# Appendix — Skokomish Indian Tribe v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1090

## Text

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APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
FILED MARCH 9, 2005 AND
AMENDED JUNE 3, 2005

UNITED STATES COURT OF APPEALS
NINTH CIRCUIT

Nos. 01-35028, 01-35845S.

Argued and Submitted March 23, 2004.
Filed March 9, 2005.
Amended June 3, 2005.

SKOKOMISH INDIAN TRIBE, a federally recognized
Indian tribe in its own capacity as a class representative and
as parens patriae; Denny S. Hurtado; Gordon A. James;
Joseph Pavel; Anne Pavel; Maures P. Tinaza; Celeste F. Vigil;
Roslynne L. Reed; Gary W. Peterson; Rita C. Andrews; Tom
G. Strong; Marie E. Gouley; Victoria J. Pavel; Dennis W.
Allen; Joseph Andrews, Sr.; Zetha Cush; Elsie M. Allen; Alex
L. Gouley, Jr.; Lawrence L. Kenyon; Doris Miller; Gerald B.
Miller; Helen M. Rudy; Ronald D. Twiddy, Sr.; Nick G.
Wilbur, Sr.,

Plaintiffs- Appellants,

Vv.

UNITED STATES of America; Tacoma Public Utilities, a
Washington municipal corporation; City of Tacoma, a
Washington municipal corporation; William Barker, Tacoma
Public Utilities Board Member in his official capacity; Tom
Hilyard, Tacoma Public Utilities Board Member in his official
capacity; Robert Lane; Tim Strege; G.E. Vaughn,

Defendants-Appellees.

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Appendix A

Skokomish Indian Tribe, a federally recognized Indian tribe
in its Own Capacity as a class representative and as parens
patriae; Denny S. Hurtado; Gordon A. James; Joseph Pavel;
Anne Pavel; Maures P. Tinaza; Celeste F. Vigil; Roslynne L.
Reed; Gary W. Peterson; Rita C. Andrews; Tom G. Strong;
Marie E. Gouley; Victoria J. Pavel; Dennis W. Allen; Joseph
Andrews, Sr.; Zetha Cush; Elsie M. Allen; Alex L. Gouley,
Jr.; Lawrence L. Kenyon; Doris Miller; Gerald B. Miller;
Helen M. Rudy; Ronald D. Twiddy, Sr.; Nick G. Wilbur, Sr.,
Skokomish Indian Tribal members for themselves and all
others similarly situated,

Plaintiffs-Appellants,

Vv.

Tacoma Public Utilities, a Washington municipal corporation;
City of Tacoma, a Washington municipal corporation;
William Barker, Tacoma Public Utilities Board Member in
his official capacity, Tom Hilyard, Tacoma Public Utilities
Board Member in his official capacity; Robert Lane;
Tim Strege; GE. Vaughn; United States Internal Revenue
Service,

Defendants- Appellees.

Appeals from the United States District Court for the
Western District of Washington; Franklin D. Burgess,
District Judge, Presiding. D.C. No. CV-99-05606-FDB.

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Appendix A

Before: SCHROEDER, Chief Judge, PREGERSON,
KOZINSKI, RYMER, GRABER, GOULD, PAEZ,
BERZON, RAWLINSON, BYBEE and CALLAHAN,
Circuit Judges.

ORDER

The opinion filed on March 9, 2005, is amended as
follows. Part II Section B, labeled “Reserved Water Rights
Claim”, is deleted. Part II Section C, labeled “State-Law
Claims”, becomes Part II Section B. Part II Section D, labeled
“16 U.S.C. § 803(c)”, becomes Part II Section C.

Judge Berzon’s opinion dissenting in part is amended as
follows. Footnote | of the dissenting opinion is revised to
read as follows: “I dissent only from subsection A (“Treaty-
Based Claims”) of Part I] (“Claims Against the City of
Tacoma and Tacoma Public Utilities”) of the majority
opinion.” Part LI of the dissenting opinion is deleted. The
second sentence of the final paragraph of the dissenting
opinion, which reads “I also dissent from the grant of
summary judgment on the reserved water rights claim,” is
deleted.

Appellant Skokomish Indian Tribe’s motion, filed on
May 10, 2005, for leave to file a reply to Appellee City of
Tacoma’s response to the petition for additional rehearing or
full court rehearing en banc is GRANTED. The motion of
amici curiae, filed on April 21, 2005, to file a brief supporting
the petition for additional rehearing or full court rehearing
en banc is GRANTED. The petition for additional rehearing
or full court rehearing en banc is DENIED. No further
petitions will be accepted.

4a

Appendix A
OPINION

KOZINSKI, Circuit Judge:

Can an Indian tribe bring claims against the United States
under the Federal Tort Claims Act for violation of a treaty,
or against a city and a public utility under a treaty and
42 U.S.C. § 1983?

FACTS

The Skokomish Indian Tribe (“Tribe”) and its members
brought suit in federal district court against the United States,
the City of Tacoma (“City”) and Tacoma Public Utilities
(“TPU”), alleging harms caused by the Cushman
Hydroelectric Project (“Project”), a City-owned project
comprised of two dams, two reservoirs, diversion works, two
power houses and transmission lines. The Project, completed
in 1930, floods over thirty acres of federal land in a total
project area of 4700 acres located upstream from the Tribe's
land. The Project has diverted the flow of the Skokomish
River’s North Fork to power-generating facilities and led to
aggradation of the river.' This has allegedly caused flooding
of the Tribe’s reservation, failure of septic systems,
contamination of water wells, blocking of fish migration,
damage to the Tribe's orchards and pastures and silting over
of many of the Tribe's fisheries and shellfish beaches. The
Tribe claims the Project has caused it nearly $5 billion in
losses.

1. Aggradation occurs when deposits of sediment cause the
floor of the river to build up over time, leading to flooding and
elevated water tables.

Sa

Appendix A

The Tribe sued for damages resulting from the Project's
impact on tribal lands and fisheries, alleging both state and
federal causes of action, including claims arising under the
Treaty of Point No Point (“Treaty”), Jan. 26, 1855, 12 Stat.
933. The Treaty ceded the Tribe’s territory to the United
States, but reserved a tract for the Tribe. It also reserved for
the Tribe “[t}he right of taking fish at usual and accustomed
grounds and stations .. . in common with all citizens of the
United States” and “the privilege of hunting and gathering
roots and berries on open and unclaimed lands.” /d., art. 4.
The district court dismissed the United States as a defendant
and granted summary judgment in favor of the City and TPU
on the treaty-based and state-law claims. The court also
dismissed the Tribe’s claim under 16 U.S.C. § 803(c) for
failure to state a claim upon which relief could be granted.

A divided panel of our court affirmed, but held that the district
court should have dismissed the treaty-based claims for lack
of subject matter jurisdiction. We took the case en banc.
Skokomish Indian Tribe v. United States, 358 F.3d 1180, 1181
(9th Cir.2004).

ANALYSIS
I. Claims Against the United States
A. Treaty-Based Claims

The Tribe seeks relief against the United States pursuant
to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346.
The Tribe alleges that the United States violated its
obligations under the Treaty by allowing continued operations
of the Project and by failing to take legal action on the Tribe's

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Appendix A

behalf or fund litigation, thereby breaching its fiduciary
responsibilities to the Tribe under the Treaty.

These claims are not properly brought under the FTCA,
which authorizes suits against the United States

for injury or loss of property, or personal injury
or death caused by the negligent or wrongful act
or omission of any employee of the Government
while acting within the scope of his office or
employment, under circumstances where the
United States, if a private person, would be liable
to the claimant in accordance with the law of the
place where the act or omission occurred.

28 U.S.C. § 1346(b)(1) (emphasis added).* The Tribe’s claims
against the United States are properly characterized not as
tort claims, but as claims that the United States violated its
obligations under the Treaty. The claims are thus quite
different from those in cases like Berkovitz v. United States,
486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), and
Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct.
122, 100 L.Ed. 48 (1955), on which the Tribe relies. In
Berkovitz, a federal agency allegedly acted tortiously in
approving the release of a polio vaccine that did not meet
safety standards. In Indian Towing, the Coast Guard acted

2. The FTCA also requires plaintiffs to exhaust their
administrative remedies before bringing suit. See McNeil v. United
States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
The Tribe met this requirement by filing an administrative claim for
damages on September 22, 1997, which was rejected on November
20, 1997. See Amended Complaint at 32.

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Appendix A

negligently in its operation of a lighthouse because it did not
“use due care to make certain that the light was kept in good
working order,” causing more than $60,000 in damages to a
barge and its cargo. 350 U.S. at 69, 76 S.Ct. 122. The Tribe
is not claiming the United States behaved tortiously, but
rather that the United States failed to abide by its contractual
obligations to the Tribe under the Treaty.

The Tribe’s claims may best be characterized as arising
under the Tucker Act, 28 U.S.C. § 1491, or its counterpart
for Indian claims, the Indian Tucker Act, 28 U.S.C. § 1505.
The Tucker Act gives the Court of Federal Claims exclusive
jurisdiction over claims for damages exceeding $10,000 that
are “founded . . . upon any express or implied contract with
the United States.” 28 U.S.C. § 1491(a)(1). The Indian Tucker
Act extends the Court of Federal Claims’ jurisdiction to

any tribe, band, or other identifiable group of
American Indians residing within the territorial
limits of the United States or Alaska whenever
such claim is one arising under the Constitution,
laws or treaties of the United States, or Executive
orders of the President, or is one which otherwise
would be cognizable in the Court of Federal
Claims if the claimant were not an Indian tribe,
band or group.

