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 

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

LEONARD SCHAITMAN 
MATTHEW M. COLLETTE 

Attorneys 

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

QUESTION PRESENTED 

Whether confidential communications between 
Indian Tribes and the Department of the Interior, in 
connection with the federal government’s performance 
of its trust responsibility to protect and manage tribal 
water rights, are “intra-agency” documents that may be 
protected from disclosure under Exemption 5 of the 
Freedom of Information Act, 5 U.S.C. 552(b)(5). 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provision involved ....................................................... 
2 

Statement ........................................................................................ 2 

Reasons for granting the petition ............................................... 
14 

Conclusion ....................................................................................... 29 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
31a 

Appendix C ..................................................................................... 
33a 

Appendix D ..................................................................................... 
72a 

TABLE OF AUTHORITIES 

Cases: 

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

23 

CNA Fin. Corp. v. Donovan, 830 F.2d 1132 (D.C. 

Cir. 1987), cert. denied, 485 U.S. 977 (1988) ..................... 

4-5 

Colorado River Conservation Dist. v. United States, 

424 U.S. 800 (1976) ................................................................ 

23 

Department of the Air Force v. Rose, 425 U.S. 352 

(1976) ........................................................................................ 18 

Dow Jones & Co. v. Department of Justice, 917 F.2d 

571 (D.C. Cir. 1990) ................................................................ 

4, 5 

FBI v. Abramson, 456 U.S. 615 (1982) ............................... 

18 

Formaldehyde Inst. v. Department of Health & 

Human Servs., 889 F.2d 1118 (D.C. Cir. 1989) ................ 

4 

Government Land Bank v. GSA, 671 F.2d 663 

(1st Cir. 1982) ......................................................................... 

5 

Heckman v. United States, 224 U.S. 413 (1912) ................ 

17 

Hoover v. United States Dep’t of the Interior, 611 F.2d 

1132 (5th Cir. 1980) ................................................................ 

4 

Idaho v. Oregon, 444 U.S. 380 (1980) ................................. 

26 

John Doe Agency v. John Doe Corp., 493 U.S. 146 

(1989) ........................................................................................ 18 

(III) 

IV 

Cases—Continued: Page 

Kissinger v. Reporters Committee for Freedom of 

the Press, 445 U.S. 136 (1980) ............................................. 

17 

Lead Indus. Ass’n v. OSHA, 610 F.2d 70 (2d Cir. 

1970) ......................................................................................... 4 

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

15 

NLRB v. Robbins Tire & Rubber, 437 U.S. 214 

(1978) ........................................................................................ 17-18 

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

(1975) ........................................................................................ 3 

National Farmers Ins. Cos. v. Crow Tribe of 

Indians, 471 U.S. 845 (1985) ............................................... 

6 

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

23, 24, 25 

Oklahoma Tax Comm’n v. Citizens Band 

Potawatomi Indian Tribe, 498 U.S. 505 (1991) ............... 

15 

Parravano v. Babbit, 70 F.3d 539 (9th Cir. 1995), 

cert denied, 518 U.S. 1016 (1996) ........................................ 

11 

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

26 

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

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

4, 21, 22 

Renegotiation Bd. v. Bannercraft Clothing Co., 415 

U.S. 1 (1974) ............................................................................ 

17 

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

Cir. 1980) ............................................................................. 

4, 5, 19 

Santa Clara Pueblo v. Martinez, 436 U.S. 49 

(1978) ........................................................................................ 16 

Seminole Nation v. United States, 316 U.S. 286 

(1942) ................................................................................ 

6, 14, 17 

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

4 

United States v. Adair, 723 F.2d 1394 (9th Cir.), 

cert. denied, 467 U.S. 1252 (1984) ....................................... 

8, 9 

United States v. American Tel. & Tel. Co., 642 F.2d 

1285 (D.C. Cir. 1980) ............................................................. 

24 

United States v. Candelaria, 271 U.S. 432 (1926) ............ 

17 

United States v. Cherokee Nation, 480 U.S. 700 

(1987) ........................................................................................ 6, 14 

V 

Cases-Continued: Page 

United States v. McPartlin, 595 F.2d 1321 (7th Cir.), 

cert. denied, 444 U.S. 833 (1979) ......................................... 

23 

United States v. Minnesota, 270 U.S. 181 (1926) .............. 

17 

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

6, 14 

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

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

9, 23 

United States v. Powers, 305 U.S. 527 (1939) ................... 

23 

United States v. Schwimmer, 892 F.2d 237 (2d Cir. 

1989) ......................................................................................... 23 

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

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

3, 19, 24 

United States v. White Mountain Apache Tribe, 

784 F.2d 917 (9th Cir. 1986) ................................................. 

10 

United States Dep’t of Justice v. Julian, 486 U.S. 1 

(1988) .................................................................................. 

5, 20-21 

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

23 

Wolfe v. Department of Health & Human Servs., 

839 F.2d 768 (D.C. Cir. 1988) ............................................... 

19 

Treaty, statutes and regulation: 

Treaty Between the United States of America and 

the Klamath and Modoc Tribes and Yahooskin 

Band of Snake Indians, Oct. 14, 1864, 16 Stat. 107 .......... 

8 

Act of Aug. 13, 1954, ch. 732, § 1, 68 Stat. 718 (25 U.S.C. 

564 et seq.) ............................................................................... 

8 

Freedom of Information Act: 

5 U.S.C. 551(1) ................................................................... 

3 

5 U.S.C. 552 (1994 & Supp. IV 1998) ............................. 

2 

5 U.S.C. 552(b) (1994 & Supp. IV 1998) ........................ 
2 

5 U.S.C. 552(b)(5) .............................................................. 
2 

Indian Self-Determination and Education Assistance 

Act, 25 U.S.C. 450a(b) ........................................................... 

16 

Klamath Indian Tribe Restoration Act, Pub. L. No. 

99-398, 100 Stat. 849 (25 U.S.C. 566 et seq.) ...................... 

8 

McCarran Amendment, 43 U.S.C. 666 .................................. 9 

VI 

Statutes and regulation—Continued: 
Page 

Presidential Records Act of 1978, 44 U.S.C. 2201 
et seq. ........................................................................................ 
21 

25 U.S.C. 1a ............................................................................... 
7 

25 U.S.C. 162a(d) ...................................................................... 
6 

25 C.F.R. Subch. H, Pts. 150-181 ........................................... 
7 

Miscellaneous: 

Confidentiality of the Attorney General’s Communi- 
cations in Counseling the President, 6 Op. Off. Legal 
Counsel 481 (1982) ................................................................. 

3 
Exec. Order No. 13,084, 63 Fed. Reg. 27,655 (1998) ........... 
6, 7 

H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966) ............... 
18, 19 

Restatement (Second) of Trusts (1959) ................................ 
15 

S. Rep. No. 813, 89th Cong., 1st Sess. (1965) ....................... 18 

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 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States 
Department of the Interior and the Bureau of Indian 
Affairs, respectfully petitions for a writ of certiorari to 
review the judgment of the United States Court of 
Appeals for the Ninth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
30a) is reported at 189 F.3d 1034. The decision of the 
district court (App., infra, 31a-32a) adopting the 
findings and recommendation of the magistrate judge is 
unreported. The findings and recommendation of the 
magistrate judge (App., infra, 33a-71a) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
August 31, 1999. A petition for rehearing was denied 

(1) 

2 

on December 22, 1999 (App., infra, 72a-73a). On March 
10, 2000, Justice O’Connor extended the time for filing a 
petition for a writ of certiorari to and including April 
20, 2000. On April 10, 2000, Justice O’Connor further 
extended the time for filing to and including May 20, 
2000. This Court’s jurisdiction is invoked under 28 
U.S.C. 1254(1). 

STATUTORY PROVISION INVOLVED 

Exemption 5 of the Freedom of Information Act, 
5 U.S.C. 552(b)(5), provides: 

(b) This section does not apply to matters that 
are— 

* * * * * 

(5) 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. 

STATEMENT 

1. The Freedom of Information Act (FOIA), 
5 U.S.C. 552 (1994 & Supp. IV 1998), generally man- 
dates disclosure upon request of records held by an 
agency of the federal government. Section 552(b) (1994 
& Supp. IV 1998), however, identifies several cate- 
gories of records that are exempt from compelled dis- 
closure. This case involves the application of FOIA 
Exemption 5, 5 U.S.C. 552(b)(5), which authorizes 
an agency to withhold “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.” 
Exemption 5 “codifies the traditional common law 
privileges afforded certain documents in the context 

3 

of civil litigation and discovery.” Confidentiality of the 
Attorney General’s Communications in Counseling the 
President, 6 Op. Off. Legal Counsel 481, 490 (1982); see 
United States v. Weber Aircraft Corp., 465 U.S. 792, 799 
(1984) (“Exemption 5 simply incorporates civil dis- 
covery privileges.”); NLRB v. Sears, Roebuck & Co., 
421 U.S. 132, 149 (1975) (“It is reasonable to construe 
Exemption 5 to exempt those documents, and only 
those documents, normally privileged in the civil dis- 
covery context.”). Those privileges include the 
“deliberative process” privilege, a privilege unique to 
the government that protects “documents reflecting 
advisory opinions, recommendations and deliberations 
comprising part of a process by which governmental 
decisions and policies are formulated.” Id. at 150 
(internal quotation marks omitted). Exemption 5 also 
applies to records covered by “the attorney-client and 
attorney work-product privileges generally available to 
all litigants.” Id. at 149. This case principally involves 
the application of Exemption 5 to documents that were 
created outside the government but were provided to 
federal agency officials at the agency’s request and 
were considered by the government in its internal 
deliberations.1 

For purposes of the FOIA, the term “agency” is de- 
fined to mean (with exceptions not relevant here) “each 
authority of the Government of the United States.” 5 
U.S.C. 551(1). The courts of appeals that have 
considered the question have uniformly concluded that 
at least under some circumstances, a document pre- 

1 Six of the seven documents currently at issue fit that descrip- 
tion. The seventh was prepared within the agency and was then 
provided to persons outside the government from whom the 
agency sought advice and assistance concerning its performance of 
official duties. 

4 

pared outside the government may qualify as an “intra- 
agency memorandum[]” within the meaning of Exemp- 
tion 5. 

The District of Columbia Circuit has developed the 
most extensive body of case law, beginning with its 
decision in Soucie v. David, 448 F.2d 1067 (1971), in 
which the court stated: 

The rationale of the exemption for internal com- 
munications indicates that the exemption should be 
available in connection with the Garwin Report even 
if it was prepared for an agency by outside experts. 
The Government may have a special need for 
the opinions and recommendations of temporary 
consultants, and those individuals should be able to 
give their judgments freely without fear of 
publicity. A document like the Garwin Report 
should therefore be treated as an intra-agency 
memorandum of the agency which solicited it. 

Id. at 1078 n.44; see also, e.g., Public Citizen, Inc. 

v. Department of Justice, 111 F.3d 168, 170 (D.C. Cir. 
1997) (“[R]ecords of communications between an 
agency and outside consultants qualify as ‘intra-agency’ 
for purposes of Exemption 5 if they have been ‘created 
for the purpose of aiding the agency’s deliberative 
process.’ ”) (quoting Dow Jones & Co., Inc. v. Depart- 
ment of Justice, 917 F.2d 571, 575 (D.C. Cir. 1990)); 
Formaldehyde Inst. v. Department of Health & Human 
Servs., 889 F.2d 1118, 1122-1125 (D.C. Cir. 1989); Ryan 

v. Department of Justice, 617 F.2d 781, 789-791 (D.C. 
Cir. 1980); Hoover v. United States Dep’t of the Interior, 
611 F.2d 1132, 1137-1138 (5th Cir. 1980); Lead Indus. 
Ass’n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979); cf. CNA 
Fin. Corp. v. Donovan, 830 F.2d 1132, 1159-1162 (D.C. 
Cir. 1987) (applying same principle to discovery request 

5 

in administrative adjudication), cert. denied, 485 U.S. 
977 (1988). 

This Court has not yet had occasion to decide 
whether, and to what extent, Exemption 5 may cover 
documents received from (or furnished to) persons 
outside the government. In United States Department 
of Justice v. Julian, 486 U.S. 1 (1988), three Members 
of this Court endorsed the approach to Exemption 5 
taken by the courts of appeals: 

[T]he most natural meaning of the phrase “intra- 
agency memorandum” is a memorandum that 
is addressed both to and from employees of a 
single agency—as opposed to an “inter-agency 
memorandum,” which would be a memorandum 
between employees of two different agencies. The 
problem with this interpretation is that it excludes 
many situations where Exemption 5’s purpose of 
protecting the Government’s deliberative process 
is plainly applicable. Consequently, the Courts 
of Appeals have uniformly rejected it, holding the 
“intra-agency memorandum” exemption applicable 
to such matters as information furnished by 
Senators to the Attorney General concerning judi- 
cial nominations, see Ryan v. Department of Justice, 
199 U. S. App. D. C. 199, 207-209, 617 F.2d 781, 789- 
791 (1980), and reports prepared by outside consult- 
ants, see Government Land Bank v. GSA, 671 F.2d 
663, 665 (CA1 1982). It seems to me that these 
decisions are supported by a permissible and desir- 
able reading of the statute. It is textually possible 
and much more in accord with the purpose of the 
provision, to regard as an intra-agency memoran- 
dum one that has been received by an agency, to 
assist it in the performance of its own functions, 
from a person acting in a governmentally conferred 

6 

capacity other than on behalf of another agency— 

e. g., in a capacity as employee or consultant to 
the agency, or as employee or officer of another 
governmental unit (not an agency) that is authorized 
or required to provide advice to the agency. 

Id. at 18 n.1 (Scalia, J., joined by White & O’Connor, JJ., 
dissenting). The Court in Julian did not address the 
question whether the relevant documents were “inter- 
agency or intra-agency” records within the meaning of 
Exemption 5, see id. at 11 n.9, since it concluded that 
the documents would be routinely discoverable in civil 
litigation and therefore would not be covered by the 
Exemption in any event, see id. at 11-14. 

2. This Court has frequently recognized that “Indian 
tribes occupy a unique status under our law.” National 
Farmers Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 
845, 851 (1985). “Since the formation of the Union, the 
United States has recognized Indian tribes as domestic 
dependent nations under its protection.” Exec. Order 
No. 13,084, 63 Fed. Reg. 27,655 (1998). Accordingly, the 
United States is subject to a trust responsibility to 
protect the natural resources of Indian Tribes. See, 

e.g., United States v. Cherokee Nation, 480 U.S. 700, 
707 (1987); United States v. Mitchell, 463 U.S. 206, 225 
(1983); Seminole Nation v. United States, 316 U.S. 286, 
296-297 (1942); 25 U.S.C. 162a(d). The relationship be- 
tween the federal government and the Tribes with 
respect to Indian resources has been analogized to the 
relationship existing under a common law trust, with 
the United States as trustee, the Indian Tribe as bene- 
ficiary, and the property and natural resources as the 
trust corpus. See Mitchell, 463 U.S. at 225. The 
Bureau of Indian Affairs (BIA), an agency located with- 
in the Department of the Interior (DOI), is the federal 
agency having primary responsibility for administering 

7 

land and water held in trust for the Indian Tribes. 25 
U.S.C. 1a; 25 C.F.R. Subch. H, Pts. 150-181. 

In November 1993, the Secretary of the Interior 
directed all bureaus and offices within the agency to 
“be[] aware of the impact of their plans, projects, 
programs or activities on Indian trust resources,” and 
“to consult with the recognized tribal government with 
jurisdiction over the trust property that the proposal 
may affect * * * if their evaluation reveals any impact 
on Indian trust resources.” C.A. E.R. 252. In April 
1994, President Clinton issued a memorandum imposing 
similar requirements on all executive departments and 
agencies. Id. at 250-251. In May 1998, the President 
issued an Executive Order that directs federal agencies 
to “establish regular and meaningful consultation and 
collaboration with Indian tribal governments in the 
development of regulatory practices” that affect tribal 
governments. Exec. Order No. 13,084, 63 Fed. Reg. at 
27,655. 

The Secretary’s November 1993 directive has been 
incorporated into the Departmental Manual governing 
the DOI. The Manual states that “[i]t 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.” C.A. E.R. 254. Accordingly, 
the Manual directs that “[a]s part of the planning pro- 
cess, each bureau and office must identify any potential 
effects on Indian trust resources” in order to ensure 
that such effects can “be explicitly addressed in the 
planning/decision documents.” Id. at 255. The Manual 
further provides that 

8 

[i]n the event an evaluation reveals any impacts on 
Indian trust resources, trust assets, or tribal health 
and safety, bureaus and offices must consult 
with the affected recognized tribal government(s). 

* * * Information received shall be deemed 
confidential, unless otherwise provided by appli- 
cable 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 pro- 
ceedings or litigation on behalf of tribal govern- 
ment(s). 

Ibid. 

3. This case principally involves documents sub- 
mitted to petitioner BIA by the Klamath Indian Tribes. 
Pursuant to an 1864 treaty, the Klamath Tribes retain 
fishing, hunting, and gathering rights on lands that 
were previously part of the former Klamath Indian 
Reservation in Oregon. See Treaty Between the 
United States of America and the Klamath and Modoc 
Tribes and Yahooskin Band of Snake Indians, Oct. 14, 
1864, 16 Stat. 107.2 In United States v. Adair, 723 F.2d 
1394 (9th Cir.), cert. denied, 467 U.S. 1252 (1984), the 
court of appeals held that the hunting and fishing rights 
reserved to the Klamath Tribes by the 1864 treaty 

2 In 1954, the Klamath Indian Reservation in Oregon was 
terminated pursuant to the Klamath Termination Act, see Act of 
Aug. 13, 1954, ch. 732, § 1, 68 Stat. 718 (25 U.S.C. 564 et seq.). 
Under the 1954 Act, the Klamath Tribes’ reservation lands were 
disposed of to private parties, individual Indians, and to federal 
agencies, but the Tribes’ hunting, fishing, and gathering rights 
remained intact. See, e.g., United States v. Adair, 723 F.2d 1394, 
1412 (9th Cir.), cert. denied, 467 U.S. 1252 (1984). In 1986 the 
Klamath Tribes were restored as a federally recognized tribal 
entity. See Klamath Indian Tribe Restoration Act, Pub. L. No. 99- 
398, 100 Stat. 849 (25 U.S.C. 566 et seq.). 

9 

carry with them an implied reservation of water rights, 
“with a priority date of immemorial use, sufficient to 
support exercise of treaty hunting and fishing rights.” 
Id. at 1415; see id. at 1408-1415. The court in Adair 
further explained that 

the right to water reserved to further the Tribe’s 
hunting and fishing purposes is unusual in that it is 
basically non-consumptive. The holder of such a 
right is not entitled to withdraw water from the 
stream for agricultural, industrial, or other con- 
sumptive uses (absent other consumptive rights). 
Rather, the entitlement consists of the right to 
prevent other appropriators from depleting the 
streams[’] waters below a protected level in any 
area where the non-consumptive right applies. 

Id. at 1411 (citation omitted). 

4. Although federal reserved water rights for an 
Indian Tribe derive from and are defined by federal 
law, the adjudication of the existence and quantification 
of such reserved water rights may take place in the 
context of a general stream adjudication in state 
court, pursuant to the waiver of sovereign immunity in 
the McCarran Amendment, 43 U.S.C. 666. The State of 
Oregon has established a statutory procedure to 
determine the surface water rights of all claimants in 
the Klamath River Basin in Oregon. See United States 

v. Oregon, 44 F.3d 758, 764 (9th Cir. 1994), cert. denied, 
516 U.S. 943 (1995). In United States v. Oregon, the 
court of appeals held that the waiver of federal sover- 
eign immunity contained in the McCarran Amendment 
applied to the Oregon proceeding. 44 F.3d at 763-770. 
The United States is thus a party to the Oregon 
adjudication and, in addition to asserting water rights 
on its own behalf, has an affirmative obligation to assert 
water rights claims on behalf of the Klamath Tribes. 

