April 30, 1997, and prior to the devel- 
opment of a long-term operations plan for the Klamath 
Project, currently scheduled to be completed in 1999. 

39 

15. Documents identified as FOIA document no. 
3/96-168, FOIA document no. 17/96-168, FOIA docu- 
ment no. 18/96-168, and FOIA document no. 19/96-168 
were prepared by tribal attorney Carl Ullman as part 
of the consultation process between the Department 
and the Tribes and in response to the Department’s 
request for the Tribes’ analysis. These documents were 
prepared to assist the Department in the development 
of water rights claims to be filed on behalf of the Tribes 
in the adjudication as well as the development of a long- 
term operations plan for the Klamath Project. They 
were created for use by Departmental attorneys and 
staff in the performance of their official duties, i.e., in 
the deliberations and preparations of the Department’s 
and/or the United States’ position in current and po- 
tential future litigation as well as for the continuing 
development of a long-term operations plan for the 
Klamath Project. 

In accordance with 28 U.S.C. § 1746 I declare under 
penalty of perjury that the foregoing is true and 
correct. 

Dated: March 5, 1997 

/s/ SCOTT BERGSTROM 
SCOTT BERGSTROM 
Attorney-Advisor 
Office of the Solicitor 

40 

INDEX 

Klamath Water Users Protective Assocation v. 
United States Department of the Interior; United 

States Bureau of 
Indian Affairs, Civil Action No. 96-3077-CO 

Following is a detailed description of each withheld 
document and accompanying justification for asserting 
FOIA exemption (5). 

* * * * * 

b. Correspondence Between Interior Personnel and 
Klamath Basin Tribes Representatives 
or Organizations 

1. FOIA document number: 3/96-168 
Type of document: Position Paper 
Subject: Untitled—discusses water law 
To: Sent to Cathy Wilson (BIA); also sent to Office 
of the Solicitor, Division of Indian Affairs 
From: Klamath Tribes Department of Natural 
Resources 
Date: January 19, 1996 
Description: Seven page position discussing legal 
theories concerning the water rights of the federally 
recognized Indian tribes of Klamath Basis [sic] 
Exemption(s) claimed: (b)(5) 
Basis for withholding: Attorney work-product and 
deliberative process privileges. This document sat- 
isfies the “intra-agency” requirement for invoking 
exemption (5) because (a) the Department con– 
sults with the Klamath Tribes when Departmental 
actions may affect tribal resources pursuant to the 

41 

Department’s trust obligation and (b) the Depart- 
ment has relied upon the document in its delibera- 
tions. The Office of the Solicitor asked Bud Ullman, 
an attorney for the Klamath Tribes, to develop this 
position paper. This document is attorney work 
product because it is prepared by an attorney and 
has been shared with the Department because of the 
common interest in protecting tribal trust resources 
in the development of an operations plan for the 
Klamath Project, in potential litigation arising from 
the operations plan development, and in the pending 
adjudication in Oregon. This document is prede- 
cisional because it predates both (a) the filing of the 
water rights claims on behalf of the Klamath Tribes 
in the Klamath Basin Adjudication, which are due to 
be filed April 30, 1997, and (b) the issuance of an 
operations plan for the Klamath Project. This 
document is also deliberative in nature because it 
actually addresses issues related to the development 
of an operations plan for the Klamath Project and 
the pending adjudication. Disclosure of the docu- 
ment would expose the Department’s decision- 
making process in such a way as to discourage can- 
did discussion within the Department and thereby 
undermine the Department’s ability to address 
water rights issues concerning the tribes. 

2. FOIA document number: 6/96-168 
Type of document: Memorandum 
Subject: Department of Interior Responsibility to 
the Trust Asset (Fish in the Upper and Lower Kla- 
math Basin) 
To: Tom Strekal (BIA), Doug Tedrick (BIA), 
Richard Cross (attorney for Yurok Tribe), and Bud 
Ullman (attorney for Klamath Tribes) 

42 

From: Cathy Wilson (BIA) 
Date: January 24, 1996 
Description: One page memorandum. The memo- 
randum contains views on policy the BIA could 
provide to other governmental agencies concerning 
the obligation to protect Indian trust assets in de- 
veloping an operations plan for the Klamath Project. 
Specifically, the memorandum considers proposing 
language as guidance regarding the trust responsi- 
bility. 

Exemption(s) claimed: (b)(5) 
Basis for withholding: Deliberative process privi- 
lege. This document satisfies the “intra-agency” 
threshold requirement for invoking exemption (5) 
because (a) the Department consults with the Kla- 
math Basin Tribes when Departmental actions may 
affect tribal resources pursuant to the Department’s 
trust obligation and (b) the Department has relied 
upon the memorandum in its deliberations. The 
recipients of this memorandum were BIA Klamath 
team members and tribal attorneys who worked on 
this project under the terms of the Government-to- 
Government Memorandum of Agreement. See 
Memorandum of Agreement for Government-to- 
Government Relationship in the Development of the 
Klamath Projects Operations Plan, November 1995. 
This memorandum is predecisional because it pre- 
dates the issuance of an operations plan. This 
memorandum is also deliberative in nature [sic] 
because it actually addresses issues related to the 
development of an operations plan for the Klamath 
Project. Disclosure of the memorandum would 
expose the Department’s decisionmaking process in 
such a way as to discourage candid discussion within 

43 

the Department and thereby undermine the Depart- 
ment’s ability to develop an operations plan. 

* * * * * 

4. FOIA document number: 10/96-168 
Type of document: Position Paper 
Subject: Comments on USFWS Proposals for 
Listed Species 
To: Tom Strekal (BIA) 
From: Bud Ullman (attorney for Klamath Tribe) 
Date: February 8, 1996 
Description: Five page position paper with facsimile 
transmittal sheet. On December 3, 1996, the De- 
partment released the facsimile transmittal sheet 
accompanying this document. The paper expresses 
views concerning trust resources in light of the Fish 
and Wildlife Service’s proposal regarding listed 
species and the resulting implications on lake man- 
agement. 

Exemption(s) claimed: (b)(5) 
Basis for withholding: Deliberative process pri- 
vilege. This document satisfies the “intra- agency” 
threshold requirement for invoking exemption (5) 
because (a) the Department consults with the Kla- 
math Basin Tribes when Departmental actions may 
affect tribal resources pursuant to the Department’s 
trust obligation and (b) the Department has relied 
upon the memorandum in its deliberations. This 
document is predecisional because it predates the 
issuance of an operations plan. This document is 
also deliberative in nature because it actually ad- 
dresses issues related to the development of an 
operations plan for the Klamath Project. Disclosure 
of the document would expose the Department’s 

44 

decisionmaking process in such a way as to discour- 
age candid discussion within the Department and 
thereby undermine the Department’s ability to de- 
velop an operations plan. 

* * * * * 

13. FOIA document number: 16/96-201 
Type of document: Letter 
Subject: Klamath Tribes’s water rights in the 
Klamath Basin Adjudication 
To: Lynn Peterson (Regional Solicitor) 
From: Bud Ullman (attorney for Klamath Tribes) 
Date: May 23, 1996 
Description: Three page letter discussing the 
Klamath Basin Adjudication. This letter concerns 
the water rights claims being prepared on behalf of 
the Klamath Tribes. 

Exemption(s) claimed: (b)(5) 
Basis for withholding: Attorney work product and 
deliberative process privileges. This document 
satisfies the “intra-agency” requirement for invok- 
ing exemption (5) because (a) the Department 
consults with the Klamath Basin Tribes when De- 
partmental actions may affect tribal resources pur- 
suant to the Department’s trust obligation and (b) 
the Department has relied upon the memorandum in 
its deliberations. The Office of the Solicitor asked 
Bud Ullman, an attorney for the Klamath Tribes, to 
develop this letter. This document is attorney work 
product because it is prepared by an attorney and 
has been shared with the Department because of the 
common interest in protecting tribal trust resources 
in the pending adjudication in Oregon. This docu- 
ment is predecisional because it predates the filing 

45 

of the water rights claims on behalf of the Klamath 
Tribes in the Klamath Basin Adjudication, which are 
due to be filed April 30, 1997. This document is also 
deliberative in nature because it actually addresses 
issues related to the pending adjudication which 
involves tribal water rights to be filed. Disclosure 
of the document would expose the Department’s 
decisionmaking process in such a way as to dis- 
courage candid discussion within the Department 
and thereby undermine the Department’s ability to 
address water rights issues concerning the tribes. 
Disclosure would expose sensitive litigation posi- 
tions to be taken in the adjudication. 

* * * * * 

16. FOIA document number: 20/96-201 
Type of document: Letter 
Subject: Klamath Tribes’s water rights 
To: Stan Speaks (BIA) 
From: Jeff Mitchell (Klamath Tribes) 
Date: June 18, 1996 
Description: One page letter with attachment. 
Letter references the attachment and highlights the 
issues therein. Attachment is the three page 5/23/96 
letter from Bud Ullman (attorney for Klamath 
Tribes) to Lynn Peterson (Regional Solicitor) dis- 
cussing the Klamath Basin Adjudication (identified 
by FOIA document number 16/96-201). See analysis 
above regarding the rationale for withholding the 
attachment. 

Exemption(s) claimed: (b)(5) 
Basis for withholding: Deliberative process privi- 
lege. This document satisfies the “intra-agency” 
requirement for invoking exemption (5) because (a) 

46 

the Department consults with the Klamath Basin 
Tribes when Departmental actions may affect tribal 
resources pursuant to the Department’s trust obli- 
gation and (b) the Department has relied upon the 
memorandum in its deliberations. This document is 
predecisional because it predates the filing of claims 
on behalf of the Klamath Tribe in the pending 
Oregon adjudication. This document is also delib- 
erative in nature because it actually addresses 
issues related to the water rights claims to be filed 
in the adjudication. Disclosure of the document 
would expose the Department’s decisionmaking pro- 
cess in such a way as to discourage candid discussion 
within the Department and thereby undermine the 
Department’s ability to address the water rights of 
the tribes. Disclosure would expose sensitive 
litigation positions to be taken in the adjudication. 

17. FOIA document number: 25/96-201 
Type of document: Letter 
Subject: Klamath Tribal Executive Committee Re- 
solution 
To: Stan Speaks (BIA) 
From: Bud Ullman (attorney for Klamath Tribes) 
Date: June 28, 1996 
Description: One page letter with two page attach- 
ment. Letter references the attachment and high- 
lights the issues therein. Attachment is the Klamath 
Tribes’s resolution regarding the Tribes’s water 
rights claims in the Klamath Basin Adjudication. 
Exemption(s) claimed: (b)(5) 
Basis for withholding: Deliberative process privi- 
lege. This document satisfies the “intra-agency” 
requirement for invoking exemption (5) because (a) 
the Department consults with the Klamath Basin 

47 

Tribes when Departmental actions may affect tribal 
resources pursuant to the Department’s trust obli- 
gation and (b) the Department has relied upon the 
memorandum in its deliberations. This document is 
predecisional because it predates the filing of claims 
on behalf of the Klamath Tribe in the pending 
Oregon adjudication. This document is also delib- 
erative in nature because it actually addresses 
issues related to the water rights claims to be filed 
in the adjudication. Disclosure of the document 
would expose the Department’s decisionmaking pro- 
cess in such a way as to discourage candid discussion 
within the Department and thereby undermine the 
Department’s ability to address the water rights of 
the tribes. Disclosure would expose sensitive liti- 
gation positions to be taken in the adjudication. 

* * * * * 

19. FOIA document number: 27/96-201 
Type of document: Internal memorandum 
Subject: Untitled—discusses endangered suckers 
To: Cathy Wilson (BIA) 
From: Jacob Kahn (Klamath Tribes) 
Date: July 1, 1996 
Description: Two page memorandum, nine pages of 
graphs, and a facsimile transmittal sheet. The 
memorandum concerns biological factors affecting 
trust resources. On December 27, 1996, the Depart- 
ment released the facsimile transmittal sheet accom- 
panying this document. 

Exemption(s) claimed: (b)(5) 
Basis for withholding: Deliberative process privi- 
lege. This document satisfies the “intra-agency” 
requirement for invoking exemption (5) because (a) 

48 

the Department consults with the Klamath Basin 
Tribes when Departmental actions may affect tribal 
resources pursuant to the Department’s trust obli- 
gation and (b) the Department has relied upon the 
memorandum in its deliberations. This document is 
predecisional because it predates the issuance of an 
operations plan. This document is also deliberative 
in nature because it actually addresses issues re- 
lated to the development of an operations plan for 
the Klamath Project. Disclosure of the document 
would expose the Department’s decisionmaking pro- 
cess in such a way as to discourage candid discussion 
within the Department and thereby undermine the 
Department’s ability to develop an operations plan. 
Disclosure would expose technical opinions deemed 
critical to analyzing the extent of the Department’s 
trust responsibility. 

49 

THE WHITE HOUSE 

Office of the Press Secretary 
_________________________________________________ 

For Immediate Release 
April 29, 1994 

April 29, 1994 

MEMORANDUM FOR THE HEADS OF EXECUTIVE 
DEPARTMENTS AND AGENCIES 

SUBJECT: Government-to-Government Relations with 

Native American Tribal Governments 

The United States Government has a unique legal 
relationship with Native American tribal governments 
as set forth in the Constitution of the United States, 
treaties, statutes, and court decisions. As executive 
departments and agencies undertake activities affect- 
ing Native American tribal rights or trust resources, 
such activities should be implemented in a knowledge- 
able, sensitive manner respectful of tribal sovereignty. 
Today, as part of an historic meeting, I am outlining 
principles that executive departments and agencies, 
including every component bureau and office, are to 
follow in their interactions with Native American tribal 
governments. The purpose of these principles is to 
clarify our responsibility to ensure that the Federal 
Government operates within a government-to-govern- 
ment relationship with federally recognized Native 

50 

American tribes. I am strongly committed to building a 
more effective day-to-day working relationship reflect- 
ing respect for the rights of self-government due the 
sovereign tribal governments. 

In order to ensure that the rights of sovereign tribal 
governments are fully respected, executive branch 
activities shall be guided by the following: 

(a) The head of each executive department and 
agency shall be responsible for ensuring that the de- 
partment or agency operates within a government-to- 
government relationship with federally recognized 
tribal governments. 

(b) Each executive department and agency shall 
consult, to the greatest extent practicable and to the 
extent permitted by law, with tribal governments prior 
to taking actions that affect federally recognized tribal 
governments. All such consultations are to be open and 
candid so that all interested parties may evaluate for 
themselves the potential impact of relevant proposals. 

(c) Each executive department and agency shall 
assess the impact of Federal Government plans, pro- 
jects, programs and activities on tribal trust resources 
and assure that tribal government rights and concerns 
are considered during the development of such plans, 
projects, programs, and activities. 

(d) Each executive department and agency shall 
take appropriate steps to receive any procedural im- 
pediments to working directly and effectively with 
tribal governments on activities that affect the trust 
property and/or governmental rights of the tribes. 

51 

(e) Each executive department and agency shall 
work cooperatively with other Federal departments 
and agencies to enlist their interest and support in 
cooperative efforts, where appropriate, to accomplish 
the goals of this memorandum. 

(f) Each executive department and agency shall 
apply the requirements of Executive Order Nos. 12875 
(“Enhancing the Intergovernmental Partnership”) and 
12866 (“Regulatory Planning and Review”) to design 
solutions and tailor Federal programs, in appropriate 
circumstances, to address specific or unique needs of 
tribal communities. 

The head of each executive department and agency 
shall ensure that the department or agency’s bureaus 
and components are fully aware of this memorandum, 
through publication or other means, and that they are 
in compliance with its requirements. 

This memorandum is intended only to improve the 
internal management of the executive branch and is not 
intended to, and does not, create any right to admini- 
strative or judicial review, or any other right or benefit 
or trust responsibility, substantive or procedural, en- 
forceable by a party against the United States, its 
agencies or instrumentalities, its officers or employees, 
or any other person. 