28 U.S.C. § 1505.’ It is under the Tucker and Indian Tucker

3. The Indian Tucker Act is identical to the Tucker Act, except
that it specifies Indian tribes as eligible claimants. The Indian Tucker
Act was passed because there had been considerable doubt as to

(Cont'd)

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Appendix A

Acts that the federal courts have considered claims most
similar to those of the Tribe. For example, in United States
v. Mitchell (Mitchell 11), 463 U.S. 206, 208, 103 S.Ct. 2961,
77 L.Ed.2d 580 (1983), an Indian tribe brought a Tucker Act
cause of action in the Court of Claims (the Court of Federal
Claims’ predecessor) against the United States for breach of
trust responsibilities that originated with a treaty, which was
later codified in federal law. This is very much like our case,
in which the Tribe's claims against the United States are for
breach of its fiduciary obligations under the Treaty.
Because we lack subject matter jurisdiction over the Tribe's
damages claims against the United States, but believe they
might properly have been brought under the Indian Tucker
Act, we exercise our discretion to transfer these claims to
the Court of Federal Claims. See 28 U.S.C. § 1631
(“Whenever . . . an appeal, including a petition for review of
administrative action, is noticed for or filed with . . . a court
and that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action
or appeal could have been brought at the time it was filed or
noticed... .”); Beck v. Atl. Richfield Co., 62 F.3d 1240, 1242
n. 4 (9th Cir.1995) (per curiam).

B. Federal Power Act Claims

The Tribe also asserts the United States violated the
Federal Power Act (FPA), 16 U.S.C. §§ 791a-828c, by failing

— eee ee

(Cont'd)

whether the Tucker Act applied to Indian tribes. See Gregory C. Sisk,
Yesterday and Today: Of indians, Breach of Trust, Money, and
Sovereign Immunity, 99 Tulsa L.Rev. 313, 316 (2003).

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Appendix A

to submit and include license conditions protective of the
Skokomish Reservation fish and wildlife, to fully consider
environmental factors before issuing a project license, and
to require evidence that the City, as a license applicant,
possessed sufficient water rights for the Project and complied
with state and federal laws requiring fishways at dams and
prohibiting impairment of navigation. The FPA, however,
specifically provides: “Each licensee hereunder shell be liable
for all damages occasioned to the property of others by the
*512 construction, maintenance, or operation of the project
works or of the works appurtenant or accessory thereto,
constructed under the license, and in no event shail the United
States be liable therefor.” 16 U.S.C. § 803(c) (emphasis
added).

The plain language of the FPA is clear. It differentiates
between the United States and licensees, and unequivocally
exempts the United States from liability. When the statutory
language is clear, it trumps. Lamie v. United States Tr., 540
U.S. 526, 124 S.Ct. 1023, 1030, 157 L.Ed.2d 1024 (2004).
We therefore affirm the district court’s dismissal of all FPA
claims against the United States.

10a

Appendix A

Il. Claims Against the City of Tacoma
and Tacoma Public Utilities

A. Treaty-Based Claims*

1. Atreaty between the United States and an Indian tribe
‘is essentially a contract between two sovereign nations.”
Washington v. Wash. State Commercial Passenger Fishing

4. We reject defendants’ contention that the FPA preempts the
Tribe's treaty-based damages claims against the City and TPU.
Defendants’ argument is based on the fact that in 1924, the City
received a license from the Federal Power Commission (FPC)
authorizing the flooding of 8.8 acres of federal land that would result
from the Project. See City of Tacoma, 67 F.E.R.C. 4 61,152, at 61,440,
1994 WL 170164 (1994). Defendants assert that the Tribe's treaty-
based claims are actually collateral attacks on the licensing decision,
which are governed by the FPA and which the district court lacked
subject matter jurisdiction to consider. See 16 U.S.C. § 825i(b).

The 1924 license was a narrow “minor part” license, applying
by its terms only to “the occupancy and use of a tract of land
approximately 8.8 acres in arca ... said land constituting a minor
part of said power project.” As the Federal Energy Regulatory
Commission—the FPC’s successor—has recognized, the license did
not “authorize the construction, operation, and maintenance of the
Cushman Project.” City of Tacoma, 67 F.E.R.C. at { 61,440.

It is true that the FPA “provides exclusive jurisdiction for the
Courts of Appeals to review and make substantive modifications to
FERC licensing orders.” Cal. Save Our Streams Council, Inc. v.
Yeutter, 887 F.2d 908, 911 (9th Cir.1989). But the Tribe is not
attempting to collaterally attack the 1924 licensing decision; rather,
it is suing for damages based on impacts that are not covered by the
license. The FPA does not preempt the Tribe's treaty-based claims.

Appendix A

Vessel Ass'n, 443 U.S. 658, 675, 99 S.Ct. 3055, 61 L.Ed.2d
823 (1979) (Fishing Vessel ). Nonetheless, treaties constitute
the “supreme law of the land,” Breard v. Greene, 523 U.S.
371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per
curiam), and they have occasionally been found to provide
rights of action for equitable relief against non-contracting
parties, see United States v. Winans, 198 U.S. 371, 377, 25
S.Ct. 662, 49 L.Ed. 1089 (1905).

Equitable relief, however, merely ensures compliance
with a treaty; that is, it forces state governmental entities
and their officers to conform their conduct to federal law.
The Tribe here would have us go further and hold that it may
recover monetary damages against the City and TPU for

alleged treaty violations. We find no basis for doing so.°

ee eC

5. Judge Berzon's dissent misreads our opinion as assuming
that “the cases upholding causes of action for violation of Indian
treaty rights but providing only equitable relief implicitly held that
damages are not available.” Berzon dissent at 526. We find only that
those cases did not recognize an implied right of action for damages,
and that there are no grounds for inferring that the parties to the
Treaty intended to create such an action. Cf Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 284, 118 $.Ct. 1989, 141 L.Bd.2d
277 (1998) (stating that courts implying rigits of action “have a
measure of latitude to shape a sensible remedial scheme that best
comports” with the relevant enactment)

Similarly mistaken is the dissent’s description of our opinion
as holding that “Indian tribes and their members cannot, under federal
law, sue municipalities for damages for violation of rights secured
by Indian treaties.” Berzon dissent at 522. We analyze a specific set
of claims brought under & specific treaty, and we thus have no
occasion to consider whether different rights of action might be
implied from other treaties.

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Appendix A

The Supreme Court has held that the Treaty of Point No
Point and similar treaties are “self-enforcing” and thus do
not require implementing legislation to form the basis of a
lawsuit. See Fishing Vessel, 443 U.S. at 693 n. 33, 99 S.Ct.
3055. To make this determination, the Court looked at
language common to the treaties, which stated that the treaties
“shall be obligatory on the contracting parties as soon as
[they are] ratified by the President and Senate of the United
States.” /d. (emphasis added) (alteration in original) (internal
quotation marks omitted); see also Treaty, art. 14. However,
the City and TPU are not contracting parties to the Treaty.
Nor is there anything in the language of the Treaty that would
support a claim for damages against a non-contracting party.
Cf. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511,
149 L.Ed.2d 517 (2001) (“The judicial task is to interpret
the statute Congress has passed to determine whether it
displays an intent to create not just a private right but also a
private remedy.”); Touche Ross & Co. v. Redington, 442 U.S.
560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (“[O]ur task
is limited solely to determining whether Congress intended
to create the private right of action asserted. . . . And as with
any case involving the interpretation of a statute, our analysis
must begin with the language of the statute itself.”).

The Tribe has argued that in Fishing Vessel and Puyallup
Tribe v. Department of Game of Washington (Puyallup !),
391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968), the
Supreme Coart held that tribes may have a cause of action
against non-contracting parties under a treaty, even in the
absence of a specific treaty provision. But the Tribe
misunderstands the significance of those cases. In Fishing
Vessel, the Court interpreted a group of treaties, including

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Appendix A

the one at issue here, which granted Indian tribes “*[t)he right
of taking fish, at all usual and accustomed grounds and
stations .. . in common with all citizens. . . ."” 443 U.S. at
674, 99 S.Ct. 3055 (quoting Treaty of Medicine Creek, Dec.
26, 1854, art. 3, 10 Stat. 1132, substantially similar'to Treaty
of Point No Point, art. 4). The Court held that this provision
secured to the tribes the right to harvest a share of each run
of anadromous fish that passed through tribal fishing areas
and not merely a right to compete with not -treaty fishermen
on an equal basis. /d. at 683-85, 99 S.Ct. 3055. The tribes
were thus entitled to an equal measure of the harvestable
portion of each run that passed through a “usual and
accustomed” tribal fishing ground, adjusted downward if
tribal needs could be satisfied by a lesser amount. /d. at 685-
89, 99 S.Ct. 3055.

The Court then held that its order was enforceable by
injunction. See id. at 692 n. 32, 99 S.Ct. 3055. This is eite
different from finding a right to sue a non-contracting party
for damages under a treaty—a theory the Supreme Court
avoided in Fishing Vessel.

Puyallup I is not to the contrary. In that case, the Court
held that the State of Washington—a non-party to a treaty
between the Puyallup Tribe and the United States—could
regulate the modes of fishing allowed as an appropriate
exercise of the State’s police power because “the manner in
which the fishing may be done and its purpose ... are not
mentioned in the Treaty.” 391 U.S. at 398, 88 S.Ct. 1725.
The Court suggested that, even though the state could regulate
in this instance, it could not pass iegislation that would
directly interfere with rights secured by a treaty. See id.

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Appendix A

(“We would have quite a different case if the Treaty had
preserved the right to fish at the ‘usual and accustomed
places’ in the ‘usual and accustomed’ manner.”). But the
Court did not hold that the Tribe had a private right of action
under the Treaty for damages. In fact, the Puyallup Tribe did
not bring a claim at all. It was the State of Washington that
had sued the Tribe, seeking an injunction and declaratory
relief that would allow the State to regulate certain fishing
areas named in the Treaty. The Court did not consider whether
the Tribe had a right of action even for equitable relief, let
alone monetary damages going back nearly seventy-five
years.

The Tribe gets no help from Antoine v. Washington, 420
U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). Antoine
stands for the proposition that when a treaty has been
implemented by Congress, “neither an express provision
precluding state qualification nor the consent of the State
{is} required” to subject a state to the provisions of the treaty.
Id. at 205, 95 S.Ct. 944. Holding that a state is precluded
from passing laws inconsistent with a treaty is quite different
from saying that a non-contracting party can be sued for
damages under the treaty.

