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 

REPLY BRIEF FOR THE PETITIONERS 

SETH P. WAXMAN 

Solicitor General 

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

TABLE OF CONTENTS 

Page 

I. An Indian Tribe’s “direct interest” in the 
United States’ management of natural 

resources held in trust by the government 
does not preclude the application of Exemption 
5 to tribal communications ............................................ 

2 

II. Respondent offers no persuasive ground for 
rejecting the district court’s conclusion that 
the documents at issue here would be privileged 

from disclosure in civil discovery ................................. 

11 

TABLE OF AUTHORITIES 

Cases: 

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

6 
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 
(1831) ........................................................................................ 1 

Coastal States Gas Corp. v. Department of Energy, 
617 F.2d 854 (D.C. Cir. 1980) ............................................... 

14 

Colorado River Water Conservation Dist. v. 

United States, 424 U.S. 800 (1976) ..................................... 

6 

County of Madison v. United States Dep’t of 

Justice, 641 F.2d 1036 (1st Cir. 1981) ................................ 

15 

EPA v. Mink, 410 U.S. 73 (1973) .............................. 
10, 12, 17 

FTC v. Grolier Inc., 462 U.S. 19 (1983) ............................. 
15 

Israel v. Morton, 549 F.2d 128 (9th Cir. 1977) .................. 
7 

Jenness v. Fortson, 403 U.S. 431 (1971) ............................ 
2 

Kaiser Aluminum & Chem. Corp. v. United States, 
157 F. Supp. 939 (Ct. Cl. 1958) ............................................ 
12, 17 

Kissinger v. Reporters Comm. for Freedom 
of the Press, 445 U.S. 136 (1980) ........................................ 19-20 

(I) 

II 

Cases—Continued: Page 

Klamath Water Users Protective Ass’n v. 

Patterson, 204 F.3d 1206 (9th Cir. 1999), cert. 
denied, 121 S. Ct. 44 (2000) .................................................. 
9-10 

Martin v. Office of Special Counsel, MSPB, 819 

F.2d 1181 (D.C. Cir. 1987) .................................................... 

10 

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 
(1975) .............................................................................. 
11, 15, 17 

Nevada v. United States, 463 U.S. 110 
(1983) ..................................................................... 
7, 8, 14, 18, 20 

New Mexico v. EPA, 114 F.3d 290 (D.C. Cir. 
1997) ......................................................................................... 9 

Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 
1992) ......................................................................................... 13 

Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968) .......... 

14 

Public Citizen, Inc. v. Department of Justice, 
111 F.3d 168 (D.C. Cir. 1997) ....................................... 
4, 13, 14 

Ryan v. Department of Justice, 617 F.2d 781 
(D.C. Cir. 1980) ....................................................................... 
4 

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

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 
1981) ......................................................................................... 9 

United States v. Adair, 723 F.2d 1394 (9th Cir. 
1983), cert. denied, 467 U.S. 1252 (1984) ........................... 

4, 5 

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

United States v. Weber Aircraft Corp., 465 U.S. 
792 (1984) ................................................................................. 

15 

Constitution and statutes: 

U.S. Const.: 

Art. II: 
§ 2, Cl. 2 ............................................................................... 

4 
§ 3 ......................................................................................... 2 

III 

Statutes—Continued: Page 

Administrative Procedure Act, 5 U.S.C. 551 et seq.: 
5 U.S.C. 551(14) .............................................................. 
10 

5 U.S.C. 557(a) ................................................................ 
9 

5 U.S.C. 557(d)(1) ........................................................... 
9 

Feedom of Information Act, § 3(e)(5), 5 U.S.C. 
552(b)(5) (Exemption 5) .................................................. 
passim 

Miscellaneous: 

H.R. Rep. No. 880, 94th Cong., 2d Sess. Pt. 1 
(1976) ........................................................................................ 9 

Indian Amendment to Freedom of Information Act: 

Hearing Before the Subcomm. on Indian Affairs 
of the Senate Comm. on Interior and Insular 
Affairs, 94th Cong., 2d Sess. (1976) ................................... 
19 

Restatement (Second) of Trusts (1959) ................................ 3, 6 

REPLY BRIEF FOR THE PETITIONERS 

In our opening brief we explain that Exemption 5 of the 
Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(5), 
which shields from compelled disclosure “inter-agency or 
intra-agency memorandums or letters which would not be 
available by law to a party other than an agency in litigation 
with the agency,” is properly construed to cover documents 
that are prepared by persons outside the government 
but that play essentially the same role in the agency’s 
decisionmaking process as documents created by an agency 
employee. We further explain that documents prepared by 
Indian Tribes to assist the government in managing Indian 
trust resources fall into that category, and that a blanket 
requirement that such materials be disclosed would sub- 
stantially impair the United States’ ability to perform its 
duties as trustee. 

Respondent appears to acknowledge that Exemption 5 
may under some circumstances appropriately be applied to 
documents created outside the government. Respondent 
contends, however, that Exemption 5 does not cover the 
documents at issue here, chiefly because the Tribes that 
submitted them to the Bureau of Indian Affairs (BIA) have a 
“direct interest” in the manner in which the Department of 
the Interior (DOI) manages the relevant trust resources. In 
respondent’s view, the Klamath Basin Tribes have no special 
claim to the protection of the United States, but must 
instead be treated as indistinguishable from competing 
claimants to Klamath Basin water. 