10 

See United States v. White Mountain Apache Tribe, 
784 F.2d 917, 920 (9th Cir. 1986); C.A. E.R. 148. The 
BIA has therefore engaged in extensive consultation 
with the Tribes, including the exchange of legal analy- 
ses and theories regarding the scope of the claims 
submitted by the United States on behalf of the Tribes. 
Id. at 149-150. The Department of Justice, on behalf of 
the BIA, then submitted claims for the benefit of the 
Klamath Tribes. The adjudication remains pending. 

5. The Bureau of Reclamation (BOR), an agency 
located within the DOI, administers the Klamath Irri- 
gation Project (Klamath Project). The Klamath Project 
uses water from the Klamath River Basin to irrigate 
over 200,000 acres in Klamath County, Oregon, and two 
northern California counties, primarily for agricultural 
purposes. App., infra, 14a, 35a; C.A. E.R. 273. In 1995, 
DOI began efforts to develop the Klamath Project 
Operations Plan (KPOP or Operations Plan), a long- 
term operations plan for the Project. App., infra, 14a, 
35a. 

In connection with those efforts, DOI entered into a 
memorandum of agreement (MOA) with the Klamath, 
Hoopa Valley, Karuk, and Yurok Tribes (collectively 
Klamath Basin Tribes). See C.A. E.R. 115-120. Con- 
sistent with the President’s memorandum of April 1994 
and the Secretary’s directive of November 1993 (see pp. 
6-7, supra), the MOA recognized that “[t]he United 
States Government has a unique legal relationship with 
Native American tribal governments.” C.A. E.R. 115. 
The MOA further recognized that “[w]ith respect to the 
development of the KPOP, the government-to-govern- 
ment relationship” between the United States and the 
Tribes requires “[a]ssessment, in consultation with the 
Tribes, of the impacts of the KPOP on Tribal trust 
resources.” Id. at 116. The MOA observed that “[t]his 
involvement of the Tribes is a major means of assuring 

11 

that the development of the KPOP reflects the United 
States’ trust obligations and Tribal rights.” Id. at 118. 

6. Respondent is a non-profit association consisting 
of Klamath Project irrigators. In 1996, respondent filed 
a series of FOIA requests with the BIA, seeking access 
to all communications between the BIA and the Kla- 
math Basin Tribes regarding water resources issues. 
App., infra, 3a, 16a-19a, 37a-38a. The agency released 
several documents, but it withheld others as exempt 
under the attorney-work-product and deliberative- 
process privileges protected by FOIA Exemption 5. 
Plaintiff then brought this action against the DOI and 
the BIA. 

By the time that the district court ruled in this case, 
only seven documents remained in dispute. See App., 
infra, 3a, 41a. Three of the documents involve the 
KPOP; three involve the Oregon adjudication; and the 
seventh is relevant to both proceedings. See id. at 
41a-49a. Six of the documents were prepared by the 
Klamath Tribes or their representative and were sub- 
mitted to the BIA (or, in one instance, to DOI’s Re- 
gional Solicitor, see id. at 45a) at the agency’s request. 
See id. at 41a-49a. The seventh document was pre- 
pared by a BIA official and was provided to attorneys 
for the Klamath and Yurok Tribes. Id. at 43a-44a.3 

The case was referred to a magistrate judge, who 
recommended that the government’s summary judg- 
ment motion be granted on the ground that the docu- 

3 The Ninth Circuit has repeatedly held that the Yurok Tribe 
has fishing rights in the Klamath Basin. See, e.g., Parravano v. 
Babbitt, 70 F.3d 539 (1995), cert. denied, 518 U.S. 1016 (1996). 
Although no court has adjudicated the Yurok Tribe’s water rights, 
the view of the United States is that under the reasoning of Adair 
and other precedents of the Ninth Circuit and this Court, the Tribe 
has instream flow rights sufficient to support its fishing rights. 

12 

ments in question are protected by Exemption 5. App., 
infra, 33a-71a. The magistrate judge found 

that all the documents in question qualify as inter- 
agency or intra-agency documents under the “func- 
tional test”. All the documents played a role in the 
agency’s deliberations with regard to the current 
water rights adjudication and/or the anticipated 
[KPOP]. Most of the documents were provided to 
the agency by the Tribes at the agency’s request. 
Disclosure of these documents would expose the 
agency’s decision-making process and discourage 
candid discussion within the agency undermining 
the agency’s ability to function. 

Id. at 59a. The magistrate judge found that all of the 
documents were covered by the deliberative-process 
privilege, id. at 56a-61a, and that two of the documents 
(involving the Oregon adjudication) were covered by 
the attorney-work-product privilege as well, id. at 61a- 
65a. The district court adopted the findings and recom- 
mendation of the magistrate judge. Id. at 31a-32a. 

7. The court of appeals reversed. App., infra, 1a- 
30a. The court acknowledged that the District of 
Columbia Circuit has adopted a “functional” approach 
to Exemption 5, under which a document generated 
outside the government may under some circumstances 
be regarded as an “intra-agency” memorandum. Id. at 
6a-8a (see pp. 4-6, supra). The court declined to decide 
whether that approach to Exemption 5 is appropriate. 
App., infra, 8a. Rather, the court found it dispositive 
that “the Tribes with whom the Department has a 
consulting relationship have a direct interest in the 
subject matter of the consultations. The development 
of the KPOP and the Oregon water rights adjudication 
will affect water allocations to the Tribes as well as 
those to members of the Association.” Ibid. The court 

13 

therefore concluded that because “the matters with 
respect to which [DOI] sought advice were matters 
in which the Tribes had their own interest and the 
communications presumptively served that interest,” 
id. at 9a, the Tribes’ submissions to the BIA could not 
properly be regarded as “inter-agency or intra-agency” 
documents, id. at 10a. The court stated that “[t]o hold 
otherwise would extend Exemption 5 to shield what 
amount to ex parte communications in contested pro- 
ceedings between the Tribes and the [DOI].” Ibid. 

Judge Hawkins dissented. App., infra, 11a-30a. He 
explained: 

Where the Bureau and Department are, by law, 
required to represent the interests of Indian Tribes, 
the majority’s holding stands as a barrier to that 
representation. The majority implies that status 
as a federally recognized Indian Tribe, and the U.S. 
government’s trust responsibilities to the Tribes, 
create not a cooperative, but an adversarial re- 
lationship between the government and the Tribe, 
and thus FOIA can be used to destroy any opportu- 
nity for “open and honest” consultation between 
them. * * * I simply cannot agree with a notion I 
think so fundamentally wrong. 

Id. at 12a-13a. Judge Hawkins also stated that “[t]he 
affidavits from Department and Bureau employees, 
accepted by the court below, confirm that these com- 
munications 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.4 

4 Judge Hawkins also observed that the majority’s conception 
of the relationship between the Tribes and the agency in this case 

14 

REASONS FOR GRANTING THE PETITION 

In managing and protecting the property of Indian 
Tribes, the federal government acts as a trustee and is 
bound by the high fiduciary standards that the trustee’s 
role entails. Under established principles, a trustee is 
required, inter alia, to maintain the confidentiality of 
information acquired in the trust relationship if disclo- 
sure of the information would disserve the beneficiary’s 
interests. The court of appeals in this case, however, 
construed the FOIA as effectively precluding federal 
officials from complying with that fundamental trust 
obligation. Because the court of appeals’ decision 
threatens substantial disruption of the trust relation- 
ship between the United States and Indians, and in 
light of the broad range of property located within the 
Ninth Circuit that the United States holds in trust for 
Indian Tribes or individual Indians, review by this 
Court is warranted. 

1. The documents at issue in this case were intended 
to assist the BIA in performing its responsibility to 
manage and protect tribal water rights held in trust by 
the United States. “It is, of course, well established 
that the Government in its dealings with Indian tribal 
property acts in a fiduciary capacity.” United States v. 
Cherokee Nation, 480 U.S. 700, 707 (1987); accord, e.g., 
United States v. Mitchell, 463 U.S. 206, 225 (1983) (“[A] 
fiduciary relationship necessarily arises when the 
Government assumes * * * elaborate control over 

* * * property belonging to Indians.”); see id. at 224- 

“fails to recognize or address that at least four of the seven docu- 
ments were used by the Bureau and the Department to prepare 
to represent the Tribes’ claims in the Oregon water rights 
adjudication—not a proceeding which either the Bureau, or the 
Interior Department, has the authority to ‘resolve.’ ” 
App., infra, 

23a n.4. 

15 

226. The government’s “conduct, as disclosed in the 
acts of those who represent it in dealings with the 
Indians, should therefore be judged by the most exact- 
ing fiduciary standards.” Seminole Nation v. United 
States, 316 U.S. 286, 297 (1942). 

Under basic trust principles, “[t]he trustee is under a 
duty to the beneficiary not to disclose to a third person 
information which he has acquired as trustee where he 
should know that the effect of such disclosure would 
be detrimental to the interest of the beneficiary.” 
Restatement (Second) of Trusts § 170 cmt. s (1959). 
The “direct interest” test announced by the court of 
appeals permits use of the FOIA as a means by which 
federal officials may be compelled to breach that obli- 
gation on a regular basis. Because Indian Tribes will 
always have a “direct interest” in the government’s 
performance of its fiduciary responsibilities with re- 
spect to resources that the United States holds in trust 
for the Tribe, the court’s holding effectively precludes 
the use of Exemption 5 to shield the confidentiality of 
communications between the Tribes and the BIA re- 
garding trust property. 

The ability of the United States to receive candid 
advice and information from Tribes is integral to the 
government’s performance of its trust responsibilities.5 

5 For over half a century, federal policy has favored a broad 
right of tribal self-government and self-determination. See, e.g., 
Morton v. Mancari, 417 U.S. 535, 553 (1974) (explaining that “Con- 
gress in 1934 determined that proper fulfillment of its trust 
required turning over to the Indians a greater control of their own 
destinies” because “[t]he overly paternalistic approach of prior 
years had proved both exploitative and destructive of Indian 
interests.”); Oklahoma Tax Comm’n v. Citizens Band Potawatomi 
Indian Tribe, 498 U.S. 505, 510 (1991) (relevant federal statutes 
“reflect Congress’ desire to promote the goal of Indian self- 
government, including its overriding goal of encouraging tribal 

16 

Consistent with that understanding, DOI’s Depart- 
mental Manual mandates consultation with Tribes 
whenever their trust resources may be affected by the 
Department’s actions. C.A. E.R. 255. The Manual 
further provides that “[i]nformation received shall be 
deemed confidential, unless otherwise provided by 
applicable law, regulations, or Administration policy, if 
disclosure would negatively impact upon a trust re- 
source or compromise the trustee’s legal position.” 
Ibid. 

Under the court of appeals’ decision, however, Tribes 
and individual Indians who continue to provide the 
government with advice and information concerning 
trust resources may receive representation that falls 
short of traditional fiduciary standards, since federal 
officials will be unable to guarantee the confidentiality 
that a trust relationship ordinarily entails. Alterna- 
tively, Tribes and individual Indians may decline to 

self-sufficiency and economic development”) (internal quotation 
marks omitted); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 
62 (1978). In the Indian Self-Determination and Education Assis- 
tance Act, for example, 

Congress declare[d] its commitment to the maintenance of the 

Federal Government’s unique and continuing relationship 
with, and responsibility to, individual Indian tribes and to the 
Indian people as a whole through the establishment of a 
meaningful Indian self-determination policy which will permit 
an orderly transition from the Federal domination of programs 
for, and services to, Indians to effective and meaningful 
participation by the Indian people in the planning, conduct, and 
administration of those programs and services. 

25 U.S.C. 450a(b). Consultation with Tribes regarding the United 
States’ performance of its trust responsibilities substantially 
furthers the federal policy favoring tribal self-government and 
self-determination, by ensuring that tribal perspectives are fully 
considered by federal officials charged with managing and pro- 
tecting property held in trust for the Tribes. 

17 

furnish candid assessments and proposed strategies for 
protecting their resources. But in that event, federal 
officials will be deprived of critical expertise and the 
beneficiaries’ perspective concerning trust resources 
that are vital to the well-being of the Indians; they may 
be forced to duplicate pertinent research at govern- 
ment expense; and their ability to manage and protect 
the trust property will be compromised. Under either 
scenario, the United States will be unable to satisfy the 
“exacting fiduciary standards,” Seminole Nation, 316 
U.S. at 297, that have historically governed its relation- 
ships with tribal governments; a wedge will be driven 
between the United States and the beneficiaries in 
whose interest the United States must act, and the 
historical relationship of trust and confidence between 
the United States and the Indians will be undermined. 

The harm caused by the court of appeals’ decision, it 
should be emphasized, is not visited upon the Tribes 
and tribal members alone. This Court has repeatedly 
recognized the substantial public and governmental 
interest in the United States’ fulfillment of its trust 
responsibilities regarding Indian property. See, e.g., 
United States v. Candelaria, 271 U.S. 432, 443-444 
(1926); United States v. Minnesota, 270 U.S. 181, 194 
(1926); Heckman v. United States, 224 U.S. 413, 437 
(1912). The court of appeals’ decision in this case signifi- 
cantly disserves those public and governmental in- 
terests by impairing the ability of the responsible 
officials of the United States government to perform 
that important federal function. 

This Court has consistently expressed “reluctance 
to construe the FOIA as silently departing from prior 
longstanding practice.” Kissinger v. Reporters Com- 
mittee for Freedom of the Press, 445 U.S. 136, 154 
(1980) (citing Renegotiation Bd. v. Bannercraft Cloth- 
ing Co., 415 U.S. 1, 22 (1974), and NLRB v. Robbins 

18 

Tire & Rubber, 437 U.S. 214, 237 (1978)). The court of 
appeals’ construction of Exemption 5, however, effec- 
tively compels federal officials to breach an obligation of 
confidentiality that has traditionally been regarded as 
integral to any trust relationship. Absent the clearest 
evidence of congressional intent, the FOIA should not 
be read to require such a departure from traditional 
practice. As we explain below, no such evidence exists. 
To the contrary, the text and history of the FOIA, and 
judicial decisions interpreting the Act, reflect a recogni- 
tion that FOIA’s general rule of agency disclosure 
should not be applied in so rigid a fashion as to subvert 
the effective performance of governmental functions. 

2. Although the FOIA reflects “a general philosophy 
of full agency disclosure,” Department of the Air Force 

v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep. No. 
813, 89th Cong., 1st Sess. 3 (1965)), this Court “has re- 
cognized that the statutory exemptions are intended to 
have meaningful reach and application,” John Doe 
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). 
Because “Congress realized that legitimate govern- 
mental and private interests could be harmed by 
release of certain types of information,” it provided 
“specific exemptions under which disclosure may be 
refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982). 
Congress thereby sought “to reach a workable balance 
between the right of the public to know and the need of 
the Government to keep information in confidence to 
the extent necessary without permitting indiscriminate 
secrecy.” H.R. Rep. No. 1497, 89th Cong., 2d Sess. 6 
(1966) (H.R. Rep. No. 1497); see John Doe Agency, 493 
U.S. at 152. Congress recognized in particular that 
“a full and frank exchange of opinions would be 
impossible” if all internal agency communications were 
made public, and that “advice from staff assistants and 
the exchange of ideas among agency personnel would 

19 

not be completely frank if they were forced to operate 
in a fishbowl.” H.R. Rep. No. 1497, at 10 (internal 
quotation marks omitted); see United States v. Weber 
Aircraft Corp., 465 U.S. 792, 802 (1984) (legislative 
history of Exemption 5 “recognizes a need for claims of 
privilege when confidentiality is necessary to ensure 
frank and open discussion and hence efficient govern- 
mental operations”); Wolfe v. Department of Health & 
Human Servs., 839 F.2d 768, 773 (D.C. Cir. 1988) (en 
banc). 

It is thus well established that the indiscriminate re- 
lease of deliberative materials prepared by federal 
officers and employees and retained by the agency 
would be incompatible with vigorous and effective 
government. At least under some circumstances, public 
disclosure of documents that are created by persons 
outside the federal government, and then provided to 
agency officials at the agency’s request, may cause 
similar disruption of governmental processes. In 
recognition of that fact, the courts of appeals have 
repeatedly sustained the application of Exemption 5 to 
materials prepared by outside consultants or advisors. 
Recognizing that “Congress apparently did not intend 
‘inter-agency’ and ‘intra-agency’ to be rigidly exclusive 
terms,” Ryan v. Department of Justice, 617 F.2d 
781, 790 (D.C. Cir. 1980), those courts have applied a 
“functional test” that focuses on the role a document 
plays in the agency’s performance of its assigned func- 
tions, and on whether the document’s public disclosure 
would result in harms comparable to those caused by 
release of agency-created records. See pp. 4-6, supra. 

In the instant case, the court of appeals concluded 
that those decisions were inapposite—i.e., that the 
materials at issue here could not be regarded as “intra- 
agency” documents within the meaning of Exemption 
5—because “the Tribes with whom the [DOI] has a 

20 

consulting relationship have a direct interest in the 
subject matter of the consultations.” App., infra, 8a. 
That reasoning is deeply flawed. As we have explained 
above, a duty to maintain the confidentiality of infor- 
mation acquired in administering a trust where dis- 
closure would disserve the beneficiary’s interests has 
traditionally been an integral feature of the trustee’s 
responsibilities. The beneficiary’s interest in the trust 
property, and the trustee’s duty to protect that 
interest, form the essence of the trust relationship. To 
put it another way, the trustee’s distinct responsi- 
bilities run precisely to those persons having an 
interest in the trust corpus. It is therefore perverse to 
treat the Klamath Tribes’ “direct interest” in the allo- 
cation of water within the Klamath Basin as a ground 
for public disclosure of communications made by the 
Tribes to the government when acting in fulfillment of 
the United States’ responsibilities as trustee for tribal 
property. 

In determining whether particular materials con- 
stitute “intra-agency” records in this type of situation, a 
reviewing court should focus on whether the interests 
of the relevant federal agency and the creator of the 
documents are sufficiently congruent that the private 
party may reasonably be consulted by the agency on 
the matter in a confidential manner. In its capacity 
as trustee, the United States owes a duty of loyalty 
to Indian Tribes, resulting from the unique legal 
relationship—emanating from the Constitution and 
congressional mandates and recognized for nearly two 
centuries by this Court—in which the United States 
holds the lands and associated resources of the Tribes 
in trust for their benefit. Because a Tribe’s communi- 
cations with the government concerning trust resources 
are integral to its “governmentally conferred capacity,” 
United States Department of Justice v. Julian, 486 

21 

U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting) (see p. 5, 
supra), as beneficiary under that unique relationship, 
the requisite congruence of interests is inherent in the 
trust relationship and the functional test is satisfied. 
Indeed, a Tribe’s “direct interest” in the trust property 
makes it a particularly appropriate “consultant” with 
respect to the government’s performance of its trust 
responsibilities. 