Finally, County of Oneida v. Oneida Indian Nation,
470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (County
of Oneida II ), is inapposite. In that case, the Supreme Court
found that the plaintiff tribes could assert a federal common
law damages claim for unlawful possession of land. The
Court’s decision was not based on any treaty. Rather, it was
based on well-established federal common law principles
regarding aboriginal possessory rights in land. See id. at 235-

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Appendix A

36, 105 S.Ct. 1245. By contrast, the Tribe in our case is
seeking to collect damages for violation of fishing rights
reserved to it by treaty.

Thus, we hold that there is no basis for implying the
right of action for damages that the Tribe seeks to assert.

2. We turn next to the Tribe’s claims under 42 U.S.C.
§ 1983. The Supreme Court recently held in /nyo County v.
Paiute-Shoshone Indians, 538 U.S. 701, 708-12, 123 S.Ct.
1887, 155 L.Ed.2d 933 (2003), that a Tribe is not a “person”
capable of bringing a claim under section 1983 for violation
of a sovereign prerogative. The Court reasoned that
“qualification of a sovereign as a ‘person’ who may maintain
a particular claim for relief depends .. . on the ‘legislative
environment’ in which the word appears.” /d. at 711, 123
S.Ct. 1887 (quoting Georgia v. Evans, 316 U.S. 159, 161,
62 S.Ct. 972, 86 L.Ed. 1346 (1942)). To illustrate
circumstances in which sovereigns may assert claims under
section 1983, the Court cited Evans, in which “a State, as
purchaser of asphalt shipped in interstate commerce, qualified
as a ‘person’ entitled to seek redress under the Sherman Act
for restraint of trade.” Inyo County, 538 U.S. at 711, 123
S.Ct. 1887 (citing Evans, 316 U.S. at 160-63, 62 S.Ct. 972).
It also cited Pfizer, Inc. v. Government of India, 434 U.S.
308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978), which “held that
a foreign nation, as purchaser of antibiotics, ranked as a
‘person’ qualified to sue pharmaceuticals manufacturers
under our antitrust laws.” 538 U.S. at 711, 123 S.Ct. 1887
(citing Pfizer, 434 U.S. at 309-20, 98 S.Ct. 584).

a

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Appendix A

The Tribe here is not suing as an aggrieved purchaser,
or in any other capacity resembling a “private person{ ].”
Id. at 712, 123 S.Ct. 1887. Rather, the Tribe is attempting to
assert communal fishing rights reserved to it, as a sovereign,
by a treaty it entered into with the United States. See United
States v. Washington, 520 F.2d 676, 688 (9th Cir.1975) (“The
treaties must be viewed as agreements between indzpendent
and sovereign nations. . . . Each tribe bargained as an entity
for rights which were to be enjoyed communally.”).
Recognizing that “[sjection 1983 was designed to secure
private rights against government encroachment,” id. at 712,
as well as the “longstanding interpretive presumption that
‘person’ does not include the sovereign,” Vt. Agency of
Natural Res. v. United States ex rel. Stevens, 529 U.S. 765,
780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), we conclude

that the Tribe may not assert its treaty-based fishing rights
under section 1983.°

As for the individual members of the Tribe, while we
have suggested that some treaty-based rights might be
cognizable on behalf of a tribe’s members under section 1983,
see United States v. Washington, 813 F.2d 1020, 1023 (9th
Cir. 1987), we have noted that the hallmark for determining

6. In her dissent, Judge Berzon relies on United States v.
Washington, 935 F.2d 1059 (9th Cir.1991) (Washington Ii ). Berzon
dissent at 529-30. But in that case we ruled only that lower courts
musi distinguish “between litigation defining and enforcing” treaty
rights in determining whether attorney's fees should be awarded
under 42 U.S.C. § 1988. /d. at 1061. We did not consider, let alone
resolve, whether Indian tribes may properly sue as “persons” under
section 1983 for violation of treaty-based rights, the question does
not appear to have been raised.

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Appendix A

the scope of section 1983 coverage is whether the right
asserted “is one ‘that protects the incividual against
government intrusion,’” Hoopa Valley Tribe v. Nevins, 881
F.2d 657, 662 (9th Cir.1989) (quoting White Mountain
Apache Tribe v. Williams, 810 F.2d 844, 848 (9th Cir. 1987)).
In Hoopa Valley, for instance, we held that section 1983 could
not be used to enforce a collective right to tribal self-
government.

The Tribe's treaty-based rights do not give rise to
individual actions cognizable under section 1983. As we
stated in Settler v. Lameer, 507 F.2d 231, 237 (9th Cir. 1974),
with regard to fishing rights similar to those that the Tribe’s
members assert here, “the fishing rights reserved in (the
relevant treaty] are communal rights of the Tribe, even though
the individual members benefit from those rights.” See also
Whitefoot v. United States, 155 Ct.Cl. 127, 293 F.2d 658,
663 (1961) (noting that “interests in ... fisheries are
communal, subject to tribal regulation”).’ Because the Tribe's

7. Judge Berzon disagrees with our conclusion in significant
part based on Kimball v. Callahan, 590 F.2d 768 (9th Cir.1979)
(Kimball I] ), where we reaffirmed our prior holding in Kimball v.
Callahan, 493 F.2d 564 (9th Cir.1974) (Kimball / ), that an individual
Indian “possessing treaty rights to hunt, fish, and trap” on a former
reservation “retained those rights even though he relinquished his
tribal membership pursuant to” a tribal termination act. Kimball 1/,
590 F.2d at 772. As the dissent concedes, however, the Kimball cases
“did not involve a suit brought under § 1983.” Berzon dissent at
530. Moreover, the cases dealt with the rights of individual Indians
after their tribe was terminated. Indeed, we expressly distinguished
Washington, 520 F.2d at 688, and Whitefoot, 293 F.2d at 663, on the
ground that “[njeither of these cases ... was concerned, as was

(Cont'd)

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Appendix A

members seek to vindicate communal, rather than individual
rights, they do not have cognizable section 1983 claims

(Cont'd)

Kimball I, with the tribal rights of individual Indians upon the
termination of a tribe.” Kimball //, 590 F.2d at 772. Our case likewise
does not involve claims made by individual Indians after the tribal
entity has been terminated

Kimball I] further limited Kimball I by noting that “the court's
statement (in Kimbali / | that treaty rights to hunt and fish are rights
of the individual Indian must be understood within the context of
the two cases cited in its support.” /d. at 772-73 (footnote omitted).
The first of these cases, McClanahan v. Arizona State Tax
Commission, 411 U.S. 164, 93 §.Ct. 1257, 36 L.Ed.2d 129 (1973),
“involve[d) the narrow question whether the State may tax a
reservation Indian for income earned exclusively on the reservation,”
id. at 168, 93 S.Ct. 1257, and was based on the general policy of
“leaving Indians free from state jurisdiction and control,” id. (quoting
Rice v. Olson, 324 U.S. 786, 789, 65 $.Ct. 989, 89 L.Ed. 1367 (1945))
(internal quotation marks omitted). The second, Mason v. Sams, 5
F.2d 255 (W.D.Wash.1925), dealt with whether “the Commissioner
of Indian Affairs could enforce regulations made by him without
tribal consent which required [tribe members] to pay a royalty for
the fish they caught in reservation streams to be used by the Tribe
for the care of the aged and “stitute members of the Tribe and for
general agency purposes.” A.mbail //, 590 F.2d at 773. Here, by
contrast, the Tribe's members are not atiempting to challenge
governmental regulation of individual Indians. Our opinions in
Kimball | and Kimball [/, then, provide little guidance

8. The Tribe argues that section 1983 protects communal rights

But the cases on which the Tribe relies do not support its position
In Romero v. Kitsap County, 931 F.2d 624 (9th Cir.1991), we
(Cont'd)

19a

Appendix A

We therefore affirm the district court’s grant of summary
judgment in favor of the City and TPU. The Tribe’s claims
cannot be asserted under the Treaty or under section 1983.

B. State-Law Claims

The Tribe brought a series of state-law claims against
ihe City and TPU based on the property damage resulting
from aggradation of the Skokomish River. The claims
included inverse condemnation, trespass, tortious
interference with property, conversion, negligence, negligent
musrepresentation, private and public nuisance, and violation
of Washington Revised Code section 4.24.630, which

(Cont'd)

acknowledged that section 1983 claims for deprivations of treaty
rights may be cognizable “under specified circumstances,” id. at 627
n. 5 (citing Hoopa Valley, 881 F.2d at 661-63), but we offered no
additional insight into the issue. Romero itself was brought by, among
others, individual tribal members who were arrested for gathering
shellfish in areas they claimed were treaty-protected. The individuals
brought suit under section 1983 against the officers who arrested
them. This was a traditional section 1983 suit for unlawful arrest,
clearly distinguishable from our case.

Similarly, Shoshone-Bannock Tribes v. Fish & Game
Commission, 42 F.3d 1278 (9th Cir.1994), addressed whether the
plaintiff actually intended to sue officers of the Idaho Fish and Game
Commission in their individual capacities under section 1983. See
id. at 1284-85. Following a close textual) analysis of the complaint,
we held that it did name one officer in his individual capacity, alleging
violations of the Due Process and Equal Protection Clauses, as well
as treaty rights. We did not consider when a section 1983 claim could
be brought to vindicate treaty rights.

20a

Appendix A

prohibits persons from going onto the land of another and
wrongfully causing waste or injury to the land or to personal
property. We find that all of the Tribe's state-law claims are
barred by the applicable statutes of limitations.
[8} [9) Under Washington law, the statute of limitations for
inverse condemnation is ten years. Highline Sch. Dist. No.
401 v. Port of Seattle, 87 Wash.2d 6, 548 P.2d 1085, 1089
(1976). The statutes of limitations for trespass, negligence,
conversion, tortious interference, nuisance and actions under
Washington Revised Code section 4.24.630 are three years.
See Wash. Rev.Code § 4.16.080.’