The Director of the Office of Management and Bud- 
get is authorized and directed to publish this memo- 
randum in the Federal Register. 

WILLIAM J. CLINTON 

52 

[seal omitted] 

United States Department of the Interior 

OFFICE OF THE SECRETARY 
Washington, D.C. 20240 

ORDER NO. 3175 

Subject: Departmental Responsibilities for Indian 
Trust Resources 

Sec. 1 Purpose. This Order clarifies the responsibility 
of the component bureaus and offices of the Depart- 
ment of the Interior to ensure that the trust resources 
of federally recognized Indian tribes and their members 
that may be affected by the activities of these bureaus 
and offices are identified, conserved and protected. It 
is the intent of this Order that each bureau and office 
will operate within a government to government re- 
lationship with federally recognized Indian tribes and 
that the Bureau of Indian Affairs provide timely and 
accurate information upon the request of their Interior 
Department counterparts. 

This Order is for internal management guidance only, 
and shall not be construed to grant or vest any right to 
any party in respect to any Federal action not other- 
wise granted or vested by existing law or regulations. 

Sec. 2 Authority. This Order is issued under the 
authority of Section 2 of Reorganization Plan No. 3 of 
1950 (64 Stat. 1262). 

53 

Sec. 3 Responsibility. The heads of bureaus and offices 
are responsible for being aware of the impact of their 
plans, projects, programs or activities on Indian trust 
resources. Bureaus and offices when engaged in the 
planning of any proposed project or action will ensure 
that any anticipated effects on Indian trust resources 
are explicitly addressed in the planning, decision and 
operational documents; i.e., Environmental Assess- 
ments, Environmental Impact Statements, Manage- 
ment Plans, etc., that are prepared for the project. 
These documents should clearly state the rationale for 
the recommended decision and explain how the decision 
will be consistent with the Department’s trust respon- 
sibilities. Bureaus and offices are required to consult 
with the recognized tribal government with jurisdiction 
over the trust property that the proposal may affect, 
the appropriate office of the Bureau of Indian Affairs, 
and the Office of the Solicitor (for legal assistance) if 
their evaluation reveals any impacts on Indian trust 
resources. All consultations with tribal governments 
are to be open and candid so that all interested parties 
may evaluate for themselves the potential impact of the 
proposal on trust resources. 

The heads of the Department’s bureaus and offices will 
prepare and publish procedures and directives prior to 
the expiration of this Order to ensure that their re- 
spective units are fully aware of this Order and that 
they are in compliance with the intent of the Order. 
Prior to final issuance, the Office of American Indian 
Trust will review and comment on these procedures 
before their approval by the Assistant Secretary— 
Indian Affairs. 

54 

Sec. 4. Effective Date. 

This Order is effective immedi- 
ately. Its provisions will remain in effect until October 
1, 1994, or until it is amended, superseded, or revoked, 
whichever occurs first. 

/s/ BRUCE BABBITT 

Secretary of the Interior 

Date: NOV 8, 1993 

55 

DEPARTMENT OF THE INTERIOR 

DEPARTMENTAL MANUAL 

Part 512 American Indian 

and Alaska Native Programs 

Intergovernmental Relations 

Chapter 2 Departmental Responsibilities 
___________ for Indian Trust Resources 
512 DM 2.1 

2.1 Purpose. This Chapter establishes the policies, 
responsibilities, and procedures for operating on a 
government-to-government basis with federally recog- 
nized Indian tribes for the identification, conservation, 
and protection of American Indian and Alaska Native 
trust resources to ensure the fulfillment of the Federal 
Indian Trust Responsibility. 

2.2 Policy. It is the policy of the Department of the 
Interior to recognize and fulfill its legal obligations to 
identify, protect, and conserve the trust resources of 
federally recognized Indian tribes and tribal members, 
and to consult with tribes on a government-to- 
government basis whenever plans or actions affect 
tribal trust resources, trust assets, or tribal health and 
safety. 

2.3 Responsibilities. 

A. Heads of bureaus and offices are responsible for 
identifying any impact of Departmental plans, projects, 
programs or activities on Indian trust resources. De- 
partment officials shall: 

56 

(1) Establish procedures to ensure that the activi- 
ties of Departmental organizations impacting upon 
Indian trust resources are explicitly addressed in 
planning, decision, and operational documents; 

(2) Ensure that bureaus and offices consult with the 
recognized tribal government whose trust resource, 
asset, or health and safety is potentially affected by the 
proposed action, plan, or activity; 

(3) Remove procedural impediments to working 
directly and effectively with tribal governments; 

(4) Provide drafts of all procedures or amendments 
to procedures developed pursuant to this Chapter to 
the Office of American Indian Trust for review and 
comment; and, 

(5) Designate a senior staff member to serve as liai- 
son between the bureau or office and the Office of 
American Indian Trust. 

B. Office of American Indian Trust is responsible for 
ensuring compliance with the procedures and require- 
ments under this Chapter. The Office of American 
Indian Trust will serve as the Department’s liaison and 
initial point of contact on all matters arising under this 
Chapter. All procedures and amendments to pro- 
cedures shall be submitted by Departmental bureaus 
and offices to the Office of American Indian Trust for 
review and comment. After such review and comment, 
the procedures and amendments to procedures will be 
transmitted to the Assistant Secretary - Indian Affairs 
for final approval. 

57 

C. Assistant Secretary - Indian Affairs is responsible 
for approving bureau and office procedures, or amend- 
ments thereto, developed pursuant to this Chapter. 

2.4 Procedures. 

A. Reports. As part of the planning process, each 
bureau and office must identify any potential effects on 
Indian trust resources. Any effect must be explicitly 
addressed in the planning/decision documents, includ- 
ing, but not limited to, Environmental Assessments, 
Environmental Impact Statements, and/or Manage- 
ment plans prepared for the project or activity. The 
documentation shall: 

(1) Clearly state the rationale for the recom- 
mended decision; and 

(2) Explain how the decision will be con- 
sistent with the Department’s trust responsibility. 

B. Consultation. In the event an evaluation re- 
veals any impacts on Indian trust resources, trust 
assets, or tribal health and safety, bureaus and offices 
must consult with the affected recognized tribal gov- 
ernment(s), the appropriate office(s) of the Bureau of 
Indian Affairs, the Office of the Solicitor, and the Office 
of American Indian Trust. Each bureau and office 
within the Department shall be open and candid with 
tribal government(s) during consultations so that the 
affected tribe(s) may fully evaluate the potential impact 
of the proposal on trust resources and the affected 
bureau(s) or office(s), as trustee, may fully incorporate 
tribal views in its decision-making processes. These 
consultations, whether initiated by the tribe or the 

58 

Department, shall be respectful of tribal sovereignty. 
Information received shall be deemed confidential, 
unless otherwise provided by applicable law, regula- 
tions, or Administration policy, if disclosure would 
negatively impact upon a trust resource or compromise 
the trustee’s legal position in anticipation of or during 
administrative proceedings or litigation on behalf of 
tribal government(s). 

59 

MEMORANDUM OF AGREEMENT FOR THE 

GOVERNMENT-TO-GOVERNMENT RELATIONSHIP IN 
THE DEVELOPMENT OF THE KLAMATH PROJECT 
OPERATIONS PLAN 

This memorandum of Agreement (Agreement) 
provides a guide for the implementation of the 
government-to-government relationship between the 
United States, acting through the Bureau of Reclama- 
tion (Reclamation), in coordination with the Fish and 
Wildlife Service, National Marine Fisheries Service, 
and the Bureau of Indian Affairs (these four will 
hereinafter be referred to, separately and together, as 
the United States), and the Klamath, Yurok, Hoopa, 
and Karuk Tribes (Klamath Basin Tribes or Tribes), 
with respect to the development of the long-term 
operations plan, the Klamath Project Operations Plan 
(KPOP), for Reclamation’s Klamath Project. Several 
meetings have been conducted between the Tribes and 
the United Sates with regard to the KPOP. These 
meetings have served to clarify the proposed structure 
of the government-to-government relationship. 

The United States Government has a unique legal 
relationship with Native American tribal governments 
as set forth in the Constitution of the United States, 
treaties, statutes, and court decisions. The elements of 
this unique relationship include: (a) recognition of the 
rights of tribes as sovereign entities; (b) recognition of 
the right of tribes to delegate representation; (c) con- 
sultation with tribal governments prior to taking 
actions that affect tribal governments, rights, or trust 
resources; and (d) participation by tribes in planning 
and managing the trust resource base. Recent expres- 
sions of the relationship between the United States 

60 

Government and Native American tribal governments 
are found in President Clinton’s Memorandum of April 
29, 1994, and Order No. 3175 of the Secretary of the 
Interior issued November 8, 1993. These documents are 
attached as Exhibit A and B, respectively. 

(A) Tribes as Sovereigns 

The President’s Memorandum and the Secretarial 
Order recognize the sovereign nature of tribal govern- 
ments and are intended to ensure that the rights of 
sovereign tribal governments are fully respected. 

A memorandum prepared by the Regional Solicitor, 
Pacific Southwest Region, of the Department of the 
Interior, dated July 25, 1995, provides the legal frame- 
work developed by the Regional Solicitor for the 
guidance of the United States regarding the Tribal 
water rights, among others, that may be affected by 
development of the KPOP and Project operations. The 
Regional Solicitor’s memorandum describes certain 
rights of the Tribes, including water and fishing rights 
recognized by treaty, statute, executive order and case 
law, and sets out the relative priority of the Tribes’ 
water rights. The Regional Solicitor’s memorandum is 
attached as Exhibit C. 

With respect to the development of the KPOP, the 
government-to-government relationship involves the 
following: 

1. Identification of Tribal water rights and hunting, 
fishing and gathering rights that may be affected by 
Project operations. 

61 

2. Assessment, in consultation with the Tribes, of 
the impacts of the KPOP on Tribal trust resources and 
species of concern under the Endangered Species Act, 
and assurance that Tribal governments’ rights and 
concerns are considered during the development of the 
KPOP. 

3. Direct and effective communications with the 
Tribal governments and their authorized representa- 
tives in developing and completing the KPOP. 

(B) Tribal Delegation of Authority 

The Tribes have delegated certain responsibilities to 
the Klamath River Inter-Tribal Fish and Water com- 
mission (the “KRITFWC”), which is an inter-tribal 
resources management entity comprised of repre- 
sentatives of each of the Tribes. The United States will 
communicate and coordinate with the KRITFWC and 
the Tribes. Communications will be directed to those 
listed on Attachment D. 

(C) Consultation 

Consistent with the responsibilities of Federal agen- 
cies to respect the government-to-government relation- 
ship with tribal governments, in developing the KPOP, 
the United States will consult with the Klamath Basin 
Tribes prior to taking actions that affect these Tribal 
governments, and will consider the comments and con- 
cerns of the Tribes in a timely and meaningful way, 
before decisions are made. 

A consultant has been hired to conduct the bulk of 
the technical work related to developing the KPOP. 
The consultant will communicate with the Tribes and 
their representatives, seek data and other information 

62 

from the Tribes, and include the comments and 
programs of the Tribes in its analysis related to the 
KPOP. The United States will consider the data and 
information submitted by the Tribes and will either 
incorporate the data and information, or provide 
reasons for not doing so. 

Consultation with respect to the development of the 
KPOP will take the following form: 

1. The United States, together with the consultant, 
will meet with the Tribes and provide copies of working 
documents for tribal review and comment to further the 
government-to-government relationship. 

2. The United States will communicate on a monthly 
or more frequent basis with the designated representa- 
tive(s) of each Tribe. Written communications and 
reports shall be sent to the representatives of the 
Tribes and the United States, as identified in Attach- 
ment O. 

(D) Tribal Management and Participation in the 

KPOP Process 

Water resources management involves extensive 
decision making. Building Tribal participation into 
agency planning and decision making is a necessary, 
foundational component of the government-to-govern- 
ment relationship and future decision making, as it is 
essential to incorporate the perspective that only the 
Tribes can provide regarding the impact of manage- 
ment decisions on Tribes and their resources. 

The KPOP is being developed and will be adopted by 
Reclamation as a means of managing water resources 

63 

within its authority related to the Klamath Project. 
The Tribes have responsibility for the management of 
trust resources within their authority. Tribal involve- 
ment in the development of the KPOP is an important 
component of the government-to-government relation- 
ship. This involvement of the Tribes is a major means 
of assuring that the development of the KPOP reflects 
the United States’ trust obligation and Tribal rights. 

With respect to the KPOP, Tribal involvement will 
include the following: 

1. Reclamation and the Tribes will, to the maximum 
extent practicable, coordinate their resource manage- 
ment activities as they affect one another. 

2. Tribal involvement will include but not be limited 
to conducting scientific research and data collection 
regarding stream flows, like [sic] levels, water quality, 
fish populations, water needs and supply forecasts, and 
evaluating the assessing overall river and lake opera- 
tions. 

3. The Tribes will provide data and input to Rec- 
lamation in a timely fashion for development of the 
KPOP. 

4. The Tribes will be involved in the technical 
evaluation of the data used, collected and analyzed, and 
technical conclusions drawn from such data. 

5. The Tribes will participate with the United States 
regarding management decisions and actions imple- 
menting the KPOP that affect Tribal trust resources. 
The United States will seek Tribal involvement at the 

64 

earliest time to assure an opportunity for the Tribes to 
provide input regarding data collection, analysis and 
management decisions. In developing and imple- 
menting the KPOP, Reclamation, consistent with its 
trust responsibility, will protect Tribal rights, including 
the Tribes’ water rights and rights to other trust 
resources. 

(E) Effect of Agreement 

This agreement is to provide for the effective imple- 
mentation of the government-to-government relation- 
ship between the parties, and is in furtherance of the 
responsibility of the United States to protect Tribal 
trust resources. It does not by itself create, change, or 
alter any rights of any of the parties to the Agreement, 
nor by itself does it create an independent right subject 
to judicial review. Nothing in this Agreement is in- 
tended to or shall have the effect of constraining or 
limiting the United States in carrying out its obliga- 
tions under law, including its trust obligations. All 
communications under this Agreement are in further- 
ance of federal responsibilities. 

Nothing in this Agreement is intended to or shall 
apply to the relations of the parties in connection with 
the Klamath Basin Water Rights Adjudication pending 
before the State of Oregon. 

This Agreement may be modified or amended upon 
the mutual consent of the parties. 

65 

This Agreement may be executed in counterparts. 

Bureau of Reclamation 
Klamath Tribe 

By: /s/ [illegible] Patterson 
By: /s/ [signature illegible] 

Title: Regional Director 
Title: __________________ 

Mid-Pacific Region 
Date: 11/17/95__________ Date: 11/15/95__________ 

Fish and Wildlife Service 
Hoopa Valley Tribe 

By: /s/ [signature illegible] 
By: /s/ Fred [illegible]____ 

Title: Reg. Dir._________ 
Title: Vice Chair________ 

Date: 11/20/95__________ Date: 11/15/95__________ 

Bureau of Indian Affairs 
Karuk Tribe 

Sacramento Area Office 
By: /s/ [signature illegible] 
By: /s/ Barry “Skip” [illegible] 

Title: Area Director_____ Title: Vice-Chairman____ 
Date: 11/16/95__________ Date: 11/15/95__________ 

Bureau of Indian Affairs 
Yurok Tribe 

Portland Area Office 
By: /s/ Edmond G. Payne 
By: /s/ Maria Jupp_______ 

Title: Acting Area Dir. 

Title: Vice-Chair________ 

Date: 11/21/95________ Date: 11/15/95___________ 

66 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF OREGON 

Civil No. 96-3077-CO 

KLAMATH WATER USERS PROTECTIVE 
ASSOCIATION, PLAINTIFF 

v. 