The District of Columbia Circuit confronted a 
similar question in Public Citizen, Inc. v. Department 
of Justice, 111 F.3d 168 (1997). In Public Citizen, the 
court of appeals held that Exemption 5 applied to 
communications between the National Archives and 
former President Bush, pursuant to the Presidential 
Records Act of 1978, 44 U.S.C. 2201 et seq., concerning 
the appropriate disposition of the former President’s 
records. 111 F.3d at 170-172. The court stated that 
“[c]onsultations under the Presidential Records Act are 
precisely the type that Exemption 5 was designed to 
protect.” Id. at 171. It explained that an agency may 
sometimes require the assistance of outside experts and 
that “[t]he former President clearly qualifies as an 
expert on the implications of disclosure of Presidential 
records from his administration.” Ibid. 

The plaintiff in Public Citizen contended that under 
the “functional test,” those communications were sub- 
ject to disclosure because “the former President has a 
distinct and independent interest that makes him an 
adversary rather than a consultant.” 111 F.3d at 171. 
The court acknowledged that “a former President’s 
power to assert his rights and privileges * * * 
constitutes an independent interest.” Ibid. The court 
held, however, that neither “[t]he existence of inde- 
pendent presidential interests,” nor the possibility of 
future conflict between the former President and the 
Archivist, was sufficient to negate the consultative 

22 

relationship. Ibid. It observed in that regard that 
“[d]octors, lawyers and other expert advisors may find 
themselves in litigation as either plaintiffs or defen- 
dants against those whom they advise (e.g., breach of 
contract and malpractice claims), but for all that they 
are still consultants.” Ibid. 

Similarly here, the mere possibility that an Indian 
Tribe might be dissatisfied with the government’s per- 
formance of its duties as trustee in a particular instance 
in the future should not obscure the basic congruence of 
interests that is inherent in the trust relationship. To 
the contrary, a Tribe—like the former President in 
Public Citizen—is an especially valuable and appropri- 
ate consultant in this setting because it “clearly quali- 
fies as an expert on the implications of” the govern- 
ment’s decisions regarding the management and pro- 
tection of trust property. See 111 F.3d at 171. As the 
dissenting judge in the instant case explained, “[t]he 
mandated consideration that the Bureau and Depart- 
ment have to give to the Klamath Basin Tribes’ claims 
virtually requires that they consult the Tribes, much as 
the Archivist consulted the ex-President, to seek their 
peculiar expertise concerning their rights.” App., infra, 
25a. 

3. The court of appeals also stated that to permit 
withholding of the documents at issue in this case 
“would extend Exemption 5 to shield what amount to 
ex parte communications in contested proceedings 
between the Tribes and the [DOI].” App., infra, 10a. 
That reasoning, too, is flawed. 

a. The error in the court of appeals’ analysis is parti- 
cularly clear with respect to the documents pertaining 
to the Oregon adjudication. In that proceeding, the 
federal government is not the decisionmaker; its role is 
limited to the presentation of claims (on its own behalf 
and on behalf of Tribes) for ultimate resolution by state 

23 

officials. See United States v. Oregon, 44 F.3d at 764 
(describing procedures to be employed in the state 
adjudication). As the dissenting judge explained, the 
court of appeals’ analysis “fails to recognize * * * that 
at least four of the seven documents were used by 
the Bureau and the Department to prepare to repre- 
sent the Tribes’ claims in the Oregon water rights 
adjudication—not a proceeding which either the 
Bureau, or the Interior Department, has the authority 
to ‘resolve.’ ” App., infra, 23a n.4. Submissions 
intended to assist federal officials in their performance 
of representational functions before a state adjudicative 
body cannot sensibly be characterized as “ex parte 
communications.” 

Consistent with its trust obligation, the United 
States has historically represented the interests of the 
Tribes in disputes over their property and natural 
resources, including water rights. See, e.g., Winters 

v. United States, 207 U.S. 564, 576 (1908) (noting 
that “[t]he Government is asserting the rights of the 
Indians”); United States v. Powers, 305 U.S. 527, 528 
(1939); Arizona v. California, 373 U.S. 546, 595-601 
(1963); Colorado River Conservation Dist. v. United 
States, 424 U.S. 800, 812-813 (1976); Nevada v. United 
States, 463 U.S. 110, 113, 116, 127 (1983). Effective 
representation in that setting requires the exchange of 
communications between federal and tribal officials in 
furtherance of the common purpose of protecting the 
Tribes’ resources. Common law doctrine protecting 
exchanges of information between parties with a 
common interest in litigation “has been recognized in 
cases spanning more than a century.” United States v. 
McPartlin, 595 F.2d 1321, 1336 (7th Cir.), cert. denied, 
444 U.S. 833 (1979); see also United States v. 
Schwimmer, 892 F.2d 237, 243-244 (2d Cir. 1989); 

24 

United States v. American Tel. & Tel. Co., 642 F.2d 
1285, 1299 (D.C. Cir. 1980). 

The court of appeals’ decision places the Klamath 
Tribes at a distinct disadvantage vis-a-vis other claim- 
ants in the Oregon adjudication. Under the court’s 
ruling, the Tribes’ communications to their representa- 
tive (the United States) will be subject to compelled 
disclosure under the FOIA, without regard to the appli- 
cability of any traditional discovery privilege. Oppos- 
ing claimants in the state proceeding, by contrast, may 
continue to assert all available privileges with regard to 
documents passing between them and their own 
representatives. This Court has “consistently rejected 

* * * a construction of the FOIA” that would permit 
the Act to “be used to supplement civil discovery.” 
United States v. Weber Aircraft Corp., 465 U.S. 792, 801 
(1984). The court of appeals’ unduly narrow construc- 
tion of the term “intra-agency,” however, will have 
precisely that effect. 

b. The court of appeals’ “ex parte communications” 
rationale is also erroneous with respect to the docu- 
ments prepared in connection with the development of 
the KPOP. Like the documents related to the Oregon 
adjudication, those documents were submitted to (or, in 
one instance, prepared by) the agency in furtherance of 
the United States’ performance of its trust responsi- 
bilities on behalf of the Tribes. That the federal 
government has additional duties with respect to the 
KPOP does not vitiate the government’s duty as 
trustee to manage and protect tribal resources in 
accordance with fiduciary standards. 

In Nevada v. United States, supra, this Court con- 
sidered the preclusive effect of the judgment in a prior 
water rights adjudication in which the United States 
had claimed water rights for both the Pyramid Lake 
Indian Reservation and the planned Newlands Rec- 

25 

lamation Project. See 463 U.S. at 113. The court of 
appeals in that case held that the prior judgment was 
not binding on the Tribe because the federal govern- 
ment had “compromised its duty of undivided loyalty to 
the Tribe” by representing competing interests in the 
earlier adjudication. Id. at 141. This Court disagreed, 
explaining that 

where Congress has imposed upon the United 
States, in addition to its duty to represent Indian 
tribes, a duty to obtain water rights for reclamation 
projects, and has even authorized the inclusion of 
reservation lands within a project, the analogy of a 
faithless private fiduciary cannot be controlling for 
purposes of evaluating the authority of the United 
States to represent different interests. 

Id. at 142. The Court held that “the interests of the 
Tribe and the Project landowners were sufficiently 
adverse so that both are now bound by the final decree 
entered in the [prior] suit,” notwithstanding the fact 
that both interests were represented by the United 
States in the earlier proceeding. Id. at 143. The Court 
thus recognized that the United States government’s 
duty to consider and represent a variety of interests 
does not detract from its obligation as trustee to 
represent Indian Tribes and protect tribal property 
rights. 

In the instant case, the documents pertaining to the 
KPOP were submitted to (or created by) the BIA in 
carrying out the United States’ obligations as trustee 
for the tribal water rights potentially affected by the 
operation of the Klamath Project. The Court in Nevada 

v. United States observed that the government’s trust 
obligations in its dealings with Indian Tribes “have 
been traditionally focused on the Bureau of Indian 
Affairs.” 463 U.S. at 127; see also id. at 135-138 n.15; 

26 

Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 374 (1968) 
(identifying the BIA as “the agency of the Department 
of the Interior charged with fulfilling the trust obli- 
gations of the United States”). 

The fact that DOI must also take into account the 
interests of other water users in exercising ultimate 
decisionmaking authority with respect to the KPOP 
does not alter the duty of loyalty to the Tribes owed by 
the agency insofar as it is acting in its fiduciary role. 
The KPOP-related documents submitted by the Tribes 
were furnished to the BIA rather than to the BOR. 
That fact reinforces the conclusion that the documents, 
while assuredly relevant to DOI’s performance of its 
ultimate decisionmaking responsibilities with respect to 
the KPOP, were provided to the Department in its 
capacity as trustee. The court of appeals failed to 
recognize that the limitation upon FOIA’s overall goal 
of open government that the confidential trust relation- 
ship requires is simply an unavoidable consequence of 
the DOI’s dual role as trustee for Indian Tribes and as 
federal policymaker. See Nevada v. United States, 463 
U.S. at 127-128 (noting the DOI’s often-conflicting 
responsibilities to act as trustee for Indian resources 
and to manage federal water reclamation projects); 
Idaho v. Oregon, 444 U.S. 380, 391 (1980) (referring to 
the United States’ “role as trustee for the Indians” and 
“its role as manager of the ocean fishery and the 
dams”). Because the documents at issue here were 
submitted to (or created by) the government in its 
capacity as trustee, the court of appeals erred in 
analogizing those documents to “ex parte communi- 
cations.” 

4. No other court of appeals has addressed the appli- 
cation of FOIA Exemption 5 to documents provided by 
Tribes to a federal agency for the purpose of assisting 
the government in the performance of its trust respon- 

27 

sibilities.6 Notwithstanding the absence of a circuit 
conflict concerning the status under Exemption 5 of 
tribal submissions to federal agencies, the question pre- 
sented warrants immediate review by this Court. 

The Ninth Circuit contains approximately 62% (28 
million out of 45.5 million acres) of the lands held by the 
United States in trust for Tribes and individual Indians, 
and 400 of the 556 federally recognized Tribes are with- 
in that Circuit. In addition, approximately 67 of the 122 
cases in which the United States is currently represent- 
ing Tribes in litigation are within the territory covered 
by the Ninth Circuit. The practical impact of the court 
of appeals’ decision is therefore very substantial even if 
trust property within the Ninth Circuit is considered in 
isolation. The decision can also be expected to disrupt 
the trust relationship between the BIA and Tribes and 
individual Indians whose lands and resources are in 
other areas of the country. The court of appeals’ ruling 
will inevitably cast doubt on the BIA’s ability to protect 
the confidentiality of tribal submissions bearing on the 
government’s performance of its fiduciary duties, and it 

6 In County of Madison v. United States Department of 
Justice, 641 F.2d 1036, 1039-1041 (1981), the First Circuit held that 
several documents submitted by an Indian Tribe to the Depart- 
ment of Justice were not “intra-agency” records within the mean- 
ing of Exemption 5. The documents at issue in County of Madison, 
however, were submitted in connection with settlement negotia- 
tions concerning the Tribe’s lawsuit against the United States. Id. 
at 1038. The First Circuit concluded that such documents could 
not appropriately be analogized to staff recommendations pre- 
pared within the agency, explaining that the Tribe’s members 
“were past and potential adversaries, not coopted colleagues.” Id. 
at 1040. The documents at issue in the instant case, 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.” App., infra, 27a-28a (Hawkins, J., dissenting). 

28 

may thereby deter Tribes and tribal members from 
candidly expressing their views regarding the appropri- 
ate management of resources that the United States 
holds in trust for them. 

Thus, while the court of appeals’ decision is binding 
precedent only within the Ninth Circuit, the decision is 
likely to have a practical impact approaching that of a 
nationwide rule. The federal government cannot fulfill 
its fiduciary duties with respect to Indian trust re- 
sources without receiving candid, unfiltered informa- 
tion and assessments from the Tribes and individual 
Indians who hold the beneficial interest in those re- 
sources. In particular, in the course of litigation and 
negotiations concerning trust resources, the BIA and 
the Justice Department frequently ask Tribes to pro- 
vide highly sensitive and privileged information regard- 
ing the Tribes’ positions on relevant issues, as well as 
technical information supporting those positions. The 
public disclosure of tribal submissions will cause great 
damage to the United States’ litigating and negotiating 
position in ongoing trust resources cases. Under the 
court of appeals’ decision, Tribes will face a Hobson’s 
choice: they may disclose important litigation or policy 
information to the trustee and face a substantial risk of 
public disclosure, or they may withhold from their own 
representative information that is necessary to the 
fully effective performance of the government’s trust 
responsibilities. So profound and deleterious a change 
in the relationship between the United States and 
Indian Tribes should not be permitted to take effect 
without plenary review by this Court. 

29 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

LEONARD SCHAITMAN 
MATTHEW M. COLLETTE 

Attorneys 

MAY 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
NINTH CIRCUIT 

No. 97-36208 

KLAMATH WATER USERS PROTECTIVE ASSOCIATION, 
PLAINTIFF-APPELLANT 

v. 

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

[Argued and Submitted: March 3, 1999 
Decided: Aug. 31, 1999] 

Before: KLEINFELD and HAWKINS, Circuit Judges, 
and SCHWARZER,* Senior District Judge. 

Opinion By Judge SCHWARZER; Dissent By Judge 
MICHAEL DALY HAWKINS. 

SCHWARZER, Senior District Judge: 

The question before us is whether documents sub- 
mitted by Indian Tribes at the request of the Depart- 
ment of the Interior in the course of consultation over 

* The Honorable William W. Schwarzer, Senior United States 

District Judge for the Northern District of California, sitting by 

designation. 

(1a) 

2a 

ongoing administrative and adjudicative proceedings 
involving water rights and allocations affecting the 
Tribes’ interests are exempt under the Freedom of In- 
formation Act as “inter-agency or intra-agency mem- 
orandums or letters. . . .” 5 U.S.C. § 552(b)(5) (1994). 

FACTUAL BACKGROUND 

Klamath Water Users Protective Association (the 
“Association”) brought this action under the Freedom 
of Information Act (“FOIA”), 5 U.S.C. § 552, against 
the Department of the Interior (the “Department”) and 
its constituent agency, the Bureau of Indian Affairs 
(“BIA”), see 25 U.S.C. § 1. The Association is a non- 
profit association of water users in the Klamath River 
Basin who receive water from the Klamath Project (the 
“Project”), a federal reclamation project administered 
by the Bureau of Reclamation (“Reclamation”), an 
agency within the Department. See 43 U.S.C. § 1457 
(1994). Members of the Association, most of which are 
public agencies, such as irrigation districts holding con- 
tracts with Reclamation, receive water from the Pro- 
ject, as do the Klamath Basin Tribes. Those Tribes in- 
clude the Klamath Tribes, with fisheries located near 
Upper Klamath Lake, and the Yurok, Hoopa Valley, 
and Karuk Tribes, with fisheries on the Klamath River. 
The former Tribes have demanded that the Depart- 
ment maintain high lake levels to protect their fisher- 
ies, while the latter Tribes have demanded increased 
releases to the Klamath River to benefit their down- 
stream fisheries. The Tribes’ demands, if satisfied, 
would lead to reduced water allocations to members of 
the Association and have been protested by Association 
members who fear water shortages and economic in- 
jury in dry years. 

3a 

In 1995, Reclamation announced its intention to 
prepare a plan for long-term operation of the Project, 
the Klamath Project Operation Plan (“KPOP”). The 
purpose was to enable the Project to operate in con- 
formity with the Department’s various legal obligations 
in wet as well as dry years. The Department hired a 
consulting firm and held a series of meetings with in- 
terested parties. The meetings disclosed substantial 
disagreements among irrigation interests and the 
Tribes, leading the irrigation interests to fear that their 
water allocations would be cut. Although a draft KPOP 
was to be prepared for public comment in 1996, none 
has so far been released. 

In connection with the development of the KPOP, the 
Department entered into an agreement with the Kla- 
math Basin Tribes to provide consultation and coop- 
eration to assist it in fulfilling its trust obligations. In a 
separate matter, the Department also filed claims on 
behalf of the Klamath Tribes in a water rights adjudi- 
cation process established by the State of Oregon. This 
adjudication will quantify water rights, including those 
of the Klamath Tribes, in the Klamath River Basin. 

The Association made several FOIA requests of the 
BIA for documents provided to or received from the 
Klamath Basin Tribes pertaining to water resources is- 
sues in the Klamath River Basin in order to discern 
what information was being exchanged during the 
preparation of the draft KPOP outside the public pro- 
cess. The Department released some documents, but 
withheld others. After the filing of this action, more 
were from time to time released and the Association 
withdrew its request for others. In the end only seven 
documents remained in dispute. They are listed in the 

4a 

Vaughn index submitted by the Department and are 
described as memoranda provided by the tribes to the 
Department for use in the development of the KPOP, a 
memorandum from the Department concerning the 
government’s trust obligations in developing the 
KPOP, and memoranda from the tribes to the Depart- 
ment addressing claims in the water rights adjudi- 
cation. 

The district court granted the Department’s motion 
for summary judgment. Insofar as relevant to our 
disposition, the district court held that the documents 
“qualif[ied] as inter-agency or intra-agency documents 
under the ‘functional test,’ ” citing Formaldehyde Inst. 

v. Department of Health and Human Servs., 889 F.2d 
1118 (D.C. Cir. 1989). It found that the documents 
“played a role in the agency’s deliberations with regard 
to the current water rights adjudication and/or the anti- 
cipated Plan of Operations. Most of the documents 
were provided to the agency by the Tribes at the 
agency’s request.” The district court distinguished 
Madison County v. Department of Justice, 641 F.2d 
1036 (1st Cir. 1981), on the ground that “the Tribes are 
not in current litigation with the government, but 
instead acted in the role of consultants” and that “[t]he 
government used all these documents in fulfilling their 
trust obligation, and as part of their decision making 
process.” The Association appeals from the judgment. 
We have jurisdiction of this appeal under 28 U.S.C. 
§ 1291 and reverse. 

5a 

I. STANDARD OF REVIEW 

Ordinarily, review of summary judgment is de novo. 
In FOIA cases, however, because of their unique 
nature, we have adopted a two-step standard of review. 
We first determine whether the district court had an 
adequate factual basis upon which to base its decision. 
If so, we review the district court’s conclusion of an 
exemption’s applicability de novo. See Minier v. CIA, 
88 F.3d 796, 800 (9th Cir. 1996). Some of our cases have 
applied the clearly erroneous standard to review of a 
district court’s final determination of whether a parti- 
cular document is exempt under the FOIA. See, e.g., 
Rosenfeld v. United States Dep’t of Justice, 57 F.3d 803, 
807 (9th Cir. 1995); Frazee v. United States Forest 
Serv., 97 F.3d 367, 370 (9th Cir. 1996); Maricopa Audu- 
bon Soc’y v. United States Forest Serv., 108 F.3d 1082, 
1085 (9th Cir. 1997). As we explained in Schiffer v. 
FBI, 78 F.3d 1405, 1409 (9th Cir. 1996), application of 
that standard is appropriate in the common FOIA case 
where the district court’s findings of fact effectively 
determine the legal conclusion. We recognized, how- 
ever, that where the adequacy of the factual basis is not 
disputed, the district court’s legal conclusion whether 
the FOIA exempts a document from disclosure is 
reviewed de novo. See id. This appeal raises no factual 
issues. The question presented, whether the fiduciary 
and consultant relationship between the Department 
and the Tribes qualifies the disputed documents under 
the FOIA’s threshold inter/intra agency test, is one of 
law. Accordingly, our review is de novo. 

6a 

II. APPLICATION OF THE FOIA 

The FOIA “does not apply to matters that are— 

. . . 

(5) 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. . . .” 

