Reclamation Bureau Must Release Writings in Dam Dispute
Farmers and fishermen fiercely contest rights to water from the Klamath Project in Oregon, and the Department of the Interior's Bureau of Reclamation is trying to draft a new plan to take their interests into account. Because the fisheries belong to Indian tribes, with whom the Department has a special interest, the Department has tried to keep some tribal writings on the project secret, saying they are internal, privileged papers.
However, a federal appeals court, sitting in Portland, says the agency cannot withhold the requested tribal correspondence. The government may have a special relationship with Indian tribes, but that does not make them government "consultants" whose records are "internal," the court said.
The Department of the Interior's Bureau of Reclamation operates the Klamath Project, a dam and canal system that irrigates more than 200,000 acres of farm land in southern Oregon and northern California, near the former Klamath Reservation.
Water rights in the Klamath Basin are a contentious issue. Environmentalists are protective of the river's resources, including its fish. Farmers depend on it for irrigation.
Tribes have guaranteed water and fishing rights in the area, although even they do not agree as to how those are best served. The Klamath tribes near Upper Klamath Lake want high water levels on the lake to protect the shortnose sucker and Lost River sucker fish. The Yurok, Hoopa Valley and Kar-uk tribes, who live downstream, want higher rivers.
The state of Oregon adjudicates water rights for its river systems, but the federal government is obligated by its trust relationship with American Indians to assert tribal rights before the state, which has heard suits by tribes and agricultural interests as well.
A 1994 drought intensified the conflict. Klamath Basin farmers suffered severe water shortages. Many agricultural interests blamed the shortages on tribal influence at the Interior Department, saying tribal protests had kept water from being routed to irrigation use.
But Yurok fishery managers believed too much water had gone to the farmers. Their attorneys told the Department of Interior in December 1994 that they intended to sue to prevent any future diversions for agriculture when their own minimal stream flows were not met.
In 1995, the Bureau of Reclamation announced it would develop a long-term Klamath Project Operations Plan. The public would participate through a series of open public meetings in which the Klamath Water Users Protective Association, environmentalists, tribal representatives, and others would present their views.
The Interior Department did hold a series of public meetings, and according to court filings, the Klamath Project manager prepared a draft plan after the meetings were concluded. It was circulated within the Interior Department but was never made public. Concurrently, the Interior Department's Bureau of Indian Affairs (BIA) set up separate and confidential sessions with the tribes and their attorneys to determine how they might best advocate their own interests as the project developed.
The Klamath Water Users Protective Association objected to these separate sessions with tribal interests. The association, which represents water districts, irrigation contractors, and others who draw water from the Klamath Project, filed a Freedom of Information Act request with the BIA for all written communications on the Klamath Project between the tribes and the agency between January and July 1996.
The agency denied access to the documents, claiming they revealed the deliberative process, attorney client communications, and attorney work product and would be exempt under the FOI Act's Exemption 5 protecting internal, privileged records.
Although tribes are not United States government agencies, they acted as "consultants" to the government, it said, providing guidance at the government's request. …