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 PETITION FOR A 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 AUTHORITIES 

Cases: Page 

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

3 

Coastal States Gas Corp. v. Department of Energy, 

617 F.2d 854 (D.C. Cir. 1980) ............................................... 

5 

County of Madison v. United States Dep’t of Justice, 

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

7, 8 

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

8 

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

8 

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

5 

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

1997) ......................................................................................... 4 

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

5 

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

168 (D.C. Cir. 1997) ............................................................... 

4 

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

(1984) ........................................................................................ 

8, 9 

Constitution and statute: 

U.S. Const. Art. II, § 3 ............................................................. 

3 

5 U.S.C. 552(b)(5) ................................................................ passim 

(I) 

In the Supreme Court of the United States 

No. 99-1871 

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

v. 

KLAMATH WATER USERS PROTECTIVE ASSOCIATION 

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

REPLY BRIEF FOR THE PETITIONERS 

A. As the petition for a writ of certiorari explains (at 
3-6), the courts of appeals have repeatedly held that 
documents prepared outside the government—e.g., by 
consultants retained by an agency to advise and assist 
it in performing official functions—may be treated as 
“intra-agency memorandums or letters” within the 
meaning of FOIA Exemption 5, 5 U.S.C. 552(b)(5). 
Respondent contends that the documents submitted by 
the Klamath Tribes to the Bureau of Indian Affairs 
(BIA) concerning the water rights the United States 
holds in trust for the Tribes cannot qualify for protec- 
tion under Exemption 5 because the Tribes are “non- 
neutral, interested parties who believe that they will 
significantly benefit from favorable decisions * * * 
regarding Klamath Project operations.” Br. in Opp. 12. 
Respondent further argues that the Tribes for whom 
the United States holds property in trust cannot be 
accorded the same status as agency consultants for 

(1) 

2 

these purposes because the Tribes have an adversarial 
relationship with the government. See id. at 8, 11-12, 
14-15, 16. Those claims lack merit as a legal matter. 
Furthermore, as we explain in the petition (at 6-11, 14- 
18, 26-28), the court of appeals’ decision, if allowed to 
stand, will cause substantial disruption of the relation- 
ship between the United States and Indian Tribes. It 
also undermines the performance of the United States’ 
historic trust responsibility with respect to land and 
water rights that the United States holds in trust for 
Indians and that are critical to the economy and way of 
life of reservation communities. 

1. Situations may arise in which a private party’s 
independent stake in a matter creates a divergence of 
interests between himself and the government that 
negates the possibility of a viable consultancy or similar 
relationship to which Exemption 5 may extend. There 
is no basis for concluding, however, that an Indian 
Tribe’s interest in resources held in trust by the United 
States has that effect. The government in its adminis- 
tration of Indian trust property acts in a fiduciary 
capacity, and the duty not to disclose confidential infor- 
mation acquired from the beneficiary is a traditional 
feature of the fiduciary’s role. See Pet. 14-16. Far from 
precluding the formation of a proper consultancy rela- 
tionship, the Tribes’ interest in the subject property 
makes it essential that the Tribes be consulted and that 
their expectation of confidentiality be respected.1 

1 Although an agency’s relationship with an outside consultant 
is typically formed on an ad hoc basis at the discretion of the 
agency, the Bureau of Indian Affairs’ relationship with Indian 
Tribes concerning trust property is enduring and arises by opera- 
tion of law. Confidential treatment of tribal submissions relating 
to trust resources recognizes the Tribe’s enduring interest in the 
integrity of that relationship, in addition to the governmental 

3 

Respondent contends that the government’s position 
“would essentially broaden the FOIA’s exemption 5 to 
include virtually any communications between inter- 
ested beneficiaries in federal programs and the federal 
agencies which oversee such programs.” Br. in Opp. 9. 
That is not so. 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 inconsis- 
tent with) the general obligation of the Executive 
Branch to “take Care that the Laws be faithfully exe- 
cuted.” U.S. Const. Art. II, § 3. To say that the gov- 
ernment’s role as trustee entails a duty of confidential- 
ity does not suggest that communications from all 
persons claiming a legal right to favorable treatment 
from the government are exempt from disclosure under 
the FOIA. 