§ 522(b)(5). We must apply this exemption consistently 
with our holdings that the FOIA “ ‘mandates a policy of 
broad disclosure of government documents.’ ” 
Maricopa, 108 F.3d at 1085 (quoting Church of Sci- 
entology v. Department of the Army, 611 F.2d 738, 741 
(9th Cir. 1980)). When a request is made, an agency 
may withhold a document only if it falls within one of 
the nine statutory exemptions in § 522(b) and these 
exemptions “ ‘must be narrowly construed’ in light of 
the FOIA’s ‘dominant objective’ of ‘disclosure, not 
secrecy.’ ” Id. (quoting Department of the Air Force v. 
Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L.Ed.2d 11 
(1976)). “FOIA imposes on agencies the burden of 
proving that withheld materials are exempt from dis- 
closure.” Id. 

The Department contends that the documents at 
issue, involving communications between the Tribes 
and the Department concerning the development of the 
KPOP and the Oregon water rights adjudication, meet 
the “functional test” of Exemption 5 for inter-agency/ 
intra-agency communications. It rests its contention on 
the fact that to fulfill its fiduciary responsibility to 
protect and manage the natural resources of the Indian 
Tribes, it entered into a Memorandum of Agreement 

7a 

with the Tribes acknowledging their consultative role 
in these two matters. 

The Department places principal reliance on For- 
maldehyde Inst. v. Department of Health and Human 
Servs., 889 F.2d 1118 (D.C. Cir. 1989). That case in- 
volved the application of Exemption 5 to a peer review 
letter received by the Centers for Disease Control 
(“CDC”), an agency within the Department of Health 
and Human Services, from a professional journal. The 
journal had reviewed a report submitted by an agency 
employee, determined not to publish the report, and 
then forwarded the peer review letter to the agency. 
The Formaldehyde Institute requested copies of all 
records of agency contacts with the journal relating to 
publication or rejection of the report. The agency re- 
jected the request, relying principally on Exemption 5. 
The court of appeals reversed judgment for the Insti- 
tute. Its opinion is largely devoted to determining that 
the peer review letter was predecisional and part of the 
deliberative process. But it also held that the peer re- 
view letter qualified under the inter-agency/intra- 
agency test. Quoting from its prior decision in CNA 
Fin. Corp. v. Donovan, 830 F.2d 1132, 1161-62 (D.C. 
Cir. 1987), which, in turn, relied on Ryan v. Department 
of Justice, 617 F.2d 781 (D.C. Cir. 1980), it held that 
“ ‘[w]hether the author is a regular agency employee or 
a temporary consultant is irrelevant; the pertinent 
element is the role, if any, that the document plays in 
the process of agency deliberations.’ ” 

See For- 
maldehyde, 889 F.2d at 1118. In Ryan, the court had 
said that “[w]hen an agency record is submitted by 
outside consultants as part of the deliberative process, 
and it was solicited by the agency, we find it entirely 
reasonable to deem the resulting document to be an 

8a 

‘intra-agency’ memorandum for purposes of determin- 
ing the applicability of Exemption 5.” Ryan, 617 F.2d 
at 790. More recently, the court held that communi- 
cations mandated by statute between the National Ar- 
chives and former Presidents relating to access to their 
presidential records are within Exemption 5. Public 
Citizen, Inc. v. Department of Justice, 111 F.3d 168, 
170-71 (D.C. Cir. 1997). 

This court has not yet had occasion to address the 
reach of the inter-agency/intra-agency test under Ex- 
emption 5 and to determine whether the expansive in- 
terpretation adopted by the District of Columbia Cir- 
cuit is consistent with the policy of broad disclosure on 
which the FOIA is anchored. We need not reach the 
issue here because this case differs in a material respect 
from those on which the Department relies. Here, the 
Tribes with whom the Department has a consulting 
relationship have a direct interest in the subject matter 
of the consultations. The development of the KPOP 
and the Oregon water rights adjudication will affect 
water allocations to the Tribes as well as those to mem- 
bers of the Association. While the Tribes and the As- 
sociation may not be engaged in conventional adversary 
litigation, they assert conflicting claims in a contentious 
proceeding involving the Department. The documents 
at issue are relevant to those claims. Thus, this case 
differs from Public Citizen, Inc. v. Department of 
Justice, on which the Department relies, in that it 
presents not simply “the potential for an adversary 
relationship” but a clear and present conflict with 
respect to the subject matter of the documents, which is 
for the Department to resolve. See 111 F.3d at 171 (“At 
some point, of course, features of the other relation- 

9a 

ships (above all, a possible future adversary one) might 
come to eclipse the consultative relationship. . . .”). 

We have held that documents submitted to an agency 
by persons outside the government as part of an ad- 
ministrative proceeding are not internal agency docu- 
ments exempt from disclosure. See Van Bourg, Allen, 
Weinberg & Roger v. NLRB, 751 F.2d 982, 984-85 (9th 
Cir. 1985) (affidavits describing union practices, officials 
and members submitted as part of an NLRB unfair 
labor practice investigation not within Exemption 5). 
The Department distinguishes the instant case on the 
ground that it had requested the advice of the Tribes. 
But that distinction makes no difference because, as 
County of Madison v. United States Dep’t of Justice, 
641 F.2d 1036, 1040 (1st Cir. 1981), holds in a similar 
context, consultation with the tribes is not similar to 
“ ‘the advice from staff assistants and exchange of ideas 
among agency personnel’ that forms the object of ex- 
emption five,” which exemption is limited to “inter- 
agency or intra-agency memorandums or letters.” In 
County of Madison, the court held that communications 
between an Indian tribe and the Department of Justice 
in an unsuccessful effort to settle litigation between 
them did not qualify as inter-agency/intra-agency docu- 
ments. It distinguished cases such as Ryan from the 
case before it in which, “by contrast, the Oneidas ap- 
proached the government with their own interest in 
mind. While they came to parley, they were past and 
potential adversaries, not coopted colleagues.” Id. 
While it is true that the Department requested the 
advice of the Tribes, the matters with respect to which 
it sought advice were matters in which the Tribes had 
their own interest and the communications presump- 
tively served that interest, even if they incidentally 

10a 

benefited the Department. Thus, we conclude that 
even were we to take an expansive view of the inter- 
agency/intra-agency test, these documents do not qual- 
ify for exemption. 

To hold otherwise would extend Exemption 5 to 
shield what amount to ex parte communications in con- 
tested proceedings between the Tribes and the Depart- 
ment. Rejection of such an extension does not conflict 
with the Department’s fiduciary obligations to the 
Tribes. See United States v. Cherokee Nation, 480 U.S. 
700, 707, 107 S. Ct. 1487, 94 L.Ed.2d 704 (1987). The 
Department exercises its regulatory powers in the 
context of the governing statutes; while it must act in 
the interests of the tribes, it may not afford them 
greater rights than they would have under the regula- 
tory scheme. See Skokomish Indian Tribe v. Federal 
Energy Regulatory Comm’n, 121 F.3d 1303, 1308 (9th 
Cir. 1997). Indeed, the 1994 Presidential Memorandum 
directing the heads of all executive departments and 
agencies to consult with tribal governments prior to 
taking actions that affect them specifically, provides 
that “[a]ll such consultations are to be open and candid 
so that all interested parties may evaluate for them- 
selves the potential impact of relevant proposals.” 3 
C.F.R. 1007 (1995). And a corresponding directive is- 
sued by the Secretary of the Interior in 1993 contains 
the identical mandate. See United States Dept. of the 
Interior, Protection of Indian Trust Resource Proce- 
dures app. Order No. 3175 (1993). 

Because the documents fail to meet the threshold 
inter-agency/intra-agency test, we need not reach the 
other issues raised by the Association. The judgment is 

REVERSED. 

11a 

REVERSED. 

MICHAEL DALY HAWKINS, Circuit Judge, dissenting: 

The majority, in an effort which marginally advances 
the cause of open government, winds up punishing en- 
tities the government has a fiduciary duty to protect. 
For the reasons that follow, I would affirm the judg- 
ment of the district court that the documents at issue 
should remain protected from the prying eyes of out- 
siders to the trust relationship between Native Ameri- 
can Tribes and the Department of Interior. 

We are asked here to review the district court’s find- 
ings that these particular documents, in their entirety, 
are exempted from disclosure under the Freedom of 
Information Act (“FOIA”) by FOIA’s exemption five. 
Although, in its own words, the Bureau of Indian 
Affairs (“Bureau”) and other Interior Department 
Agencies have provided it with “numerous documents” 
pursuant to its FOIA request, the Klamath Water 
Users Protective Association (“Association”), a non- 
profit corporation whose membership consists mainly of 
irrigation districts, continues to seek the release of 
these seven documents. Six of the seven documents in 
question were exchanged between the Bureau and the 
Klamath Basin Indian Tribes 1 (“Klamath Basin Tribes” 

1 The Klamath Basin Tribes include the Klamath Tribes, the 
Yurok Tribe, the Hoopa Valley Tribe, and the Karuk Tribe. Their 
interests are not always in accord, as the Tribes located near 
Upper Klamath Lake would prefer high levels of water in the 
Lake, and those located on the Klamath River would prefer high 
levels in the River to protect their respective fisheries, but they 
are generally adverse to the interests of irrigation districts—some 
of whom are members of the Association—who would prefer the 
waters be devoted to irrigation. 

12a 

or “Tribes”) in relation to consultation on the natural 
resource rights of the Klamath Basin Tribes in the 
Klamath River Basin in northern California and south- 
ern Oregon. The remaining document is a communi- 
cation between the Department’s Office of the Solicitor 
and a Tribe, in relation to an Oregon state proceeding in 
which the Department is mandated to press natural 
resources claims on behalf of affected Tribes. 

The dispositive factor in this appeal, according to the 
majority, is that the Klamath Basin Tribes have a 
“direct interest” in the subject of their natural resource 
rights, and thus communications between the Tribes 
and the Interior Department can never fall within any 
reading of exemption five. In making the Tribes’ 
“direct interest” the dispositive factor, however, I 
believe that the majority misreads and misapplies 
FOIA case law. 

In deciding that these seven documents fail to meet 
the threshold “inter-agency/intra-agency” test for ex- 
emption from disclosure under exemption five, the ma- 
jority never considers how the documents were em- 
ployed in decision making. Fundamentally, the major- 
ity fails to recognize that the appropriate inquiry is an 
inquiry into the role a document plays in agency 
decision making, not into the identity of its producer. If 
this test were applied, I believe that the district court’s 
conclusion that these documents are protected would be 
shown to be entirely correct. 

Where the Bureau and Department are, by law, 
required to represent the interests of Indian Tribes, the 
majority’s holding stands as a barrier to that represen- 
tation. The majority implies that status as a federally 
recognized Indian Tribe, and the U.S. government’s 

13a 

trust responsibilities to the Tribes, create not a coop- 
erative, but an adversarial relationship between the 
government and the Tribe, and thus FOIA can be used 
to destroy any opportunity for “open and honest” con- 
sultation between them. I have great respect for the 
majority and its author, but I simply cannot agree with 
a notion I think so fundamentally wrong. 

FACTS 

The Klamath Basin Tribes have natural resources 
rights tied to the waters of the Klamath River and 
Lake. See, e.g., United States v. Adair, 723 F.2d 1394 
(9th Cir. 1984) (Klamath Tribes). In the past, the Kla- 
math Basin Tribes have asserted these water rights to 
protect two species of fish in the Upper Klamath Lake, 
and to benefit tribal fisheries in the California stretches 
of the Klamath River. 

The United States government and its agencies have 
a clear trust responsibility to protect Tribal natural re- 
sources. See United States v. Cherokee Nation, 480 
U.S. 700, 707, 107 S. Ct. 1487, 94 L.Ed.2d 704 (1987). 
Pursuant to Presidential and Departmental directives, 
all agencies within the Interior Department are re- 
quired to “consult with tribes on a government-to-gov- 
ernment basis whenever plans or actions affect tribal 
trust resources.” Department of the Interior, Depart- 
mental Manual: Part 512 American Indian and Alaska 
Native Programs, Departmental Responsibilities for 
Indian Trust Resources § 2.2 (1995). In spite of such 
consultation, the Tribes have not always agreed with 
the Bureau of Reclamation, an agency of the Interior 
Department, in its decisions allocating Klamath waters 
and at one point threatened to sue under the Endan- 
gered Species Act to protect fish. 

14a 

The Bureau of Reclamation administers the Klamath 
Irrigation Project (“Klamath Project”), which uses the 
waters of the Klamath to irrigate over 200,000 acres in 
Klamath County, Oregon and two northern California 
counties, mainly for agricultural purposes. The Asso- 
ciation’s interest in the Klamath’s waters springs from 
its membership which is composed in the main of ir- 
rigation districts who have entered into contracts with 
the Bureau of Reclamation to deliver water from the 
Klamath Project.2 While the Bureau of Reclamation 
has obligations under the Reclamation Act and contract 
to these irrigators, it owes them not the slightest 
fiduciary duty, or obligation to assert their claims. See 
Nevada v. United States, 463 U.S. 110, 103 S. Ct. 2906, 
77 L.Ed.2d 509 (1983) (finding obligations under Rec- 
lamation Act to project irrigators, but obligations to 
Indian Tribes grounded in trust responsibility); Filings 
of Claims for Water Rights in General Stream Adju- 
dications, 97 Interior Dec. 21 (1989) (concluding that 
while United States is obligated to make filings in 
stream adjudications on behalf of project water rights 
to which it holds legal title, it is not required to make 
filings or present evidence on behalf of individual water 
users). 

1. The Klamath Project Operation Plan 

2 The Association is not itself a contractor with the Klamath 
Project for water. Most of its members, however, are irrigation 
districts and other public agencies who contract with the Klamath 
Project for water allocations. The members then resell the water 
to private individuals and firms to irrigate commercial farming in 
Klamath County, Oregon and Modoc and Siskiyou Counties in 
California. 

15a 

The triggering event for the Association’s FOIA 
request was the 1995 announcement that the Depart- 
ment would be developing a long-term plan for opera- 
tion of the Klamath Project, known as the “KPOP.” 
Multiple agencies within the Department, including the 
Bureau of Reclamation, the Bureau of Indian Affairs, 
the Biological Resources Division, the National Marine 
Fisheries Service, and the Office of the Solicitor have 
been jointly involved in the process. Public meetings 
were held to allow public participation in the planning 
process, and were attended by Interior Department 
personnel, Tribal representatives, environmental 
groups, members of the Association, and state agencies. 

Besides the public meeting process, the Department 
has also separately consulted with the Klamath Tribes 
on the operation plan as part of its obligation to protect 
the Tribes’ trust resources whenever a potential impact 
on resources might occur. The Association has no legi- 
timate role in this consultation. Nor was the fact of it 
hidden from these parties: it was made visibly appar- 
ent on an information sheet distributed to publicize the 
planning process. The Department and Tribes entered 
into a “Memorandum of Agreement for the Govern- 
ment-to-Government Relationship in the Development 
of the Klamath Project Operations Plan” (“Memoran- 
dum of Agreement”) which formalized the consultation 
commitment, and allowed participation by the tribal 
governments in “planning and managing the trust 
resource base.” 

The Department has not yet completed the KPOP. A 
draft plan was produced in 1996, but never released. 

2. The Oregon Water Rights Adjudication 

16a 

The Bureau also represents some of the Klamath 
Tribes in Oregon state proceedings to adjudicate all 
claims to surface water in the Klamath River Basin in 
Oregon. These proceedings were initiated by the Ore- 
gon Water Resources Department pursuant to Oregon 
law. As well as asserting its own claims, the United 
States has an obligation to assert the rights of the 
Tribes. See United States v. White Mountain Apache 
Tribe, 784 F.2d 917, 920 (9th Cir. 1986). While these 
proceedings are not covered by the Memorandum of 
Agreement, the tribes have been extensively consulted 
in the process of determining the scope of the Tribes’ 
water rights claims, and legal theories that could be 
advanced on their behalf. Other federal agencies have 
also filed water rights claims, as have private parties. 

3. The FOIA Request 

In 1996, the Association submitted FOIA requests to 
the Bureau seeking communications exchanged be- 
tween the Bureau and the Tribes during the time 
period the draft KPOP was being prepared and re- 
viewed. Unhappy with the information released by the 
Bureau, the Association filed this action seeking further 
disclosure pursuant to FOIA. In the course of the liti- 
gation, the Bureau released more documents, and the 
Association dropped its requests for others, leaving 
only these seven documents at issue. 

Based on its findings regarding the role the docu- 
ments played in agency deliberations, as well as on the 
consultative relationship that trust responsibilities and 
the Memorandum of Agreement established with the 
Tribes, the court below concluded that these seven 
documents fall within the exemption from disclosure 
provided by exemption five. 

17a 

Document 3, FOIA Appeal 96-168, is a fax from the 
Klamath Tribes to the Bureau that contains a position 
paper on the water rights of the tribes. An affidavit 
from a Bureau employee stated that the Department 
had requested the position paper for use in depart- 
mental deliberations about the adjudication, and trust 
responsibilities in developing the KPOP. The court 
below found that disclosure would “discourage candid 
discussions within the Department” and “undermine 
the Department’s ability to address water rights issues 
concerning the tribes.” 

Document 6, FOIA Appeal 96-168, is the only 
document from the Bureau to the Klamath Basin 
Tribes. It is a draft memo prepared by a Bureau em- 
ployee that was circulated to two other Bureau em- 
ployees and two Tribal attorneys proposing draft lan- 
guage to explain the Bureau’s responsibilities for trust 
assets in the KPOP process. The court below found that 
the document was used pursuant to consultation with 
the tribes, relied upon in agency deliberations, and that 
disclosure would discourage inter-departmental discus- 
sion and harm the development of the operations plan. 

Document 10, FOIA Appeal 96-168, is a fax from a 
Klamath tribal attorney to a Bureau employee expres- 
sing views on trust resources, especially fish. An affi- 
davit by the Bureau employee receiving the fax esta- 
blished that he had requested the document and used it 
in his work preparing for the development of the 
KPOP. The court below again found that the document 
had been obtained pursuant to consultation with the 
tribes, relied upon by agency personnel in deliberations, 
and that disclosure would discourage inter-depart- 

18a 

mental discussion and harm the development of the 
operations plan. 

Document 16, FOIA Appeal 96-201, is a letter from a 
Klamath tribal attorney expressing views on the tribe’s 
water rights claim in the adjudication. An affidavit 
from a Department employee established that the 
Office of the Solicitor asked for the information and 
used it to prepare for the water rights adjudication. 
The court below again found that the document had 
been obtained pursuant to consultation with the tribes, 
been relied upon by Departmental personnel in delibe- 
rations, and that disclosure would discourage inter- 
departmental discussion. 

Document 20, FOIA Appeal 96-201, is also a letter 
from the Klamath Tribes to the Bureau concerning 
water rights, used to prepare for the water rights 
adjudication. The court below again found that the 
document had been obtained pursuant to consultation 
with the tribes, relied upon by the Bureau in its 
deliberations, and that disclosure would discourage 
inter-departmental discussion and harm the develop- 
ment of the operations plan. 

Document 25, FOIA Appeal 96-201, is a letter from a 
Klamath tribal attorney to the Bureau on water rights 
that also includes a tribal resolution. Affidavits by 
Bureau employees again establish that this document 
was requested by the Bureau to assist in preparing for 
the water rights adjudication. The court below made 
the same findings in relation to this document as to the 
others, and also found that disclosure would “expose 
sensitive litigation positions” of the Department in the 
adjudication. 