UNITED STATES DEPARTMENT OF THE INTERIOR; 
UNITED STATES BUREAU OF INDIAN AFFAIRS, 
DEFENDANTS 

DECLARATION OF DAVID A. SOLEM 

I, David A. Solem, declare: 

1. I am the Manager of the Klamath Irrigation Dis- 
trict (KID). I have held this position since 1983. KID is 
a party to a contract with the United States Bureau of 
Reclamation (Reclamation) providing for delivery of 
irrigation water through facilities constructed as part of 
the Klamath Project. I am also KID’s representative 
on the Board of Directors of the Klamath Water Users 
Association (Association). I am also the President of 
the Association. I have held this position for four 
months. Prior to being elected the President of the As- 
sociation, I was its Vice President for a approximately 
five years. 

2. The Association is non-profit corporation formed 
under section 501(c)(5) of the Internal Revenue Code. 

67 

Most of the members of the Association are contractors 
of Reclamation and receive water for irrigation through 
Klamath Project facilities. Of these, most are public 
agencies, primarily irrigation districts. 

The current members of the Association distribute 
water to nearly 230,000 acres of land for irrigation in 
southern Klamath County, Oregon, and northern 
Modoc and Siskiyou Counties in California. With few 
exceptions, this land is irrigated and farmed by private 
individuals or firms. The total value of agricultural 
products produced by the Klamath Project has been 
estimated at $120 million annually. In addition to the 
families directly supported by agriculture, numerous 
businesses provide goods and services to farmers. 
Agriculture supports a significant portion of the local 
tax base. 

3. I have personal knowledge of the operations of 
the Klamath Project since 1982. The major source of 
water for irrigation in the Klamath Project area is 
Upper Klamath Lake. Water is both stored in the lake 
by operation of a dam, and also diverted from the lake 
through a large canal (A Canal) operated by KID. In 
addition, some water released from the dam is diverted 
for project irrigation at locations just below the dam. 
Other water released from the dam flows into the 
Klamath River and eventually to California and into the 
Pacific Ocean. 

In the past few years, Reclamation and Interior have 
stated that water in the Klamath Project must be 
managed, allocated, or reallocated to protect interests 
of various Indian tribes. I do not recall the Interior 
agencies taking this position or taking any action in this 
regard prior to about 1992. Since 1994, the tribes’ is- 

68 

sues have become more prominent. In the late summer 
of 1994, a drought year, Reclamation personnel advised 
me that additional water would be released from Link 
River Dam to provide Klamath River flows at the 
demand of the tribes downstream. On behalf of KID, I 
objected to this proposed action. However, the addi- 
tional water was released, resulting in shortages and 
injury for some irrigators. 

4. In February of 1995, Reclamation announced that 
it planned to prepare a plan for long-term operation of 
the Klamath Project. The purpose of the plan was to be 
to develop a plan to operate the Klamath Project 
according to the various legal obligations of Interior, 
and in different types of years (for example, “wet” or 
“dry”). Reclamation stated that this Klamath Project 
Operation Plan (KPOP) would be completed by March 
of 1996, in time to guide project operations for 1996 and 
subsequent years. In the meantime, Reclamation pre- 
pared a one-year operating plan for 1995, after circulat- 
ing a draft for public comment. 

5. In general, the process for developing the KPOP 
included obtaining input from all interested parties. 
The approach was to be that the legal obligations of 
Reclamation would first be clearly defined. Then, tech- 
nical issues such as the water “needs” of agriculture or 
biological resources would be analyzed. The alterna- 
tives for operating the project in light of the legal and 
technical issues would then be studied, leading to a 
decision. 

6. The Interior agencies created a series of meetings 
to discuss KPOP development, to which all interested 
parties were invited. I attended nearly all of these 
meeting [sic]. 

69 

7. Interior hired a consultant, CH2M Hill, to assist 
in KPOP development. CH2M Hill prepared a number 
of technical papers based on its analysis. All interested 
parties were given an opportunity to comment on the 
draft technical memos. Reclamation also engaged the 
U.S. Geological Survey to review technical information 
and arguments that had been submitted by various 
parties, primarily those of the Klamath Tribe and its 
consultants. 

8. Reclamation and other Interior personnel from all 
participating agencies repeatedly assured me that the 
KPOP development would be an open, public process in 
which no interest would receive special or preferred 
treatment. 

9. Numerous Interior agency personnel attended 
the KPOP meetings, including employees of Reclama- 
tion, the U.S. Fish and Wildlife Service, and the Bureau 
of Indian Affairs. Frequently, meetings were attended 
even by representatives of the Office of the Secretary. 
Tribal representatives and their attorneys and consult- 
ants also attended. The meetings were also attended 
by representatives of environmental groups and state 
agencies. At the meetings, tribes and environmental 
groups advocated decisions for management of water 
that would reallocate water used in the Klamath Pro- 
ject to instream uses. The Yurok, Hoopa, and Karuk 
Tribes advocated high flows in the mainstem of the 
Klamath River. The Klamath Tribe advocated main- 
taining high lake elevations in Upper Klamath Lake. 
Many of these proposals would have been very det- 
rimental to irrigation interests. 

Usually, on the occasion of KPOP meetings, some 
Interior representatives would also meet separately 

70 

with Klamath Project irrigation interests. I attended 
these meetings. I was aware that the Interior repre- 
sentatives also would have separate meetings with the 
tribes, which were called “government to government” 
meetings. 

Many irrigation representatives were frustrated and 
angered by the KPOP process. I have heard many 
people express this frustration to Interior personnel. I 
and others believed that Interior had not answered 
several basic questions about its legal authority to 
proceed in the manner it was proceeding. I and others 
also expressed concern that the KPOP meetings had 
become primarily a forum for advocacy of reallocating 
water away from the Klamath Project. Nonetheless, 
we agreed to participate in the process through its 
completion. 

10. Throughout the KPOP process, we were 
informed that the Klamath Project Manager, Mike 
Ryan, a Reclamation employee, had ultimate authority 
as to the contents of the final KPOP. We were in- 
formed that the other Interior agencies would review 
and comment on a proposed plan prepared by Mr. Ryan 
before a draft was released to the public, but that 
ultimately the plan would be Mr. Ryan’s plan. The 
deadline for issuing a final plan was March 15, 1996, and 
a draft plan would be issued for public comment by mid- 
February of 1996. We were advised that Mr. Ryan 
would prepare a plan for internal review in Interior and 
then a public draft would be released. We were told 
that neither irrigators, tribes, nor other persons outside 
of the federal government would have an opportunity 
to review the plan before a draft plan was released 
publicly. 

71 

11. I discussed the status of the KPOP with Mr. 
Ryan during February of 1996. At one point, Mr. Ryan 
informed me that, with the assistance of CH2M Hill, he 
completed a draft plan for internal review by Interior 
personnel. He also told me that the plan was circulated 
within Interior for review. He also told me that, after 
receiving comments from within Interior, he completed 
a plan for release for public review. There was no draft 
KPOP released to the public in 1996 or at any other 
time. 

12. I was concerned that the draft plan had been 
shared with tribes despite the representations of Inte- 
rior that this would not occur, and that objections of the 
tribes had led to the “vetoing” of the plan. I specifically 
asked Mr. Ryan if the draft plan he had prepared had 
been reviewed by the tribes in the Klamath Basin. He 
assured me that it did not. I also heard other persons 
question Interior personnel regarding whether the 
internal plan had been provided to the tribes. On each 
occasion, the Interior personnel stated that it had not. 
The persons who made this statement included Roger 
K. Patterson, Regional Director, Mid-Pacific Region, 
U.S. Bureau of Reclamation; Les Ramirez, Special 
Assistant to the Secretary, Office of the Secretary of 
the Interior; and David Cottingham, Department of the 
Interior. 

13. Since the decision by Reclamation or Interior not 
to release a plan in 1996, water allocation issues have 
remained very contentious. Reclamation employees 
have generally stated that they now hope to prepare a 
long-term plan by sometime in 1999. No specific 
schedule or completion date has been identified. I am 
aware of no written schedule for this work. Reclama- 

72 

tion personnel, including Mr. Patterson, have expressed 
skepticism in my presence as to when a long-term plan 
might actually be completed. A one-year plan called an 
advisory was released in 1996. There is no plan of any 
kind for 1997. 

14. I am familiar with reports prepared for the 
Yurok Tribe or its attorneys by the consulting firms of 
Balance Hydrologics and Trihey and Associates. I was 
present at a KPOP meeting in February or March of 
1996 when an attorney for the Yurok Tribe stated that 
if Reclamation did not adopt the recommendations of 
the report, the attorney would have a court impose 
those requirements, or words to that effect. 

15. In all, the Association has about 20 irrigation 
districts, improvement districts and other public 
agency members. Membership in the Association is 
voluntary. Each year, each member determines 
whether it will pay an assessment to the Association 
and participate in its activities. The Association has no 
other source of revenue, other than occasional dona- 
tions or revenues from fundraising events. The Asso- 
ciation currently has one employee, whose functions are 
primarily administrative. The Association formally 
employed an executive director. 

The Association does not conduct any commercial 
activities. The Association does not use or distribute 
water from the Klamath Project or have a contract to 
receive water through Klamath Project facilities. 

16. Some of the Association members are not con- 
tractors within the Klamath Project. 

73 

17. The Association provides information and repre- 
sentation for its members on matters in which they 
have common interest, and to persons in the Klamath 
Basin generally. The Association annually holds a 
meeting at which is presented information regarding 
the activities of the Association and current develop- 
ments regarding water resources issues in the Klamath 
River Basin. The Association maintains a library of 
materials related to water resources, agriculture, and 
other resources issues in or affecting the Klamath 
Basin. The Association also makes information avail- 
able to the public by participation in public or civic 
functions such as booths at county fairs. 

18. The Association has for several years been 
active in environmental or ecosystem restoration ef- 
forts in the Klamath River Basin. In 1992, the Associa- 
tion prepared and published the Initial Ecosystem 
Restoration Plan for the Upper Klamath River Basin. 
The Association has also provided support, funding, and 
implementation services for ecosystem restoration pro- 
jects in the Klamath Basin, such as fencing of streams 
and marsh and riparian restoration projects. 

I declare under penalty of perjury under the laws of 
the United States that the foregoing is true and correct. 
Executed this 11th day of April 1997 at Klamath Falls, 
Oregon. 

/s/ DAVID A. SOLEM 

DAVID A. SOLEM 

74 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF OREGON 

Civil No. 96-3077-CO 

KLAMATH WATER USERS PROTECTIVE 
ASSOCIATION, PLAINTIFF 

v. 

UNITED STATES DEPARTMENT OF THE INTERIOR; 
UNITED STATES BUREAU OF INDIAN AFFAIRS, 
DEFENDANTS 

DECLARATION OF PAUL S. SIMMONS 

I, Paul S. Simmons, declare: 

1. I am an attorney and shareholder in the law firm 
of De Cuir & Somach. I am admitted to practice law in 
the States of California and New York and in the U.S. 
Court of Appeals for the Ninth Circuit. I have been 
admitted pro hac vice to practice before this Court in 
this litigation. My firm represents the Klamath Water 
Users Association (Association). 

2. In late January of 1995, I learned that officials 
from the Department of the Interior (Interior) had 
scheduled meetings in Berkeley, California with mem- 
bers of certain environmental groups and Indian tribes. 
I also learned that these meetings were to involve 
water resources in the Klamath River Basin and the 
demands of environmental groups and tribes that water 

75 

used in the Klamath Project be allocated to instream 
use. In early February, I sent Freedom of Information 
Act (FOIA) requests to various Interior agencies, 
including the Office of the Regional Solicitor, Pacific 
Southwest Region, requesting information related to 
those meetings. Exhibit A is a true and correct copy of 
the response with enclosures received from David 
Nawi, Office of the Solicitor, Pacific Southwest Region, 
to Paul Simmons, De Cuir & Somach, dated March 10, 
1995, regarding Freedom of Information Act Request. 

3. I have observed the Klamath Project Operation 
Plan (KPOP) process described by David Solem in his 
declaration. I attended a few of the KPOP meetings, 
and have spoken on numerous occasions with personnel 
from all agencies in Interior who are involved in the 
recently-developed process for developing plans for 
Klamath Project operations. 

4. I have sent numerous requests to Interior 
agencies under FOIA for communications between such 
agencies and Klamath Basin tribes and other groups. I 
have received numerous documents in response. In 
addition, documents have been provided to my clients 
and me on verbal request. The following documents 
received from Interior include the following: 

Exhibit B 
Memorandum from James K. Bryant, 

Bureau of Reclamation, to Files, dated 
September 26, 1994, regarding Meeting 
with Native American Tribes Concern- 
ing the Operation of Upper Klamath 
Lake and the Klamath River System on 
September 22, 1994 

76 

Exhibit C Letter from Marvin Garcia, The 

Klamath Tribe, to Hon. Bruce Babbitt, 
Secretary of the Interior, dated Decem- 
ber 27, 1994, regarding Reinitiation of 
Formal Consultation Pursuant to En- 
dangered Species Act § 7 and Opera- 
tion of the Klamath Irrigation Project; 
60-Day Notice of Violation and Intent 
to Sue 

Exhibit D 
Letter from Joseph C. Polos, Yurok 

Tribe Fisheries Program, to Mike 
Ryan, Klamath Project, Bureau of 
Reclamation, dated January 19, 1995 

Exhibit E 

Letter from Dennis D. Lynch, Geologi- 
cal Survey, Department of the Interior, 
to Michael J. Ryan, Bureau of Reclama- 
tion, dated January 24, 1995 

Exhibit F 

Memorandum from Tryg Sletteland, 

Sierra Club Legal Defense Fund, to 
Klamath Campaign Clients, dated April 
21, 1995, regarding Decision Not to Sue 
on 1995 Operations Plan 

Exhibit G 

Letter from Richard A. Cross, Alexan- 
der & Karshmer, to Michael J. Ryan, 
Bureau of Reclamation, dated March 
31, 1995, regarding Draft 1995 Klamath 
Operations Plan 

Exhibit H Letter from Elwood Miller, The 

Klamath Tribes, to Mike Ryan, Bureau 
of Reclamation, dated May 5, 1995, 
regarding Call for Scientific Data 

77 

Exhibit I 
Letter from Richard A. Cross, Alexan- 
der & Karshmer, to Mike Ryan, Bureau 
of Reclamation, dated October 27, 1995, 
regarding Additional Comments Re- 
garding Draft Technical Memoranda 
Re: “Key Facilities” and “Runoff Fore- 
casting” 

Exhibit J 

Letter from Carl Ullman, Water Adju- 
dication Project The Klamath Tribe, to 
Gary Baker, Bureau of Reclamation, 
dated October 27, 1995, regarding 

KPOP Tech Memo: Klamath Basin 
Runoff Forecasting 

Exhibit K 

Letter, with attachments, from Richard 

A. Cross, Alexander & Karshmer, to 
Michael Ryan and James Bryant, Bu- 
reau of Reclamation, dated February 5, 
1996, regarding Freedom of Informa- 
tion Act Request 

Exhibit L 

Letter, excluding attachments, from 

Richard A. Cross, Alexander & Karsh- 
mer, to Roger Patterson and Michael 
Ryan, Bureau of Reclamation, dated 
March 15, 1996, regarding Water Re- 
quired to Be Made Available by the 
Klamath Project in Satisfaction of the 
Upper Klamath Basin Component of 
the Yurok Klamath River Anadromous 
Fishery Reserved Water Right and the 
Trust Responsibility 

78 

Exhibit M 
Letter, excluding attachments, from 

Richard A. Cross, Alexander & Karsh- 
mer, to Michael Ryan, Bureau of Rec- 
lamation, dated March 27, 1996, regard- 
ing Klamath Project Operations Plan 

Exhibit N 

Letter from Elwood Miller, Jr., The 

Klamath Tribes, to Honorable Bruce 
Babbitt, Secretary of the Interior, 
dated September 12, 1996, regarding 
Bureau of Reclamation Kill of Endan- 
gered Species in Upper Klamath Lake; 
60-Day Notice of Intent to Sue for 
Violation of the Endangered Species 
Act 

In responding to requests under FOIA, no bureau or 
department in Interior has withheld documents based 
on a claimed deliberative process privilege other than 
the Bureau of Indian Affairs. 