9. The Tribe argues that the Indian Claims Limitation Act of
1982 (“ICLA”), 28 U.S.C. § 2415, preserves the Tribe's aggradation-
related claims. Under the ICLA, claims brought by Indian tribes are
subject to a six-year and ninety-day statute of limitations, unless
preserved by publication in the Federal Register. Any cause of action
not published in the Federal Register is barred sixty days after the
date of publication. Jd. Claims included on the list are not barred
until after the Secretary of the Department of the Interior either (1)
publishes in the Federal Register a notice of rejection of the claim,
and a complaint is not filed by the claimant within one year of the
Federal Register notice, or (2) submits a legislative proposal to
Congress, in which case any right of action on that claim is barred
unless the claimant files a complaint within three years of the
submission to Congress. /d. “So long as a listed claim is neither
acted upon nor formally rejected by the Secretary, it remains live.”
County of Oneida 11, 470 U.S. at 243, 105 §.Ct. 1245

The ICLA does not apply to state-law claims, as the Tribe
conceded at argument. Instead, we apply state statutes of limitations
to state-law claims. See Nev. Power Co. v. Monsanto Co., 955 F.2d
1304, 1306 (9th Cir.1992). But even if the ICLA were to apply, the
Tribe's state-law claims are distinct from the preserved fishery

(Cont'd)

2Zla

Appendix A

(Cont'd)

claims. The Tribe preserved claims relating to “fishery” damage
caused by the Cushman Dam. Though there is not much evidence in
the record detailing the preserved claims, the Solicitor of the
Department of the Interior described them as based on “[d)estruction
of fishery by diversion of water for hydroelectric project on North
Fork River.” Supp. E.R. at 404K. In a letter submitted to Congress
urging an extension of the statute of limitations, the Tribe described
its preserved claims as follows:

The first case is a major fisheries damage claim against
the City of Tacoma. During the 1920's, the City of
Tacoma constructed a complex of two high dams on the
North Fork of the Skokomish River, thus diverting its
entire flow to power generaiing facilities located on the
Skokomish Indian Reservation. ... The diversion .
destroyed the most significant fish producing stream of
the Skokomish River system and its excellent runs of
salmon and steclhead.

Supp. E.R. at 406-07.

The state-law claims concern the effect of aggradation on tribal
property, whereas the preserved claims center around the diversion
of water and loss of fish. The Tribe itself admits that it did not know
about the aggradation-related damage when it listed its claims under
the ICLA in the early 1980s. See Appellant's Opening Br. at 40.
Though the Tribe urges us to construe its preserved claims liberally
to include aggradation-related damages, see id. (citing Montana v.
Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85
L.Ed.2d 753 (1985)), the requirement that we interpret statutes and
treaties broadly in favor of Indian tribes cannot be extended to reach
cases where a particular interpretation could not have been
contemplated by the parties. Thus, even if the ICLA were applicable,
it would not extend any of the Tribe's state-law claims.

22a

Appendix A

The district court found that the Tribe's aggradation-
related claims degan to accrue no later than February 16,
1989. On that date, Russel! Busch, then attorney for the Tribe,
wrote a letter to Gary Hansen at the Washington Department
of Ecology, stating:

Please consider this letter both a formal protest
and aa intergovernmental comment by the
Skokomish Indian Tribe with regard to the
referenced water rights Applications for Permit
and any other water use authorizations sought by
the City of Tacoma in the Skokomish River Basin.

The Skokomish Tribe resides upon a federal
Indian Reservation on the Skokomish River
downstream from the Applicant’s (City of
Tacoma] diversions and impoundments. It is the
position of the Tribe that Applicant's actions
reduce the natural flow of the river in such a way
that: (1) Indian treaty fisheries are seriously
reduced both on the Reservation and at other usual
and accustomed places, in violation of the Treaty
of Point No Point; (2) the federal reserved water
rights of the Skokomish Reservation are
unlawfully interfered with, and (3) the reduction
of tributary inflow caused by Tacoma’s
impoundments and diversions is a direct and
proximate cause of channel aggradation and
flooding on [and] above the reservation.

Supp. E.R. at 408.

23a

Appendix A

We agree with the district court that this was the
applicable date of accrual. Though the Tribe argues that this
is a factual issue that should have beer submitted to the jury,
where there is clear evidence of when the claims accrued,
the court may make this determination. See Reichelt v. Johns-
Manville Corp., 107 Wash.2d 761, 733 P.2d 530, 535-36
(1987); Fradkin v. Northshore Util. Dist., 96 Wash.App. 118,
977 P.2d 1265, 1268 (1999). To start the statute of limitations
running in Washington, all that is required is:

[WIhen a plaintiff is placed on notice by some
appreciable harm occasioned by another’s
wrongful conduct, the plaintiff must make further
diligent inquiry to ascertain the scope of actual
harm. The plaintiff is charged with what a

reasonable inquiry would have discovered. Stated
more succinctly, the law does not require a
smoking gun in order for the statute of limitations
to commence.

Giraud v. Quincy Farm & Chem., 102 Wash.App. 443, 6 P.3d
104, 109 (2000) (internal quotation marks and citations
omitted). Busch’s “formal protest” of the Project in 1989 is
sufficient to meet this standard. Thus, because the Tribe did
not file its complaint until November 19, 1999, more than
ten years after its aggradation-related claims accrued, its
claims are time-barred.

There is an exception to the statute of limitations for
certain trespass claims. Where a plaintiff can show that its
claim is a “continuing” violation, “the statute of limitation
serves only to limit damages to those incurred in the three-

24a

Appendix A

year period before the suit was filed.” Fradkin, 977 P.2d at
1267. To show a continuing violation, the plaintiff must
demonstrate that the damage is “reasonably abatable,” id..
which means that “[t}he condition ... can be removed
‘without unreasonable hardship and expense,’ “ id. at 1270
n. 25 (quoting Mangini v. Aerojet-Gen. Corp., 12 Cal.4th
1087, 51 Cal.Rptr.2d 272, 912 P.2d 1220, 1225 (1996)). It is
the plaintiff's burden to prove reasonable abatability. See
Mangini, 51 Cal.Rptr.2d 272, 912 P.2d at 1225-26.
The district court held that the Tribe’s alleged damages were
not reasonably abatable, precluding a finding of a continuing
violation. The Tribe’s expert estimated the value of the Tribe’s
property before the damage at $2,170,040. Supp. E.R. at 410,
421. The same expert estimated the total remediation cost at
$3,770,500. Id. Given this large discrepancy between the cost
of repair and the actual value of the land, it is clear that the
damages could be abated only with unreasonable hardship
and expense." The district court correctly concluded that
there was no continuing violation.

10. In her dissent, Judge Graber relies on the license that FERC
issued to the City in 1998, which directed the City to file a plan for
“enhancing the channel conveyance capacity of the mainstem
Skokomish River.” See E.R. at 177; Graber dissent at 520-21. But
the license states only that the cost of financing the plan may be no
more than $5 miilion, and the Tribe offers no reason to think the
actual cost of abatement would be materially less than this maximum.
As for Judge Graber’s reliance on the possibility that the cost of
abatement might “perhaps” be lower than the remediation cost
estimates offered by the Tribe, see Graber dissent at 521, the Tribe
cannot overcome defendants’ motion for summary judgment on the
basis of such conjecture.

25a

Appendix A
C. 16 U.S.C. § 803(c)

The Tribe also claims the City and TPU violated 16
U.S.C. § 803(c), which requires licensees to maintain project
works in a condition so as not to impair navigation. Section
803(c) provides that “(e]ach licensee hereunder shall be liable
for all damages occasioned to the property of others by the
construction, maintenance, or operation of the project works
or of the works appurtenant or accessory thereto, constructed
under the license, and in no event shal! the United States be
liable therefor.”

The district court dismissed for failure to state a claim
upon which relief could be granted, holding that section
803(c) does not provide a private right of action. This follows

the Second Circuit’s decision in DiLaura v. Power Authority
of State of N.Y., 982 F.2d 73 (2d Cir.1992), and the D.C.
Circuit’s decision in South Carolina Public Service Authority
v. FERC, 850 F.2d 788 (D.C.Cir. 1988).

DiLaura and South Carolina Public Service Authority
held that section 803(c) does not create a federal private right
of action, but instead preserves only existing state-law claims
against licensees. DiLaura, 982 F.2d at 77- 79; S.C. Pub.
Serv. Auth., 850 F.2d at 793-95. Their holdings were based
on a reading of the statute as well as its legislative history.
The legislative history revealed that all discussion during
the floor debates centered on the premise that “damages
caused by licensees should be determined in accordance with
state law.” Jd. at 795. As the D.C. Circuit explained, since
“Congress intended for [the statute] merely to preserve
existing state laws governing the damage liability of

26a

Appendix A

licensees, it follows that the Commission may not encroach
upon this state domain by engrafting its own rules of
liability.” Jd. We believe this interpretation of section 803(c)
is the correct one and thus see no cause for parting company
with our sister circuits. We affirm the district court’s
dismissal of the Tribe’s section 803(c) claim.

Ill. Recusal Motion

The Tribe also appeals the district court’s denial of its
motion to disqualify the district judge. Sixteen months after
filing its complaint, and after the district court had already
ruled on a number of claims, the Tribe asserted that Judge
Burgess had an obligation to recuse himself because he was
a utility customer, and the outcome of the case might

substantially affect his utility bill. Judge Burgess denied the
motion, finding it untimely. The Tribe moved for
reconsideration, and Judge Burgess again denied recusal.
Judge Burgess then referred the motion to Chief District
Judge Coughenour, who also held it was untimely, because
Judge Burgess had already ruled on at least fifteen different
motions and trial was less than five months away.