For the reasons that follow, respondent’s arguments lack 
merit. This Court has long recognized that “the relation of 
the Indians to the United States is marked by peculiar and 
cardinal distinctions which exist no where else.” Cherokee 
Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831). In its role as 
trustee for tribal natural resources, the United States is 
subject to a duty of loyalty separate and distinct from 
(though not inconsistent with) the general obligation of the 

(1) 

2 

Executive Branch to “take Care that the Laws be faithfully 
executed.” U.S. Const. Art. II, § 3. Application of the FOIA 
in a manner that protects the trust relationship does not 
accord Indian Tribes an unfair advantage over competing 
claimants. Rather, the government’s acknowledgment of its 
special trust obligations to Indian Tribes, and its efforts to 
satisfy the exacting standards that the trustee’s role entails, 
simply reflect the recognition that “[s]ometimes the grossest 
discrimination can lie in treating things that are different as 
though they were exactly alike.” Jenness v. Fortson, 403 
U.S. 431, 442 (1971). 

I. AN INDIAN TRIBE’S “DIRECT INTEREST” IN THE 
UNITED STATES’ MANAGEMENT OF NATURAL 
RESOURCES HELD IN TRUST BY THE GOVERN- 
MENT DOES NOT PRECLUDE THE APPLICATION 
OF EXEMPTION 5 TO TRIBAL COMMUNICATIONS 

A. Respondent acknowledges (Br. 26-27) that the courts 
of appeals have frequently upheld the application of Exemp- 
tion 5 to documents created by outside consultants for use by 
agency personnel. Respondent contends, however, that those 
decisions are inapposite here because “[d]irectly interested 
parties are not the kind of neutral hired experts that some 
courts of appeals have described as the ‘functional equivalent 
of agency staff ’ relied upon by agency decisionmakers to 
provide frank and objective advice.” Resp. Br. 18-19. 

As our opening brief explains (at 31, 38-39), application of 
Exemption 5 to documents created outside the government 
depends in part on whether a basic congruence of interests 
exists between the agency and the putative consultant. It is 
likely true that when an agency is selecting a consultant to 
offer advice on a particular matter, it typically will seek to 
ensure a congruence of interests by selecting a consultant 
who has no tangible stake in the agency’s decision and, 
where the agency deems it appropriate, by requiring the 
consultant to adopt the perspective of the government. It 

3 

does not follow, however, that the requisite congruence of 
interests can never exist in cases where the agency seeks 
advice and assistance from persons having a direct interest 
in the agency’s performance of its responsibilities. See, e.g., 
Gov’t Br. 29-30 (Justice Department representation of for- 
mer employees sued in their personal capacities). 

In its role as trustee for tribal resources, the government 
“acts in a fiduciary capacity,” United States v. Cherokee 
Nation, 480 U.S. 700, 707 (1987), and its “conduct * * * 
should therefore be judged by the most exacting fiduciary 
standards,” Seminole Nation v. United States, 316 U.S. 286, 
297 (1942); see Gov’t Br. 17-18. Within the sphere of the 
trust relationship, it would seem obvious that the United 
States’ obligation to manage and safeguard tribal property 
creates a sufficient community of interests to justify reliance 
on the Tribes as a source of confidential advice and assis- 
tance. That is particularly so in light of the fact that pre- 
serving the confidentiality of the beneficiary’s communi- 
cations has traditionally been recognized as an integral com- 
ponent of the trustee’s duties. See Restatement (Second) of 
Trusts § 170 cmt. s (1959); Gov’t Br. 17, 36-37. Thus, while a 
person’s financial or similar stake in a government decision 
might sometimes create a sufficient divergence of interests 
that the agency should not enter into a confidential 
consultative relationship with that person in the first place 
(see Gov’t Br. 38-39), it is perverse to regard a Tribe’s 
interest in a trust corpus as a basis for refusing to accord 
confidentiality to its communications with the United States 
as trustee in the course of a fiduciary relationship that is 
independently established by law. See Gov’t Br. 39-40.1 

1 Respondent contends that the application of Exemption 5 to docu- 
ments created outside the government has previously been confined to the 
submissions of “unbiased, neutral outside experts” and has never “in- 
volved communications from ‘consultants’ who had a direct and personal 
interest in the outcome of the agency decision for which their ‘advice’ was 
given.” Resp. Br. 28; see id. at 27, 28-29. Before the Ninth Circuit’s 

4 

B. As we explain in our opening brief (at 42-45), the court 
of appeals’ analysis is particularly flawed with respect to the 
documents pertaining to the Oregon general stream adjudi- 
cation, where the United States represents the interests of 
the Klamath Tribes but does not perform any decision- 
making function. In discussing that adjudication, respondent 
seeks to convey the impression that the United States 
performs essentially the same role vis-à-vis respondent and 
its members that it plays with respect to the Klamath 
Tribes. See, e.g., Resp. Br. 7-8. That characterization mis- 
conceives the nature of the United States’ responsibilities. 