5. Exhibit O is a true and correct copy of certain 
documents supplied to me by Reclamation in response 
to a FOIA request dated February 27, 1996. 

6. Exhibit P is a true and correct copy of KPOP 
Working Group Meeting Minutes dated October 30, 
1995, supplied to me by Reclamation. 

7. Exhibit Q is a true and correct copy of a letter 
from Stephen E.A. Sanders, Oregon Department of 
Justice, to Martha Pagel, Director, Oregon Water Re- 
sources Department, dated March 18, 1996, regarding 
Klamath Adjudication and Klamath Project operations. 

79 

8. On August 23, 1996, I sent a FOIA request to the 
Office of the Solicitor of Interior and various Regional 
Solicitor’s offices. The FOIA letters requested copies 
of any correspondence from tribes or their attorneys 
relating to the March 18, 1996, letter from the Oregon 
Attorney General (attached as Exhibit Q). Exhibit R is 
a true and correct copy of the response of Robert T. 
Anderson, Associate Solicitor, Office of the Solicitor, 
dated November 15, 1996, with one of its enclosures. 

After Interior decided in early 1996 not to release a 
draft KPOP for public review, it announced that it 
would pursue a different process for developing a long- 
term operations plan. In particular, Interior stated that 
it would prepare an environmental impact statement 
(EIS) pursuant to the National Environmental Policy 
Act, in conjunction with the long-term plan. In a 
discussion with Mr. Kirk Rodgers, Assistant Regional 
Director, Mid-Pacific Region, Bureau of Reclamation, I 
learned that three Klamath Basin tribes had proposed 
to serve as contractors to prepare portions of the EIS. 
I made known to Mr. Rodgers my concern that irriga- 
tion interests do not believe the tribes are disinterested 
or unbiased as a contractor in such a role should be. I 
also expressed my concern in a letter to Reclamation 
dated September 6, 1996, a copy of which is attached as 
Exhibit S. 

After these letters were sent, I received a telephone 
call from Mr. Karl Wirkus, the current Project Manager 
of the Klamath Project. I reiterated my concerns to 
Mr. Wirkus. I also pointed out to him that BIA had 
refused to provide me with communication between the 
tribes and Interior, that the tribes are interested par- 
ties, and that it, in my opinion, was very inappropriate 

80 

under these circumstances for tribes to be retained as 
consultants. 

Mr. Wirkus specifically informed me that if the tribes 
ever were retained as consultants in Klamath Project 
planning as the tribes proposed, all communications 
between them would be open and available to all inter- 
ested persons. 

9. The Association does not intend to participate in 
the Klamath River adjudication being conducted by the 
State of Oregon. However, my firm represents the 
Tulelake Irrigation District, which is a member of the 
Association, in the adjudication. 

10. Interior personnel, including Mr. Steve Palmer 
from the Regional Solicitor’s Office, have advised me 
that Interior will, in the Klamath River adjudication, 
file claims to the effect that the Klamath Tribe has 
water rights in the Klamath River system, but that also 
the tribe will file a claim or claims on its own behalf. 
Interior personnel have informed me that Interior will 
not file claims on behalf of the Yurok Tribe, the Hoopa 
Tribe, or the Karuk Tribe. 

Mr. Palmer has advised me that he is the attorney 
with primary responsibility for preparing and defining 
Reclamation’s claim of irrigation rights for the Klamath 
Project. 

Department of the Interior (Interior) personnel, 
including Mr. Palmer, has informed me that Interior 
will also file claims in the adjudication to assert and 
protect the irrigation water rights in the Klamath 
Project. 

81 

I have discussed the adjudication on several occa- 
sions with Mr. Palmer and other Interior personnel. I 
have asked Mr. Palmer whether, if irrigation interests 
submit information or theories related to the adjudica- 
tion to Interior agencies or the Solicitor’s Office, those 
materials would be made available to tribes or other 
parties requesting them under FOIA. Mr. Palmer 
stated that he believed such materials would be made 
available to those parties on request. 

11. Exhibit T is a true and correct copy of Senate 
Resolution 3, adopted by the Senate of the State of 
Oregon on April 3, 1997. 

12. I have spoken on several occasions with Mr. 
James Bryant, Repayment Specialist, Bureau of Rec- 
lamation in Klamath Falls. Mr. Bryant has informed me 
that Reclamation has received from tribes requests 
under FOIA for correspondence, information, or ma- 
terials provided to Reclamation by irrigation interests 
or Association members and that these requests have 
been filled. 

13. Exhibit U is a true and correct copy of a letter 
from me to Roger K. Patterson, Michael Ryan, and 
David Nawi dated April 23, 1996, regarding KPOP. 

14. In February of 1997, our firm served notices of 
deposition of two Reclamation employees. One purpose 
of those depositions was to be able to obtain direct 
testimony on certain subjects discussed herein on 
matters that Reclamation or Interior personnel have 
stated. Another purpose was to adduce testimony 
which I believe would contravene certain assertions of 
fact made in the Defendants’ Motion for Summary 
Judgment. After defendants moved to quash the 

82 

depositions and after discussion by Mr. Hitchings with 
Ms. Kobbervig, our firm elected to avoid the cost of dis- 
covery disputes and wait until after defendants’ motion 
for summary judgment to pursue discovery, if any. 

15. Exhibit V is a true and correct copy of a letter 
from Andrew M. Hitchings, De Cuir & Somach, to 
Freedom of Information Act Appeals Officer, Depart- 
ment of the Interior, dated September 13, 1996. 

16. Exhibit W is a true and correct copy of Presi- 
dent’s Memorandum for Heads of Departments and 
Agencies Regarding the Freedom of Information Act, 
29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993). 

17. Exhibit X is a true and correct copy of United 
States Attorney General’s Memorandum for Heads of 
Departments and Agencies Regarding the Freedom of 
Information Act, dated October 4, 1993. 

18. Exhibit Y is a true and correct copy of 97 
Interior Dec. 21 (July 6, 1989). 

I declare under penalty of perjury under the laws of 
the United States that the foregoing is true and correct. 
Executed this 14th day of April, 1997 at Sacramento, 
California. 

/s/ PAUL S. SIMMONS 

PAUL S. SIMMONS 

83 

To: Files 

From: James K. Bryant 

Subject: Meeting with Native American Tribes Con- 
cerning the Operation of Upper Klamath 
Lake and the Klamath River System on 
September 22, 1994. 

On September 22, 1994, Reclamation again met with the 
four Native American Tribes that depend upon the 
Klamath Basin to discuss our operations. Attendance 
was as follows: 

Yurok Tribe 

Troy Fletcher, Fish Bio- 
logist 
PO Box 218 
Klamath CA 95548 

Klamath Tribes 

Elwood Miller, Natural 

Resources Spec. 
Craig Bienz, Nautral Re- 
sources Dir. 
PO Box 436 
Chiloquin OR 97624 
Karuk Tribe 

Robert Rohde, Fish Bio- 
logist 
PO Box 282 
Orleans CA 95556 
916-627-3446 

Hoopa Valley Tribe 

Robert Franklin, Hydro- 
logist 
PO Box 417 
Hoopa CA 95546 
916-625-4267 

84 

Fish & Wildlife Service 

Tom Stewart, Manager, 

Klamath Refuges 
Steve Lewis, Supervisor, 

ERO 
Gary Hagedorn, Asst, 

Manager, Refuges 
Jim Hainline, Wildlife 

Biologist 
6600 Washburn Way 
Klamath Falls OR 97603 

The meeting began with the Tribes passing out an 
agenda that they wanted to follow (copy is attached). 
The first item was the letter from Roger Patterson to 
the Klamath Tribes that is presently being prepared 
concerning the meeting on the 24th of August. They 
want individual letters to each Tribe. The following 
positions were then stated by the various Tribes: 

Rohde - Karuk Tribe - Their position is the same as 
in the 1992 Tribal Resolution previously given to 
Reclamation (4,137.0 on the lake year round and 
FERC Mins below Iron Gate Dam). Mr. Rohde 
stated that 4,139 should be used to support the sub- 
sistence fishing industry that could be developed 
again. They believe that the Klamath River fish are 
moving because of the 900 cfs. They want money for 
studies and suggested a basin wide study. 

Fletcher - Yurok Tribe - They demanded FERC 
Mins below Iron Gate. They believe that the Burden 

Reclamation 

Mike Ryan, Area Manager 
James Bryant, Chief, 

Operations 
Robert Davis, Chief, 

Planning 
Mark Buettner, Fish Bio- 
logist 
Klamath Basin Area Office 

85 

of Proof falls on Reclamation to prove that we do not 
harm the salmon when we drop below FERC Mins. 
He said that there are lots of fish in the lower 
Klamath River. 

Franklin - Hoopa Valley Tribe - They want a 
written management plan. They do not want any 
water delivered to Klamath Drainage District this 
fall. The Tribe wants us to furnish them a record of 
decision for going below FERC Mins at Iron Gate. 
They also want to be part of any decision process 
(through Tribal Consultations) on water allocations. 

Miller - Klamath Tribes - Water level of Upper 
Klamath Lake is too low and the fish in the lake are 
in a stressful condition. Wants us to provide the 
Tribes with a water budget. There can be no alloca- 
tion to the farmers without an involvement by the 
Tribes. The Tribes are contemplating a law suit 
with Reclamation over Indian Trust and ESA re- 
sponsibilities. 

Several Tribal representatives stated that we have 
been wrong in our operation of the Klamath Project. 
Indian rights are superior and we have ignored their 
needs. They claim we are in violation of the Trust 
Relationship that is required by the Constitution. 

Tom Stewart and Gary Hagedorn explained that the 
Lower Klamath Refuge is about 50% flooded at this 
time. They need more water than they are getting. 
Lower Klamath is the only place for the birds to go. 10- 
12,000 birds have been lost to botulism this year and 
the losses are continuing to mount. They expect 
greater than normal bird use this fall. Water from Tule 
Lake has been used to flood White Lake. 

86 

Rohde suggested that Lower Klamath be re-operated 
to act as an offstream reservoir, providing summer 
inflow to the Klamath River. The entire Klamath 
Drainage District could be operated like the historic 
water cycle of flood in the winter and provide 
sustainable flows to Kalmath River in the summer. 

Mark Buettner stated that the 4,137.0 is the BO mini- 
mum and until better data is available we should not 
vary from the BO. Mark stressed that a lot of coopera- 
tion is taking place between the Tribes and Reclama- 
tion on studying the suckers. WQ in the lake has been 
improving for several weeks as a result of cooler 
weather. Mark does not believe that the blue green 
algae is a problem this year and that the suckers will 
not be seriously affected by low water levels in the lake. 

The Tribes believe that the risk associated with going 
below 37.0 is significant and can’t be tolerated. Craig 
Bienz believes that the fish may well go extinct before a 
threshold elevation is found. There is more that we 
don’t know than we do about the suckers and what is 
killing them. Craig believes that we may have lost four 
of the last five years of age class in the lake. The 
Klamath Tribes believe that the minimum elevation on 
the lake should be 4,138.5 to 4,139.00. Once we dropped 
below that level we began to experience fish kills this 
year. 

The Tribes want us to schedule another meeting to lay 
out our operation plans in accordance with their wishes. 
The bottom line is not less than FERC Mins, elevation 
no lower than 37.0 and 95% exceedance factors for 
projection of inflows. No water to farms or refuges 
unless these demands are met. Mike suggested a Recl- 
amation Trust Asset Specialist be present at the next 

87 

meeting. The Tribes seemed to be OK with this, but 
not with the idea of including any water users in the 
meeting. They flatly rejected the concept of having a 
representative of the irrigators in the meeting, stating 
that it is a Trust responsibility that will not be debated. 
The meeting is Government to Government in nature. 
The irrigators may contact the Tribes for their own 
meetings. 

Troy believes that the pulsed flows this last summer 
were a last resort. Any success we had with numbers 
means nothing. If we would have had full FERC flows 
we would have had greater success. He believes that 
moving the fish out with an artificial pulse may have 
stressed the fish. 

The Karuk Tribe reiterated their July 19, 1992 letter, 
stating that we are in violation of the Trust by going 
below 37 on the lake. The Karuks believe that they 
have been charged by the Creator with the responsibil- 
ity of protecting the environment in the Klamath 
Watershed. Mike responded that the Trust is not an 
elevation or a flow, but rather the resource. We do not 
believe we are seriously impacting the resource. The 
Tribes want a justification letter from us describing the 
biologic reasons for going below 1,300 cfs and elevation 
4,137.0. Further, they want us to return the lake to 37.0 
as soon as possible without reducing the flow of the 
river below 900 cfs. As of September 22, 1994, the lake 
is 4,136.94. 

They again stated that they do not want the irrigation 
interests involved at this time. They are a sovereign 
Nation and their Trust assets are not subject to debate. 

88 

The Tribes all demanded that we do not release the 
6,000 acre-feet of harvest water after October 1. They 
believe that minimum elevations be maintained in the 
lake even after September 30, 1994. They wanted our 
decision immediately. Mike said that he would make 
that decision in the morning and meet with Rohde at 

10.00 a.m. the next day. 

We agreed to continue attending meetings with the 
Tribes. The next meeting will be sometime during the 
first half of October. Mike will contact Roger Patterson 
and Mike Spear. 

Addendum 

After the meeting it was decided to advise Rohde that 
we will deliver the water to the irrigators for harvest 
water after the 1st. This will depress the lake level 
approximately 0.1 foot. Mr. Rohde will be informed by 
Mike Ryan by letter. In addition, we agreed to notify 
all of the tribes. 

WBR:JBryant:jld:9/26/94: (503) 883-6935 
H:\. .\O&M\UKL&LINK\Trib0922.94) 

89 

[Seal Omitted] 

The Klamath Tribe 

P.O. Box 436 
Chiloquin, Oregon 97624 
Telephone (503) 783-2219 
FAX (503) 783-2029 

December 27, 1994 
[Received: Dec. 30, 1994] 

Hon. Bruce Babbitt 
Secretary of the Interior 
U.S. Department of the Interior 
1849 C Street NW 
Washington, D.C. 20240 

re: Reinitiation of formal consultation pursuant to 

Endangered Species Act §7 and operation of 
the Klamath Irrigation Project; 60-day notice 
of violation and intent to sue 

Dear Secretary Babbitt: 

Operation of the Klamath Irrigation Project by the 
Bureau of Reclamation in Oregon and California has 
direct effects on two endangered fish species: the Lost 
River sucker and the shortnose sucker. These species 
inhabit Upper Klamath Lake which the Bureau man- 
ages as a reservoir for the Project. The species were 
listed as endangered in 1988. Formal consultation be- 
tween the Bureau and the U.S. Fish & Wildlife Service 
resulted in a July 22, 1992, Long Term Biological Opin- 
ion (LTBO) concluding that the Project does jeopardize 
the continued existence of the fish. The LTBO went on 
to provide certain reasonable and prudent alternatives 

90 

for Project operation that the Service asserted would 
avoid such jeopardization. The LTBO also called for 
further research into the needs of the fish and the 
effects of Project management on their survival. 