19a 

Document 27, FOIA Appeal 96-201, is a memo from a 
Klamath Tribes biologist to a Bureau employee dis- 
cussing biological factors that may affect trust re- 
sources such as fish. Affidavits again establish that the 
Bureau requested and used this document to develop 
the KPOP. The court below made the same findings in 
relation to this document as to the others, and also 
found that disclosure would “expose technical opinions 
deemed critical to analyzing the extent of the Depart- 
ment’s trust responsibility.” 

ANALYSIS 

The Association argues that withholding these seven 
documents “unfairly and unduly disadvantage[s]” the 
Association and its members in their ability to partici- 
pate in the KPOP process. The Department argues 
that the district court was correct in finding that the 
documents fall within FOIA exemption five as inter- 
agency or intra-agency communications, because the 
Tribes are in effect “consultants” to the Bureau on the 
issue of Tribal natural resource rights, and that 
releasing the documents would chill the agency’s ability 
to make policy decisions. 

The crucial question is the interpretation and applica- 
bility of exemption five to these documents, in these 
circumstances.3 Exemption five exempts from public 
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.” 5 U.S.C. § 552(b)(5). While, like all FOIA ex- 

3 As the majority explains, while our standard of review of 
summary judgments under FOIA is unsettled, this threshold 
determination is subject to de novo review as a question of law. 

20a 

emptions, we narrowly construe exemption five, see 
Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 
F.2d 982 (9th Cir. 1985), we also recognize that it 
“incorporates the attorney-client privilege, the attorney 
work-product privilege, and the executive ‘deliberative 
process’ privilege that protects candid internal discus- 
sion of legal or policy matters.” Maricopa Audubon 
Soc’y v. United States Forest Serv., 108 F.3d 1082, 1083 

n. 1 (9th Cir. 1997). 

In considering the applicability of the “deliberative 
process” privilege contained within exemption five— 
the privilege mainly at stake in this case—this court 
has usually found itself engaged in a two step process: 
(1) determining whether a document is “predecisional,” 
and, if so; (2) determining whether it is “deliberative.” 
See, e.g., Maricopa Audubon Soc’y v. United States 
Forest Serv., 108 F.3d 1089, 1093 (9th Cir. 1997); As- 
sembly v. United States Dep’t of Commerce, 968 F.2d 
916, 920 (9th Cir. 1992); National Wildlife Fed’n v. 
United States Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 
1988); Federal Trade Comm’n v. Warner Communi- 
cations Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). In this 
instance, however, the majority’s decision rests on 
a more basic challenge to the applicability of the 
exemption—a challenge to whether the documents in 
question are “inter-agency or intra-agency.” 

At first glance, the majority’s decision that the docu- 
ments—which no one disputes were exchanged 
between the Klamath Tribes and the Bureau—are not 
“inter-agency or intra-agency” documents seems 
entirely logical. The Klamath Tribes are not agencies of 
the federal government, and would probably strongly 
resist characterization as such. 

21a 

Exemption five has not been so narrowly construed, 
however, by this court or by others. The purpose be- 
hind exemption five is the promotion of quality govern- 
mental decision making by allowing free and indepen- 
dent debate during the course of decision making, with- 
out exposure of intermediate opinions and recommen- 
dations to the “fishbowl” of public scrutiny. See En- 
vironmental Protection Agency v. Mink, 410 U.S. 73, 
87, 93 S. Ct. 827, 35 L.Ed.2d 119 (1973). Since an 
agency will often rely on “opinions and recommenda- 
tions of temporary consultants, as well as its own 
employees,” Ryan v. Department of Justice, 617 F.2d 
781 (D.C. Cir. 1980), in its deliberative process, com- 
munications from these consultants, although not liter- 
ally inter-agency or intra-agency can be “an integral 
part of [the agency’s] deliberative process.” Id. at 789- 

90. Thus, this circuit and others have recognized that 
documents created by outside consultants that other- 
wise qualify as deliberative, predecisional agency docu- 
ments may also shelter within exemption five. See 
Van Bourg, 751 F.2d at 985 (stating that documents 
prepared by outsiders with formal relationships to 
agencies may fall within exemption five); see also 
Public Citizen, Inc. v. Department of Justice, 111 F.3d 
168 (D.C. Cir. 1997); Formaldehyde Inst. v. Department 
of Health and Human Serv., 889 F.2d 1118 (D.C. Cir. 
1989); Brockway v. Department of Air Force, 518 F.2d 
1184 (8th Cir. 1975); Wu v. National Endowment for 
Humanities, 460 F.2d 1030 (5th Cir. 1972). 

In determining whether a document, or communi- 
cation from an outside consultant is part of the “delib- 
erative process” that exemption five is designed to pro- 
tect, “the pertinent element is the role, if any, that the 
document plays in the process of agency deliberations.” 

22a 

CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1161 
(D.C. Cir. 1987); see also Formaldehyde Inst., 889 F.2d 
at 1123. The primary consideration is not the identity 
of the creator of the document, but “what harm, if any, 
the [document’s] release would do to [the agency’s] 
deliberative process.” Id. This “functional test” covers 
circumstances “where an agency has ‘a special need for 
the opinions and recommendations of temporary consul- 
tants,’ ” exempting documents with such information 
from disclosure under FOIA. See State of Texas v. ICC, 
889 F.2d 59, 61 (5th Cir. 1990) (quoting Hoover v. 
United States Dep’t of the Interior, 611 F.2d 1132 (5th 
Cir. 1980)). 

The majority, however, holds that the seven docu- 
ments here in issue can never fall within any reading of 
exemption five of FOIA, because the Klamath Basin 
Tribes have a “direct interest” in the water and natural 
resource rights to which the documents pertain. In my 
view, the majority errs in resting their decision on this 
“direct interest” and abandoning examination of the 
function of these documents within the Bureau’s delib- 
erative processes. 

The majority believes the Tribes’ “direct interest” in 
natural resource and water rights causes a conflict of 
interest that makes these documents function as tools 
of advocacy rather than consultancy. The majority is 
unclear, however, why this “direct interest” automati- 
cally disqualifies the documents for use in agency delib- 
erations—whether the crux of the problem is conflict 
between the Tribes and the Association, or conflict 
between the Tribes and the Department. While the 
majority states at one point that the Tribes and the As- 
sociation “assert conflicting claims in a contentious pro- 

23a 

ceeding,” they also state that these are “contested pro- 
ceedings between the Tribes and the Department.” 4 

Regardless of where the majority means to fix this 
“conflict,” the function of these documents was to aid in 
departmental policy making, and the Tribes never 
exited their role of consultancy to become advocates. 
These documents are not advocacy, but the written 
record of an agency’s consultation of a knowledgeable 
source, whose rights the agency is obligated to protect, 
in the process of making decisions as to how best to 
protect those rights. 

If the majority believes that the Tribes’ direct 
interest in natural resource and water rights is prob- 
lematic because the Tribes and Association “assert 
conflicting claims in a contentious proceeding,” the 
cases that the majority relies upon are inapposite. The 
existing case law, while relying on the role of the docu- 
ment in agency deliberations as the determinative 
factor, looks not at conflict between competing claim- 
ants before an agency, but at the existence of conflict 
between outside entities and an agency in trying to 
determine that role. 

4 If the majority means to characterize this case as the asser- 
tion by the Tribes and the Association of “conflicting claims in a 
contentious proceeding involving the Department” creating a 
“clear and present conflict with respect to the subject matter of 
the documents, which is for the Department to resolve,” as a 
threshold matter, such a characterization fails to recognize or 
address that at least four of the seven documents were used by the 
Bureau and the Department to prepare to represent the Tribes’ 
claims in the Oregon water rights adjudication—not a proceeding 
which either the Bureau, or the Interior Department, has the 
authority to “resolve.” 

24a 

The “potential for an adversary relationship” raised 
in Public Citizen, 111 F.3d at 171, was not a potentially 
adversarial relationship between Public Citizen and the 
former President, but a potentially adversarial relation- 
ship between the former Presidents and the Records 
Agency that the court found remained consultative. 
See id. Nor did the County of Madison decision rest 
upon the adversarial relationship between the County 
and the Oneida, but upon the adversarial relation- 
ship—litigation—between the Department of Justice 
and the Oneida. See County of Madison v. United 
States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 
1981). 

Moreover, this is not a case like Van Bourg where 
the agency is formally adjudicating a claim between two 
parties, and reviewing documents submitted by those 
private adverse parties to represent their positions in 
litigation, or a formal agency investigation. See Van 
Bourg, 751 F.2d at 985. Documents submitted in such 
circumstances would indeed have been submitted in 
response to “a mere request for information” by the 
agency to allow it to make a determination and could be 
viewed as advocacy, rather than being “a consultation 
or solicitation of expert advice . . . sought for the 
purpose of formulation of [agency] policy.” State of 
Texas, 889 F.2d at 61. 

These documents were, instead, 
submitted at the request of the Bureau in order to allow 
it to formulate a position on the Klamath Basin Tribes’ 
claims in the KPOP and the Oregon adjudication. 

The majority argues that the Tribes’ direct interest 
in their subject matter makes unimportant that the 
Bureau requested these documents from the Tribes. 
With the analysis properly focused on the function of 

25a 

the documents, however, rather than on the identity of 
the consultant, the request shows that the Bureau and 
the Tribes were in a consultative, not adversarial 
relationship. Sharing proposed strategies, as several of 
the memos do, is not the action of parties in conflict. 

If the majority means to argue instead that these are 
“contested proceedings between the Tribes and the 
Department,” while this position would be in line with 
existing analysis of exemption five, the majority’s 
analysis remains flawed. The Tribes and Bureau are 
not engaged in an adversarial relationship. 

Rather than being distinguishable, Public Citizen is 
highly persuasive in establishing that exemption five 
does apply. Public Citizen directly rejects the major- 
ity’s position that “a distinct and independent interest 

. . . makes [an outside entity] an adversary [to the 
agency] rather than a consultant.” Public Citizen, 111 
F.3d at 171. Much as the Klamath Basin Tribes have 
natural resource rights which the Bureau and Depart- 
ment have a duty to reconcile with other parties’ claims 
to water, the ex-President has “rights and privileges” 
in records that the Archivist has to reconcile with du- 
ties to the public to make records available. See id. The 
mandated consideration that the Bureau and Depart- 
ment have to give to the Klamath Basin Tribes’ claims 
virtually requires that they consult the Tribes, much as 
the Archivist consulted the ex-President, to seek their 
peculiar expertise concerning their rights, and how 
they wish to assert them in the KPOP and Oregon ad- 
judication. 

The affidavits from Department and Bureau em- 
ployees, accepted by the court below, confirm that 
these communications spring from a relationship that 

26a 

remains consultative rather than adversarial, a 
relationship in which the Bureau and Department were 
seeking the expertise of the Tribes, rather than op- 
posing them. Like the court in Public Citizen, which 
relied on a similar declaration by an Archives employee 
explaining that the communications with the ex- 
President were used to streamline the reconciliation of 
interests and ensure rapid resolution, I believe that the 
“[t]he existence of independent . . . interests provides 
no basis for doubting this explanation.” See id. I would 
find that in these circumstances “the potential for an 
adversary relationship is not enough to negate one of 
consultation.” Id. The communications between the 
Tribes and the Bureau are, as the affidavits explain, 
communications aimed at allowing Bureau employees to 
understand the Tribes’ natural resource rights and 
formulate policy accordingly. 

County of Madison, a fundamentally different case, 
does not stand as a barrier to the application of exemp- 
tion five even under “an expansive view of the inter- 
agency/intra-agency test.” There, the Oneida Tribe and 
the United States were engaged in adversarial litiga- 
tion, and the documents the United States sought to 
withhold were documents related to litigation settle- 
ment negotiations. See County of Madison, 641 F.2d at 
1036, 1041-43. In such a situation of direct adversity 
between an agency and an outside party, documents are 
outside of exemption five, especially where there is not 
a shred of deliberative process and participation. Cf. 
Van Bourg, 751 F.2d at 985; State of Texas, 889 F.2d at 

61. The Bureau and the Klamath Tribes, in contrast, 
are not “past and potential adversaries” at this 
point—in many ways they have a relationship akin to 
that of attorney and client. 

27a 

The majority ignores that the factor crucial to 
County of Madison’s holding was not that the Oneida 
had self-interest in mind in dealing with the Depart- 
ment of Justice, but that the documents in question 
were documents related to litigation in which the two 
were adversaries, rather than documents that the 
Department had requested to formulate policy, or assist 
in decision making. While the interests of the parties 
illuminate the function of the documents in County of 
Madison, County of Madison was decided on that 
function, not on the “selfishness” of the Oneida’s 
motives. 

As the First Circuit noted, “the line between suppli- 
cants and consultants may not always be clear.” 
County of Madison, 641 F.2d at 1042. In this case, how- 
ever, the Klamath Basin Tribes and Bureau relation- 
ship is consultative rather than self-seeking suppli- 
cation. The relationship, as well as the documents here 
in question, are entirely different from those in County 
of Madison. These documents were not submitted in 
relation to litigation, but as part of a cooperative, 
consultative relationship mandated by Departmental 
policy and federal law. 

Regardless of where the “conflict” is situated, or how 
we interpret prior case law, the crux of the majority’s 
unease is that at some point the Department will have 
to balance the rights of the Tribes and those of the 
Association’s members in allotting water in the KPOP. 
Thus, the majority perceives allowing these communi- 
cations to be kept from disclosure under exemption five 
as, in some sense, allowing “ex parte” contact. In de- 
ciding this case on grounds prompted by that concern, 
however, the majority fails to recognize the impli- 

28a 

cations of the relationship between the Department and 
the Tribes and the implications of its decision for that 
relationship. 

This does not mean, as the majority argues, allowing 
the trust relationship would subvert FOIA and its 
goals. To the contrary, just as the fiduciary relation- 
ship between the Tribes and the government is not 
enough alone to justify blanket application of exemption 
five, see Morongo Band of Mission Indians v. FAA, 161 
F.3d 569, 574 (9th Cir. 1998) (trust relationship, while 
creating fiduciary duties, does not extend to give tribes 
greater rights than others under general regulations 
and statutes); Skokomish Indian Tribe v. FERC, 121 
F.3d 1303, 1308 (9th Cir. 1997), neither should the 
fiduciary relationship be a barrier to the application of 
the exemption—the end result of the majority’s de- 
cision—if the exemption’s requirements are otherwise 
fulfilled. The main thrust of the memos quoted by the 
majority is to improve communications between the 
tribes and the government as a part of strengthening 
their unique relationship. The spirit behind that policy 
is not carried out when we not only fail to recognize 
that relationship, but use it to frustrate the use of this 
otherwise applicable FOIA exemption. I argue not for 
giving extra favoritism to the Tribes under an equally 
applicable law, but for the recognition of the conse- 
quences of a true distinction between their position and 
the positions of others vis-a-vis the Department in this 
matter. 

The Department and Bureau are mandated to bring 
claims for, and protect the interests of the Tribes in a 
way that they are not required to act for the Associ- 
ation’s members, or other parties interested in the out- 

29a 

come of the KPOP. The Bureau is not only the agency 
principally entrusted with relations with Indian Tribes 
in general, but in this situation it is mandated to 
present claims on behalf of the Tribes in both the 
adjudication and the KPOP proceedings. The Tribes’ 
relationship to the Bureau, and Department, is akin to 
an attorney-client or fiduciary relationship. Far from 
being in conflict with the Tribes, the Bureau in many 
ways functions as the Tribes’ advocate. 

Because the Tribes and Association are not similarly 
situated with regard to the Department, what is occur- 
ring is not “ex parte contact.” Acknowledging this dif- 
ference in relationships in our analysis of this case 
would not mean granting the Tribes extra benefits 
under FOIA. FOIA does not require the release of 
these documents, as it might communications between 
the Association’s members and the Department, be- 
cause the Tribes have a formal consultative relationship 
and these documents are being used for predecisional, 
deliberative purposes. See Van Bourg, 751 F.2d at 985. 

The majority’s focus on “direct interest” rather than 
looking at the use, or function, of the documents is 
destructive in this context, where the Tribes and the 
Bureau are closely linked. This decision undermines 
the ability of the Bureau to fully understand and 
represent the Klamath Tribes in these two proceedings, 
without really adding much to the cause of freedom of 
information. There is no strong reason to chip away at 
that relationship in these circumstances. 

It is important to remember that the Bureau, with 
whom all but one of these communications were ex- 
changed, is not the final arbiter of water rights in either 
the KPOP or the Oregon adjudication. The Bureau is 

30a 

only one agency of many involved in the formulation of 
the KPOP and in that process its role concentrated on 
safeguarding the interests of the Tribes within the 
broader scheme of the KPOP. No position that the 
Bureau alone takes is likely to be taken as a given in 
the KPOP, and accepted without dispute by the other 
agencies in the Department. 

In the end, the Bureau’s and the Department’s final 
policy position will become public—both in the KPOP 
proceedings and the adjudication. The Association and 
all others interested will find out that decision at an 
appropriate time, when there will be a chance to chal- 
lenge and discuss. The majority’s decision, allowing the 
Association to leap-frog that process, gains little in the 
public exposure of information and loses much in terms 
of the ability of the Bureau to carry out its duty to 
protect the rights of the Tribes. Because of this, and 
because I believe that the proper inquiry in this case 
should have been an inquiry into the role the documents 
played in agency decision making, I dissent. 

31a 

APPENDIX B 

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 

[Filed: Oct. 16, 1997] 

ORDER 

Magistrate Judge John P. Cooney filed Findings and 
Recommendation on June 19, 1997, in the above entitled 
case. The matter is now before me pursuant to 28 
U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b). When 
either party objects to any portion of a magistrate 
judge’s Findings and Recommendation, the district 
court must make a de novo determination of that por- 
tion of the magistrate judge’s report. See 28 U.S.C. 
§ 636(b)(1); McDonnell Douglas Corp. v. Commodore 
Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 
1981), cert. denied, 455 U.S. 920 (1982). 

32a 

Plaintiff has timely filed objections. I have, there- 
fore, given de novo review of Magistrate Judge 
Cooney’s rulings. 

I find no error. Accordingly, I ADOPT Magistrate 
Judge Cooney’s Findings and Recommendation filed 
June 19, 1997, in its entirety. Defendants’ motion for 
summary judgment is granted. 

IT IS SO ORDERED. 

DATED this 16th day of October, 1997. 

/S/ MICHAEL R. HOGAN 

UNITED STATES DISTRICT 

JUDGE 

33a 

APPENDIX C 

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 

[Filed: June 19, 1997] 

FINDINGS AND RECOMMENDATION 

COONEY, Magistrate Judge: 

Plaintiff, Klamath Water Users Protective Associa- 
tion (KWUPA), brings this action pursuant to the Free- 
dom of Information Act (FOIA), 5 U.S.C. § 552 et seq., 
and the Administrative Procedure Act (APA), 5 U.S.C. 
§ 701 et seq. Plaintiff seeks injunctive relief prohibiting 
defendants from withholding the requested documents, 
an order directing defendants to waive all fees for 
copies of requested documents, and reasonable attorney 
fees and costs. Defendants move for summary judg- 

34a 

ment (#22). Defendants filed the documents in dispute 
with the court for in camera review. 

I. FACTS 

In making the following statement of facts, I view the 
facts in the light most favorable to the nonmoving 
party.1 

KWUPA is a nonprofit corporation. (Solem decla- 
ration at 1). Most of its members are contractors of the 
Bureau of Reclamation, who receive water for irriga- 
tion through the Klamath Project facilities. (Id. at 1-2). 
Plaintiff does not conduct any commercial activities, 
and it does not use or distribute water from the 
Klamath Project. (Id. at 5). Most of its members are 
public agencies; primarily irrigation districts, but some 
are not contractors within the Klamath Project. (Id. at 
2 and 6). 