A motion for recusal must be made with “reasonable
promptness after the ground for such a motion is ascertained.”
Preston v. United States, 923 F.2d 731, 733 (9th Cir.1991);
see also Wood v. McEwen, 644 F.2d 797, 802 (9th Cir.1981)
(per curiam) (waiting sixteen months after discovering the
grounds for recusal was untimely and resulted in a waiver).
The Tribe knew it was litigating a case against TPU in Tacoma
federal court, before a Tacoma-area judge. It should have
known when it filed its complaint that it might want to seck

27a

Appendix A

recusal of the judge assigned to the matter. At the very least,
the Tribe admits that it believed it had grounds for recusal at
least seven months before filing the motion. The district court
thus did not abuse its discretion in denying the recusal
motion. See Kulas v. Flores, 255 F.3d 780, 783 (9th
Cir.2001)."'

IV. Class Certification

Because we affirm the district court, we need not address
the district court’s denial of class certification. See Alexander
v. Whitman, 114 F.3d 1392, 1398 n. 7 (3d Cir.1997) (because
the court held that dismissal of the complaint was proper, it
did not need to address the propriety of the district court’s
denial of plaintiffs’ motion for class certification).

AFFIRMED IN PART AND TRANSFERRED TO THE
COURT OF FEDERAL CLAIMS IN PART.

11. We do not, of course, express a view as to the merits of the
recusal motion; nothing we say should be read as implying that a
timely motion would have been successful.

28a

Appendix A

GRABER, Circuit Judge, with whom PREGERSON, PAEZ,
and BERZON, Circuit Judges, join, concurring in part and
dissenting in part:

I concur in the majority opinion with two exceptions.
First, with respect to the right of individual members of the
Tribe to bring a § 1983 claim against the City and TPU,
I agree with Judge Berzon’s dissent at pages 529-31. Second,
I disagree with the majority’s conclusion that the statute of
limitations has run on the Tribe’s Washington-law claims
for nuisance and trespass. Under Washington law, even a
permanent structure (like a dam or a sewer) can result in a
“continuing” nuisance or trespass. If there is a “continuing”
nuisance or trespass, then the plaintiff can seek damages for
the three years immediately preceding the filing of the

complaint, because the act for which damages are sought is
a present, ongoing act rather than a past, completed act. Here,
a question of fact remains concerning the proper application
of the statute of limitations.

Under Washington law the difference between a
“permanent” nuisance or trespass and a “continuing”
nuisance or trespass is that the latter is “reasonably abatable,”
that is, the defendant can take curative action to stop the
continuing damages. 16 Wash. Prac., Tort Law and Practice
§ 9.13 (2d ed.). The question of “permanent” versus
“continuing” nuisance or trespass is separate from the
question of damages or remediation of consequential harms,
even though money is involved in each analysis. For example,
a trespass can cause huge damages but be very cheap to fix,
or vice versa.

29a

Appendix A

The Tribe has produced sufficient evidence to raise a
genuine issue of material fact as to whether the aggradation
allegedly caused by the Cushman Dam Project's diversion
of the North Fork of the Skokomish River is reasonably
abatable. To survive summary judgment, the Tribe had to
produce evidence from which a rational finder of fact could
conclude that the aggradation of the Skokomish River's
mainstem can be abated “without unreasonable hardship and
expense.” Fradkin v. Northshore Util. Dist., 96 Wash.App.
118, 977 P.2d 1265, 1270 (1999).

Two pieces of evidence support the Tribe’s claim that
the aggradation is reasonably abatable. First, at least two of
the Tribe's technical consultants stated that aggradation can
be abated by dredging the river or decreasing the amount of

water diverted away from the North Fork.' Second, Tacoma’s

1. One technical analyst opined:

Flushing flow releases from Cushman would be more
effective in transporting sediment through the mainstem
Skokomish if the mainstem channe| was made deeper
through dredging. ... Restoration of the natural
sediment transport capacity of the river would lessen,
halt or possibly even reverse the current trends in
aggradation. At the very least, it would address the
portion of the aggradation problem attributable to the
Cushman Project.

Another concluded:
Restoring and maintaining a mainstem conveyance

capacity of 13,000 cfs will contain the 1.3-year flow
(Cont'd)

30a

Appendix A

1998 license from FERC directed it to develop “specific cost-
effective measures proposed to increase the channel
conveyance capacity” of the Skokomish mainstem, including
“flow manipulation [and) flushing flows.”

The FERC order supports the Tribe’s showing, for
summary judgment purposes, that these measures to abate
aggradation would be feasible. In Fradkin, the court held that
summary judgment was improper where the plaintiff had
produced a report recommending certain measures to remedy
the condition (and wnere the trespassing utility had itself
attempted to fix the problem). /d. The court did not discuss
the cost of such measures or the value of the plaintiff's
property in relation to these measures. /d. In Jacques v.
Pioneer Plastics, Inc., 676 A.2d 504 (Me.1996) (cited in
Fradkin, 977 P.2d at 1270 n. 23), a document even more
similar to the FERC order sufficed to raise a genuine issue
of material fact: a compliance order from a state agency that
directed the contaminating parties to submit a remediation
feasibility study. /d. at 508. Several courts have noted that
abatability is not necessarily a return to the status quo ante
or a complete elimination of the problem. See, e.g., Mangini
v. Aerojet-Gen. Corp., 12 Cal.4th 1087, 51 Cal.Rptr.2d 272,
912 P.2d 1220, 1226 (1996) (“something less than total
decontamination may suffice to show abatability”) (cited in

(Cont'd)
event within the banks of the channel. This will afford
the Tribe the same level of flood protection, in terms of
the probability and frequency of overbank flow, that
existed under natural conditions. This will protect
approximately 1,400 acres of Reservation lands from
the effects of frequent flooding.

3la

Appendix A

Fradkin, 977 P.2d at 1270 n. 23); Beck Dev. Co. v. S. Pac.
Transp. Co., 44 Cal.App.4th 1160, 52 Cal. Rptr.2d 518, 558
(1996) (noting that “the ability to remediate to levels
demanded by the regulatory agencies was sufficient
abatability”); Hanes v. Cont’l Grain Co., 58 S.W.3d 1, 4
(Mo.Ct.App.2001) (“We disagree . . . that in order to show a
nuisance can be abated, it must be shown that the entire
nuisance can be eliminated, and a reduction or lessening of
the nuisance is insufficient. ... A nuisance can be abated to
the degree where it is no longer a substantial interference.”).

There is evidence in the record from which a reasonable
finder of fact could conclude that abatement of the
aggradation itself is economically feasible. The 1998 FERC
license states that the “cost-effective” measures to increase
mainstem conveyance capacity are not to exceed $5 million.
For summary judgment purposes we should presume that
FERC considered the reasonableness of this sum, as well as
the feasibility of the measures, in relation to the economic
situation of the City and the Cushman Dam Project. For this
reason, I believe that, for summary judgment purposes under
Washington law, the FERC order is sufficient evidence that
abatement of mainstem aggradation could be economically
feasible.

The majority, in contrast, concludes that abatement is
unreasonable as a matter of law, because the cost of
remediating the damage to property caused by the aggradation
and associated flooding is about 75 percent more than the
value of the Tribe's property in its prior condition. Maj. op.
at 517-18. I do not agree that this price tag renders the
condition unabatable as a matter of law. Moreover, the cited

32a

Appendix A

estimate of remediation costs is primarily for repairs to sewer
and water-delivery systems and to flood-damaged homes.
It does not address the perhaps much lower cost to abate the
aggradation itself, by way of dredging or flushing flows. The
aggradation is the underlying condition caused by the
diversion of water by the Cushman Project and it should be
the focus of the abatability inquiry.’

{In conclusion, I am persuaded that the Tribe's state-law
claims for nuisance and trespass survive summary judgment
on statute of limitations grounds.’ I respectfully dissent from
the majority’s contrary conclusion.

2. Cf. Castaic Lake Water Agency v. Whittaker Corp., 272
F.Supp.2d 1053, 1072 (C.D.Cal.2003) (holding that deposition
testimony regarding a $36 million treatment program for drinking
water affected by contamination did pot support the plaintiff's claim
of abatability because the treatment facility would not abate “the
actual nuisance—-namely, the underground contamination”).

3. I have not considered, and express no opinion on, the City's
alternative arguments for granting summary judgment on the merits
of the Tribe’s trespass and nuisance claims

33a

Appendix A

BERZON, Circuit Judge, dissenting in part,’ with whom
PREGERSON, PAEZ, and RAWLINSON, Circuit Judges,
concur:

According to the majority, Indian tribes and their
members cannot, under federal law, sue municipalities for
damages for violation of rights secured by Indian treaties.
The case law simply does not support the majority's broad
pronouncement. Indeed, County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985)
(County of Oneida II ), is quite directly to the contrary,
permitting suits for damages under federal common law for
violation of aboriginal rights reserved by treaty.
More specifically, Supreme Court precedent, as well as cases
from the courts of appeals, support the conclusions that
(a) both tribes and individual members of tribes may sue
municipalities for damages for violations of the tribes’ treaty
rights; and (b) individual tribe members may sue under
42 U.S.C. § 1983 for violations of their asserted right to take
fish at the usual and accustomed times. The majority's
contrary assertions largely ignore two centuries of
understandings concerning the federal protection of Indian
aboriginal and treaty-based rights—in particular, the
understanding that Indian treaties in large part simply
preserve some pre-existing aboriginal rights in exchange for
cession of a portion of Indian land. Whether the majority's
conclusions would make sense if we were developing the
law of Indian rights to the use of land and water afresh—

1. I dissent only from subsection A (“Treaty-Based Claims”)
of Part Il (“Claims Against the City of Tacoma and Tacoma Public
Utilities”) of the majority opinion.

34a

Appendix A

which I do not think they would—is not the question, as we
are not free to reinvent established doctrine. I therefore
respectfully dissent.’

2. Because the majority does not reach the questions raised in
this case that logically follow a determination that these plaintiffs
may bring suit for damages against these defendants— including
whether the federal causes of action are barred by statutes of
limitations or preserved by the Indian Claims Limitation Act (ICLA),
28 U.S.C. § 2415 note, and whether the Treaty of Point No Point
(“Treaty”), 12 Stat. 933 (1855), in fact establishes the rights
claimed—I do not do so either.