Since the LTBO was written significant research has 
been carried out on several fronts. Also, in 1994 the 
Bureau managed the Project in a way that lowered 
Upper Klamath Like to levels never before experi- 
enced, offering an opportunity to gain further knowl- 
edge about the effects of project management on fish 
habitat. In addition, certain premises on which the 
LTBO is based are now known to be incorrect. These 
factors, and others, make it clear that the best scientific 
and commercial data available require the conclusion 
that the LTBO is no longer adequate to protect the two 
listed species from extinction by Project operations, 
even if the current reasonable and prudent alternatives 
are adhered to by the Bureau. Indeed, all available 
data indisputably show that, under the current LTBO, 
in 1992 and 1994 the entire year classes of endangered 
fish were lost. 

The purpose of this letter is to request that the 
Bureau and the Service reinitiate formal consultation 
under the Endangered Species Act so that the LTBO 
can be revised to reflect new knowledge and to protect 
the endangered fish. At 50 CFR § 402.16 four criteria 
are set out, any one of which triggers mandatory reini- 
tiation of consultation. At least three of those criteria 
are satisfied in the current situation. Two of these 
three are satisfied in more than one way. 

I will discuss each of those criteria in turn. But 
before doing that let me point out three important 
aspects of the matter. First, all of the information 

91 

necessary to reach a decision on reinitiation of consulta- 
tion has been in the hands of the Service and the 
Bureau long enough to allow a reasoned decision. The 
reinitiation decision of course depends in large part on 
new information gathered since the 1992 LTBO was 
written. The Bureau and the Service have had most of 
that information since August. They have had all the 
information at least since a November 30, 1994, confer- 
ence of tribal, Service, and Bureau biologists. That 
conference was followed by a December 16 meeting 
with those biologists, the Klamath Project Manager and 
his staff, and District representatives of the Service at 
which the information was again discussed in detail. 
Despite this review, the agencies have not been willing 
to make a commitment to undertake reinitiation. They 
have offered no reason for not reinitiating consultation 
and have said they view reinitiation as a likely step. But 
they have not begun the process nor have they made 
any commitment to do so. It is time now to reach a 
decision on the simple, threshold question of whether to 
reinitiate.1 

1 The Bureau and the Service have chosen not to develop an 
analysis of the new information themselves. Rather they have 
awaited the Tribes’ analysis of the new information, and have now 
elected to send that tribal analysis “out for peer review” to several 
federal agencies with no fixed return date. The Bureau says that 
after this federal peer review, a similar process will be undertaken 
with state agencies and with the public. 

The enormous delays threatened by this cumbersome process 
are unnecessary and will be entirely ineffective because (1) neither 
the Secretary, nor the Bureau, nor the Service has ever operated 
the Project, or based its Endangered Species Act decisions, on 
peer review of this type, (2) nobody in any agency has offered any 
reason why the new information leads to anything but the obvious 
conclusion that reinitiation is necessary, and (3) critical information 

92 

Second, the need to revise the LTBO is obvious and 
the data supporting it is overwhelming. Just above, I 
characterized the reinitiation decision as “simple” in 
part because the new information is so striking. Stud- 
ies commissioned by the Bureau show that Project 
operations under the existing LTBO have allowed the 
complete loss of the entire year-class of both species of 
endangered suckers in two of the last three years. 
(Those years were 1992 and 1994, the two low-water 
years since the LTBO. If 1995 is another low water 
year there is no reason to hope for year-class survival 
under the current LTBO.) This fact is not in dispute. It 
is established by independent studies commissioned by 
the Bureau and performed by Oregon State University. 
This alone is enough to compel reinitiation. 

Third, time is critical. If the Bureau is to operate the 
Project in 1995 pursuant to a meaningful and effective 
LTBO, the process of reinitiation must begin right 
away. Bureau plans currently call for irrigation water 
deliveries to begin in mid-April. By that time the 
Project must have the guidance of a new LTBO if it is 
to avoid further fish kills. 

With this brief background, let me turn to the 
criteria compelling the Bureau and Service to reinitiate 
consultation pursuant to 50 CFR § 402.16. 

like the year-class losses is not even a part of the review, so 
nothing will be gained by the delay. In short, there is no reason 
why the agencies should not reach a prompt decision on whether to 
reinitiate. 

93 

CRITERIA FOR REINITIATION OF §7 

CONSULTATION 

50 CFR § 402.16(a): The amount or extent of taking 
specified in the incidental take statement is exceeded. 

The 1992 LTBO allows certain incidental take of 
endangered suckers by Project operations.2 At page 40 
the Incidental Take Statement of the LTBO specifically 
provides that “[c]onsultation should be reinitiated if 
take occurs . . . as a result of the project . . . activity 
not specified in this biological opinion.” 

In 1994 Project activities went beyond those speci- 
fied in the Biological Opinion as the Project was 
operated in disregard of the reasonable and prudent 
alternatives of the LTBO. In particular, the LTBO 
required that the level of Upper Klamath Lake not be 
drawn below 4137.0 feet above sea level. Despite this 
clear requirement, the Bureau drew the lake below that 
elevation, and maintained the surface elevation below 

2 The LTBO’s incidental take statement is itself fatally flawed. 
At LTBO page 40 the statement can be read to allow all the en- 
dangered fish to be killed as incidental take. The statement pro- 
vides that “[a]ny suckers in the water delivery systems including 
canals, drains, fields, headgates, and turnouts” and “[s]uckers in 
the Klamath Project lakes and reservoirs” can be killed as inci- 
dental take. 

These locations describe nearly all the habitat used by the fish 
(except for certain spawning streams tributary to the Lake); these 
locations are of course described as important fish habitat in the 
LTBO. Allowing unlimited take of fish in all these locations 
unavoidably allows their extinction. Nothing could be further from 
the purpose and letter of the Act. The LTBO must be rewritten to 
correct this deficiency. 

94 

the level specified in the LTBO for more than six 
weeks. 

Both before and during this violation of the LTBO 
take occurred. In particular, at least one dead adult 
sucker was found near Hagelstein Park on the east 
shore of the Lake in late September during the period 
of violation. This fish kill is take that exceeds the 
amount specified in the incidental take statement. Both 
the CFR and the LTBO itself require reinitiation of 
consultation in this circumstance. 

50 CFR § 402.16(b): New information reveals effects 
of the action that may affect listed species in a manner 
or to an extent not previously considered. 

This criterion is met in three related but separate 
ways, any one of which is sufficient to require manda- 
tory reinitiation of consultation. 

k As mentioned above, since the time the LTBO was 
written a great deal of research and analysis has been 
done regarding the habitat requirements of the suckers, 
the effects of Project operations, and the adequacy of 
LTBO requirements to protect the fish. This work 
makes it painfully clear that the reasonable and pru- 
dent alternatives in the LTBO are inadequate to 
protect fish from lethal water quality deterioration. 

Attached here is a copy of the December 8, 1994, 
letter from the Tribes’ Chief Biologist Craig Bienz to 
biologists from both the Service and the Bureau. The 
letter follows up on a meeting at which those scientists 
shared the results of their research. 

95 

As the letter makes clear in its narrative, statistics, 
and graphs, water quality deterioration–often to lethal 
levels–is directly correlated to Project management of 
Lake water levels and inflow-outflow regimes. This 
was not previously considered in the LTBO. Rather 
than repeating the details of that analysis, I will in- 
corporate that letter here by this reference and com- 
mend it to your study. It makes clear that the manage- 
ment requirements of the LTBO’s reasonable and 
prudent alternatives are not adequate to protect the 
fish from extinction due to lethal water quality condi- 
tions including elevated pH and reduced dissolved 
oxygen levels. In particular the Lake elevations, and 
their timing, as specified in the LTBO (for example the 
4139.0 foot elevation) cause lethal water quality 
conditions to occur frequently. 

Now that the effects of Project operations on water 
quality are better understood, and because the dete- 
rioration of water quality has a direct effect on the 
endangered fish, the LTBO must be rewritten to incor- 
porate this new information that reveals effects not 
previously considered. 

k The 1992 LTBO predicts the existence of “refugial 
areas” to which it trusts the fish will repair during 
times of lethal water quality elsewhere in the Lake 
brought on by Project activities. In 1994 Bureau 
management relied heavily on the “refugial areas” 
provisions of the LTBO as it drew the Lake down to 
levels never before experienced. The Bureau antici- 
pated that water quality would suffer, but it trusted 
that the fish would resort to the “refugial areas” for 
survival. 

96 

Unfortunately, the “refugial areas” did not prove 
effective. In 1994 the Bureau conducted radio-tracking 
studies of adult suckers in the Lake. These studies 
showed conclusively that the fish do not make use of 
“refugial areas” in the ways anticipated by the LTBO. 
Rather, the fish absorb the full brunt of water quality 
deterioration and riparian habitat loss caused by 
artificially low Lake elevations. 

Neither the Bureau nor the Service previously 
considered the fact that the concept of “refugial areas” 
is not valid in the instant context. The LTBO must be 
revised in its reliance on the concept. 

k The LTBO does not consider the effect of Project 
operation on overwinter survival of fish. It is clear that 
winter kill is a problem that is exacerbated by 
artificially low Lake levels brought on by Project opera- 
tion.3 Project management withdraws water in the fall, 
leaving Lake levels artificially low as winter freezes the 
Lake surface. As the attached article explains in detail, 
this correlates strongly with degraded water quality 
caused by an increased oxygen depletion rate. 

The existing LTBO has not previously considered 
this effect of Project operations on the endangered fish. 
The LTBO must be revised to address this problem. 

3 See, for example, Mathias and Barica, “Factors Controlling 
Oxygen Depletion in Ice-Covered Lakes,” Can. J. Fish. Aquat. Sci., 
Vol. 17, p. 185, 1980 (copy attached). 

97 

50 CFR 402.16(c): The Project action is subsequently 
modified in a manner that causes an effect to the listed 
species that was not considered in the LTBO. 

This criterion is met in two ways, either of which is 
sufficient to require mandatory reinitiation of consulta- 
tion. 

k The 1992 LTBO is based on a Biological Assess- 
ment provided to the Service by the Bureau. That As- 
sessment informed the Service that Bureau irrigation 
water withdrawals from Upper Klamath Lake end in 
September, and that the Lake begins to refill in Octo- 
ber. As a result of this representation by the Bureau, 
the LTBO does not address Project management of the 
Lake after September. 

In 1994 Project operation was modified. Water 
withdrawals continued into October, continuing to draw 
Lake levels down. This compromises the attainment of 
depths necessary to protect water quality and to 
minimize winer kill. 

This modification of Project management has a direct 
effect on listed species. That effect was not considered 
in the LTBO. The LTBO must be rewritten to consider 
these effects. 

k Project management was further modified in 1994 
as it drew Lake levels down to elevations never before 
experienced. The LTBO as written anticipates Project 
management within the range of Lake levels histori- 
cally experienced. The drawing down of the Lake 
below 4137.0 feet in 1994 took management outside that 
window of experience. 

98 

No consideration is given in the LTBO to the effect of 
such a management regime on the endangered fish. 
Obviously a change in Project operations that leaves 
the Lake with less depth than at any time in history is 
deserving of consideration in the LTBO. Reinitiation of 
consultation is needed to include this consideration. 

CONCLUSION 

The 1992 LTBO may never have been adequate to 
the task of protecting Lost River and shortnose suckers 
from extinction by operation of the Klamath Irrigation 
Project. Be that as it may, it is now clear that several 
shortcomings exist in the document and that it must be 
revised if it is to avoid further jeopardization, and ex- 
tinction, of the endangered fish. The Endangered Spe- 
cies Act and the regulations promulgated thereunder 
contemplate such an eventuality and they require 
reinitiation of consultation both by the Bureau and the 
Service. 50 CFR § 402.16. 

First, as regards reinitiation criterion (a), the “take” 
of the endangered species has exceeded that antici- 
pated by the LTBO. This means the LTBO has not 
properly anticipated the effect of Project operations. 
The LTBO is not protecting the fish as effectively as 
intended, or as required by the Endangered Species 
Act. It must be rewritten to be brought into 
compliance with the Act and its goals. 

Second, as regards reinitiation criterion (b), recent 
Lake elevation management has offered an opportunity 
to study Project management’s effects on fish in ways 
not previously possible. Also, ongoing Lake studies 
have added three years of valuable data since the time 
the LTBO was written. The resulting new information 

99 

reveals that the Project adversely affects the fish in 
ways not previously considered. The LTBO needs to be 
rewritten to incorporate this new and valuable 
information. 

Third, as regards reinitiation criterion (c), the LTBO 
is based on a description of Project actions that is no 
longer accurate because Project management has been 
modified. The changes in management have adverse 
effects on the endangered fish. The LTBO must be 
rewritten to consider the full range of Project effects. 
Otherwise effects not considered in the LTBO will 
continue to push the fish toward extinction. 

Under these circumstances reinitiation of formal 
consultation is required by the Act and the regulations. 
At 50 CFR § 402.16 provision is made for either the 
Bureau or the Service to take the necessary action. 
Neither agency needs to wait for the other to act. Thus 
far no action has been taken. This is a violation of the 
Act and the regulations. 

Accordingly, the Klamath Tribes respectfully de- 
mand that the Bureau and/or the Service immediately 
reinitiate consultation pursuant to the Endangered 
Species Act and regulations. This is the only responsi- 
ble step for the Department in light of the best 
available scientific and commercial data. In order to 
protect the Tribes’ right to continue the struggle to 
avoid extinction of resources important to the physical 
and spiritual well-being of our people, I am required to 
add the following. 

This letter provides written notice of violation of the 
Act and regulations as described above. It is also the 
Tribes’ 60-day notice of intent to sue pursuant to the 

100 

Act, including 16 USC § 1540, if the actions demanded 
herein are not taken by you and the Department. 

This letter is also the Tribes’ 60-day notice of intent 
to sue in connection with violations of the Act brought 
to your attention in my letter of November 28, 1994. A 
copy of that letter is attached here and incorporated by 
this reference. As you will recall, that letter pointed 
out that the Klamath Irrigation Project is operated 
without the pre-season operating plans and criteria 
required for protection of endangered species and tribal 
treaty rights. If the inadequacies and violations 
described in that letter are not corrected, we will have 
no choice but to file suit. 

I regret having to end this letter in this tone, but 
such are the requirements of the law. Unfortunately 
the Tribes have no assurance that the Endangered 
Species and treaty rights concerns set out in this and 
my previous letter will be addressed in time to save 
these fish from extinction. Time is truly a critical 
factor, especially with the 1995 water management 
season approaching soon. I urge you to give these 
matters the highest priority within the Department. 

101 

Thank you very much for your attention to these 
important matters. 

Very truly yours, 

/s/ ILLEGIBLE 

Marvin Garcia 
Chairman 

cc: Roger Patterson, Regional Director, BOR 

Mike Ryan, Klamath Project Manager 
Mike Spear, Portland Regional Director, USFWS 
Dale Hall, Deputy Portland Regional Director, 

USFWS 
Daniel Beard, Commissioner, BoR 
Mollie Beatty, Director, USFWS 
Ada Deer, Ass’t Secretary for Indian Affairs 
George Frampton, Ass’t Secretary for Parks and 

Wildlife 
Michael Anderson, Associate Solicitor for Indian 

Affairs 
Hoopa Valley Tribe 
Karuk Tribe 
Yurok Tribe 

102 

ALEXANDER & KARSHMER 

ATTORNEYS AT LAW 
2150 SHATTUCK AVENUE, SUITE 725 
BERKELEY, CALIFORNIA 94704 
(510) 841-5056 
TELECOPIER; (510) 841-6167 

February 5, 1996 

Michael Ryan 
James Bryant 
Bureau of Reclamation 
6600 Washburn Way 
Klamath Falls, Oregon 
97603 

Re: Freedom of Information Act Request 

Gentlemen: 

This is a Freedom of Information Act Request. 
Within the period provided by law, please provide 
copies of the following documents. 