Thus, the decision of the Bureau of Indian Affairs to 
withhold the seven documents at issue in this case does 
not reflect “a failure to acknowledge Interior’s dual 
obligations toward the Klamath Basin Tribes and its 
Klamath Project contractors.” Br. in Opp. 17. We 
agree that the Department of the Interior (DOI) (like 
the federal government generally) has legal obligations 

interest in receiving candid advice that generally underlies (see 
Pet. 4-6) the application of Exemption 5 to documents submitted 
by an outside consultant. For that reason it was especially inap- 
propriate for the court of appeals to afford communications with 
Indian Tribes concerning their trust property a dignity less than 
that of communications with ordinary consultants, based on the 
court’s view of a factor—the Tribes’ interest in their trust 
resources—that is the very foundation for the relationship and the 
very reason why the BIA solicits the Tribes’ advice and assistance. 

4 

both to the Tribes and to respondent’s members. We 
do not agree, however, with the suggestion that those 
obligations can be equated. The United States’ special 
duty of loyalty and confidentiality in its role as trustee 
for tribal property rights has no analogue in the 
government’s relationship to other private parties, and 
that duty has direct implications for the proper 
application of the FOIA. 

2. Respondent contends that the Tribes are inap- 
propriate consultants because they “are past, present, 
and potential future adversaries of [the Department of 
the] Interior with respect to the decisions being made 
in the KPOP and the adjudication.” Br. in Opp. 12; see 
id. at 8, 11-12, 14-15, 16. That characterization rests on 
tribal officials’ occasional references to the possibility of 
lawsuits against the DOI regarding its allocation of 
Klamath Project water. See id. at 15. In any consulta- 
tive relationship, however, there exists a possibility of 
future litigation between the parties. That certainly is 
the case with respect to consultations between the 
Archivist and former Presidents concerning the confi- 
dentiality of Presidential records, which were at issue 
in Public Citizen, Inc. v. Department of Justice, 111 
F.3d 168 (D.C. Cir. 1997).2 Yet the District of Columbia 
Circuit sustained the application of Exemption 5 to 
those communications, observing that “[d]octors, law- 
yers 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 malprac- 
tice claims), but for all that they are still consultants.” 
Public Citizen, 111 F.3d at 171. Neither the possibility 

2 See Nixon v. United States, 978 F.2d 1269, 1270-1275 (D.C. 
Cir. 1992) (recounting history of litigation between the United 
States and former President Nixon regarding public use of the 
former President’s records). 

5 

of litigation between the Tribes and the United States, 
nor tribal officials’ occasional allusions to that possibil- 
ity, negate the consultative relationship that otherwise 
exists between the Tribes and the government in its 
role as trustee. 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).3 

The court in Public Citizen noted the possibility that 
an adversary relationship between parties previously 
engaged in consultation “might come to eclipse the 
consultative relationship.” 111 F.3d at 171. But noth- 
ing 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 relation- 
ship. Those who are called upon to consult with an 
agency about the agency’s official responsibilities may 
express divergent views (just as agency employees 
themselves may do), and the “give-and-take of the con- 
sultative process,” Coastal States Gas Corp. v. Depart- 
ment 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. Re- 
spondent does not contend that the Tribes have 
actually initiated litigation against any federal agency 
concerning the allocation of water within the Klamath 

3 That is particularly so in light of the fact (see Pet. 11; Pet. 
App. 41a-49a) 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 Indians. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 374 
(1968); see also Nevada v. United States, 463 U.S. 110, 127, 135-138 

n.15 (1983). The record materials on which respondent relies (see 
Br. in Opp. 15) refer to the possibility of litigation against the 
Bureau of Reclamation. 