I do note that the most challenging question thus left open is
whether the Tribe's off-reservation fishing rights give rise to a cause
of action for limiting the numbers of fish that formerly inhabited the
streams and rivers in which the Tribe traditionally fished, or whether,
instead, the Treaty preserves only a right to take a given proportion
of such fish as remain extant. This court previously addressed that
important question but subsequently vacated the decision and has
not since had occasion to resolve it. See United States v. Washington,
694 F.2d 1374 (9th Cir.1982), on en banc reh’g, 759 F.2d 1353, 1355
(9th Cir.1985) (failing to determine whether “the right to take fish
necessarily includes the right to have those fish protected from man-
made despoliation”); see also Kittitas Reclamation Dist. v. Sunnyside
Valley Irrigation Dist., 763 F.2d 1032, 1033, 1035 (9th Cir.1985)
(approving district court order releasing water from a water project
to preserve nests of salmon eggs so as to preserve the Indian right of
taking off-reservation fish “in common with citizens”); Nez Perce
Tribe v. Idaho Power Co., 847 F.Supp. 791, 810 (D.Idaho 1994)
(holding that a Northwest Indian treaty similar to the one in this
case “does not provide a guarantee that there will be no decline in
the amount of fish available to take”), CONFERENCE OF W.
ATTORNEYS GEN., AMERICAN I NDIAN LAW DESKBOOK 330-
33 & n. 194 (Clay Smith ed., 3d ed.2004) (noting that “[mJjany
commentators have advocated a treaty-based habitat protection nght”
and citing to the commentary).

35a

Appendix A
I

Without examining what pre-existing rights, if any, the
Tribe reserved under the Treaty of Point No Point (“Treaty”),
12 Stat. 933 (1855),’ the majority mistakenly dismisses all
possibility that the Tribe can seek damages for violations of
any such rights. This conclusion-induced by a misplaced
focus On cases concerning attempts to imply causes of action
from statutes or from international treaties—ignores settled
precedent concerning /ndian treaty-protected rights. The
scope of a cause of action to enforce Indians’ aboriginal
rights, including such rights reserved in treaties with the
United States, cannot sensibly be resolved by invoking lines
of authority developed in areas of the law lacking the long
tradition of federal common law protection accorded Indian
property and related rights. As the majority’s reasoning fails
to appreciate the uniquely federal nature of the land, water,
and fishing claims by Indians, it is largely beside the point.
There are hard issues in this case concerning the precise
import of several precedents concerning Indians’ treaty-
protected rights, but the majority’s simplistic approach misses
them all.

I note at the outset that the majority is quite correct in
recognizing—albeit in passing—that rights of action are
available for equitable relief against “non-contracting” parties

3. The Treaty of Point No Point is one of a series of treaties
brokered by Territorial Governor Isaac Stevens in the mid-!800's
between the United States and various Pacific Northwest Indian
tribes. These treaties are commonly referred to as “Stevens treaties.”
See generally Nez Perce Tribe, 847 F.Supp. at 805-06.

36a

Appendix A

to Indian treaties. Ante at 512. From this starting point,
however, the majority rushes to the unsupported conclusion
that a Tribe may not recover monetary damages for alleged
treaty violations. In doing so, the majority makes three major
missteps: (1) conflating interpretation of this Indian Treaty
with a private cause of action under non-Indian treaties and
federal statutes; (2) asserting that the non-signatory status
of Tacoma Public Utilities (“TPU”) and the City of Tacoma
(“City”) somehow absolves those entities of responsibility
here, and (3) conjuring a distinction between damages and
equitable relief inconsistent with binding authority

(1) The majority rests its constrained interpretation of
the rights reserved by— and the relief available to enforce—
this Treaty upon a foundation of wholly irrelevant cases.
Cases construing Title VI of the Civil Rights Act (Alexander
v. Sandoval, 532 U.S. 275, 121 S.Ct. 1S11, 149 L.Ed.2d 517
(2001)) or the Securities Exchange Act of 1934 (Touche Ross
& Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d
82 (1979)) have little relevance to the interpretation of Indian
treaties.“ The Supreme Court has made clear that Indian
treaties are unique, governed by different canons of
construction than those that apply to statutes and other
treaties. See, e.g., County of Oneida Ii, 470 U.S. at 247-48,
105 S.Ct. 1245.

4 Also, a simple glance at the text of the Treaty here at issue
reveals that it might still provide a cause of action for members of
the Tribe. The Treaty does speak to individuals, namely the Tribe's
members, with regard to the “right of taking fish”: Although land is
reserved “for the present use and occupation of the said tribes and
bands,” “[t}he right o! taking fish at usual and accustomed grounds
and stations is further secured to said Indians,” not to the “tribes
and bands.” (emphasis added)

37a

Appendix A

Moreover, there is no general rule preferring equitable
relief over damages when implying a cause of action. Rather,
were the statutory private cause of action cases pertinent,
they would not support any distinction between equitable
and damages relief, unless there is some indication that
Congress specifically intended such a distinction. Sandoval,
532 U.S. at 286, 121 S.Ct. 1511 (“The judicial task is to
interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right
but also a private remedy.”); Touche Ross & Co., 442 U.S. at
568, 99 S.Ct. 2479 (“[O]ur task is limited solely to
determining whether Congress intended to create the private
right of action asserted. .. . And as with any case involving
the interpretation of a statute, our analysis must begin with
the language of the statute itself.”). The majority points to
no indication that Congress intended to allow suits in equity
but not for damages to enforce Indian fishing rights reserved
by treaties.

In short, the cases cited by the majority for the
proposition that equitable but not damages relief is available
with regard to rights reserved by a federal Indian treaty are
of no help at all in establishing that point.

(2) In addition to its reliance on inapposite strands of
case law, the majority also suggests that, even if the Treaty
is self-enforcing, the Treaty cannot be enforced against the
City and TPU because they are non-contracting parties.’

5. The majority's focus on “non-contracting parties” suggests
that because the City and TPU are not signatories to the Treaty, they
are somehow less responsible to respect the rights reserved by the

(Cont'd)

38a

Appendix A

(Cont'd)

Treaty than is the federa) government. This suggestion would appear
to call into question bedrock understandings concerning the judicial
enforcement against municipal governments of the obligation to abide
by federal law.

The City and TPU, as governmental entities, are bound by the
rights reserved in the Treaty. Cities and local governments are, of
course, subject to the Supremacy Clause. As “the constitutionality
of local ordinances is analyzed in the same way as that of statewide
laws” for purposes of the Supremacy Clause, Hilisborough County
v. Automated Med. Labs., inc., 471 U.S. 707, 713, 105 S.Ct. 2371,
85 L.Ed.2d 714 (1985) (citation omitted), cities and local
governments cannot pass ordinances or laws that “ ‘interfere with,
or are contrary ‘>,’ federal law.” /d. at 712, 105 S.Ct. 2371 (citing
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824)),;
see Brendale v. Confederated Tribes & Bands of the Yakima Indian
Nation, 492 U.S. 408, 431, 109 $.Ct. 2994, 106 L.Ed.2d 343 (1989)
(plurality opinion) (“Since the tribes’ protectible interest is one
arising under federal law, the Supremacy Clause requires state and
local governments, including Yakima County zoning authorities, to
recognize and respect that interest in the course of their activities.”);
see also C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383,
394-95, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994); Cmty.
Communications Co., Inc. v. City of Boulder, Colo., 455 U.S. 40,
57, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982); City of Burbank v.
Lockheed Air Terminal, Inc. 411 U.S. 624, 640, 93 S.Ct. 1854, 36
L.Ed.2d 547 (1973); City of Chicago v. Atchison, Topeka & Santa
Fe Ry. Co., 357 U.S. 77, 84- 85, 78 S.Ct. 1063, 2 L.Ed.2d 1174
(1958); Asakura v. City of Seattle, 265 U.S. 332, 343, 44 §.Ct. 515,
68 L.Ed. 1041 (1924); City of Auburn v. Qwest Corp., 260 F.3d 1160,
1175-76 (9th Cir.2001); United States v. City of Pittsburg, 661 F.2d
783, 785-86 (9th Cir.1981); Nat'l Helicopter Corp. of Am. v. City of
New York, 137 P.3d 81, 92 (2d Cir. 1998); Pirolo v. City of Clearwater,
71l F.2d 1006, 1010 (1 ith Cir. 1983).

(Cont'd)

39a

Appendix A

No case cited by the majority, and no case I have discovered,
supports the conclusion that rights created in an Indian Treaty
can only be enforced by one signatory against the other,
whether for equitable relief or for damages. Instead, the cases
relying on the principle that states and their agents are bound
to respect treaty-created rights are legion. See, ¢.g., County
of Oneida II, 470 U.S. at 235-36, 105 S.Ct. 1245 (approving
a federal common law suit against two counties for violation
of federal aboriginal rights partly secured by treaty);
Washington v. Wash. State Commercial Passenger Fishing
Vessel Ass'n, 443 U.S. 658, 669-70, 99 S.Ct. 3055, 61
L.Ed.2d 823 (1979) (Fishing Vessel ) (suit brought by the
United States “on its own behalf and as trustee for seven
Indian tribes” against the State of Washington to enforce
treaty rights; other tribes, the state's Fisheries and Game
Departments, and one commercial fishing group were joined
as parties); United States v. Washington, 157 F.3d 630, 638
(9th Cir.1998) (suit brought by numerous Indian tribes and
the United States (on the tribes’ behalf) against the State of
Washington to enforce treaty rights; several private parties
intervened and appealed); Kimball v. Callahan, 493 F.2d 564,

(Cont'd)

Treaties are listed among the types of law that make up “the
supreme Law of the Land.” U.S. CONST. art. VI, cl. 2 (Supremacy
Clause) (“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and al) Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.”). Cities and local governments
therefore are bound, under the Supremacy Clause, to respect rights
created by or reserved in Indian treaties

40a

Appendix A

565 (9th Cir. 1974) (suit brought by individual Indians against
officers of the State of Oregon to enforce treaty rights).