1. In United States v. Adair, 723 F.2d 1394 (9th Cir. 
1983), cert. denied, 467 U.S. 1252 (1984), the court of appeals 
held that the hunting, fishing, and gathering rights reserved 
to the Klamath Tribes by an 1864 treaty carry with them an 
implied reservation of water rights, “with a priority date of 

decision in this case, however, the courts of appeals had not suggested 
that the availability of Exemption 5 was contingent on the willingness of a 
document’s creator to subordinate his own interests and perspective to 
those of the agency to which the document was submitted. To the con- 
trary, the District of Columbia Circuit has upheld the application of Ex- 
emption 5 to situations in which persons outside the agency were con- 
sulted precisely because they were believed to have perspectives distinct 
from those of the relevant FOIA agency. In Public Citizen, Inc. v. 
Department of Justice, 111 F.3d 168 (D.C. Cir. 1997), the court upheld the 
application of Exemption 5 to records submitted to the Archivist by 
former President Bush, and it specifically rejected (see id. at 171) the 
claim that “[t]he existence of independent presidential interests” pre- 
cluded the formation of an appropriate consultative relationship. In Ryan 

v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), the court held that 
Exemption 5 was properly applied to responses made by various Senators 
to a questionnaire sent by the Attorney General regarding the process by 
which nominees for federal district court judgeships were recommended 
to the President. See id. at 784, 789-791. The Senate has a defined consti- 
tutional role in the process by which federal judges are selected, see U.S. 
Const. Art. II, § 2, Cl. 2, and it is scarcely to be expected that an individual 
Senator in completing such a questionnaire would consider himself obliged 
to adopt the perspective of the Executive Branch. 

5 

immemorial use, sufficient to support exercise of treaty 
hunting and fishing rights.” Id. at 1415; see id. at 1408-1415; 
Gov’t Br. 8. Those water rights, it should be emphasized, 
were not gratuitously conferred upon the Tribes by the 
United States. See Adair, 723 F.2d at 1414 (“The rights 
were not created by the 1864 Treaty, rather, the treaty con- 
firmed the continued existence of these rights.”). The Tribes 
have possessed the water rights from “time immemorial,” 
ibid., and they reserved equitable title to those rights as part 
of the 1864 treaty, in which the Tribes “relinquished [their] 
aboriginal claim to some 12 million acres of land in return for 
a reservation of approximately 800,000 acres in south-central 
Oregon,” id. at 1398. The resulting arrangement, whereby 
the United States holds legal title to the water rights and is 
subject to a consequent duty to act as trustee for the Tribes, 
is thus a direct result of a bargained-for exchange that has 
no meaningful analogue in the government’s course of deal- 
ing with respondent and/or its members.2 

As one aspect of its duty to act as trustee for tribal 
natural resources, the federal government has undertaken to 
represent the Tribes in state proceedings established to 
determine the surface water rights of all claimants in the 
Klamath River Basin in Oregon. In that adjudicative pro- 
ceeding, “any judgment against the United States, as trustee 

2 Respondent’s assertion (Br. 3) that “each Tribe seeks to reallocate 
Klamath Project water from current irrigation uses to its preferred uses” 
is at least potentially misleading, insofar as it suggests that the irrigators’ 
claim to water has a preferred or established legal status that the Tribes’ 
claims lack. As we explain in the text, the Klamath Tribes have judicially 
recognized water rights for hunting, fishing, and gathering with a priority 
date (“time immemorial,” Adair, 723 F.2d at 1414) earlier than any that 
respondents’ members might hope to establish. See also id. at 1415 
(affirming the district court’s holding that “[t]he priority date of Indian 
rights to water for irrigation and domestic purposes is 1864”). And while 
the Tribes’ water rights have yet to be quantified in any judicial pro- 
ceeding, the same is true of the rights claimed by respondent’s members. 

6 

for the Indians, would ordinarily be binding on the Indians.” 
Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 566 n.17 
(1983). And while the Tribes retain the right to intervene 
separately in the state proceeding if they believe that the 
United States is not adequately representing their interests, 
see ibid., the ordinary assumption is that the United States 
—consistent with the general rule that “[t]he trustee is 
under a duty to the beneficiary to take reasonable steps to 
realize on claims which he holds in trust,” Restatement 
(Second) of Trusts § 177 (1959)—will diligently litigate on the 
Tribes’ behalf in this and similar state water-rights pro- 
ceedings. See Colorado River Water Conservation Dist. v. 
United States, 424 U.S. 800, 812 (1976) (noting that “[t]he 
Government has not abdicated any responsibility fully to 
defend Indian rights in state court”). A construction of the 
FOIA that would compromise the United States’ ability to 
act as an effective representative of tribal interests would 
prevent the system from functioning as Congress intended, 
notwithstanding the Tribes’ theoretical ability to pursue the 
alternative course of representing themselves. 

Insofar as consultation between the Tribes and the gov- 
ernment lessens or eliminates the need for the Tribes to 
pursue separate claims on their own behalf, it substantially 
furthers the government’s performance of its trust responsi- 
bilities. Such consultation also assists state adjudicators by 
reducing the number of competing claims and the conse- 
quent need for a state tribunal to resolve disputes between 
the Tribes and the federal government regarding the scope 
of tribal trust resources. In the Oregon adjudication, the 
Klamath Tribes have intervened separately but have, with 
one minor exception, adopted and incorporated by reference 
the claims asserted on the Tribes’ behalf by the United 
States.3 

3 The United States has filed 58 claims on the Tribes’ behalf, 46 of 
which have three distinct parts. The Tribes and the United States have 

7 

2. The relationship between the United States and re- 
spondent’s members in the context of the Oregon adjudi- 
cation is fundamentally different. Respondent states (Br. 7- 