KWUPA provides information and representation for 
its members on matters in which they have a common 
interest, and to persons in the Klamath Basin in 

1 Plaintiff objects to defendants’ evidence and related state- 
ments in defendants’ reply memorandum. Plaintiff objects to page 
5, first full paragraph; the court finds that this objection is well 
taken, and is reflected in the statement of facts. Plaintiff objects to 
page 14, the first full paragraph. The court finds that this state- 
ment is irrelevant, and denies this objection as moot. Plaintiff 
objects to page 17, the second full paragraph, arguing that the 
Scott-Brier declaration is insufficient to establish that this docu- 
ment was prepared by a tribal attorney. This objection is well 
taken; however, the defendants’ Vaughn Index also states that this 
document was prepared by a tribal attorney, and plaintiff failed to 
object to this statement. Plaintiff objects to page 21, the first full 
sentence. This objection is well taken. Plaintiff objects to page 24, 
the second full paragraph. This objection is well taken. 

35a 

general. (Id. at 6). It holds annual meetings, at which it 
presents information regarding activities and current 
developments regarding water resource issues in the 
Klamath River Basin. (Id.). It maintains a library of 
materials related to water resources, agriculture, and 
other resource issues in or affecting the Klamath Basin. 
(Id.). It makes information available to the public by 
participation in public or civic functions, such as booths 
at county fairs. (Id.). 

Members distribute water to nearly 230,000 acres of 
land for irrigation in southern Klamath County, Oregon 
and northern Modoc and Siskiyou Counties in Califor- 
nia. (Id. at 2). Most of the land is irrigated and farmed 
by private individuals or firms. (Id.). The major source 
of water for irrigation in the Klamath Project area is 
Upper Klamath Lake. (Id. at 2). Water is stored in the 
lake by operation of a dam, and is also diverted from the 
Lake through a large canal operated by Klamath 
Irrigation District. (Id.). Some water released from 
the dam is diverted for project irrigation, while other 
water flows into the Klamath River. (Id.). In the past 
few years, the Bureau of Reclamation and Department 
of Interior have stated that the water in the Klamath 
project must be managed, allocated, or reallocated t o 
protect interests of various Indian tribes. (Id.). 

In February of 1995, the Bureau of Reclamation 
announced that it planned to prepare a plan for long- 
term operation of the Klamath Project. (Id.). They 
wanted to develop a plan to operate the Klamath Pro- 
ject according to the various legal obligations of the 
Department of Interior. (Id.). In February of 1995, the 
Bureau of Reclamation stated that the Klamath Project 

36a 

Operation Plan (KPOP) would be completed by March 
of 1996. (Id.). 

The Department of the Interior held a series of 
meetings to discuss KPOP development. (Id. at 3). At 
the meetings, the Klamath Tribes advocated decisions 
for the management of water that would reallocate 
water used in the Klamath Project to instream uses. 
(Id.). Some tribes advocated high flows in the main- 
stream of the Klamath River, while other tribes advo- 
cated high lake elevations in the Upper Klamath Lake. 
(Id.). 

The Department of the Interior hired a consultant, 
CH2M Hill, to assist in KPOP development. (Id.). 
CH2M Hill prepared technical papers which the public 
commented on. (Id.). The Bureau of Reclamation also 
engaged the U.S. Geological Survey to review technical 
information and arguments submitted by various 
parties, including the Tribes. (Id.). 

In February of 1996, Mr. Ryan, an employee of the 
Bureau of Reclamation, informed Mr. Solem, the 
manager of the Klamath Irrigation District, that he had 
completed a draft plan for internal review by Depart- 
ment of Interior personnel. (Id. at 4). Mr. Ryan 
informed Mr. Solem that irrigators, tribes, or other 
persons outside the federal government would not have 
an opportunity to review the plan before a draft was 
publicly released. (Id.). A draft KPOP was never 
released to the public. (Id.). Bureau of Reclamation 
employees stated that they hoped to prepare a long 
term plan by sometime in 1999, although no specific 
schedule or completion date has been identified. (Id. at 

5). 

37a 

Steve Palmer of the Regional Solicitor’s Office ad- 
vised plaintiff ’s attorney that the Department of the 
Interior will file claims to water rights in the Klamath 
River system, in the Klamath River adjudication, on 
behalf of the Klamath Tribe. (Simmons Declaration at 
paragraph 4-5). Mr. Palmer has also advised Mr. 
Simmons that the Department of the Interior will file 
claims in the adjudication to assert and protect the 
irrigation water rights in the Klamath Project. (Id.). 
Mr. Palmer expressed the belief that any information 
submitted by irrigation interests related to the adju- 
dication would be made available to the tribes or other 
parties upon request. (Id.). The Bureau of Reclamation 
has received and filled Freedom of Information Act 
(FOIA) requests from the tribes for correspondence, 
information, or materials provided to the Bureau by 
irrigation interests or the plaintiff. (Id.). 

By letters dated February 27, March 18, March 26, 
and July 3, 1996, Paul S. Simmons, on behalf of 
KWUPA, addressed FOIA requests to several compo- 
nents of the Bureau of Indian Affairs (BIA), as well as 
the Office of the Assistant Secretary - Indian Affairs. 
(Defendants’ Exhibit 9 at 1, 5-27). Mr. Simmons re- 
quested: 

“any writing or communication 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 

. . . This includes, but is not limited to, any 
letter, memorandum, facsimile transmission, 
meeting notes or notes of telephone conversations 
or any other conversation, meeting attendance 
lists, telephone logs, or any document of any kind, 

38a 

regardless of authorship, provided to or received 
from the Klamath Basin Tribes, or any other 
document that is evidence of a communication 
with the Klamath Basin Tribes.” 

(Id. at 5, 7, 10, 13, 15, 18, 20, 22, 24, and 26). The term 
“Klamath Basin Tribes” was defined as “each of the 
Klamath Tribes, the Hoopa Tribe, the Karuk Tribes, 
the Yurok Tribe, and their members, officers, agents, 
attorneys, consultants, employees, and any other per- 
son communicating on behalf of the listed Indian 
tribes.” (Id. at 5, 7, 9, 13, 15, 18, 20, 22, 24, and 26). Mr. 
Simmons also requested a fee waiver based on the 
organization’s tax-exempt status. (Id. at 6, 8, 11, 14, 16, 
19, 21, 23, 25, and 27). 

In a letter dated June 25, 1996, the BIA responded to 
Mr. Simmons’s requests of February 27, March 18, and 
March 26. (Id. at 29-35). The BIA released two docu- 
ments in their entirety and one document in redacted 
form. (Id.). The June 25 letter stated that the BIA was 
withholding 17 responsive documents, as well as the 
redacted portions of Cathy Wilson’s appointment book, 
based on deliberative process privilege and/or the at- 
torney work-product privilege under FOIA exemption 

5. (Id. at 29-31). The BIA denied Mr. Simmons’s re- 
quest for a fee waiver stating that: “We have deter- 
mined that the information requested is primarily in the 
KWUA’s commercial interest, based on the resource 
issues currently facing the organization in the Klamath 
Basin, and thus does not meet the statutory fee waiver 
test in section 2.21(a)(1)(ii). The KWUA’s tax-exempt 
status is not determinative.” (Id. at 34). 

In a letter dated July 18, 1996, Mr. Simmons appealed 
this decision. (Defendants’ Exhibit 9 at 2, 40-49). In 

39a 

the appeal, Mr. Simmons stated that there was no basis 
for the BIA’s finding that the request was for com- 
mercial purposes. (Id. at 48). The letter stated that: 
the Association was a nonprofit corporation with no 
commercial interests; the Association would not profit 
from the information; its members included public 
agencies; it provided information and resources directly 
and indirectly to several thousand people interested in 
the Klamath River; the information would be 
maintained in the Association’s library; it would be 
available to any member of the public; and any member 
of the public who wished to review it would be able to 
learn about and understand the activities of the 
Department of the Interior. (Id. at 48-49). 

On January 20, 1997, the Department issued a deter- 
mination on the fee waiver issue presented in Mr. 
Simmons’s administrative appeal of July 18, 1996. (Id. 
at 3). The Department denied the request for a fee 
waiver. (Id. at 67). The denial stated that it was the 
Department’s opinion that the disclosure was not likely 
to contribute to the public’s understanding of the opera- 
tions or activities of the BIA. (Id. at 68). The Depart- 
ment found that the Association’s focus pertained to the 
interest of a small segment of interested persons, as 
opposed to the general public, and that to qualify for a 
fee waiver the release of the requested materials had to 
contribute to the understanding of the public at large. 
(Id.). The Department found that the Association was 
seeking the information for its own use to evaluate the 
proposals of the BIA and the Klamath Basin Tribes 
concerning the Klamath Project Operations Plan. (Id.). 
The Department also found that the fact that the 
Association would maintain the materials in a library 
did not demonstrate that the Association was planning 

40a 

to disseminate the material to the general public, and 
the Department was not aware of any interest in the 
material by the general public. (Id.). The Department 
also attached an opinion from the Office of the Solicitor 
further explaining the legal basis for the denial. (Id.). 

In response to the FOIA request dated July 3, 1996, 
the BIA released eight documents in their entireties, 
and one document in redacted form. (Id. at 2, 37-38). 
Twenty items, as well as redacted portions of Cathy 
Wilson’s appointment book, were withheld, based on 
the deliberative process privilege and/or the attorney 
work-product privilege. (Id.). One document was with- 
held based on the attorney-client privilege and the 
deliberative process privilege of FOIA exemption 5. 
(Id.). By letter dated August 3, 1996, the BIA denied 
Mr. Simmons July 3 request for a fee waiver. The 
August 3 letter stated that: “We have determined that 
the information requested is primarily in the KWUA’s 
commercial interest, based on the resource issues 
currently facing the organization in the Klamath Basin. 
The KWUA’s tax-exempt status is not determinative. 
Moreover, the request seeks materials informative pri- 
marily to a narrow segment of interested persons 
rather than the general public. Thus, we conclude that 
the request does not meet the statutory fee waiver test 
in 43 C.F.R. § 2.21(a).” (Id. at 37). 

In an August 5, 1996 letter, Mr. Simmons appealed 
the denial. (Id. at 2). Mr. Simmons incorporated by re- 
ference his arguments in support of a fee waiver stated 
in his appeal dated July 18, 1996. (Id. at 51). On 
December 19, 1996, the Department denied Mr. Sim- 
mons’s August 5, 1996 fee waiver appeal. (Id. at 3, 53). 

41a 

The denial stated that it was the Department’s opin- 
ion that the disclosure was not likely to contribute to 
the public’s understanding of the operations or activi- 
ties of the BIA. (Id. at 54). The Department found that 
the Association’s focus pertained to the interest of a 
small segment of interested persons, as opposed to the 
general public, and that to qualify for a fee waiver the 
release of the requested materials had to contribute to 
the understanding of the public at large. (Id.). The 
Department found that the Association was seeking the 
information for its own use to evaluate the proposals of 
the BIA and the Klamath Basin Tribes concerning the 
Klamath Project Operations Plan. (Id. at 55). The De- 
partment found that the fact that the Association would 
maintain the materials in a library did not demonstrate 
that the Association was planning to disseminate the 
material to the general public, and the Department was 
not aware of any interest in the material by the general 
public. (Id.). The Department also attached an opinion 
from the Office of the Solicitor further explaining the 
legal basis for the denial. (Id.). 

Plaintiff has narrowed the list of documents in dis- 
pute to twelve items. (Plaintiff’s memorandum in 
opposition at 1). Plaintiff concedes that the Vaughn 
index and declarations justify withholding 13 docu- 
ments describe as notes prepared by BIA personnel. 
Plaintiff no longer seeks the release of seven items 
which the Bureau of Reclamation produced. (Plaintiff ’s 
memorandum at 10). Defendants have released five2 of 

2 Plaintiff requests that the court take judicial notice that these 
five documents were released. Plaintiff ’s request for judicial 
notice is granted. 

42a 

the twelve items, leaving the following seven items in 
dispute: 

1) A January 19, 1996, facsimile from Klamath Tribes 
Department of Natural Resources(DNR) to Cathy 
Wilson (BIA)(Identified as Document No. 3, FOIA 
Appeal No. 96-168) is a position paper that discusses 
water law legal theories concerning the water rights of 
the federally recognized Indian Tribes of the Klamath 
Basin. (Vaughn Index at 10). It involves and contains 
the Tribes’ analyses as to matters relating to the ad- 
judication and/or development of a long-term opera- 
tions plan. (Defendants’ Exhibit 1 at 4). The document 
was prepared by the Tribes and was provided to the 
Department at the Department’s request for use by the 
Department in the performance of its official duties, 
including departmental deliberations concerning the 
adjudication issues and its trust responsibility in 
developing a long-term plan of operations. (Id. at 4-5; 
Supplemental; Wilson affidavit at 1). 

Catherine E. Wilson, water rights specialist with the 
BIA, requested that Carl (Bud) Ullman, Klamath tribal 
counsel, provide her with a copy of this document. 
(Supplementary declaration of Catherine Wilson at 1). 
She used this document in her work concerning the 
development of an operations plan for the Klamath Pro- 
ject. (Id. at 2). 

The Solicitor asked Bud Ullman, an attorney for 
the Klamath Tribes, to develop the position paper. 
(Vaughn Index at 11; Supplemental Bergstrom dec- 
laration at 3). Mr. Ullman prepared the document and 
shared it with the Department because of the common 
interest of the Tribes and the Department in protecting 
tribal resources in the development of an operation plan 

43a 

for the Klamath Project, in potential litigation arising 
from the operations plan development, and in the 
pending adjudication in Oregon. (Vaughn Index at 11). 
The Department consults with the Klamath Tribes 
when departmental actions may affect trust resources. 
(Id.). The Department relied upon the document in 
deliberations. (Id.). The document was created and 
used to assist the Department in deliberations and 
decision-Freedom of Information Act (FOIA) making 
regarding the ongoing adjudication and development of 
a long-term plan for the Klamath Project. (Defendants’ 
Exhibit 1 at 5). 

The document addresses issues related to water 
rights of the tribes at issue in both the ongoing develop- 
ment of an operations plan for the Klamath Project and 
the pending adjudication. (Vaughn Index at 11). The 
Department used the document in its case preparation 
in connection with the adjudication and in addressing 
its trust responsibility in developing a long-term opera- 
tions plan for the Klamath Project. (Defendants’ 
Exhibit 1 at 5). 

The document predates the filing of water rights 
claims on behalf of the Klamath Tribes in the Klamath 
Basin Adjudication, which were due to be filed April 30, 
1997, as well as the issuance of an operations plan for 
the Klamath Project. (Vaughn Index at 11). Disclosure 
of the document would expose the Department’s de- 
cision making process in such a way as to discourage 
candid discussions within the Department, and thereby 
undermine the Department’s ability to address water 
rights issues concerning the tribes. (Id.); 

2) A January 24, 1996, draft memorandum from Cathy 
Wilson (BIA) to Tom Strekal and Doug Tedrick (BIA), 

44a 

and Richard Cross, Yurok tribal attorney, and Bud 
Ullman, Klamath Tribal attorney, (Identified as Docu- 
ment No. 6, FOIA Appeal No. 96-168)3 contains views 
on policy the BIA could provide to other governmental 
agencies concerning the obligation to protect Indian 
trust assets in developing an operations plan for the 
Klamath Project. (Id.). The memorandum considers 
proposing language as guidance regarding the trust 
responsibility. (Id.). The document satisfies exemption 
five because the Department consults with the Klamath 
Tribes when departmental actions may affect trust 
resources. (Id.). The department relied upon the 
document in its deliberations. (Id.). 

The memorandum predates the issuance of an 
operations plan. (Id.). The memorandum addresses is- 
sues related to the development of an operations plan 
for the Klamath Project. (Id. at 12). Disclosure of the 
document would expose the Department’s decision 
making process in such a way as to discourage candid 
discussions within the Department, and thereby under- 
mine the Department’s ability to develop an operations 
plan. (Id.); 

3) A February 8, 1996, facsimile from Bud (Carl) 
Ullman, Klamath tribal attorney, to Tom Strekal of the 
BIA (Identified as Document No. 10, FOIA Appeal No. 
96-168) contains comments on the USFWS proposals 
for listed species. (Id.). This paper expresses views 
concerning trust resources in light of the USFWS’s 
proposal on listed species and the resulting implication 

3 Plaintiff points out that this is the only document from the 
United States to the Klamath Tribes. All the other disputed 
documents are from the Tribes to the United States. 

45a 

on lake management. (Id.). The facsimile cover sheet 
was released. (Id.). 

Thomas A. Strekal, a fish and wildlife biologist with 
the BIA, requested that Mr. Ullman forward him a 
copy of this document. (Supplemental Declaration of 
Thomas Strekal at 1). He used this document in his 
work concerning the development of an operations plan 
for the Klamath Project. (Id.). 

The document satisfies exemption five because the 
Department consults with the Klamath Tribes when 
departmental actions may affect trust resources. 
(Vaughn Index at 12). The Department relied upon the 
document in deliberations. (Id. at 12-13). The docu- 
ment predates the issuance of a plan of operations, and 
it addresses issues related to the development of an 
operations plan for the Klamath Project. (Id. at 13). 
Disclosure of the document would expose the Depart- 
ment’s decision making process in such a way as to 
discourage candid discussions within the Department, 
and thereby undermine the Department’s ability to 
develop an operations plan. (Id.); 

4) A May 23, 1996, letter from Bud (Carl) Ullman, 
Klamath tribal attorney, to Lynn Peterson, Regional 
Solicitor of the Pacific Northwest Region, (Identified as 
Document No. 16, FOIA Appeal No. 96-201) discusses 
the Klamath Basin Adjudication. (Vaughn Index at 18; 
Supplemental declaration of Barbara Scott-Brier at 1). 
It concerns the water rights claim being prepared on 
behalf of the Klamath tribes. (Id.). This document as- 
sisted the Department in its case preparation in connec- 
tion with the water rights adjudication. (Supplemental 
declaration of Barbara Scott-Brier at 3). The letter 
satisfies exemption five because the Department con- 

46a 

sults with the Klamath Tribes when departmental 
actions may affect trust resources. (Vaughn Index at 

18). The Department relied upon the document in 
deliberations. (Id.). 

The Office of the Solicitor asked Bud Ullman, an 
attorney for the Klamath Tribes, to develop the letter. 
(Id.; Supplemental declaration of Barbara Scott-Brier 
at 1). It was shared with the Department because of 
the common interest between the Tribes and the 
Department in protecting tribal trust resources in the 
pending adjudication in Oregon. (Vaughn Index at 18). 
The letter was prepared by the Tribe in consultation 
with and for use by the Department in the Depart- 
ment’s deliberations concerning arguments to advance 
in the adjudication. (Defendants’ Exhibit 4 at 34). The 
Department used the letter in its case preparation in 
connection with the adjudication, and it was prepared 
at the recommendation of a Department employee. 
(Id.). The letter addresses issues related to the pending 
adjudication. (Vaughn Index at 18). It was provided to 
the Department prior to the Department filing its 
water rights claims on behalf of the Tribes in the 
adjudication. (Defendants’ Exhibit 4 at 3). Disclosure 
of the letter would expose the Department’s decision 
making process in such a way as to discourage candid 
discussions within the Department, thereby undermin- 
ing the Department’s ability to address water rights 

4 Plaintiff objects to Ms. Scott-Brier’s assertion that this letter 
was prepared by a tribal attorney. This fact only affects defen- 
dants’ claim regarding attorney work-product doctrine. Even if 
the court were to strike this statement, it would still find that the 
materials were protected under the deliberative process exemp- 
tion. In addition, defendants’ Vaughn Index also states that this 
document was prepared by a tribal attorney. 