6 

Basin, much less provide any basis for concluding that 
the relationship between the government as trustee 
and the tribal beneficiaries has become predominantly 
adversarial. 

There is, in particular, no basis for regarding the 
Tribes and the government as “adversaries” with re- 
spect to the seven documents at issue here. The dis- 
trict court found that “[a]ll the documents played a role 
in the agency’s deliberations” 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 dis- 
senting judge in the court of appeals recognized, “these 
communications spring from a relationship that remains 
consultative rather than adversarial, a relationship in 
which the Bureau and Department were seeking the 
expertise of the Tribes, rather than opposing them.” 
Id. at 25a-26a (Hawkins, J., dissenting).4 

4 As the petition explains (at 7), DOI’s Departmental Manual 
states that agency policy is “to consult with tribes on a govern- 
ment-to-government basis whenever plans or actions affect tribal 
trust resources, trust assets, or tribal health and safety.” C.A. 
E.R. 254. That policy statement makes clear that the tribal sub- 
missions in this case were not foisted on an unreceptive agency; 
rather, they were solicited by the DOI in order to assist the agency 
in its performance of trust responsibilities. 

As respondent points out (Br. in Opp. 8), Executive Branch 
policy statements issued in November 1993 and April 1994 state 
that consultations between federal and tribal officials “are to be 
open and candid so that all interested parties may evaluate for 
themselves the potential impact of relevant proposals.” C.A. E.R. 
250; see id. at 252. The obvious import of those statements, and 
the way in which they are interpreted and applied by the DOI, is 
that federal and tribal officials (the “interested parties” to the 
consultations) are to deal with each other in an “open and candid” 
manner—not that the consultations are to be “open” to the public 
or that the substance of the communications between the federal 
government and the Tribes is to be routinely released to the 

7 

3. Respondent virtually ignores the fact that four of 
the seven documents at issue in this case pertain to the 
federal government’s representation of tribal interests 
in adjudicative proceedings conducted by the State of 
Oregon. See Pet. 9-10, 22-24. As the petition explains 
(at 22-24), the federal government in those proceedings 
does not act as a decisionmaker, but instead asserts 
claims on behalf of the Tribes (and on its own behalf) for 
ultimate resolution by state officials. In representing 
the Tribes in the Oregon proceedings, the United 
States is fulfilling a responsibility that has historically 
been an integral part of the government’s role as 
trustee. See Pet. 23. 

Particularly in the context of the Oregon proceed- 
ings, it is farfetched to contend that the Tribes’ “direct 
and personal interest” (Br. in Opp. 11) in the allocation 
of Klamath Basin water renders the Tribes an inap- 
propriate consultant. Nor is there any basis for viewing 
the relationship between the Tribes and the federal 
government as adversarial. To the contrary, there is in 
this context an inherent community of interests be- 
tween the Tribes and the United States, and the Tribes 
are a natural source of expertise for the federal officials 
charged with protecting the Tribes’ interests. Tell- 
ingly, respondent (like the court of appeals) makes no 
effort to explain how its theory of the case applies to 

public. Indeed, the Departmental Manual clarifies that information 
received by the DOI through consultation with tribal representa- 
tives “shall be deemed confidential, unless otherwise provided by 
applicable law, regulations, 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).” Id. at 
255; see Pet. 8. 

8 

the documents submitted to the agency in connection 
with the state adjudication.5 

B. Respondent argues (Br. in Opp. 18-23) that the 
government’s position depends upon the existence of a 
“trustee-beneficiary privilege” in the civil discovery 
context. That argument misapprehends the govern- 
ment’s theory. FOIA Exemption 5 applies to “inter- 
agency or intra-agency memorandums or letters which 
would not be available by law to a party other than an 
agency in litigation with the agency.” 5 U.S.C. 
552(b)(5). Thus, if particular documents qualify as 
“intra-agency memorandums,” those documents are 
covered by Exemption 5 if, but only if, they are “not 
available by law * * * in litigation”—i.e., are privi- 
leged from disclosure in discovery. See Pet. 3; United 
States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); 
FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); NLRB v. 
Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). 