8) that “[i]rrigation water users have filed claims for deter- 
mination of rights for irrigation in the Klamath Project, and 
the United States has filed parallel water right claims to 
assert and protect irrigation water rights in the Klamath 
Project.” In asserting claims for the Project, however, the 
United States has not purported to exercise a fiduciary or 
similar representative function vis-à-vis respondent or its 
members. Nor does a comparison of the federal filings in the 
Oregon adjudication with those submitted by respondent 
suggest an essential congruence of interests between the 
two parties. To the contrary, respondent and the govern- 
ment disagree concerning such fundamental questions as the 
ownership of the relevant water rights. It is true that the 
interests of the United States and respondent’s members 
may overlap at a very general level, since if greater volumes 
of water are allocated to the Project as a whole, it is more 
likely that irrigators will receive the amount of water 
allocated to them under their individual contracts with the 
Bureau of Reclamation. But the differences between the 
parties’ legal and factual theories are substantial; and, in any 
event, the federal government has not purported to litigate 
on behalf of respondent or its members in the Oregon adjudi- 
cation. Compare Nevada v. United States, 463 U.S. 110, 140, 
142-143 (1983).4 

disagreed with respect to one part of one of those 46 claims. Thus, out of a 
total of 150 different claim values (46 claims with three parts each, plus 12 
claims with a single value), the Tribes and the United States have agreed 
on 149. 

4 The position of the United States is that the rights to Klamath 
Project water are owned by the federal government, and that respon- 
dent’s members may assert an entitlement to Project water only pursuant 
to contracts with the Bureau of Reclamation. 

See Israel v. Morton, 549 

F.2d 128, 132-133 (9th Cir. 1977). Respondent has contested the govern- 

8 

As this Court observed in Nevada v. United States, “it 
may well appear that Congress was requiring the Secretary 
of the Interior to carry water on at least two shoulders when 
it delegated to him both the responsibility for the super- 
vision of the Indian tribes and the commencement of recla- 
mation projects in areas adjacent to reservation lands.” 463 
U.S. at 128. With respect to the pending Oregon general 
stream adjudication, the United States government’s obli- 
gation to represent the Klamath Tribes necessarily coexists 
with the duty to protect other federal interests, including in 
particular its interests with respect to the Klamath Project. 
It does not follow, however, that the federal government is 
subject to a fiduciary obligation to every private party (such 
as respondent or its members) that may as a practical matter 
be affected by the manner in which the government per- 
forms its assigned functions. 

C. Respondent observes (Br. 19) that the Administrative 
Procedure Act (APA) “specifically prohibits ex parte con- 
tacts with agency decisionmakers in the context of formal 
rulemaking and formal adjudication.” Respondent contends 
(Br. 19-23) that ex parte contacts should likewise be pro- 
hibited in all contexts (including the filing of claims in the 
Oregon adjudication and even preliminary steps in the 
development by the Bureau of Reclamation (BOR) of the 
Klamath Project Operations Plan (KPOP)) in which federal 
officials are required to mediate between potentially con- 

ment’s claims in the Oregon adjudication and has argued, inter alia, that 
with respect to specified claims “the rights to the use of water 

* * * lawfully must be issued in the names of [respondent’s members] 

* * *, not to the United States or any agency of the United States.” 
Claim #293, Statement of Contests of Claim and/or Preliminary Evalu- 
ation of Claim: Claims of Others 2 (May 2, 2000). That dispute will be 
resolved in the course of the state adjudication. But the very existence of 
that disagreement belies respondent’s suggestion (Br. 33) that the United 
States has “file[d] claims for * * * the Klamath Project irrigators in the 
[Oregon] adjudication.” 

9 

flicting private interests. That argument is wrong for at 
least two reasons. 

1. Congress specifically limited the APA ban on ex parte 
contacts to agency proceedings in which a formal hearing is 
required. See 5 U.S.C. 557(a) and (d)(1); H.R. Rep. No. 880, 
94th Cong., 2d Sess. Pt. 1, at 19 (1976). We may assume, 
arguendo, that even outside the context of formal hearings, 
an agency’s arbitrary decision to consult confidentially with 
some interested persons but not others might raise due pro- 
cess or other fairness concerns. But where, as here, an 
agency’s willingness to accept confidential submissions from 
a particular entity is premised on the existence of an estab- 
lished fiduciary relationship, the distinction in treatment 
cannot plausibly be regarded as arbitrary. Nor, in light of 
the carefully limited scope of Section 557(d)(1), can the APA 
reasonably be construed to impose a more general prohibi- 
tion on confidential communications between agency officials 
and interested persons outside the government who possess 
specialized knowledge or expertise. See New Mexico v. 
EPA, 114 F.3d 290, 295 (D.C. Cir. 1997); Sierra Club v. 
Costle, 657 F.2d 298, 400-404 (D.C. Cir. 1981).5 

5 Contrary to respondent’s suggestion (Br. 20, 22), the development of 
the KPOP by the BOR is not properly characterized as an adjudicative 
process. The Bureau recognizes, and is currently participating in, the 
State of Oregon’s Klamath Basin Adjudication. At some point, the State 
will quantify the rights of all claimants to water in the Klamath Basin in 
Oregon, and the Bureau will revise its operations as necessary to accom- 
modate those determinations. While that adjudication is pending, how- 
ever, the Bureau must distribute water in a manner consistent with its 
contractual, statutory, and trust responsibilities. And until the relative 
entitlements of the various claimants have been finally determined in the 
state proceeding, BOR must necessarily decide how its various duties are 
appropriately reconciled. See Klamath Water Users Protective Ass’n v. 
Patterson, 204 F.3d 1206, 1213 (9th Cir. 1999) (BOR, in managing the 
Klamath Project, must ensure that relevant statutory requirements are 
followed and that Indian treaty rights are upheld; irrigators’ contractual 
rights to Project water are subordinate to applicable statutory and treaty 