47a 

issues concerning the tribes. (Vaughn Index at 18). 
Disclosure would expose sensitive litigation positions to 
be taken in the adjudication. (Id.); 

5) A June 18, 1996 letter from Jeff Mitchell, Klamath 
Tribes Chairman, to Stan Speaks, BIA Area Director, 
with attachment (Identified as Document No. 20, FOIA 
Appeal No. 96-201) concerns the Klamath Tribes water 
rights. (Id. at 20). Ms. Scott-Brier, attorney-advisor 
for the Office of the Solicitor, requested that Mr. 
Mitchell, Chairman of the Klamath Tribes, send this 
letter and the attachment (Document No. 16, FOIA 
Appeal No. 96-201) to Mr. Speaks conveying the views 
of the Klamath Tribes concerning issues involved in the 
water rights adjudication. (Supplemental Declaration 
of Barbara Scott-Brier at 2). This document assisted 
the Department in its case preparation in connection 
with the water rights adjudication. (Id.). The letter 
satisfies exemption five because the Department 
consults with the Klamath Tribes when departmental 
actions may affect trust resources. (Vaughn Index at 

20). The Department relied upon the document in 
deliberations. (Id.). The document predates the filing 
of claims on behalf of the Klamath Tribe in the pending 
Oregon adjudication. (Id.). It addresses issues related 
to the water rights claims to be filed in the adjudication. 
(Id.). Disclosure of the document would expose the 
Department’s decision making process in such a way as 
to discourage candid discussions within the Depart- 
ment, thereby undermining the Department’s ability to 
address water rights issues concerning the tribes. (Id.). 
Disclosure would expose sensitive litigation positions to 
be taken in the adjudication. (Id.); 

48a 

6) A June 28, 1996 letter from Bud (Carl) Ullman, 
Klamath tribal attorney, to Stan Speaks, BIA Area 
Director, with attachment (Identified as Document No. 
25, FOIA Appeal No. 96-201) concerns a Klamath Tribal 
Executive Committee resolution regarding the Tribes’ 
water rights claims in the Klamath Basin Adjudication. 
(Id.). Ms. Scott-Brier requested that Mr. Ullman send 
this letter and the attached tribal resolution to Mr. 
Speaks. (Supplemental Declaration of Barbara Scott- 
Brier at 2). This document assisted the Department in 
its case preparation in connection with the water rights 
adjudication. (Id. at 3). The attachment is the Klamath 
Tribes’ resolution regarding the Tribes’ water rights 
claims in the Klamath Basin Adjudication. (Vaughn 
Index at 20). The documents satisfy exemption five 
because the Department consults with the Klamath 
Tribes when departmental actions may affect trust 
resources. (Id. at 21). The Department relied upon the 
documents in deliberations. (Id.). The documents pre- 
date the filing of claims on behalf of the Klamath Tribe 
in the pending Oregon adjudication. (Id.). They ad- 
dress issues related to the water rights claim to be filed 
in the adjudication. (Id.). Disclosure of the documents 
would expose the Department’s decision making pro- 
cess in such a way as to discourage candid discussions 
within the Department, thereby undermining the De- 
partment’s ability to address water rights issues con- 
cerning the tribes. (Id.). Disclosure would expose sen- 
sitive litigation positions to be taken in the adjudi- 
cation. (Id.); and 

7) A July 1, 1996, memorandum from Jacob Kahn 
(Klamath Tribes) to Cathy Wilson (BIA)(Identified as 
Document No. 27, FOIA Appeal No. 96-201) concerns 
the biological factors affecting trust resources. (Id. at 

49a 

22). The Department released a one page facsimile 
cover sheet that accompanied the memorandum. (De- 
fendants’ Notice of Filing of Fee Waiver Documents at 

8). Catherine Wilson, water rights specialist with the 
BIA, requested a copy of this document from Jacob 
Kahn, tribal biologist. (Supplemental declaration of 
Catherine Wilson at 2). She used this document in 
connection with her work concerning the development 
of an operations plan for Klamath Project. (Id.). The 
document satisfies exemption five because the Depart- 
ment consults with the Klamath Tribes when depart- 
mental actions may affect trust resources. (Vaughn 
Index at 22). The Department relied upon the docu- 
ment in deliberations. (Id.). The document predates 
the issuance of a plan of operations. (Id.). It addresses 
issues related to the development of an operations plan. 
(Id.). Disclosure of the document would expose the 
Department’s decision making process in such a way as 
to discourage candid discussions within the Depart- 
ment, thereby undermining the Department’s ability to 
develop an operations plan. (Id.). Disclosure would 
expose technical opinions deemed critical to analyzing 
the extent of the Department’s trust responsibility. 
(Id.). 

The remaining documents consist of communications 
between the Tribes and the Department. (Supplemen- 
tal Bergstrom declaration at 2). They address the 
nature and extent of the Tribes’ trust resources and the 
concurrent trust obligation owed by the Department to 
the Tribes in the development of an operations plan for 
the Klamath Project and in the pending adjudication of 
the Klamath River Basin. (Id.). Release of the docu- 
ments would significantly harm the Department’s po- 
sition in the pending adjudication as well as the Depart- 

50a 

ment’s ability to complete its internal decision making 
regarding a more long-term Operations Plan for the 
Klamath Project. (Id.). 

The documents contain recommendations, opinions, 
and frank discussions on various issues, including analy- 
ses of legal issues in the adjudication and/or operations 
plan development. (Id.). Release of the documents 
would reveal to the public, and to potential adversaries, 
the preliminary views and litigation strategy before the 
Department’s policy and legal determinations on the 
matters have been finally determined. (Id.). Release 
would disrupt and chill the Department’s ability to per- 
form its required consultation with the Tribes as well as 
the Department’s ability to complete its internal delibe- 
rations to determine its position regarding the nature 
and extent of the Tribes trust resources and the Depar- 
tment’s trust responsibility. (Id. at 2-3). 

Scott Bergstrom, attorney-advisor within the Office 
of the Solicitor, reviewed the documents at issue to 
determine if there were portions that were segregable. 
(Second Supplemental Bergstrom affidavit at 1-3). All 
segregable portions were released. (Id.). The factual 
information contained in the remaining documents is 
inextricably connected to the deliberative material, and 
disclosure would expose or cause harm to the BIA’s 
deliberations. (Id. at 3). 

The United States and the Department of the 
Interior have a trust responsibility to protect the rights 
and resources of the Indian Tribes. (Defendants’ Ex- 
hibit 1 at 2). The documents submitted to the Depart- 
ment discuss issues regarding the Department’s trust 
responsibility toward the Tribes in light of the develop- 

51a 

ment of a long-term operations plan for the Klamath 
Project and/or presently ongoing adjudication. (Id.). 

It has been the policy and practice of the Department 
to consult with tribes when those rights and resources 
are impacted by federal actions. (Defendants’ Exhibit 1 
at 2, 9-10, 12-13, 15-16). Under the Departmental Man- 
ual, any information received from the tribes through 
the consultation process is “deemed confidential, unless 
otherwise provided by applicable law, regulations, or 
administrative policy, if disclosure of that information 
would negatively impact upon a trust resource or com- 
promise the trustee’s legal position in anticipation of or 
during administrative proceedings or litigation on 
behalf of tribal government (s).” (Id. at 13). 

The Bureau of Reclamation, Fish and Wildlife Ser- 
vice, National Marine Fisheries Service, and the 
Bureau of Indian Affairs entered into a government-to- 
government agreement with the Klamath Basin Tribes 
regarding the development of the Klamath Project 
Operations Plan. (Id. at 18-23). Under the terms of the 
agreement, the Klamath Basin Tribes stands in the role 
of consultants to the Department on the issue of 
development of the Klamath Project. (Id. at 18, 20). 

In connection with water rights claims filed by the 
United States on behalf of the Tribes and the develop- 
ment of a long-term operations plan for the Klamath 
Project, the Department entered into ongoing con- 
sultations 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 decision 
making. (Id. at 3). The consultation involved discussion 
of legal analyses and theories regarding the scope of the 
water rights claims to be filed in the adjudication and 

52a 

the manner in which the Department’s trust respon- 
sibility affects the operations of the Klamath project. 
(Id. at 3-4). 

In a memorandum dated September 26, 1994, James 
K. Bryant, an employee of the Bureau of Reclamation, 
noted that the Klamath Tribes were concerned that the 
water level of the Upper Klamath Lake was too low and 
the fish in the lake were in a stressful condition. 
(Simmons Declaration Exhibit B at 2). The Klamath 
Tribes wanted the Bureau of Reclamation to provide 
them with a water budget. (Id.). The Klamath tribes 
were “contemplating a lawsuit with Reclamation over 
Indian Trust and ESA (Endangered Species Act) 
responsibilities.” (Id.). 

In December of 1994, Marvin Garcia of the Klamath 
Tribe sent the Secretary of the Interior a letter re- 
questing the reinitiation of formal consultation pur- 
suant to section 7 of the Endangered Species Act and 
giving the Secretary the required 60-day notice of vio- 
lation and intent to sue under the Endangered Species 
Act. (Simmons Declaration Exhibit C). The letter com- 
plained about the effect of the operation of the Klamath 
Irrigation Project by the Bureau of Reclamation on two 
endangered fish species that inhabited the Upper Kla- 
math Lake. (Id.). 

In September of 1996, Elwood Miller, Jr. of the 
Klamath Tribe sent the Secretary of the Interior a 60- 
day notice of intent to sue for violation of the Endan- 
gered Species Act. (Simmons Declaration Exhibit N). 
This letter also criticized the Bureau of Reclamation’s 
management of the Klamath Project and its detrimen- 
tal effect on the two endangered fish species inhabiting 
the lake. (Id.). 

53a 

II. LEGAL STANDARDS 

Pursuant to Rule 56(c) of the Federal Rules of Civil 
Procedure, a moving party is entitled to summary judg- 
ment as a matter of law “if the pleadings, depositions, 
answers to interrogatories, and admissions on file, to- 
gether with the affidavits, if any, show that there is no 
genuine issue as to any material fact.” Fed. R. Civ. P. 
56(c); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 
(9th Cir.), cert. denied, 502 U.S. 994 (1991). The moving 
party bears the initial burden of proof. See Rebel Oil 
Company, Inc. v. Atlantic Richfield Company, 51 F.3d 
1421, 1435 (9th Cir.), cert. denied, ___ U.S. ___, 116 S. 
Ct. 515 (1995). The moving party meets this burden by 
identifying portions of the record on file which demon- 
strates the absence of any genuine issue of material 
fact. Id. 

In assessing whether a party has met their burden, 
the court must view the evidence in the light most 
favorable to the nonmoving party. Allen v. City of Los 
Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable 
inferences are drawn in favor of the nonmovant. Id. If 
the moving party meets their burden, the burden shifts 
to the opposing party to present specific facts which 
show there is a genuine issue for trial. Fed. R. Civ. P. 
56(e); Auvil v. CBS “60 Minutes”, 67 F.3d 816 (9th Cir. 
1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1567 (1996). 
The nonmoving party cannot carry their burden by 
relying solely on the facts alleged in their pleadings. 
Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). 
Instead, their response, by affidavits or as otherwise 
provided in Rule 56, must designate specific facts show- 
ing there is a genuine issue for trial. Id. 

54a 

III. DISCUSSION 

Defendants move for summary judgment arguing 
that the correspondence between the tribes and the 
BIA meets exemption (b)(5) as either deliberative pro- 
cess material, attorney work product material, and/or 
attorney client privilege material. Defendants argue 
that the BIA properly denied plaintiff ’s request for a 
fee waiver because the requests were unlikely to 
contribute to the public’s understanding of the BIA’s 
operations and activities. Plaintiff argues that: the 
documents withheld are not inter-agency or intra- 
agency documents; the deliberative process and/or at- 
torney work-product privileges do not apply; the De- 
partment of Interior’s trust obligation does not shield 
the documents from disclosure; the United States has 
failed to prove that it has disclosed all segregable 
material; and the United States wrongfully denied the 
fee waiver. 

FOIA Exemption(5) 

The Freedom of Information Act, 5 U.S.C. § 552 
requires government agencies to disclose to the public 
any requested documents. 5 U.S.C. § 552(a). The 
government agency must disclose the document unless 
it falls within one the nine enumerated exemptions 
found in 5 U.S.C. § 552(b). Maricopa Audubon Society 

v. United States Forest Service, 108 F.3d 1082, 1085 (9th 
Cir. 1997) (citation omitted). Theses nine exemptions 
are “explicitly exclusive” and “narrowly construed.” Id. 
(citations omitted). “FOIA ‘does not authorize with- 
holding of information or limit the availability of re- 
cords to the public, except as specifically stated’.” Id. at 
1087 (citing 5 U.S.C. § 552(d)). 

55a 

FOIA creates a presumption in favor of disclosure. 
Bay Area Lawyers Alliance for Nuclear Arms Control 

v. Department of State, 818 F. Supp. 1291, 1295 (N.D. 
California 1992). The government agency has the 
burden of proving that the requested document falls 
within one of FOIA’s exemptions. Maricopa Audubon 
Society, 108 F.3d at 1085 (citing 5 U.S.C. § 552(a)(4)(B)). 
To meet that burden, the agency must present oral 
testimony or affidavits that are detailed enough for the 
court to assess the government’s claim of exemption. 
Maricopa Audubon Society v. United States Forest 
Service, 108 F.3d 1089, 1092 (9th Cir. 1997). The agency 
may also compile a “Vaughn Index.” Maricopa Audu- 
bon Society, 108 F.3d at 1092. 

If the agency relies on affidavits, the affidavits must 
contain a reasonably detailed description of the docu- 
ments and allege facts sufficient to establish the 
exemption. Id. In the affidavits or the Vaughn Index, 
the agency must describe each document, or portions 
withheld, discuss the consequences of disclosing the 
sought after information, discuss segregability, and 
discuss whether the material was relied upon in making 
a decision. See Bay Area Lawyers Alliance for Nuclear 
Arms Control v. Department of State, 818 F. Supp. 
1291, 1296-1297 (N.D. Cal. 1992). “The agency bears the 
burden of establishing the character of the decision, the 
deliberative process involved, and the role played by 
the documents in the course of that process.” Id. 
(citation omitted). 

Exemption 5 exempts from disclosure any “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. 

56a 

§ 552(b)(5). Exemption 5 “shields documents ‘normally 
privileged in the civil discovery context’ ” which “incor- 
porates the attorney-client privilege, the attorney 
work-product privilege, and the executive ‘deliberative 
process’ privilege that protects candid internal discus- 
sion of legal or policy matters.” Maricopa Audubon 
Society, 108 F.3d at 1084 fn.5 (citations omitted). It 
“does not apply to factual information, unless the re- 
lease of the factual information would reflect or reveal 
the deliberative process, or to recommendations or 
opinions ultimately relied upon in subsequent agency 
action.” Bay Area Lawyers, 818 F. Supp. at 1297 
(citation omitted). 

Deliberative Process 

Defendants argue that the Tribes were acting in the 
role of consultants with regard to the documents in 
question, and therefore, under the “functional test” 
articulated in Formaldehyde Institute v. Department of 
Health and Human Services, 889 F.2d 1118 (D.C. Cir. 
1989) and various other cases, the documents are pro- 
tected under the deliberative process privilege. Defen- 
dants distinguish Madison County, New York v. 
Department of Justice, 641 F.2d 1036 (1st Cir. 1981), 
arguing that the Tribes in this case were not acting in 
an adversarial role and were not in active litigation 
with the government, but instead were acting as 
consultants. Defendants argue that the potential for an 
adversarial relationship does not negate the consulta- 
tive relationship, citing Public Citizen, Inc. v. Dept. of 
Justice and National Archives and Records Admini- 
stration, 1997 WL 191110 (D.C. Cir.) at *4. Defendants 
argue that: the consulting relationship assisted the 
government in fulfilling its trust obligations toward the 

57a 

Tribes; consulting was undertaken pursuant to Execu- 
tive and Departmental policy, the Tribes participation 
assisted them in making decisions concerning the 
development of the Operations Plan and preparing of 
water rights claims in the Oregon stream adjudication; 
and the documents originating with the Tribes were 
provided at the Department’s request. Defendants 
argue that the court in the County of Madison recog- 
nized that the situation is an entirely different matter 
when the government approaches a third party to 
obtain information for the benefit of the agency. 

Plaintiff argues that under County of Madison the 
documents in question do not qualify as inter-agency or 
intra-agency documents. Plaintiff argues that: the 
Tribes approached the government with their own 
interests in mind; they aggressively advocated the 
reallocation of water to benefit them; they’ve made 
political overtures to the Office of the Secretary; 
they’ve threatened to file lawsuits; they’ve prepared 
technical reports; they’ve demanded that irrigation 
diversions be shut off; and they’ve combined their 
advocacy with environmental groups. 

The deliberative process privilege allows agencies to 
“freely explore possibilities, engage in internal debates, 
or play devil’s advocate without fear of public scrutiny.” 
Assembly of the State of California v. United States 
Department of Commerce, 968 F.2d 916, 920 (9th Cir. 
1992). “In order to be protected by the deliberative 
process privilege, such a document must be both ‘pre- 
decisional’ and ‘deliberative’.” Id. (citation omitted). 
The deliberative process privilege was created “to pro- 
tect the deliberative process of government, by ensur- 
ing that persons in an advisory role would be able to 

58a 

express their opinions freely to agency decision-makers 
without fear of publicity.” Formaldehyde Institute v. 
Department of Health and Human Services, 889 F.2d 
1118, 1122 (D.C. Cir. 1989) (citation and quotations 
omitted). 

The privilege encompasses the opinions and recom- 
mendations of temporary consultants, as well as its own 
employees. Id. “[E]fficient government operation re- 
quires open discussions among all government policy- 
makers and advisors, whether those giving advice are 
officially part of the agency or are solicited to give 
advice only for specific projects.” Id. (citation and 
quotations omitted). Under the deliberative process 
privilege, the terms “‘inter-agency’ and ‘intra-agency’ 
are not rigidly exclusive terms, but rather embrace any 
agency document that is part of the deliberative 
process.” Id. at 1123 (citation and quotations omitted). 

“Whether the author is a regular agency employee or 
a temporary consultant is irrelevant; the pertinent 
element is the role, if any, that the document plays in 
the process of agency deliberations. If information 
communicated is deliberative in character, it is privi- 
leged from disclosure, notwithstanding its creation by 
an outsider.” Id. (Citation and quotations omitted). 

A document is deliberative “if the disclosure of the 
materials would expose an agency’s decision-making 
process in such a way as to discourage candid discussion 
within the agency and thereby undermine the agency’s 
ability to perform its functions.” Maricopa Audubon 
Society, 108 F.3d at 1093. (Citation and quotations 
omitted). This test focuses on the effect of releasing the 
documents. Id. at 1094. The court must examine what 
harm, if any, the release of the document would do to 

59a 

the agency’s deliberative process. Formaldehyde 
Institute, 889 F.2d at 1122. The court determines 
whether disclosure would be “likely in the future to 
stifle honest and frank communication within the 
agency.” Maricopa Audubon Society, 108 F.3d at 1094 
(citation and quotations omitted). The court also looks 
at the context in which the materials were used or what 
role they played in the deliberative process. Formalde- 
hyde Institute, 889 F.2d at 1124. 