Further, as the majority recognizes, United States v.
Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905),
enforced Indian treaty rights even against private third-
parties. So did United States v. Washington, 157 F.3d at 657.
In Winans, the United States, on behalf of certain members
of the Yakima Nation, brought suit to enjoin private land
owners from preventing Indians’ exercise of their off-
reservation treaty rights to fish on the defendants’ private
property. See 198 U.S. at 377, 25 S.Ct. 662. The Court held
that the treaty between the United States and the Tribe
“fixe[d] in the [now privately owned) land such easements
as enable the right to be exercised.” Jd. at 384, 25 S.Ct. 662.
Explained Winans:

The right to resort to the fishing places in
controversy was a part of larger rights possessed
by the Indians ... which were not much less
necessary to the existence of the Indians than the
atmosphere they breathed... . [T}he treaty was
not a grant of rights to the Indians, but a grant of
right from them—a reservation of those not
granted. . . . [The treaty] imposed a servitude upon
every piece of land as though described
therein. .. .The contingency of the future
ownership of the lands, therefore, was foreseen
and provided for—in other words, the Indians
were given a right in the land—the right of
crossing it to the river—the right to occupy it to
the extent and for the purpose mentioned. No other

4la

Appendix A

conclusion would give effect to the treaty. And
the right was intended to be continuing against
the United States and its grantees as well as
against the State and its grantees. . ..

Id. at 381-82, 25 S.Ct. 662 (emphasis added). Similarly,
United States v. Washington held that, “[i]n light of Winans,
Fishing Vessel, and the [Stevens] Treaties’ language and
power as the supreme law of the land, the district court
correctly determined that the Tribes have a right to harvest
shellfish on private tidelands.” 157 F.3d at 647 (emphasis
added).

(3) So, then, if the Treaty is self-enforcing and the Treaty
can be enforced against non-contracting parties, what is left
of the majority's assertion that the Tribe cannot seek damages
for elimination of fishing rights secured by a treaty? To fill
this gap, the majority asserts, repeatedly but without citation
to any pertinent authority, that in a case involving a
nonsignatory to the Treaty, there is a determinative distinction
in enforcing these rights between an action for damages and
an action for equitable relief. Ante at 513.

The entirety of the majority’s reasoning on this point
seems to be that the cases upholding causes of action for
violation of Indian treaty rights but providing only equitable
relief implicitly held that damages are not available. In neither
Fishing Vessel nor Puyallup Tribe v. Department of Game of
Washington, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689
(1968), however, were the Indians seeking damages. See
Fishing Vessel, 443 U.S. at 670, 99 S.Ct. 3055 (suit “seeking
an interpretation of the treaties and an injunction requiring

42a

Appendix A

the State to protect the Indians’ share of anadromous fish
runs”); Puyallup Tribe, 391 U.S. at 394, 88 S.Ct. 1725
(“These suits were brought by respondents in the state court
against the Indians for declaratory relief and for an
injunction.”). That, presumably, is why the availability of
damages was not discussed; courts are not in the habit of
commenting on the availability of relief no one wants.
So, even if this availability of damages were a question of
first impression, the majority would need more than its ipse
dixit to support the damages/ equitable relief distinction
central to its conclusion.

More important, the question before us emphatically is
not one regarding an undecided question. There is binding
authority supporting awarding monetary relief when Indians

seek to enforce their aboriginal rights, including such rights
reserved in a treaty.

The first sentence of Justice Powell's opinion in County
of Oneida Il explains: “These cases present the question
whether three Tribes of the Oncida Indians may bring a suit
for damages for the occupation and use of tribal land
allegedly conveyed unlawfully in 1795.” 470 U.S. at 229,
105 S.Ct. 1245 (emphasis added). To answer this question,
the Court explored at some length the historical availability
of federal causes of action to enforce Indian aboriginal rights,
whether secured by treaties or not, concluding that “Indians
have a federal common|[)law right to sue to enforce their
aboriginal land rights.” Jd. at 235, 105 S.Ct. 1245.
Consequently, the Oneidas could maintain their damages
action “for violation of their possessory rights based on
federal common law.” /d. at 236, 105 S.Ct. 1245. Moreover,

43a

Appendix A

this circuit, citing County of Oneida II, has similarly affirmed
the ability of an Indian tribe to bring a damages action against
a public utility based upon a federal common law cause of
action. See United States v. Pend Oreille Pub. Util. Dist. No.
1, 28 F.3d 1544, 1549 a. 8 (9th Cir. 1994),* see also Mescalero
Apache Tribe v. Burgett Floral Co., 503 F.2d 336, 338 (10th
Cir.1974). This authority makes plain that Indian tribes may
bring a damages action under federal common law to enforce
their rights to use of land.

A closer examination of the nature of the Tribe's claimed
rights further reveals the majority's fundamenta)
misunderstanding of the very claim it summarily dismisses.
Like the Oncidas,’ the Tribe here is not simply seeking to

enforce rights created by the Treaty. Rather, it is claiming to
enforce an aboriginal right—-the right “of taking fish at usual

6. We agreed in Pend Oreille with the plaintiffs’ argument that
“damages for trespass on Indian lands are controlled by federal law.”
28 F.3d at 1549; see also id. at 1549 n. 8 (citing County of Oneida I/

for support)

7. That the asserted aborigina) right here is enshrined in a treaty
does not separate this case from the County of Oneida precedents
The Oneidas’ challenge to the 1795 cession by the state of New York
was predicated in part up in the “Indians’ right to possession under
the jederal treaties” between the United States and the Oncidas in
the 1780s and 1790s. Oneida Indian Nation v. County of Oneida,
414 U.S. 661, 664-65, 94 $.Ct. 772, 39 L.Bd.2d 73 (1974) (County
of Oneida | ). As is true here, “the right to possession itself is claimed
to arise under federal law in the first instance. Allegedly, aboriginal
title of an Indian tribe guaranteed by treaty and protected by statute
has never been extinguished.” /d. at 676, 94 S.Ct. 772. The majority
is thus wrong in stating otherwise. Ante at 514

44a

Appendix A

and accustomed grounds and stations” (emphasis added)—
reserved in the Treaty. See Oneida indian Nation v. County
of Oneida, 414 U.S. 661, 677, 94 S.Ct. 772, 39 L.Ed.2d 73
(1974) (County of Oneida I ) (characterizing the right claimed
by the Tribe as one in which “federal law now protects, and
has continuously protected from the time of the formation
of the United States, possessory right to tribai lands, wholly
apart from the application of state law principles which
normally and separately protect a valid right of possession”),
see also Winans, 198 U.S. at 381-82, 25 S.Ct. 662.

In this instance, the primary right at issue is not a claim
to plenary possession of land but, instead, a claim of right to
both the kind of “servitude” enforced in Winans, and to a
preservation of the fish flow itself. This distinction might

matter were we to consider, on the merits, the asserted reach
of the rights reserved in the Treaty. But there is no conceptual
distinction that would explain why the right to possessior
asserted in County of Oneida II, if it existed (which is what
the bulk of that opinion addressed, see 470 U.S. at 233-40,
105 S.Ct. 1245) would support a cause of action for damages,
while the fishing rights here asserted, if they exist (which
neither the majority nor I address, see supra note 2) would
not.

For these reasons, as the above-quoted language from
Winans suggests, the prism through which the majority is
viewing the treaty rights issue is inverted. The majority
proceeds on the premise that federal enforcement of rights
traceable to an Indian treaty always follows the same
principles as enforcement of treaties with nondomestic
nations. But Indian fishing rights, as Winans indicates, were

45a

Appendix A

not granted by the treaties; rather, they were reserved by the
treaties and are traceable to aboriginal possessory interests,
given up in part in treaties. As such, the rights thus derived
are enforceable, if at all, under federal common law. See
County of Oneida Il, 470 U.S. at 233-36, 105 S.Ct. 1245;
Nez Perce Tribe v. Idaho Power Co., 847 F.Supp. 791, 799-
800 (D.Idaho 1994) (holding that the federal common law
action recognized in County of Oneida / is available for
damages actions based on purported tribal fishing rights,
noting that “the Tribe's right to fish is aboriginal in origin,
as it was in [County of Oneida | }, and is reinforced by federal
common law and the 1855 treaty.”).

Once more, so to state is not to settle the question
whether the rights here asserted—to preserve fish runs from

destructions—were reserved by the Treaty of Point No Point.
See supra note 2. It is only to say that if the right was reserved,
it is enforceable in a damages action under the federal
common law. In failing to acknowledge that possibility, and,
instead, resting on inappropriate analogies to treaties with
foreign governments and on federal statutes having nothing
to do with Indian rights, the majority reaches a conclusion
in direct conflict with binding law.

After concluding that treaties, though self-enforcing and
enforceable in equity against third partics, may not be
enforced in damages against a party other than the signatories,
the majority goes on to hold that neither the tribe nor any
individual members may bring suit under 42 U.S.C. § 1983.
This conclusion, like the conclusion that there is no possible

46a

Appendix A

federal common law cause of action for damages based upon
treaty-secured rights, reflects an inattention to nuance in the
case law with regard to the rights of Indian tribes and their
members.

First, the majority relies upon Inyo County v. Paiute-
Shoshone Indians of the Bishop Community, 538 U.S. 701,
123 S.Ct. 1887, 155 L.Ed.2d 933 (2003), to support its
conclusion that the Tribe may not, because of its status as a
sovereign, bring a claim under section 1985. See ante at
514-15.

Inyo County held that a tribe may not sue under § 1983
to vindicate a right held solely because of its status as a
sovereign. See Inyo County, 538 U.S. at 712, 123 $.Ct. 1887

As the majority recognizes, ante at 514-15, this narrow
holding leaves open the possibility that a tribe may bring
suit to vindicate rights similar to those held by private
persons. See id. at 711, 123 S.Ct. 1887 (discussing cases in
which the Supreme Court had held states and foreign nations
to be “persons”).