10 

2. The APA defines the term “ex parte communication” 
to mean “an oral or written communication not on the public 
record with respect to which reasonable prior notice to all 
parties is not given.” 5 U.S.C. 551(14). If either the APA or 
the Due Process Clause actually prohibited ex parte com- 
munications under the circumstances presented here, the 
problem would scarcely be solved simply by treating written 
tribal submissions as subject to disclosure upon request 
under the FOIA. Rather, extension of the APA ban to the 
preparation of claims for the Oregon adjudication and/or the 
development of the KPOP would logically mean that neither 
the Tribes nor respondent could communicate with the 
agency orally or in writing regarding those subjects without 
giving prior notice to all potentially interested parties.6 

directives), cert. denied, 121 S. Ct. 44 (2000). The Bureau’s acceptance of 
that responsibility does not amount to an “adjudication” by BOR of com- 
peting claims. 

If and when the KPOP process culminates in “final agency action” 
adopting a long-term operations plan, respondent will be free to challenge 
that decision on procedural and/or substantive grounds. Insofar as re- 
spondent’s FOIA suit rests on the purported unfairness of the procedures 
devised by the agency for the long-term operation of the Klamath Project, 
the suit is in an important sense an attempt to evade the “final agency 
action” requirement. It is well-established, moreover, that “the needs of a 
particular plaintiff are not relevant to [Exemption 5’s] applicability.” 
Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1184 (D.C. Cir. 
1987); see, e.g., EPA v. Mink, 410 U.S. 73, 86 (1973) (“Nor does the Act, by 
its terms, permit inquiry into particularized needs of the individual 
seeking the information.”). Respondent’s FOIA claim thus depends on 
whether confidential consultation between DOI and the Tribes is inap- 
propriate in some absolute sense—not on whether such consultation 
imposes particular hardships on respondent or its members. 

6 Respondent’s own declarant explained that DOI representatives 
have routinely conducted separate meetings with irrigation interests and 
with Tribes during the course of the agency’s efforts to develop the KPOP. 
See J.A. 69-70. The record also makes clear that respondent (and irri- 
gation interests generally) have engaged in extensive written communi- 

11 

II. RESPONDENT OFFERS NO PERSUASIVE GROUND 
FOR REJECTING THE DISTRICT COURT’S CON- 
CLUSION THAT THE DOCUMENTS AT ISSUE 
HERE WOULD BE PRIVILEGED FROM DIS- 
CLOSURE IN CIVIL DISCOVERY 

Both the magistrate judge and the district court con- 
cluded that all seven documents at issue in this case are 
protected by the deliberative-process privilege, and that two 
are protected by the attorney-work-product privilege. See 
Pet. App. 31a-32a, 56a-65a; Gov’t Br. 12. The court of 
appeals did not disagree with or even address that holding, 
but it nevertheless ordered that the documents be released, 
on the ground that the documents did not fall within the 
threshold description of “inter-agency or intra-agency 
memorandums or letters.” See Pet. App. 6a-10a; Gov’t Br. 
12-13. Apparently seeking to defend the court of appeals’ 
judgment on an alternative rationale, respondent argues at 
length (see Br. 24-48) that the documents cannot be withheld 
under Exemption 5 because they would not be privileged 
from discovery in civil litigation. That contention provides 
no basis for affirming the court of appeals’ judgment. 

A. Respondent contends (Br. 24-35) that the deliberative- 
process privilege is inapplicable to the documents at issue 
here because the privilege is restricted to “intra-govern- 
mental communications” (Resp. Br. 26). Respondent cor- 
rectly asserts that the deliberative-process privilege is 
characteristically described as covering “intragovernmental 
or “intra-agency” communications that are deliberative in 
character and predate the agency’s final decision. See, e.g., 
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) 
(referring to “the generally recognized privilege for con- 
fidential intra-agency advisory opinions, disclosure of which 

cations with DOI officials regarding the development of the KPOP. See 
J.A. 106-110. 

12 

would be injurious to the consultative functions of govern- 
ment.”) (citing Kaiser Aluminum & Chem. Corp. v. United 
States, 157 F. Supp. 939, 946 (Ct. Cl. 1958) (Reed, J.)) 
(ellipses and internal quotation marks omitted); EPA v. 
Mink, 410 U.S. 73, 87 (1973) (“the privilege * * * has been 
held to attach to intragovernmental memoranda”); Kaiser 
Aluminum, 157 F. Supp. at 947 (referring to “the executive 
privilege for intra-departmental advice”). 