The court finds that all the documents in question 
qualify as inter-agency or intra-agency documents un- 
der the “functional test”. All the documents played a 
role in the agency’s deliberations with regard to the 
current water rights adjudication and/or the anticipated 
Plan of Operations. Most of the documents were pro- 
vided to the agency by the Tribes at the agency’s 
request. Disclosure of these documents would expose 
the agency’s decision-making process and discourage 
candid discussion within the agency undermining the 
agency’s ability to function. (Vaughn Index at 11, 12- 
13, 18, 20-21; Defendants’ Exhibit 1 at 5; Defendants’ 
Exhibit 4 at 3-4; Supplemental Bergstrom affidavit at 2- 

3). 

The court finds that Madison County is distinguish- 
able from this case. In our case, the Tribes are not in 
current litigation with the government, but instead 
acted in the role of consultants. Most of the documents 
were provided to the government at their requests. 
The government used all these documents in fulfilling 
their trust obligation, and as part of their decision 
making process. The court finds that the fact that the 
Tribes may, in the future, become potential litigants 
does not change their current status as consultants 

60a 

acting in cooperation with the agency. See Public Citi- 
zen, Inc. v. Dept. of Justice and National Archives and 
Records Administration, 1997 WL 191110 (D.C. Cir.) at 

*4. 

Defendants argue that the documents are predeci- 
sional and deliberative. They predate any decision on 
the Plan of Operations for the Klamath Project and the 
final decision on the position of the United States in the 
stream adjudication. Disclosure of the documents 
would expose the Department’s decision making pro- 
cess with regard to the development of the Plan of 
Operations, and it would expose the development of the 
Department’s legal position in the ongoing adjudication 
on behalf of the Tribes. Release of the documents 
would inhibit the ability of the Department and the 
Tribes to communicate freely and openly. 

Plaintiff argues that the documents are not predeci- 
sional because there is no definite date for completion of 
the Plan of Operation, no definite schedule for comple- 
tion, and no written work schedule. Plaintiff argues 
that the defendants have failed to demonstrate how and 
why disclosure of the documents could adversely 
expose the decision making process. 

“A predecisional document is one prepared in order 
to assist an agency decision-maker in arriving at his 
decision, and may include recommendations, draft docu- 
ments, proposals, suggestions, and other subjective 
documents which reflect the personal opinions of the 
writer rather than the policy of the agency.” Maricopa 
Audubon Society, 108 F.3d at 1093 (citation and quota- 
tions omitted). “[T]he agency must identify a specific 
decision to which the document is predecisional.” Id. at 
1094. Material which predates a decision chronologi- 

61a 

cally, but did not contribute to the decision, is not 
predecisional. Assembly of the State of California v. 
United States Department of Commerce, 968 F.2d 916, 
921 (9th Cir. 1992). Material which may be used in 
making a possible decision at some undisclosed time in 
the future does not qualify as predecisional material. 
Id. (citation omitted). 

Document No. 3 FOIA Appeal No. 96-168, Document 
No. 16 FOIA Appeal No. 96-201, Document No. 20 
FOIA Appeal No. 96-201, and Document No. 25 FOIA 
Appeal No. 96-201 predate the Department’s decision 
regarding the filing of water rights claims on behalf of 
the Tribes in the ongoing adjudication. (Defendants’ 
Exhibit 1 at 5, Vaughn Exhibit at 18 and 21). These 
documents were relied upon in deliberations regarding 
the Department’s decision to file claims in the 
adjudication. (Id. at 11, 12-13, 18, 20-21; Defendants’ 
Exhibit 1 at 5). Document No. 6 FOIA Appeal No. 96- 
168, Document No. 10 FOIA Appeal No. 96-168, and 
Document No. 27 FOIA Appeal No. 96-201 predate the 
Department’s release of a Plan of Operations for the 
Klamath Project which is scheduled for completion and 
release in 1999. (Vaughn Index at 11, 13, 21). These 
documents were relied upon in the Department’s 
deliberations. (Id. at 11, 12-13, 21). Based on these 
facts, the court finds that these documents are predeci- 
sional. 

Attorney Work Product 

Defendants argue that document No. 3, FOIA Appeal 
No. 96-168 and document No. 16, FOIA Appeal No. 96- 
201 are protected by the attorney work-product ex- 
emption. Defendants argue that these documents were 
prepared by an attorney for the use of the Solicitor’s 

62a 

Office in his deliberations in contemplation of litigation 
in the ongoing stream adjudication and the develop- 
ment of the Plan of Operations and at the request of 
Department attorneys. Defendants argue that the 
attorney work-product privilege applies to the entire 
document because the analysis is inextricably linked to 
the Department’s legal strategy in the adjudication. 

Plaintiff argues that the BIA must prove that the 
documents in question were prepared by an attorney in 
contemplation of litigation and explain why the privi- 
lege applies to all portions of the document. Plaintiff 
argues that document No. 3 FOIA Appeal No. 96-168 
and document No. 26 FOIA Appeal No. 96-201 were not 
prepared by an attorney, and that Bergstrom’s asser- 
tion that document No. 26 was prepared by Bud Ullman 
is not based on personal knowledge. Plaintiff argues 
that the description of these documents is inconsistent, 
and that to the extent that the documents relate to an 
ongoing administrative process and an anticipated ad- 
ministrative decision, they are not prepared in antici- 
pation of litigation. 

Exemption 5 permits the withholding of memoran- 
dums and letters which would not be available by law to 
a party other than an agency in litigation. Church of 
Scientology International v. United States Department 
of Justice, 30 F.3d 224, 230 (1st Cir. 1994). This exemp- 
tion includes the attorney work-product privilege. 
Maricopa Audubon Society, 108 F.3d at 1084 fn.5 
(citations omitted). The privilege applies to memoran- 
dum, prepared by an attorney or under the direction of 
an attorney, in contemplation of litigation, which sets 
forth the theory of the case or the litigation strategy. 
Exxon Corp. v. Dept. of Energy, 585 F. Supp. 690, 700 

63a 

(D.D.C. 1983); Exxon Corp. v. Federal Trade Commis- 
sion, 466 F. Supp. 1088, 1099 (D.D.C. 1978), affirmed, 
663 F.2d 120 (D.C. Cir. 1980). “An agency seeking to 
withhold a document in its entirety under this exemp- 
tion must identify the litigation for which the document 
was created and explain why the work-product privi- 
lege applies to all portions of the document.” Church of 
Scientology, 30 F.3d at 237. “For a document to have 
been prepared in contemplation of litigation, at the very 
least, some articulable claim, likely to lead to litigation, 
must have arisen.” Dept. of Energy, 585 F. Supp. at 700 
(citation and quotations omitted). “[A]dministrative 
litigation certainly can beget court litigation and may in 
many circumstances be expected to do so.” Id. A 
document that was created for the primary motive of 
assisting in pending or impending litigation is protected 
by attorney work-product privilege. See United States 

v. Gulf Oil Corp., 760 F.2d 292, 296 (Temporary Emer- 
gency Court of Appeals 1985). The work-product privi- 
lege still applies where the information has been shared 
with a third party that holds a common interest. See 
Durham v. United States Dept. of Justice, 829 F. Supp. 
428, 433 (D.D.C. 1993), appeal dismissed, 1994 WL 
704043 (D.C. Cir. 1994). 

Document No. 3 FOIA Appeal No. 96-168 was pre- 
pared by Bud Ullman, an attorney for the Klamath 
Tribes, at the request of the Solicitor, an attorney for 
the government. (Vaughn Index at 11). The memoran- 
dum discusses legal theories concerning the water 
rights of the Tribes that are being asserted in the cur- 
rent state administrative adjudication of water rights 
to the Klamath River. (Id.). Release of this document 
would significantly harm the government’s position in 
the ongoing adjudication, and would reveal to potential 

64a 

adversaries the preliminary views and litigation 
strategy. (Supplemental Bergstrom declaration at 2). 
The document was prepared in anticipation of potential 
litigation that may arise out of the administrative 
adjudication or over the forthcoming Plan of Operations 
for the Klamath Project. (Vaughn Index at 11). 
Plaintiff has admitted that the issue of water rights has 
been and continues to be very contentious. (Plaintiff ’ s 
memorandum at 3-6). It appears that the current ad- 
ministrative adjudication and the upcoming Plan of 
Operations are expected to spawn court litigation. 
Based on the above facts, the court finds that this 
document in its entirety is protected by the attorney 
work-product privilege. 

Document No. 16 FOIA Appeal No. 96-201 is a letter 
composed by Bud Ullman a Klamath Tribe attorney. 
(Vaugh Index at 18). It concerns the Plan of Operations 
and the current water rights adjudication. (Id.). The 
Office of the Solicitor requested that Mr. Ullman 
prepare the letter. (Id.). It discusses arguments that 
were going to be advanced in the current water rights 
adjudication. (Defendants’ Exhibit 4 at 3). Release of 
this document would significantly harm the govern- 
ment’s position in the ongoing adjudication, and would 
reveal to potential adversaries the preliminary views 
and litigation strategy. (Supplemental Bergstrom dec- 
laration at 2). It was prepared in anticipation of poten- 
tial litigation that may arise out of the administrative 
adjudication. (Defendants’ Exhibit 4 at 3-4). Plaintiff 
has admitted that the issue of water rights has 
been and continues to be very contentious. (Plaintiff’s 
memorandum at 3-6). It appears that the current 
administrative adjudication and the upcoming Plan of 
Operations are expected to spawn court litigation. 

65a 

Based on the above facts, the court finds that this docu- 
ment in its entirety is protected by the attorney work- 
product privilege. 

Segregability 

Plaintiff argues that defendants have failed to prove 
that they disclosed all segregable material. Defendants 
argue that the Department has reviewed all the docu- 
ments at issue to determine whether there are any 
reasonably segregable portions and that the cover 
sheets and other portions of the documents which could 
be disclosed without revealing the agency’s delibera- 
tions or legal strategies were released. 

Even if part of a document is exempt, the agency 
must disclose any segregable portions, and it must 
address, in the Vaughn Index or affidavits, why the 
remaining information is not segregable. Bay Area 
Lawyers, 818 F. Supp. at 1296. The court must make a 
specific finding on the issue of segregability, and the 
court cannot approve the withholding of the entire 
document without making a finding on segregability. 
Id. (citation omitted). 

Scott Bergstorm, attorney-advisor within the Office 
of the Solicitor, reviewed the documents at issue to 
determine if there were portions that were segregable. 
(Second Supplemental Bergstorm affidavit at 1-3). All 
segregable portions were released. (Id.). The factual 
information contained in the remaining documents is 
inextricably connected to the deliberative material, and 
disclosure would expose or cause harm to the BIA’s 
deliberations. (Id. at 3). Based on this evidence, defen- 
dants’ motion for summary judgment with regard to 
the issue of segregability should be granted. 

66a 

Fee Waivers5 

5 U.S.C. § 552 (a) (4) (iii) provides that documents are 
to be furnished without charge or at a reduced rate if 
the disclosure is likely to contribute significantly to the 
public’s understanding of government operations or 
activities, and the disclosure is not primarily in the 
commercial interest of the requester. McClellan Eco- 
logical Seepage Situation (MESS) v. Carlucci, 835 F.2d 
1282, 1284 (9th Cir. 1987). The fee waiver statute “is to 
be liberally construed in favor of waivers for non- 
commercial requesters”. Id. (citation omitted). The 
main purpose of this provision “was ‘to remove the 
roadblocks and technicalities which have been used by 
various federal agencies to deny waivers or reductions 
of fees under FIOA’ ”. Id. (citation omitted) 

Defendants argue that plaintiff is seeking the infor- 
mation for its own use. Plaintiff has failed to demon- 
strate that disclosure of the information is in the public 
interest and that it will contribute to public’s under- 
standing of the operation or activity. Defendants argue 
that the plaintiff ’s pledge to maintain the information in 
its library is insufficient to demonstrate that the infor- 
mation will be communicated to the public. Defendants 
argue that plaintiff has failed to provide specific infor- 
mation establishing that it is entitled to a fee waiver. 

Plaintiff argues that the defendants wrongfully 
denied its request for a fee waiver because the withheld 
documents are likely to contribute to the public’s 

5 In an action by a requester regarding a fee waiver under 5 
U.S.C. § 552, the standard of review is de novo, and the court’s 
review is limited to the record before the agency. 5 U.S.C. § 552 
(a) (4) (vii). 

67a 

understanding of the Department’s operation the 
Klamath Project and related activities. Plaintiff argues 
that it made the required prima facie showing to be 
entitled to a fee waiver. Plaintiff argues that disclosure 
of the information is in the public interest and is not 
primarily in its commercial interest. 

The requester of a fee waiver has the initial burden 
of identifying the public interest to be served by dis- 
closure of the documents. Id. at 1285 (citation omitted). 
“[A]n agency may infer lack of substantial public in- 
terest ‘when a public interest is asserted but not 
identified with reasonable specificity, and circum- 
stances do not clarify the point of the requests’ ”. 

Id. 
(citation omitted). Requesters must explain with rea- 
sonable specificity how disclosure will contribute to 
public understanding. Id. Conclusory statements of 
public interest will not suffice. Id. 

In MESS, the request for a fee waiver provided the 
following information: the requesters sought to benefit 
the general public, especially in Sacramento; the infor- 
mation might be used in litigation to ensure agency 
compliance with federal laws; and the information 
would be donated to a public institution. Id. The court 
found that the “requesters do not explain with reason- 
able specificity how disclosure will contribute to public 
understanding.” Id. 

In evaluating the request, the court found that: 
although the information sought was not new, it could 
support oversight of agency operations; disclosure of 
the information would result in only limited public 
understanding; the requesters gave no indication of 
their ability to understand and process the information; 
the record did not reveal whether the requesters had a 

68a 

history of disseminating such information, either 
through public lawsuits or other means; the requesters 
gave no details about their intention to disseminate the 
information; the requesters did not state on what basis 
they would ensure agency compliance with particular 
federal laws or regulations; and the requesters failed to 
name a public institution to which they might donate 
the information. Id. The court found that an organiza- 
tion’s identity and history, ability to absorb and dis- 
seminate information, and specific plans to use the 
information are all relevant to the assessment of 
whether disclosure is likely to contribute significantly 
to the public’s understanding. Id. at 1287. 

In ONRC v. BLM, 92-6425-TC (D. Oregon 1994 - 
Order dated April 22, 1994), the original request for a 
fee wavier stated: “ONRC is a nonprofit, tax-exempt 
Oregon corporation and has been determined to be 
operating in the public interest by the US Departments 
of Agriculture, Interior, Treasury, and Postal Service.” 
ONRC, slip opinion at 2. The administrative appeal 
stated: 

“All of the information requested will be shared 
with ONRC’s members or other members of the 
public that may express an interest to us in 
reviewing this information. 

ONRC, a 501(c) (3), nonprofit, tax-exempt corpora- 
tion, is the coordinating structure for conversation, 
sportsmen, education, outdoor recreation, and com- 
mercial organizations concerned about Oregon’s 
lands, waters, and natural resources. Organized in 
1972 and incorporated in 1974, ONRC is a statewide 
association of 90 member organizations and more 
than 3000 individual members. ONRC educates the 

69a 

public about natural resource values and works to 
provide for effective public involvement concerning 
natural resource related issues and concerns. 

ONRC clearly meets these criteria and has been 
determined to be operating in the public interest by 
the U.S. Departments of Agriculture (Forest Ser- 
vice), Interior (Bureau of Land Management and 
National Park Service), Treasury (Internal Revenue 
Service), and the U.S. Postal Service. 

ONRC requests this information as being necessary 
to assist us in the evaluation of road construction 
practices and forest planning in these districts. The 
disclosure of this information will therefore ‘likely 
contribute to an understanding of government op- 
erations or activities’ and contribute ‘to an under- 
standing of the subject by the general public.’ 

The subject of this request clearly concerns gov- 
ernment activities. Disclosure of the requested 
information will (in particular) contribute signifi- 
cantly to the public understanding of the possible 
impact of road construction in and around these 
Districts, as well as the possibility of gaining infor- 
mation about the forest management practices of 
the Bureau of Land Management. Id. at 3. 

Judge Hogan found that the request “does not suffi- 
ciently specify why plaintiff is requesting the docu- 
ments or how the purpose of the request is in the public 
interest. The general purposes identified in plaintiff ’s 
appeal do not significantly expand on what the BLM is 
already directly providing to the public.” Id. at 4. 
Judge Hogan stated that “plaintiff should more specifi- 
cally identify a public interest not already sufficiently 

70a 

served or capable of accomplishment under the status 
quo”, and “plaintiff should demonstrate specifically how 
obtaining the specific documents will contribute to the 
public understanding of the operations of the govern- 
ment.” Id. He also required plaintiff to identify the 
area, scope, aspect, or practice in a narrow rather than 
expansive way. Id. 

Under the standards set forth in MESS and ONRC v. 
BLM, plaintiff has provided insufficient information to 
meet its prima facie burden of showing eligibility for a 
fee waiver. Plaintiff gave no indication of its ability to 
understand and process the requested information. 
There is no indication that the plaintiff has a history of 
disseminating information. The only detail given with 
regard to dissemination was that the information would 
be kept in a library where the public would have access. 
The plaintiff gave no details on how it planned to use 
the information or how the request was in the public 
interest. Since plaintiff has failed to make a prima facie 
showing of eligibility, defendants are entitled to sum- 
mary judgment on the fee waiver claim. See Friends of 
the Coast Fork v. United States Department of the 
Interior, ___ F.3d ___, 1997 WL 149255 (9th Cir.) At *2. 

IV. RECOMMENDATION 

Based on the foregoing, it is recommended that 
defendants’ motion for summary judgment be granted. 

This recommendation is not an order that is 
immediately appealable to the Ninth Circuit Court of 
Appeals. Any notice of appeal pursuant to Rule 4(a)(1), 
Federal Rules of Appellate Procedure, should not be 
filed until entry of the district court’s judgment or 
appealable order. The parties shall have ten days from 

71a 

the date of service of a copy of this recommendation 
within which to file specific written objections with the 
Court. Thereafter, the parties have ten days within 
which to file a response to the objections. Failure to 
timely file objections to any factual determinations of 
the Magistrate Judge will be considered a waiver of a 
party’s right to de novo consideration of the factual 
issues and will constitute a waiver of a party’s right to 
appellate review of the findings of fact in an order or 
judgment entered pursuant to the Magistrate Judge’s 
recommendation. 

Dated this 19 day of June, 1997. 

/s/ JOHN P. COONEY 

UNITED STATES MAGISTRATE JUDGE 

72a 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 97-36208 
D.C. NO. CV-96-03077-CO 

KLAMATH WATER USERS PROTECTIVE ASSOCIATION, 
PLAINTIFF-APPELLANT 

v. 

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

[Filed: Dec. 22, 1999] 

ORDER 

Before: KLEINFELD, HAWKINS, Circuit Judges, and 

SCHWARZER,1 District Judge. 

Judges Kleinfeld and Schwarzer have voted to deny 
appellee’s petition for rehearing. Judge Hawkins voted 
to grant the petition for rehearing. Judge Kleinfeld has 
voted to deny the petition for rehearing en banc and 
Judge Schwarzer so recommends. Judge Hawkins 
voted to grant the petition for rehearing en banc. 

1 The Honorable William W. Schwarzer, Senior United States 

District Judge for the Northern District of California, sitting by 

designation. 

73a 

The full court has been advised of the petition for 
rehearing en banc, and no judge of the court has 
requested a vote on the petition for rehearing en banc. 
Fed. R. App. P. 35(b). 

The petition for rehearing and petition for rehearing 
en banc is DENIED.