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 

5 As the petition explains (at 27 n.6), respondent’s reliance (see 
Br. in Opp. 12-15) on County of Madison v. United States Depart- 
ment of Justice, 641 F.2d 1036, 1039-1041 (1st Cir. 1981), is mis- 
placed. The documents at issue in that case were submitted to the 
Department of Justice within the context of ongoing litigation 
between an Indian Tribe and the federal government. Id. at 1038. 
Here, by contrast, there is no litigation between the United States 
and the Tribes. See pp. 4-7, supra. The contrast between the two 
cases is particularly clear with respect to the documents relating to 
the Oregon adjudication, where the Tribes and the United States 
are in effect co-parties with an obvious community of interests. 
See also Pet. 23-24 (explaining that exchanges of information 
between parties with a common interest in litigation have 
traditionally been treated as privileged). 

9 

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 requirement 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.6 

The 
trustee’s well-established duty not to disclose infor- 
mation acquired in administering a trust where disclo- 

6 The petition states (at 24) that “[u]nder the [court of appeals’] 
ruling, the Tribes’ communications to their representative (the 
United States) will be subject to compelled disclosure under the 
FOIA, without regard to the applicability of any traditional discov- 
ery privilege.” Contrary to respondent’s contention (Br. in Opp. 

18), that statement does not “suggest[] the existence of a recog- 
nized trustee-beneficiary privilege in the discovery context.” 
Rather, our point is that the court of appeals’ unduly narrow con- 
struction of the term “intra-agency” has the practical effect of 
requiring the agency to release documents that in civil litigation 
would be covered by the deliberative-process and/or attorney- 
work-product privilege. That result would disrupt the govern- 
ment’s performance of its trust responsibilities, and it would facili- 
tate efforts to employ the FOIA “to supplement civil discovery,” in 
derogation of congressional intent. Weber Aircraft, 465 U.S. at 801; 
see also id. at 801-802 (“We do not think that Congress could have 
intended that the weighty policies underlying discovery privileges 
could be so easily circumvented.”). The court of appeals’ decision 
also disadvantages the government and the Tribes vis-à-vis other 
parties to the Oregon adjudication (including respondent), who 
may continue to assert all available privileges. See Pet. 24. 

10 

sure would disserve the beneficiary’s interests bears 
directly on that question. See Pet. 20-21. 

C. Respondent errs in contending (Br. in Opp. 7) that 
the court of appeals’ decision is “based upon the unique 
and limited factual circumstances of this case.” Under 
the court of appeals’ “direct interest” test, documents 
submitted by Tribes or individual Indians to assist 
federal officials in their performance of trust respon- 
sibilities can never be withheld under Exemption 5, 
since the trustee’s administration of a trust corpus is 
always (by definition) a matter in which the beneficiary 
has a direct interest. As the petition explains (at 27), 
well over half of the lands held by the United States in 
trust for Tribes and individual Indians lie within the 
Ninth Circuit. The amicus briefs filed in this Court on 
behalf of numerous Tribes make clear that the question 
presented here recurs frequently, and that the court of 
appeals’ decision can be expected substantially to dis- 
rupt the interactions between federal and tribal officials 
that facilitate the United States’ performance of its 
trust responsibilities. See, e.g., Brief Amici Curiae of 
the Ute Indian Tribe 17-20; Brief Amici Curiae of the 
National Congress of American Indians 5-7; Brief Amici 
Curiae of the Eastern Shoshone Tribe of the Wind 
River Reservation 4-6. 

* * * * * 

For the reasons stated above, and in the petition for a 
writ of certiorari, the petition should be granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

AUGUST 2000