Respondent does not even contend, however, that for 
purposes of the deliberative-process privilege, the “intra- 
governmental” character of disputed documents should be 
ascertained by means of a test different from that used to 
determine whether the records constitute “intra-agency 
memorandums or letters” within the meaning of Exemption 
5’s threshold requirement. Rather, in asserting that the 
documents at issue here lack the “intragovernmental” 
character that the deliberative-process privilege requires, 
respondent relies on the same fact—the Tribes’ interest in 
the outcome of the agency’s decisionmaking process—on 
which the court of appeals based its conclusion that the tribal 
submissions are not “intra-agency” records within the 
meaning of Exemption 5. Respondent’s argument regarding 
the scope of the privilege is not so much an alternative 
rationale for affirming the court of appeals’ judgment as an 
alternative label for the same basic contention—i.e., that the 
Tribes’ tangible stake in the allocation of Klamath Basin 
water makes them an inappropriate confidential consultant 
to the DOI. There is no reason whatever to suppose that 
respondent could prevail on that “alternative” theory if this 
Court disagrees with the court of appeals’ construction and 
application of Exemption 5’s threshold language. 

B. Respondent contends that the Tribes are inappro- 
priate consultants for purposes of the deliberative-process 
privilege because they “are past, present, and potential 
future adversaries of both [the Department of the] Interior 
and the Project irrigators with respect to the decisions being 

13 

made in the KPOP and the adjudication.” Resp. Br. 29; see 
id. at 32-33. At least with respect to the purported adver- 
sary relationship between the Tribes and DOI, that 
characterization rests on tribal officials’ occasional refer- 
ences to the possibility of lawsuits against the DOI regard- 
ing the operation of the Klamath Project. See id. at 32. In 
any consultative relationship, however, there exists a 
possibility of future litigation between the parties. That 
certainly is the case with respect to consultations between 
the Archives and former Presidents concerning the confiden- 
tiality of Presidential records, which were at issue in Public 
Citizen. See Nixon v. United States, 978 F.2d 1269, 1270- 
1275 (D.C. Cir. 1992) (recounting history of litigation be- 
tween the United States and former President Nixon re- 
garding public use of the former President’s records). Yet 
the District of Columbia Circuit sustained the application 
of Exemption 5 to those communications, observing that 
“[d]octors, lawyers and other expert advisors may find 
themselves in litigation as either plaintiffs or defendants 
against those whom they advise (e.g., breach of contract and 
malpractice claims), but for all that they are still con- 
sultants.” Public Citizen, Inc. v. Department of Justice, 111 
F.3d 168, 171 (D.C. Cir. 1997). Neither the existence of that 
possibility, nor tribal officials’ occasional allusions to it, 
negate the enduring fiduciary and consultative relationship 
that exists between the United States in its role as trustee 
and the Tribes. See ibid. (observing that “there is often a 
possibility of litigation between entities within the executive 
branch, yet no one has suggested that courts should on this 
account refuse to apply Exemption 5 to their inter-agency 
communications”) (citation omitted).7 

7 That is particularly so in light of the fact (see Pet. App. 41a-49a; 
Gov’t Br. 11) that six of the seven documents at issue here were submitted 
to or created by the BIA, the agency most specifically “charged 
with fulfilling the trust obligations of the United States” to the 

14 

The court in Public Citizen noted the possibility that an 
adversary relationship between parties previously engaged 
in consultation “might come to eclipse the consultative re- 
lationship.” 111 F.3d at 171. But nothing of that sort has 
happened here. The fact that the Tribes have disagreed with 
some aspects of DOI policy does not undermine the essential 
consultative relationship. Those who are called upon to 
consult with an agency about the agency’s official responsi- 
bilities often may express divergent views (just as agency 
employees themselves may do), and the “give-and-take of 
the consultative process,” Coastal States Gas Corp. v. 
Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980), 
ensures that an agency policymaker can benefit from a range 
of perspectives before reaching a decision. Respondent does 
not contend that the Tribes have actually initiated litigation 
against any federal agency concerning the allocation of water 
within the Klamath Basin, much less provide any basis for 
concluding that the relationship between the government as 
trustee and the tribal beneficiaries has become predomi- 
nantly adversarial. 

There is, in particular, no basis for regarding the Tribes 
and the government as “adversaries” with respect to the 
seven documents at issue here. The district court found that 
“[a]ll the documents played a role in the agency’s delibera- 
tions” and that “[m]ost of the documents were provided to 
the agency by the Tribes at the agency’s request.” Pet. App. 
59a. As the dissenting judge in the court of appeals recog- 
nized, “these communications spring from a relationship that 
remains consultative rather than adversarial, a relationship 
in which the Bureau and Department were seeking the 

Indians. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 374 (1968); see also 
Nevada v. United States, 463 U.S. at 127, 135-138 n.15. The record 
materials on which respondent relies (see Br. 32) refer to the possibility of 
litigation against the BOR. 

15 

expertise of the Tribes, rather than opposing them.” Id. at 
25a-26a (Hawkins, J., dissenting).8 

C. Respondent explains (Br. 35-43) that no recognized 
“trustee-beneficiary privilege” exists in the civil discovery 
context. But the government’s position in this case has 
never depended on the existence of such a privilege. Exemp- 
tion 5 applies to “inter-agency or intra-agency memoran- 
dums or letters which would not be available by law to a 
party other than an agency in litigation with the agency.” 5 
U.S.C. 552(b)(5). Thus, if particular documents qualify as 
“intra-agency memorandums,” those documents are pro- 
tected by Exemption 5 if, but only if, they are “not available 
by law * * * in litigation”—i.e., are privileged from dis- 
closure in discovery. See Gov’t Br. 2, 20-21; United States v. 
Weber Aircraft Corp., 465 U.S. 792, 799 (1984); FTC v. 
Grolier Inc., 462 U.S. 19, 26 (1983); Sears, Roebuck, 421 U.S. 
at 149.9 

8 Respondent’s reliance (Br. 31-33) on County of Madison v. United 
States Department of Justice, 641 F.2d 1036, 1039-1041 (1st Cir. 1981), is 
therefore misplaced. In County of Madison, the First Circuit held that 
several documents submitted by an Indian Tribe to the Department of 
Justice were not “intra-agency” records within the meaning of Exemption 

5. The documents at issue in that case, however, were submitted in 
connection with settlement negotiations concerning the Tribe’s lawsuit 
against the United States. Id. at 1038. The records at issue here, by 
contrast, were submitted not in a setting marked by conflict between the 
Tribes and the United States, but “as part of a cooperative, consultative 
relationship mandated by Departmental policy and federal law.” Pet. App. 
27a (Hawkins, J., dissenting). 