1. From December 1, 1995, to and including the date 
of responding to this request, all letters and/or 
records of communications, verbal and otherwise, 
to or from any or all of the following: 

a. DeCuir & Somach, including but not limited 
to Paul Simmons, Stuart Somach, and Don 
Mooney; 

b. the Klamath Basin Water Users Association, 
including but not limited to, David Zeppone; 

c. David Solem; 

d. Earl Danosky; 

103 

e. Marshall Stanton; 

f. the Tule Lake Irrigation District; 

g. the Klamath Irrigation District; 

h. the State of Oregon Water Resources De- 
partment; 

i. the State of Oregon Department of Environ- 
mental Quality; 

j. the California North Coast Regional Water 
Quality Control Board; 

k. David Vogel; 

l. Keith Marine; 

m. Pacifi Corp; 

n. Roger Patterson; 

o. Kirk Rogers; 

p. Les Ramirez; and 

q. Klamath County, including, but not limited 
to its Board of 

2. The statutes, regulations, deeds, instruments or 
permits by which in 1905 the State of California 
transferred to the Klamath Project and/or the 
Bureau of Reclamation (the “Klamath Project/ 
BOR”) the right to use the then unappropriated 
waters of the Klamath and/or Lost Rivers; 

3. Any and all operations plans, other than the 1995 
Interim Operations Plan, by which the Klamath 
Project/BOR has agreed to operate, or has 
operated, the Klamath Project; 

4. All writings of any kind, including memoranda, 
reports, correspondence and other documents, 

104 

discussing the quanitification of the reserved 
water rights of the Yurok, Hoopa or Karuk 
Tribes; 

5. For the period from October 1, 1995, to and 
including the date of responding to this request, 
all documents which show or state the amounts of 
water delivered by the Klamath Project to any 
Project customers or users, including the date 
and amount of water delivered, and the point to 
which the water was delivered1; 

6. For each and every delivery identified in response 
to the previous request, all documents which 
show, state, describe or discuss whether and how 
the Klamath Project/BOR determined that the 
delivery of water was in excess of and/or not 
required to satisfy the reserved water rights of 
the Yurok, Hoopa, Karuk or Klamath Tribes; and 

7. Any and all permits or licenses issued by the 
California State Water Rights Board and/or the 
California State Water Resources Control Board 
to the Klamath Project/BOR. 

1 A summary of such documents is acceptable. 

105 

With best regards. 

Very truly yours, 

ALEXANDER & KARSHMER 

/s/ ILLEGIBLE 

Richard A. Cross 

106 

[Seal Omitted] 

UNITED STATES DEPARTMENT OF THE INTERIOR 

BUREAU OF RECLAMATION 

Klamath Basin Area Office 

6600 Washburn Way 

Klamath Falls, Oregon 97603 

KO-110 [MAR. 4, 1996] 
RIM-6.10 

Alexander & Karshmer 
Richard A. Cross 
2150 Shattuck Avenue, Suite 725 
Berkeley CA 94704 

Subject: Freedom of Information Act (FOIA) Re- 
quest. Your Letter Dated February 5, 1996 
and February 12, 1996 

Dear Mr. Cross: 

This letter is in response to your February 5, 1996 
Freedom of Information Act (FOIA) request. 

Question # 1 

Enclosed please find the following documents: 

Letter to Roger Patterson dated 2/16/96 from Lynn 

Long (control #6-1627) 
Letter to KPOP Working Group dated 2/23/96 from 

Gary Baker 
Letter to KPOP Working Group dated 2/15/96 from 

Gary Baker 
Letter to KPOP Working Group dated 2/06/96 from 

Gary Baker 

107 

Letter to KPOP Working Group dated 1/25/96 from 

Gary Baker 
Letter to KPOP Working Group dated 1/09/96 from 

Gary Baker 
Letter to KPOP Working Group dated 12/22/95 from 

Gary Baker 
Letter to KPOP Technical Group dated 12/22/96 from 

Gary Baker 
Letter to KPOP groups dated 12/22/95 from Mike Ryan 
Letter to KPOP Technical Group dated 12/1/95 from 

Gary Baker 
Letter from DeCuir and Somach dated 2/15/96 and 
attachments (control #6-1609) 
Letter from Dave Zepponi dated 2/27/96 to Secretary of 

Interior (control #6-1636) 
Letter from Dave Zepponi dated 2/20/96 to Mike Ryan 
and Mark Buettner (control #6-1320) 
Letter from Dave Zepponi dated 2/22/96 to Gary Baker 
(control #6-1623) 
Letter from Dave Zepponi dated 1/1/96 to Mike Ryan 
(control #6-1584) 
Letter from Dave Zepponi dated 2/7/96 to Jim Bryant 
(control #6-1585) 
Letter to Dave Zepponi dated 2/26/96 from Mike Ryan 
Letter to Dave Zepponi dated 12/15/96 from Gary 

Baker 
Letter to Dave Zepponi dated 12/1/96 from Mike Ryan 
Letter to Dave Solem dated 2/13/96 from Mike Ryan 
Letter to Dave Solem dated 2/12/96 from Jim Bryant 
Letter cced to Dave Solem dated 2/6/96 from Jim 

Bryant 
Letter cced to Dave Solem dated 2/2/96 from Jim 

Bryant 
Letter cced to Dave Solem dated 1/23/96 from Jim 

Bryant 

108 

Letter cced to Dave Solem dated 1/8/96 from Jim 

Bryant 
Certificate of Insurance issued to KID dated 1/4/96 
(control #6-1404) 
Letter from KID dated 12/1/96 to Mike Ryan (control 
#6-1128) 
Letter to Earl Danosky dated 2/26/96 from Jim Bryant 
Letter to Earl Danosky dated 2/23/96 from Jim Bryant 
All-Purpose Acknowledgment from State of California 
for Irrevocable Election associated with Tulelake 
Irrigation District dated 2/13/96 (control #6-1599) 
Letter from Earl Danosky dated 1/1/96 (control #6- 
1397) 
Letter to Earl Danosky dated 2/26/96 from Jim Bryant 
Letter cced to TID dated 2/26/96 from Jim Bryant 
Letter to Earl Danosky dated 2/23/96 from Jim Bryant 
Letter cced to TID dated 2/22/96 from Jim Bryant 
Letter cced to TID dated 2/1/96 from Jim Bryant 
Letter cced to TID dated 2/2/96 from Jim Bryant 
Letter cced to TID dated 12/8/95 from Jim Bryant 
Letter to Marshall Staunton dated 12/4/95 from Gary 

Baker 
No letters/documents found sent to or received from 

State of Oregon Water Resources Department 
Letter from Oregon DEQ dated 2/12/96 to Mark 

Buettner (control #6-1608) 
Letter to Oregon DEQ dated 12/26/95 from Gary Baker 
No letters/documents found sent to or received from 

North Coast Regional Water Quality Control Board 
Letter from Dave Vogel dated 12/28/95 to Gary Baker 
(control #6-1286) 
No letters/documents found sent to or received from 

Keith Marine 
Letter from PacifiCorp dated 3/1/96 to Mike Ryan 
(control #6-1638) 

109 

Document from PacifiCorp dated 2/15/96 entitled: 

PacifiCorp Review of KPOP Alternatives (control 
#6-1607) 
Letter from PacifiCorp dated 2/2/96 to Gary Baker 
(control #6-1572) 
Letter from PacifiCorp dated 1/26/96 to Mark Buettner 
(control #6-1562) 
Letter from PacifiCorp dated 12/29/95 to “Planholder” 
and cy of Acknowledgement of Receipt from Jim 
Bryant (control #6-1419) 
Letter cced to PacifiCorp from Fish and Wildlife 

Service dated 12/11/95 to Mike Ryan (control #6- 
1158) 
Letter to PacifiCorp (Dale Foresee) dated 1/12/96 from 

Mike Ryan 
Letter to Doug Bornemeier (PacifiCorp) dated 12/8/95 
from Gary Baker 
Letter from Roger Patterson dated 2/15/96 to “All 

Corncerned” (control #6-1634) 
Letter to Roger Patterson (cced to Mike Ryan) dated 
2/2/96 (control #6-1587) 
Letter from Roger Patterson dated 1/31/96 to “All 

Concerned” (control #6-1605) 
Letter to Roger Patterson dated 1/31/96 (cced to Mike 

Ryan) (control #6-1577) 
Letter from Roger Patterson dated 1/23/96 to “All 

Concerned” (control #6-1574) 
Letter to Roger Patterson dated 2/26/96 from Mike 

Ryan 
Letter to Roger Patterson dated 2/26/96 from Jim 

Bryant 
Letter to Roger Patterson dated 2/2/96 from Mike Ryan 
Letter to Roger Patterson dated 2/1/96 from Jim 

Bryant 

110 

Letter to Roger Patterson dated 1/25/96 from Mike 

Ryan 
No letters/documents found sent to or received from 

Kirk Rodgers 
Letter to Les Ramirez/Roger Patterson/David Cotting- 
ham dated 1/9/96 from Yurok Tribes (control #6-1426) 
Letter from State of Oregon dated 2/20/96 to Teena 

Baker (this office) cced to Board of Supervisors, 
Klamath County (control #6-1624) 
Letter to DEQ from City of Klamath Falls dated 
2/12/96 (control #6-1596) (copy rec’d for our records) 
Letter from Klamath County Board of commissioners 
dated 2/16/96 to Mike Ryan 
Document from Water Resources Department of 

Oregon (rec’d 2/1/96) (Control #6-1570) 
Letter from Klamath County, Board of Commissioners 
dated 1/15/96 to Mike Ryan (Control #6-140) 
Letter to Klamath County dated 1/23/96 from Jim 

Bryant 
Letter from PacifiCorp dated 2/28/96 to Mike Ryan 
(control #6-1639) 
Letter from PacifiCorp (draft) dated 2/26/96 re: Tulana 

Farms 

Question # 2 

Prior to December 19, 1914, appropriative water rights 
could be acquired in California by posting and recording 
a notice stating the nature and quantity of the proposed 
appropriation and by thereafter exercising due dili- 
gence in putting the water to beneficial use. 

Klamath River—Water is not diverted from the 
Klamath River in California for the Project. Therefore, 
no appropriations were filed with the State of Califor- 
nia. 

111 

Lost River—The following postings were made: 

1. Notice of Appropriation of all the unap- 
propriated waters, approximately 10,000 miners’ 
inches (equivalent to a flow of 250 cubic feet per 
second) (in California and Oregon a flow of 40 
miners’ inches is equivalent to a cubic foot per 
second), and maximum flow of 150,000 miners’ 
inches, of Willow Creek, Miller Creek, Clear 
Lake and its tributaries, and Lost River in 
Modoc County, California, was posted on behalf 
of the United States at the intended point of 
diversion on July 8, 1909, and was filed and 
recorded July 14, 1909, in Volume 2, Page 84 of 
“Water Claims,” Modoc County, California. 

2. A previous notice of appropriation covering 
5,000 second-feet of the waters of Lost River was 
posted December 19, 1904, and recorded on 
December 28, 1904, on Page 15 of Volume 2 of 
“Water Claims” of Modoc County. This notice 
was also recorded in Klamath County, Oregon, 
Volume 1, at Page 185, “Water Rights.” 

3. A Notice of Appropriation of all of the unap- 
propriated waters of Willow Creek, Mill Creek, 
Clear Lake, Lost River and Tributaries, etc., 
being an average yearly flow of 10,000 miners’ 
inches (250 cfs) and maximum flow of 150,000 
miners’ inches, was posted relative to diversion 
in Sections 22, 23, 26, and 27 of T.48N., R.7E., 
MDB&M, and was recorded April 9, 1910, on 
Page 132 of Volume 2 of “Water Claims,” Modoc 
County. 

112 

4. A nearly identical notice concerning 
diversion in Sections 25, 26, 35, 36 of T. 48 N., R. 
7 E., MDB&M, was posted and recorded on 
April 9, 1910, on Page 134 of Volume 2 of “Water 
Claims,” Modoc County, California. 

Question # 3 

Prior to the 1995 Interim Operation Plan there were no 
formal operation plans. 

Question # 4 

Reclamation does not have any documents relating to 
quantifying reserved water rights of the Yurok, Hoopa 
or Karuk Tribes. 

Question # 5 

Monthly water delivery records are included for the 
following delivery points: 

l A Canal (Diverts directly from Upper Klamath 

Lake) 

l Station 48 (Diverts from the Lost River 

Diversion Channel) 

l Miller Hill Pumping Plant (Diverts from the 

Lost River Diversion Channel) 

l North Canal (Diverts from the Klamath River) 

l Ady Canal (Diverts from Klamath River) 

l West Canal in Langell Valley (Includes water 
released from Clear Lake) 

l East Malone Lateral in Langell Valley (Includes 
water released from Clear Lake) 

l North Canal in Langell Valley (Includes water 
released from Gerber) 

113 

Daily flow records are also available if desired. The 
individual districts maintain records of water deliver- 
ies. 

Question # 6 

To our knowledge, no quantifying reserved water 
rights of the Yurok, Hoopa or Karuk Tribes has been 
completed by the Interior or Justice departments. 
Therefore, it would not be possible for Reclamation to 
determine if water deliveries described in question # 6 
were in excess of and/or not required to satisfy the 
reserved water rights of the named Tribes. 

Question # 7 

There have been no permits or licenses issued by 
California State Water Rights Board or California 
State Water Resources Control Board to the Klamath 
Project. 

The following is a summary of charges for this Freedom 
of Information Act request: 

16 quarter hours of professional research @4.65 
per qtr. hr: 
74.40 

853 copies of documents @ .13 per copy: 
123.89 

40 quarter hours of administrative/clerial 
92.00 

work time @2.30: Total cost: 
289.29 

Fees are assessed when the cost of the request is esti- 
mated at over $15. You are considered non-commercial 
and the cost above reflects two hours of search time 
free and the first 100 copies free. Interest will be 
charged in accordance with the Debt Collection Act of 
1982, 31 U.S.C. 3717, and implementing regulations in 4 

114 

CFR 102.13, if the fees are not paid within 30 calendar 
days of the date of this billing. 

Enclosed you will find a pre-addressed envelope for 
your convenience in mailing payment. If you have any 
questions, please don’t hesitate to call me at (541)883- 
6935. 

Sincerely, 

/s/ MICHAEL J. RYAN 

MICHAEL J. RYAN 
Area Manger 

Enclosures 

115 

ALEXANDER & KARSHMER 

ATTORNEYS AT LAW 

(A PARTNERSHIP INCLUDING A PROFESSIONAL 
CORPORATION) 

2150 SHATTUCK AVENUE, SUITE 725 

BERKELEY, CALIFORNIA 94704 

(510) 841-5056 

TELECOPIER: (510) 841-6167 

March 15, 1996 
[Received: Mar. 18, 1996] 

Roger Patterson 
Bureau of Reclamation 
2800 Cottage Way 
Sacramento, CA 95825 

Michael Ryan 
Bureau of Reclamation 
6600 Washburn Way 
Klamath Falls, Oregon 

97603 

Re: Water Required to Be Made Available by the 

Klamath Project in Satisfaction of the Upper 
Klamath Basin Component of the Yurok 
Klamath River Anadromous Fishery Reserved 
Water Right and the Trust Responsibility 

Gentlemen: 

The purpose of this letter is to reiterate and state as 
clearly as possible what the Yurok Tribe has already 
set forth at length in the Trihey and Balance reports 
and the March 5 and 6 letters from Susie Long and me, 
all of which were mailed to you last week. As explained 
below, that mailing was and is an evidentiary showing 
regarding the approximation of the Upper Klamath 

116 

Basin component of the Yurok Klamath River anadro- 
mous fishery reserved water right (the “Yurok Show- 
ing”). 

At page 27 of the Trihey report there is a water 
release schedule (the “Release Schedule”). The 
Schedule is a statement of the amounts of water 
required to be released, passed through, or spilled by 
the Klamath Project in order to satisfy the Upper 
Klamath Basin component of the Yurok Klamath River 
anadromous fishery reserved water right. 

