Academic journal article Washington Law Review

Traditional Ecological Disclosure: How the Freedom of Information Act Frustrates Tribal Natural Resource Consultation with Federal Agencies

Academic journal article Washington Law Review

Traditional Ecological Disclosure: How the Freedom of Information Act Frustrates Tribal Natural Resource Consultation with Federal Agencies

Article excerpt

INTRODUCTION

Between a rock and a hard place, a Catch-22, Milton's Fork, or a Hobson's choice; whichever metaphor one uses, tribes face such dilemmas when they consult with federal agencies on natural resource issues. Tribal consultation is a desirable goal for federal agencies with a two-fold purpose to: (1) give tribes a seat at the regulatory table and gain their perspective and (2) improve the decision-making process by gaining access to better information and thus leading to better results.1 Federal agencies, such as the Fish and Wildlife Service and the National Marine Fisheries service, recently issued their Native American Policy for the U.S Fish and Wildlife Service2 with the goal of co-managing natural resources with tribes.3 Tribes want and need to have their perspectives considered when agencies make decisions on natural resources, not only because they have a unique perspective,4 but more importantly, they are significantly affected by these decisions.5 However, tribes may be skeptical of the consultation process because they feel that the agencies will not truly consider their needs.6

In addition to the divergent interests between the agencies and tribes on the two sides of the table, the consultation process can create an additional unintended consequence for the tribes-agencies must disclose information gained through tribal consultation to the public through/via the Freedom of information Act (FoiA). if a tribe consults with an agency, most of the information provided during such consultations is subject to FOIA. Tribes may not want agencies to disclose all of this information to the general public because it contains sensitive cultural information such as fishing grounds, allocations of water rights, or where commercially valuable plants are located. FOIA was enacted to let the public know what the government is doing. However, there are major implications for both agencies and tribes if agencies do not consult with tribes or take their perspective into consideration-the tribes' needs are not considered and agencies lose the valuable perspective of tribes, who are historically successful managers of their natural resources. Ultimately, tribes face a Hobson's Choice- risk disclosing proprietary information, or lose their seat at the environmental regulatory table.

This Comment explores how FOIA frustrates agencies' use of traditional ecological knowledge (TEK). Part I explains how TEK is used in a natural resource management context. It explains what exactly TEK is and how it can be helpful to agencies. Additionally, Part I explains that tribes are protective because of the contentious relationship. Part II then examines the federal government's attempts to facilitate tribal consultation. Part II looks at the Endangered Species Act (ESA) in relation to TEK but also discusses several other environmental statutes involving tribal consultation. It explains the consultation directives issued by presidents and department heads encouraging agencies to consult with tribes when making natural resource decisions. Part II specifically examines the new Fish and Wildlife Policy on tribal consultation through its stated purpose, as well as the comments the policy received and Fish and Wildlife Service (FWS) and National Marine Fisheries Service's (NMFS) responses. Part III gives a brief overview of FOIA and how its stated core purpose of informing citizens about "what their government is up to"7 impinges on tribal consultation. Part III also examines tribal specific contexts of FOIA litigation. Part IV then discusses the legal scholarship surrounding protection of tribal information. Specifically, Part IV discusses the patchwork nature of protection through different statutes and intellectual property laws and why current law does not address the broader issue-unwanted disclosure of tribal information to the public. Lastly, Part V proposes a legislative fix to prevent disclosure of tribal information through FoIA requests. …

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