9 Respondent is therefore wrong in suggesting (Br. 43) that under our 
theory “nearly all communications between Indian Tribes and the United 
States” would be protected from disclosure by Exemption 5. Many com- 
munications unrelated to the government’s management of trust re- 
sources might fail to satisfy even the threshold requirement that the 
records in question must constitute “inter-agency or intra-agency memo- 
randums or letters.” And even where that threshold requirement is met, 
the government would be required to demonstrate the applicability of a 
recognized privilege. Invocation of the deliberative-process privilege, for 

16 

The magistrate judge found that all seven documents at 
issue in this case are covered by the deliberative-process 
privilege, Pet. App. 56a-61a, and that two of the documents 
(involving the Oregon adjudication) are covered by the 
attorney-work-product privilege as well, see id. at 61a-65a. 
The district court adopted the findings and recommendation 
of the magistrate judge. Id. at 31a-32a. The government has 
never asserted a “trustee-beneficiary privilege” as a basis 
for finding that the documents satisfy the second require- 
ment of Exemption 5—i.e., that they are “not available by 
law * * * in litigation.” Rather, under the “functional test” 
consistently employed by the courts of appeals, the 
determination whether particular records are “intra-agency 
memorandums or letters” (and therefore satisfy the first 
requirement of Exemption 5) depends on whether the 
private party who submits them is appropriately treated as a 
confidential consultant. The trustee’s well-established duty 
not to disclose information acquired in administering a trust 
where disclosure would disserve the beneficiary’s interests 
bears directly on that question. See Gov’t Br. 34-37. 

It is doubtless true, as respondent suggests (Br. 35-37), 
that under our theory the government acting in its fiduciary 
capacity will in some circumstances be permitted to withhold 
documents that a private trustee would be obliged to dis- 
close. That disparity, however, is the inevitable consequence 
of the deliberative-process privilege itself—a privilege 
unique to governmental entities that is designed to 
safeguard the distinct public interest in the effective per- 
formance of official functions. As the seminal decision in 
Kaiser Aluminum explains, 

[i]n the case of governments, the administration of jus- 
tice is only a part of the general conduct of the affairs of 
any State or Nation, and we think is (with respect to the 

example, would require a showing that the pertinent records are “pre- 
decisional” and “deliberative” in character. See pp. 11-12, supra. 

17 

production or non-production of a State paper in a Court 
of justice) subordinate to the general welfare of the 
community. Free and open comments on the advantages 
and disadvantages of a proposed course of governmental 
management would be adversely affected if the civil 
servant or executive assistant were compelled by public- 
ity to bear the blame for errors or bad judgment 
properly chargeable to the responsible individual with 
power to decide and act. Government from its nature 
has necessarily been granted a certain freedom from 
control beyond that given the citizen. 

157 F. Supp. at 945-946 (emphasis added; brackets, footnote, 
and internal quotation marks omitted). 

10 

D. In our opening brief we explain (at 34-37) that if tribal 
submissions to the DOI regarding the management of trust 
resources are held to fall outside the scope of Exemption 5, 
the federal government’s ability to perform its fiduciary 
duties will be severely compromised. Respondent’s primary 
answer to that argument is that the wide range of legal 

10 Moreover, the disparity of which respondent complains could arise 
only in the context of civil discovery in ongoing litigation. In that setting 
it is possible that records possessed by a federal agency acting in its 
fiduciary capacity could be withheld pursuant to the deliberative-process 
privilege, even though a private trustee would be required to produce 
analogous records in response to an appropriate discovery request. 
Outside the context of ongoing litigation, however, a private trustee is not 
subject to any general duty (comparable to the obligation the FOIA places 
upon federal agencies) to disclose non-privileged materials upon request. 
The instant FOIA suit is thus a particularly inapt context for respondent’s 
suggestion that DOI’s withholding of certain tribal submissions unfairly 
advantages the Tribes vis-à-vis other beneficiaries. In any event, this 
Court has recognized that Congress in enacting Exemption 5 specifically 
intended to incorporate the deliberative-process privilege. See Sears, 
Roebuck, 421 U.S. at 150-151; Mink, 410 U.S. at 86; Gov’t Br. 19-20. 
Congress must therefore be assumed to have understood that Exemption 
5 would sometimes protect records that would not fall within any of the 
discovery privileges that apply to wholly private litigation. 

18 

obligations to which the United States is subject makes it 
inevitable that the government in performing its fiduciary 
role will sometimes deviate from the standards that bind a 
private trustee. 