A copy of 
the Schedule is enclosed with this letter. 

Although the Schedule and the Yurok Showing may 
be of use to Reclamation in developing a “water advi- 
sory,” or an interim operations plan, or a final opera- 
tions plan, should any of these planned documents see 
the light of day, the primary purpose of the Showing is 
not informational. Rather, it is a statement of the 
actions currently required to be taken by Reclamation 
and the Klamath Project as a result of the Yurok 
Tribe’s approximation of the above referenced reserved 
water right. 

Compliance with the Schedule is obligatory for the 
following reasons. 

The Yurok Tribe is the holder of a reserved water 
right for instream flows necessary for the maintenance 
and recovery of the Klamath River anadromous fishery. 
My letters to you of March 13, 1995 and March 6, 1996, 
and the Regional Solicitor’s July 25, 1995 memorandum 
to you, establish this fact. Although, as noted by the 
Regional Solicitor, this right has yet to be judicially 
unquantified, Reclamation is not free to ignore it or to 
refrain from taking whatever steps are necessary to 

117 

determine as precisely as possible the extent and 
nature of the right and to ensure that the operations of 
the Klamath Project do not trespass against the right 
or otherwise violate it. To the contrary, by virtue of 
the law of water rights and the federal trust respon- 
sibility, Reclamation is required to martial the available 
reliable relevant scientific evidence regarding quantifi- 
cation of the right and to “approximate”1 what a court 
would hold the right to be. In other words, Reclama- 
tion has a present duty administratively to approximate 
as precisely as possible the extent and nature of the 
above referenced reserved water right. 

Notwithstanding this duty, and notwithstanding the 
development for the better part of the last year of what 
Reclamation has billed as a Klamath Project Operations 
Plan, as of March 4, 1996, Reclamation had not mus- 
tered any information regarding quantification of the 
Yurok reserved right. (See Request No. 4 of my 
February 5 FOIA and Mr. Ryan’s March 4 response.) 
And unless someone besides the Yurok Tribe has come 
forward with significant, reliable evidence on the ques- 
tion of approximation since then, the Yurok Showing is 
the only evidence available to Reclamation regarding 
the extent and nature of its present duty to satisfy the 
Upper Klamath Basin component of the Yurok Klamath 
River anadromous fishery reserved water right. 

The Tribe expects and demands, therefore, that 
water be released in the amounts, and at the times, 
shown in the Schedule. I reiterated this demand to Mr. 
Ryan in a telephone conversation we had on March 12, 

1 The term is Mr. Ryan’s. 

118 

and I repeated the same to David Nawi in a telephone 
conversation he and I had on March 14. 

If, in spite of the Showing, Reclamation intends not 
to act in accordance with the duty we have articulated, 
then pursuant to its trust responsibility generally, and 
the 1995 Memorandum of Agreement signed by Rec- 
lamation and the Klamath Basin Tribes in particular, it 
is required promptly to provide the Yurok Tribe with a 
full statement of the reasons for its failure to act. 

Thank you for your time and attention. 

Very truly yours, 

ALEXANDER & KARSHMER 

/s RICHARD CROSS 

RICHARD CROSS, Esq. 

Enclosures 

cc: 

Susie Long, Yurok Chairperson 
Elwood Miller, Chair, Klamath River Intertribal 

Fish and Water Commission 
Eluid Martinez, Commissioner 
Catherine Vandemoer, Staff Assistant for Water 

Rights 
Anne Crichton, Solicitor’s Office 
Bob Anderson, Solicitor’s Office 
David Nawi, Regional Solicitor 

119 

[Seal Omitted] 

The Klamath Tribes 

P.O. Box 436 
Chiloquin, Oregon 97624 
Telephone (503) 783-2219 
FAX (503) 783-2029 
800-524-9787 

September 12, 1996 

The Honorable Bruce Babbitt 
Secretary of the Interior 
1849 C Street NW 
Washington, D.C. 20240 

re: Bureau of Reclamation kill of Endangered 

Species in Upper Klamath Lake; 60-day notice of 
intent to sue for violation of the Endangered 
Species Act 

Dear Secretary Babbitt: 

An unprecedented kill of two Endangered Species is 
taking place in the Upper Klamath Lake, Oregon. The 
Lake is managed by the Bureau of Reclamation as part 
of the Klamath Project. Despite the tragic fish kill 
Reclamation is continuing to withdraw water from the 
Lake, reducing habitat and compromising the ability of 
the surviving fish to persist. I am writing you on behalf 
of the Klamath Tribes to respectfully request and 
demand that you instruct Reclamation to stabilize the 
Lake in order to protect the fish. You are responsible 
for taking action both under the Endangered Species 
Act and pursuant to the Treaty between the United 
States and the Klamath Tribes. 

The fish are two species of desert-lake dwelling fish 
known to us as “c’wam” and “kuptu” and to the non- 
Indians as “Lost River suckers” and “shortnose 

120 

suckers.” For thousands of years these fish have 
provided for the physical and spiritual well-being of our 
people. We were promised by the United States in the 
Treaty of 1864, in exchange for our cession of millions of 
acres of our lands, that the United States would protect 
our ability to continue to harvest these fish. 

Now our fisheries are closed because the populations 
have collapsed and the fish are listed as endangered. 
Worse, today the fish are dying by the thousands 
because of Reclamation’s mismanagement of the Lake. 
Despite our strongest protests Reclamation refuses to 
take steps to protect these fish. Instead, Reclamation 
continues its so-called “management” by allowing agri- 
cultural users to withdraw as much water from the 
Lake as they want, without any Interior control what- 
soever. A clearer example of an agency’s complete 
capitulation to the interests it is supposed to regulate is 
hard to imagine. This would be merely illegal and em- 
barrassing were it not resulting in the added, imme- 
diate tragedy of the death of tens of thousands of 
endangered fish. 

The situation is remarkably like that of endangered 
cui-ui fish in Pyramid Lake. There the presence of an 
endangered species and a treaty-protected fishery 
caused the federal courts to rule that your office must 
give priority to fish protection over all others uses of 
the water. Carson-Truckee Water Conservation Dis- 
trict v. Watt, 549 F. Supp. 704, 710, 713 (D. Nev. 1982). 
You must assert your control to the fullest extent possi- 
ble to preserve water for tribal fisheries. Pyramid 
Lake Paiute Tribe of Indians v. Morton, 354 F. Supp 
252 (D.C. Cir. 1973). 

121 

The problem for the fish is caused in large part by 
reduction of their habitat in the Lake. Since the fish kill 
began in August Reclamation has continued to “man- 
age” for unlimited withdrawals causing a reduction of 
30% of the fish’s habitat in the Lake. Reclamation is 
continuing to allow withdrawals that will push this 
figure over 50% soon. 

Reclamation has offered only the most unpersuasive, 
nearly preposterous, excuses for its refusal to respond 
to this crisis by keeping more water in the Lake. The 
excuses only serve to highlight Reclamation’s lack of 
commitment to, and understanding of, protection of the 
fish. 

For example, Reclamation claims that the bacterial 
infection that is the direct cause of the deaths will peak. 
One certainly hopes so, but it has not happened yet in 
the four weeks of Reclamation inaction. The kill con- 
tinues today as vigorously as it did two weeks ago. 
Inaction is not excusable on the grounds that sooner or 
later Reclamation thinks the kill will abate. 

Reclamation also lamely explains that the poor water 
quality conditions for the fish are caused by atmos- 
pheric conditions (low wind and high temperature). Of 
course, each of these conditions, when adverse, would 
be mitigated by the retention of more water in the 
Lake. Reclamation’s explanation wholly misses the 
point. 

For scientific reasons explicitly laid out in a meeting 
on Friday, August 30, federal and tribal biologists 
agreed that retaining more water in the Lake would 
maximize the probability of fish survival. Reclamation 
offers you no justification for inaction in the face of a 

122 

tragedy of this magnitude. Instead, it continues to 
reduce the habitat by withdrawing water needed for 
the survival of these precious fish. The Endangered 
Species Act requires that you assure Reclamation’s 
actions do not jeopardize these fish. Obviously that 
assurance is missing in this situation— fish are dying 
by the thousands and Reclamation has no plausible 
excuse for continuing to reduce the habitat. 

Surprisingly, Reclamation could use the Project’s 
flexibility to alleviate this situation but, again, it 
refuses to do so. It has water stored in other Project 
reservoirs that could be used in place of the water being 
withdrawn from Upper Klamath Lake. Reclamation 
simply refuses to use this water because it hasn’t been 
used in the past. Again, this is no justification for 
inaction. 

Mr. Secretary, your obligation in this tragic situation 
is to do everything in your power to save these fish. 
That includes stopping agricultural withdrawals from 
Upper Klamath Lake. The priority water right in this 
situation is clearly with the fish, and the law clearly 
requires action. 

Once agin, I respectfully request (demand) that you 
immediately take steps to stabilize the lake surface 
elevation of Upper Klamath Lake. I also ask that you 
let me know as soon as possible what steps you intend 
to take to respond to this crisis. 

123 

Thank you very much for your attention to this 
critical matter. 

Very truly yours, 

/s/ ELWOOD H. MILLER, JR. 

ELWOOD H. MILLER, JR. 
Director, Department of 
Natural Resources 

cc: Patricia Beneke 
Ada Deer 
John Leshy 
David Cottingham 
Kate Vandemoer 
Bob Anderson 

124 

[Seal Omitted] 

The Klamath Tribes 

P.O. Box 436 
Chiloquin, Oregon 97624 
Telephone (503) 783-2219 
FAX (503) 783-2029 
800-524-9787 

February 23, 1996 
[Received: Feb. 26, 1996] 

Patricia Beneke 
Assistant Secretary for 

Water and Science 
Department of the Interior 
1849 C Street N.W. 
Washington, D.C. 20240 

Eluid Martinez 
Commisioner of 

Reclamation 
Department of the Interior 
1849 C Street N.W. 
Washington, D.C. 20240 

John Leshy 
Solicitor 
Department of the 

Interior 
1849 C Street N.W. 
Washington, D.C. 20240 

re: Reconciling the KPOP with the Klamath Basin 

Adjudication 

Dear Ms. Beneks, Mr. Leshy, and Mr. Martinez: 

Thank you for agreeing to meet with representatives 
of the Klamath Tribes to discuss this important matter. 
This letter, in two sections, is offered as preparation for 

125 

that discussion. The first section reviews the interests 
that must be reconciled, and it sets out some of the 
reasons why a 1996 interim water management plan is 
both an available and an advisable resolution of the 
situation. 

The second section considers the current foundation 
of the KPOP, and it explains why this foundation is 
badly flawed and cannot warrant compromising the 
Department’s effort to protect the Tribes’ water rights 
in the Klamath Basin Adjudication. 

1. An interim plan will allow time for deliberate, 
well-informed decisions on water management in 
the Klamath Basin 

The dilemma. As you are aware, the emerging KPOP 
may be based on USGS information that does not 
include the product of study and analysis being done, 
but not yet completed, in preparation for the Adjudica- 
tion by experts retained by the BIA. The product of 
this BIA work will go to the very heart of the questions 
surrounding Lake management, endangered species, 
and tribal trusteeship concerns—matters of central 
interest in the KPOP. 

The dilemma for the Department and the Tribes, of 
course, is that, on the one hand, premature disclosure of 
the incomplete BIA work or reliance solely on the 
USGS work will be prejudicial to the Adjudication; on 
the other hand, proceeding now without the benefit of 
the BIA work will later pit Interior agencies against 
one another and, again, could be prejudicial to the 
Adjudication. 

126 

The precedent and the solution. The Tribes believe 
the solution lies in following the example set a year ago 
when difficult and potentially controversial issues were 
presented but did not require immediate resolution. 
That example includes taking advantage of a non- 
critical water year to allow implementation of an 
interim water management plan for the current water 
year. This would allow the final KPOP decisions to be 
postponed, the BIA work to proceed to completion, the 
KPOP to be based on the full range of relevant 
scientific information and analysis, the potential conflict 
among agencies to be avoided, and controversy to be 
minimized. 

Fortunately this solution is available this year 
because, like last year, the water supply appears to be 
well above the critical level. The Natural Resources 
Conservation Service report for the Klamath Basin 
puts the snowpack at 94% of normal Basin-wide, and 
slightly above that for the Upper Klamath Lake 
watershed in particular, as of February 14. 

You may recall that last year at this time the Tribes 
requested that Reclamation’s 1995 interim management 
plan include a specific articulation of the legal priorities 
to water use in the Basin. This was felt by the Depart- 
ment to be a difficult request, and it was deferred 
because the predicted adequacy of the water year 
rendered unnecessary the application of legal priorities. 
Similarly, this year the adequacy of the water supply 
will render unnecessary water allocation decisions 
based on the USGS and BIA analyses relevant to 
critical-year management, and the dilemma described 
above need not be resolved immediately. 

127 

Advantages of an interim plan. *Reconciliation of the 
KPOP and the Adjudication. An interim plan would 
allow the BIA work to proceed to completion and to be 
included in the KPOP product. It would avoid com- 
promising Interior’s work in the Adjudication and it 
would avoid the potential intra-departmental conflict. 
It would also avoid unnecessary risk of prejudice to 
tribal water rights. 

* NEPA compliance. An interim plan would make 
the NEPA compliance process much easier. There has 
not even been time for Reclamation to meet its own 
NEPA commpliance requirements, as illustrated just 
below. As you know, the KPOP process has allowed 
only two weeks for preparation of the Environmental 
Assessment. This is not adequate, even considereing 
the quantity of information gathered prior to the two 
week period. 

For example, Reclamation’s “Indian Trust Asset 
Policy and NEPA Implementing Procedures” at IV-8 
requires analysis of the “full extent of the impacts . . . 
[on] social and cultural values” of the Tribes. So far, no 
contacts with the Tribes have been made by Reclama- 
tion to allow such an analysis which must go far beyond 
the fishery data gathered so far in the KPOP process. 
Similarly, the Tribes have not been provided an op- 
portunity to participate in the preparation of the EA as 
required by Reclamation’s “ITA-4 B.” Their participa- 
tion will apparently be restricted to reviewing the pre- 
pared document, while ITA-4 B plainly requires earlier 
involvement. Attempts to substitute BIA participation 
for that of the Tribes are not only inconsistent with 
Reclamation’s rules, they have been ineffective. The 
Tribes are aware that BIA personnel, asked with little 

128 

or no notice to provide assistance in this hasty effort, 
have been unable to respond. Clearly, more time is 
needed to do this job correctly and deliberately. 

Also, the NEPA precedents at the Newlands Project 
and the Trinity River strongly suggest that an Envi- 
ronmental Impact Statement is appropriate in the 
KPOP context, as it was in those two situations. The 
Tribes believe that the KPOP will require an EIS, and 
they are aware that this belief is shared by others both 
within and outside the Department. 

* Completion and refinement of existing KPOP 
processes. An interim plan would allow time to refine 
and complete the KPOP Technical Memo process. 
Reclamation has frequently and publicly bemoaned the 
fact that time constraints are preventing it from giving 
this process the attention it deserves. As you know, the 
five Tech Memos have been the subject of voluminous 
comments and critiques. To date Reclamation has had 
time to reply only with a summary of the comments. 
There has not been time to explain how this input has 
been incorporated (or why it has not been incorporated) 
in the KPOP products. There has been no real 
exchange or dialogue with the Tribes, water users, or 
the public to assure that these concerns have been 
understood and addressed by Reclamation and its Tech 
Memo consultant CH2MHill. 

As just one example of this situation, consider the 
recent comments of Balance Hydrologics, Inc., who re- 
viewed some of the KPOP Tech Memos on behalf of 
several groups interested in this process and repre- 

129 

sented by the Sierra Club Legal Defense Fund.1 
Balance found the Tech Memos did not give it access to 
information essential to allow it to evaluate for its 
clients the foundation of the KPOP decision process. 
For example, Balance was unable to evaluate the 
computer spreadsheet model that lies at the core of 
Reclamation’s decision making process because there is 
no description of the model’s assumptions available. 
Only Reclamation and its contractors have this 
information and it has not been shared. 

As a result, there is currently very little public 
confidence in the outcome of the KPOP process, nor can 
such confidence be expected. An interim plan would 
allow more time for the existing data gaps to be filled 
and for reviewers to be shown that, whether or not the 
outcome is agreeable to them, all relevant information 
has been presented and considered in the decision 
process. 

* Internal federal review. An interim plan would 
also allow for proper internal review within the Depart- 
ment itself. The Tribes expect that Reclamation is 
hearing loud cries from sister agencies, particularly the 
BIA, who are asked to review lengthy documents in a 
very few working days. Such a timetable calls into 
question the adequacy of the review process. 

1 These groups include the Klamath Forest Alliance, the Pacific 
Coast Federation of Fishermen’s Associations, the Oregon Natural 
Resources Council, the California Sportfishing Protection 
Association, the Salmonid Restoration Federation, the Northcoast 
Environmental Center, and the Lane County Audubon Society. A 
copy of Balance’s comments has been filed with Reclamation. We 
would be glad to furnish additional copies at your request. 

130 

* Interior’s trusteeship obligations. Last, but of 
greatest importance, is the effect on the Secretary’s 
trust responsibility to the Tribes. The Tribes expect 
the Secretary to act deliberately and after the most 
careful consideration to protect their water rights. In 
the current circumstances a rush to meet a self-imposed 
decision schedule will very likely compromise the 
Secretary’s ability to discharge this duty and result in 
prejudice to tribal interests. Indeed, either option 
chosen from the current dilemma threatens further 
impairment of the already endangered tribal fishery. 
There is no need for haste, nor is there a compelling 
reason to so jeopardize either the Tribes’ rights or the 
Secretary’s fidelity to them. This is all the more 
important in light of the fact, explained in section 2 
below, that the narrow question investigated in the 
USGS work cannot support the broad conclusions being 
drawn in the KPOP. Proceeding in reliance solely on 
that work, and in derogation of the Adjudication, is 
inconsistent with the trusteeship when other courses of 
action are available. 

To summarize this first section, there is no need to 
rush to resolve the present dilemma presented by 
potentially conflicting Interior positions. The Tribes 
respectfully request that the Secretary and the 
agencies take advantage of the opportunity presented 
by a non-critical water year to proceed with an interim 
plan for 1996 and a deliberate review and reconciliation 
of all the interwoven demands inherent in such an 
important planning process. 

131 

2. The current KPOP foundation, in particular the 
narrow investigation requested of USGS, does 
not support the conclusions being drawn from it, 
and does not justify compromising the 
Adjudication. 

Based on the information available to the Tribes2 it 
appears that the KPOP will address, as it must, the 
important management question of whether Upper 
Klamath Lake surface elevation management is a useful 
tool to protect fisheries late in the water year. To date, 
it appears that the KPOP’s answer will be “no.” 
Unfortunately, this answer is based exclusively on a 
USGS investigation into a different and much narrower 
question altogether. This section will discuss, with the 
help of an analogy, the narrowness of the question put 
to USGS and why the response will not support the 
broad negative conclusion regarding lake surface 
elevation as a tool to protect fisheries. 

The narrow question, an analogy, and the broad 
conclusion. One would have thought that the task 
assigned USGS would include an investigation of 
whether or not Upper Klamath Lake surface elevation 
management is a useful tool in promoting fishery well- 
being, that is, whether limnological mechanisms in the 
Lake cause surface elevation to be a useful tool toward 
that end. Such an investigation would have provided 
important guidance in designing Lake management 
techniques in the KPOP. 

2 At this writing the KPOP documents are under internal 
review within the Department and have not been reviewed by the 
Tribes. This letter is based on discussions with field personnel 
during the course of development of the administrative record on 
which the KPOP documents are presumably based. 

132 

Unfortunately that question regarding limnological 
mechanisms that could promote fisheries – mechanisms 
that are affected by Lake surface elevation and that, 
therefore, make Lake surface elevation available as a 
tool for fishery management—was not assigned. In- 
stead, USGS was only asked an extremely narrow 
question regarding whether it could readily see, as 
other investigators had seen, the effects of such mecha- 
nisms reflected in a limited data set. The USGS re- 
sponse to that assignment is not adequate, nor was it 
intended to be adequate, to resolving the broader man- 
agement question. 

An analogy may be helpful. It is as though the Gov- 
ernment is maintaining a garden and must deter- 
mine the broad question of whether to invest in 
weeding and fertilizing in the belief that these are 
useful tools to promote plant productiviety. One 
would think the Government would simply ask its 
gardening advisor (USGS) to investigate that broad 
question by asking, “Are there chemical and bio- 
logical mechanisms in the garden that make weed- 
ing and fertilizing useful tools to promote productiv- 
ity?” 

Unfortunately, instead of asking the broad manage- 
ment question, the Government asks instead the 
much narrower question, “Is there a readily 
observable relation between, on the one hand, this 
data we have collected regarding the amount of 
weeding and fertilizing of the garden we have done 
over the last several years and, on the other, this 
associated data we have collected regarding the 
success of the garden in those years?” 

133 

The investigator is answering, “I cannot readily ob- 
serve such a relation. Some years relatively greater 
amounts of weeding and fertilizing produce rela- 
tively small crops. Some years relatively less 
weeding and fertilizing produce relatively larger 
crops. Maybe this is because the weather is a more 
important factor that your weeding and fertilizing.” 

The Government then reaches the broad conclusion 
that weeding and fertilizing should not be employed 
because they are not useful management tools to 
promote garden productivity. 

As the analogy illustrates, the narrow scope of the 
investigation is not sufficient to support the broad con- 
clusion being drawn from it. It is case of the wrong 
question being asked or the wrong application of the 
answer being made. In either event, the outcome is not 
defensible and it certainly does not warrant compromis- 
ing the Adjudication of the Tribes’ water rights. 

Moreover, it would squarely contradict the USGS 
work if the KPOP were to conclude that there are no 
linmological mechanisms that make Lake surface eleva- 
tion a useful tool in fishery protection. The USGS work 
itself identifies such mechanisms. 

For example, the USGS Executive Summary cites at 
least two such mechanisms in order to explain the occa- 
sions when such effects are, indeed, clearly observable. 
For example, the Summary specifies that “low lake 
level . . . may have contributed to the high phosphorus 
concentrations by way of enhanced internal loading” 
dut to high winds mixing sediment into the water 
column. (Executive Summary, p. 18 first full ¶.) 

134 

Similarly, it is said that “July lake level may have 
also contributed [to very low dissolved oxygen] by 
concentrating oxygen demanding material into a 
smaller water column.” (Executive Summary, p. 18, 
top ¶.) 

Moreover, in addition to the mechanisms cited in the 
USGS Executive Summary, the administrative record 
contains at least two other mechanisms showing that 
lake surface elevation must be considered as a fishery 
management tool. First, low late-season elevations 
heighten the risk of winter fish kill as snow covers the 
frozen lake driving dissolved oxygen to lethally low 
levels. A higher water column reduces this risk. 

Second, very low late-season Lake surface elevations 
increase the risk of being unable to refill the Lake to 
meet the spawning-season surface elevations required 
elsewhere in the KPOP. Again, Lake surface elevation 
is not irrelevant as a management tool. 

In sum, the USGS work cannot support, nor was it 
designed or intended by USGS to support, a KPOP 
conclusion that Lake surface elevation is not a useful 
management tool for protecting Upper Klamath Lake 
fisheries late in the water year. Both the USGS work 
and the rest of the administrative record contradict 
such a conclusion. 

The salient point is, again, that the current posture of 
the KPOP proceedings does not warrant taking any 
steps that jeopardize the Department’s position in the 
Klamath Basin Adjudication, much less steps that wold 
compromise the Tribes’ water rights. Development of a 
1996 interim water management plan for the Klamath 
Project is an appropriate next step for the Department. 

135 

Thank you for your consideration of this letter. We 
look forward to discussing these matters with you. 

Very truly yours, 

/s/ ELWOOD H. MILLER, JR. 

ELWOOD H. MILLER, JR. 
Director, Department of 

Natural Resources 

136 

THE WHITE HOUSE 

WASHINGTON 

October 4, 1993 

MEMORANDUM FOR HEADS OF DEPARTMENTS 
AND AGENCIES 

SUBJECT: The Freedom of Information Act 

I am writing to call your attention to a subject that is of 
great importance to the American public and to all 
Federal departments and agencies—the administration 
of the Freedom of Information Act, as amended (the 
“Act”). The Act is a vital part of the participatory 
system of government. I am committed to enhancing its 
effectiveness in my Administration. 

For more than a quarter century now, the Freedom of 
Information Act has played a unique role in strengthen- 
ing our democratic form of government. The statute 
was enacted based upon the fundamental principle that 
an informed citizenry is essential to the democratic 
process and that the more the American people know 
about their government the better they will be gov- 
erned. Openness in government is essential to account- 
ability and the Act has become an integral part of that 
process. 

The Freedom of Information Act, moreover, has been 
one of the primary means by which members of the 
public inform themselves about their government. As 
Vice President Gore made clear in the National Per- 
formance Review, the American people are the Federal 
Government’s customers. Federal deparments and 
agencies should handle request for information in a 

137 

customer-friendly manner. The use of the Act by 
ordinary citizens is not complicated, nor should it be. 
The existence of unnecessary bureaucratic hurdles has 
no place in its implementation. 

I therefore call upon all Federal departments and 
agencies to renew their commitment to the Freedom of 
Information Act, to its underlying principles of govern- 
ment openness, and to its sound administration. This is 
an appropriate time for all agencies to take a fresh look 
at their administration of the Act, to reduce backlogs of 
Freedom of Information Act requests, and to conform 
agency practice to the new litigation guidance issued by 
the Attorney General, which is attached. 

Further, I remind agencies that our commitment to 
openness requires more than merely responding to 
requests from the public. Each agency has a respon- 
sibility to distribute information on its own initiative, 
and to enhance public access through the use of elec- 
tronic information systems. Taking these steps will 
ensure compliance with both the letter and spirit of the 
Act. 

/s/ WILLIAM J. CLINTON 

138 

Office of the Attorney General 

Washington, D.C. 20530 

October 4, 1993 

MEMORANDUM FOR HEADS OF DEPARTMENTS 
AND AGENCIES 

SUBJECT: The Freedom of Information Act 

President Clinton has asked each Federal deparment 
and agency to take steps to ensure it is in compliance 
with both the letter and the spirit of the Freedom of 
Information Act (FOIA), 5 U.S.C. § 552. The Depart- 
ment of Justice is fully committed to this directive and 
stands ready to assist all agencies as we implement this 
new policy. 

First and foremost, we must ensure that the principle 
of openness in government is applied in each and every 
disclosure and nondisclosure decision that is required 
under the Act. Therefore, I hereby rescind the Depart- 
ment of Justice’s 1981 guidelines for the defense of 
agency action in Freedom of Information Act litigation. 
The Department will no longer defend an agency’s 
withholding of information merely because there is 
“substantial legal basis” for doing so. Rather, in deter- 
mining whether or not to defend a nondisclosure deci- 
sion, we will apply a presumption of disclosure. 

To be sure, the Act accommodates, through its exemp- 
tion structure, the countervailing interests that can 
exist in both disclosure and nondisclosure of govern- 
ment information. Yet while the Act’s exemptions are 
designed to guard against harm to governmental and 
private interests, I firmly believe that these exemp- 
tions are best applied with specific reference to such 

139 

harm, and only after consideration of the reasonably 
expected consequences of disclosure in each particular 
case. 

In short, it shall be the policy of the Department of 
Justice to defend the assertion of a FOIA exemption 
only in those cases where the agency reasonably fore- 
sees that disclosure would be harmful to an interest 
protected by that exemption. Where an item of 
information might technically or arguably fall within an 
exemption, it ought not to be withheld from a FOIA 
requester unless it need be. 

It is my belief that this change in policy serves the 
public interest by achieving the Act’s primary objective 
—maximum responsible disclosure of government 
information—while preserving essential confidentiality. 
Accordingly, I strongly encourage your FOIA officers 
to make “discretionary disclosures” whenever possible 
under the Act. Such disclosures are possible under a 
number of FOIA exemptions, especially when only a 
governmental interest would be affected. The exemp- 
tions and opportunities for “discretionary disclosures” 
are discussed in the Discretionary Disclosure and 
Waiver section of the “Justice Department Guide to the 
Freedom of Information Act.” As that discussion 
points out, agencies can make discretionary FOIA dis- 
closures as a matter of good public policy without con- 
cern for future “waiver consequences” for similar 
information. Such disclosures can also readily satisfy 
an agency’s “reasonable segregation” obligation under 
the Act in connection with marginally exempt informa- 
tion, see 5 U.S.C. § 552(b), and can lessen an agency’s 
administrative burden at all levels of the administrative 
process and in litigation. I note that this policy is not 

140 

intended to create any substantive or procedural rights 
enforceable at law. 

In connection with the repeal of the 1981 guidelines, I 
am requesting that the Assistant Attorneys General for 
the Department’s Civil and Tax Divisions, as well as 
the United States Attorneys, undertake a review of the 
merits of all pending FOIA cases handled by them, 
according to the standards set forth above. The 
Department’s litigating attorneys will strive to work 
closely with your general counsels and their litigation 
staffs to implement this new policy on a case-by-case 
basis. The Department’s Office of Information and 
Privacy can also be called upon for assistance in this 
process, as well as for policy guidance to agency FOIA 
officers. 

In addition, at the Department of Justice we are under- 
taking a complete review and revision of our regula- 
tions implementing the FOIA, all related regulations 
pertaining to the Privacy Act of 1974, 5 U.S.C. § 552a, 
as well as the Department’s disclosure policies gener- 
ally. We are also planning to conduct a Department- 
wide “FOIA Form Review.” Envisioned is a compre- 
hensive review of all standard FOIA forms and corre- 
spondence utilized by the Justice Department’s various 
components. These items will be reviewed for their 
correctness, completeness, consistency, and particularly 
for their use of clear language. As we conduct this 
review, we will be especially mindful that FOIA re- 
questers are users of a government service, partici- 
pants in an administrative process, and constituents of 
our democratic society. I encourage you to do likewise 
at your departments and agencies. 

141 

Finally I would like to take this opportunity to raise 
with you the longstanding problem of administrative 
backlogs under the Freedom of Information Act. Many 
Federal departments and agencies are often unable to 
meet the Act’s ten-day time limit for processing FOIA 
requests, and some agencies – especially those dealing 
with high-volume demands for particularly sensitive 
records—maintain large FOIA backlogs greatly 
exceeding the mandated time period. The reasons for 
this may vary, but principally it appears to be a 
problem of too few resources in the face of too heavy a 
workload. This is a serious problem—one of growing 
concern and frustration to both FOIA requesters and 
Congress, and to agency FOIA officers as well. 

It is my hope that we can work constructively together, 
with Congress and the FOIA-requester community, to 
reduce backlogs during the coming year. To ensure 
that we have a clear and current understanding of the 
situation, I am requesting that each of you send to the 
Department’s Office of Information and Privacy a copy 
of your agency’s Annual FOIA Report to Congress for 
1992. Please include with this report a letter describing 
the extent of any present FOIA backlog, FOIA staffing 
difficulties and any other observations in this regard 
that you believe would be helpful. 

142 

In closing, I want to reemphasize the importance of our 
cooperative efforts in this area. The American public’s 
understanding of the workings of its government is a 
cornerstone of our democracy. The Department of 
Justice stands prepared to assist all Federal agencies as 
we make government throughout the executive branch 
more open, more responsive, and more accountable. 

/s/ JANET RENO