11 As the Court explained in Nevada v. 
United States, 

the Government cannot follow the fastidious standards of 
a private fiduciary, who would breach his duties to his 
single beneficiary solely by representing potentially con- 
flicting interests without the beneficiary’s consent. The 
Government does not “compromise” its obligation to one 
interest that Congress obliges it to represent by the 
mere fact that it simultaneously performs another task 
for another interest that Congress has obligated it by 
statute to do. 

463 U.S. at 128; see Resp. Br. 38. 

This Court’s decision in Nevada v. United States logically 
implies that if Congress had specifically required federal 
agencies to disclose to the public all tribal submissions bear- 
ing on the management of trust resources, the DOI would 
not breach its fiduciary duty to the Tribes by releasing such 
materials in accordance with that statutory directive. The 
question in the instant case, however, is not whether Con- 
gress could redefine the agency’s trust obligations in that 

11 Respondent also suggests (Br. 28) that the Tribes’ tangible interest 
in the appropriate management of trust resources will provide an 
adequate incentive for communications with the government, even if the 
responsible federal officials are unable to maintain the confidentiality of 
those submissions. The relevant question, however, is not whether Tribes 
if confronted with a disclosure requirement would discontinue communi- 
cations with the government altogether. Rather, the crucial point is that 
the Tribes would predictably cease to communicate with the government 
in the manner that a beneficiary customarily communicates with its 
trustee. See Gov’t Br. 35-36. A legal regime that induced Tribes to deal 
with the United States at arm’s length would substantially disrupt the 
trust relationship, even if interaction between the trustee and beneficiary 
did not cease entirely. 

19 

manner, but whether it has done so. The FOIA should not 
be read to require so drastic a departure from traditional 
fiduciary standards absent compelling evidence that Con- 
gress intended that result. 

12 

That interpretive approach is consistent with this Court’s 
longstanding “reluctance to construe the FOIA as silently 
departing from prior longstanding practice.” Kissinger v. 
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 154 

12 Respondent suggests (Br. 41-42) that a congressional intent to 
subject tribal submissions to disclosure can be inferred from its failure to 
enact statutory amendments proposed in 1976 and 1978. The bill proposed 
in 1976, however, would have created a blanket FOIA exemption for all 
“information held by a Federal agency as trustee, regarding the natural 
resources or other assets of Indian tribes or bands or groups or individual 
members thereof,” without regard to the origin of the records and without 
regard to whether particular documents would fall within any established 
privilege in civil litigation. See Indian Amendment to Freedom of Infor- 
mation Act: Hearing Before the Subcomm. on Indian Affairs of the Senate 
Comm. on Interior and Insular Affairs, 94th Cong., 2d Sess. 4 (1976) 
(1976 Hearing). The 1978 amendment would have gone even further, 
prohibiting release of all such information (rather than simply exempting 
it from compelled disclosure under the FOIA). See Resp. Br. 42. Con- 
gress’s failure to enact those provisions is in no way inconsistent with our 
contention that tribal submissions bearing on the government’s manage- 
ment of trust property are “intra-agency memorandums or letters” within 
the meaning of Exemption 5 that may be withheld from disclosure under 
the FOIA if they fall within a recognized discovery privilege. Cf. note 9, 
supra. Contrary to respondent’s suggestion (Br. 42), DOI did not take the 
position in the 1976 congressional hearings that tribal submissions of the 
sort at issue here were unprotected by an existing FOIA exemption. To 
the contrary, the agency specifically noted the possibility that some 
documents bearing on the management of trust resources might be 
covered by Exemption 5, while warning that reliance on that exemption 
was “an unclear and inconclusive prospect, and it invites continuous 
appeals and litigation.” 1976 Hearing 9. During the years since 1976, a 
considerable body of law has developed regarding the application of 
Exemption 5 to documents that were created outside an agency but that 
played much the same role in the agency’s decisionmaking process as 
documents prepared by an agency employee. See Gov’t Br. 21. 

20 

13 Our position is also consistent 
with the numerous court of appeals decisions recognizing 
that documents submitted by persons outside the govern- 
ment may be withheld under Exemption 5 when release 
would impair the agency’s decisionmaking process (and thus 
its ultimate performance of official responsibilities). See 
Gov’t Br. 21. Although competing statutory obligations 
might sometimes require federal officials acting in a 
fiduciary capacity to deviate from the norms that govern pri- 
vate trustees, ambiguous language in a law of general appli- 
cability should not be read to compel the wholesale breach of 
one of a trustee’s most fundamental duties. 

* * * * * 

For the reasons stated above and in our opening brief, the 
judgment of the court of appeals should be reversed. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DECEMBER 2000 

13 The Court in Nevada v. United States observed that “the analogy of 
a faithless private fiduciary cannot be controlling for purposes of evalu- 
ating the authority of the United States to represent different interests.” 
463 U.S. at 142 (emphasis added). As the italicized language suggests, 
Nevada v. United States did not involve a situation in which the federal 
government was shown to have rendered substantively inadequate repre- 
sentation of tribal interests. Rather, the import of the quoted language is 
simply that in light of the broad range of the federal government’s duties, 
the United States cannot feasibly be expected to comply with the prophy- 
lactic rule against representation of potentially competing interests that 
would bind a private fiduciary. Here, by contrast, respondent seeks to use 
the FOIA to intrude directly into the trust relationship between the 
Tribes and the United States, and to compel violations of the duty of con- 
fidentiality that lies at the core of that relationship. 

(1980); see Gov’t Br. 28-29.