The Tribe here, unlike the tribe in Inyo County, did not
base any of its § 1983 claims on rights or privileges held as
a sovercign (¢.g. sovereign immunity), but rather on fishing
rights assertedly traceable to federal law and therefore be yond
the authority of local governmental entities to impair, because
of the Supremacy Clause. No special immunity premised on
sovereignty as such is claimed. Instead, the underlying right
asserted is one akin to a property right or a water right,
commonly held by private parties, including entities such as
corporations or associations. Compare id. at 714, 123 $.Ct

47a
Appendix A

1887 (“[T}he Tribe rests its case entirely on its claim that, as
a sovereign, it should be accorded a special immunity that
private casinos do not enjoy.”) (Stevens, J., concurring in
the judgment). Inyo County therefore does not settle whether
for purposes of this case, the Tribe qualifies as a “person”
who may sue under § 1983 to vindicate the rights asserted in
its complaint.

Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th
Cir.1989), is not to the contrary. Hoopa Valley held that
“[b}ecause the right to tribal government protects the powers
conferred upon the tribe, and not individual rights, it falls
outside the scope of § 1983." /d. at 662. Bui, as in Inyo
County, the tribe in Hoopa Valley was attempting to assert a
tribal government right, held solely because it was a

sovercign—namely, its freedom from state taxation.

Hoopa Valley also relies on a distinction between “power
conferring provisions” and “rights conferring provisions” of
federal law, holding that “power conferring provisions, such
as the Supremacy Clause,” are not rights that can be
vindicated under § 1983. Jd. While the Supremacy Clause
cannot, by itself, form the basis of a § 1983 claim, see Golden
State Transit Corp. v. City of Los Angeles, 493 U.S. 103,
107, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989), that is because
the Supremacy Clause “‘is not a source of any federal rights."”
Id. (citation omitted). In Dennis v. Higgins, 498 U.S. 439,
111 S.Ct. 865, 112 L.Ed.2d 969 (1991), however, the Supreme
Court upheld a cause of action under § 1983 based on the
Commerce Clause, rejecting the argument that the Commerce
Clause could not be the basis of a § 1983 cause of action
because it “merely allocates power between the Federal and

48a

Appendix A

State Governments and does not confer ‘rights.’ /d. at 447,
111 S.Ct. 865. The Court instead held that the Commerce
Clause both was a “power allocating” provision and
constituted a “substantive restriction on permissible state
regulation of interstate commerce.” /d. (internal quotation
marks and citation omitted). Somewhat similarly, in Golden
State Transit Corp., the Court held that rights created by the
National Labor Relations Act can support a § 1983 action,
because in that circumstance “‘pre-emption follows... as a
matter of substantive right."” 493 U.S. at 110, 110 S.Ct. 444
(quoting Brown v. Hotel & Restaurant Employees and
Bartenders Int'l Union Local 54, 468 U.S. 491, 503, 104
S.Ct. 3179, 82 L.Ed.2d 373 (1984)).

Here, the bases of the Tribe's § 1983 claims are the
Takings and Due Process Clauses of the federal Constitution,
although the fishing rights assertedly unconstitutionally taken
are traceable to the Treaty (and, ultimately, to aboriginal
possession). While it was a treaty in this instance that
assertedly preserved the fishing rights, in other instances
similar Indian fishing and hunting rights are preserved by
agreement or statute, not treaty. See Antoine v. Washington,
420 U.S. 194, 200-01, 95 $.Ct. 944, 43 L.Ed.2d 129 (1975).
The rights here at issue, then, unlike the self-governmental
status central in Inyo County and Hoopa Valley Tribe, are
only indirectly and marginally connected to the sovereign
status of the Tribe. Private entities can also assert Takings
and Due Process claims, tracing their asserted property rights
to federal grants, reservations, agreements or statutes. I would

49a

Appendix A

therefore be inclined to hold that § 1983 is available to
remedy the violations of federal law alleged by the Tribe.*

[ need not answer that question definitively, however, as
[ am quite certain that a § 1983 suit can be maintained by the
individual tribe members. The majority's reasoning to the
contrary runs thus: The only rights cognizable under § 1983
are individual rights; the Tribe's right to fish is a communal
right; therefore, individual members may not bring suit to
enforce their fishing rights.

Before addressing this syllogism, I note that there is no
support for the more general proposition that treaty-based
rights cannot support a § 1983 cause of action, period. The
only case that even suggests as much, United States v.
Washington, 813 F.2d 1020 (9th Cir.1987) (Washington I ),
held only that claims resulting solely in the interpretation of
treaties are not cognizable under § 1983, but that if a state
“violates these now known and well-delineated rights, there
would be an actual conflict between state and federal law
which might give rise to a § 1983 action.” /d. at 1023 (citation
omitted). So even this (rather odd) holding indicates that there
are cases in which violations of rights secured in part by
Indian treaties can give rise to § 1983 claims. And, in fact,
we have so recognized in a later appeal in United States v.
Washington, 935 F.2d 1059 (9th Cir.1991) (Washington I] ),
where we awarded fees under 42 U.S.C. § 1988, explaining:

8. Once again, I am not addressing the merits questions whether
the Treaty in fact creates or preserves the asserted right, and whether,
if so, impairing that right violates § 1983. The only question
addressed by the majority, and therefore the only one I address, is
whether the Tribe is entitled to a judicial answer to those questions.

50a

Appendix A

[T}he case before us differs from these earlier
cases in a single critical respect: while previous
litigation has attempted to define the treaty rights,
[this proceeding) is purely an action to enforce
them. ...

The tribes are entitled to section 1988 fees to
enforce such well-defined treaty rights.

Id. at 1061 (citation omitted).

In light of Washington Il, Washington I should be
reconsidered rather than relied upon. Ordinarily, whether a
case is cognizable under § 1983 does not turn on whether
the rights are well-established or not, although qualified
immunity does turn upon that consideration. See Saucier v.
Katz, 533 U.S. 194, 201, 121 $.Ct. 2151, 150 L.Ed.2d 272
(2001); Wong v. U.S. INS, 373 F.3d 952, 966 (9th Cir.2004).
The pertinent precedent for present purposes is therefore
Washington !1, recognizing that Indian treaty fishing rights
can give rise to a § 1983 action.

As to the majority's individual fishing rights syllogism,
this circuit has granted relicf 'o individual tribe members
suing to enforce their treaty fishing rights. See Kimball, 493
F.2d at 569-70 (granting declaratory relief to individual
Indians suing to enforce their rights to hunt, trap, and fish
within the Klamath Indian Reservation free of Oregon fish
and game regulations, pursuant to a Treaty). Kimball was
later cited by the Supreme Court in support of the proposition
that “{s]uch treaty rights [as the right to hunt and fish] can
be asserted by Dion as an individual member of the Tribe.”

Sla

Appendix A

United States v. Dion, 476 U.S. 734, 738 n. 4, 106 S.Ct. 2216,
90 L.Ed.2d 767 (1986). Dion cited for this proposition, in
addition to Kimball, Winans and United States v. Felter, 752
F.2d 1505 (10th Cir.1985). Jd.

While Kimball did not involve a suit brought under
§ 1983, it did reject the logic of the majority opinion: that
individual tribe members may not enforce treaty fishing rights
because they are communal. As Kimball explained:

Although the treaty giving exclusive fishing rights
to the QGuinaielts was with the Tribe, the court held
fin Mason v. Sams, 5 F.2d 255 (W.D. Wash. 1925)
) that the right of taking fish was a right common
to the members of the Tribe and that “a right to a
common is the right of an individua) of the
community.” [/d.].

From Mason it is clear that an individual Indian
enjoys 4 right of user in tribal property derived
from the legal or equitable property right of the
Tribe of which he is a member.

$90 F.2d at 773 (quoting Mason, 5 F.2d at 258) (parallel
citation omitted). The hunting and fishing rights at issue in
Kimball, like the fishing rights here, were non-exclusive
rights. See id. at 774.°

9. Settler v. Lameer, 507 F.2d 231 (9th Cir.1974), and Whitefoot

v. United States, 155 Ct.Cl. 127, 293 F.2d 658 (1961), upon which
the majority rely, were decided before both Kimball and Dion. Also,
they concern the question whether the individual fishing rights are
(Cont'd)

§2a

Appendix A

Individual Indians have brought a number of § 1983 cases
in the district courts to enforce their treaty rights. While I
recognize these opinions do not squarely address whether
the individual plaintiffs have stated a cognizable cause of
action under § 1983, they do indicate that other courts have
found this marriage of treaty rights and § 1983 to be
acceptable. See, e.g., Canadian St. Regis Band of Mohawk
Indians ex rel. Francis v. New York, 278 F.Supp.2d 313
(N.D.N.Y.2003); Oyler v. Finney, 870 F.Supp. 1018
(D.Kan.1994), aff'd, 52 F.3d 338 (10th Cir.1995)
(unpublished table decision); *531 Mille Lacs Band of
Chippewa Indians v. Minnesota, 853 F.Supp. 1118
(D.Minn. 1994), aff'd, 124 F.3d 904 (8th Cir.1997), aff'd,
526 U.S. 172, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999); Lac
Courte Oreilles Band of Lake Superior Chippewa Indians v.

Wisconsin, 663 F.Supp. 682 (W.D.Wis.1987), appeal
dismissed, 829 F.2d 601 (7th Cir. 1987) (per curiam); Sohappy
v. Smith, 302 F.Supp. 899 (D.Or.1969), aff’d in part, 529
F.2d 570 (9th Cir. 1976) (per curiam).

I would therefore hold that the individual Indians may
bring suit under § 1983 asserting violation of treaty-secured
fishing rights.

**# **

In sum, because [ find no support for barring the Tribe
and its members from bringing suit—either under the federal

(Cont'd)

subject to tribal regulation, not whether individual rights consistent
with tribal regulation may be asserted by individual Indians. Settler,
507 F.2d at 232; Whitefoot, 293 F.2d at 661, 663. As such, they are
not informative with respect to the problem before us.

53a

Appendix A

common law based on Treaty-secured rights or via § 1983-—
I respectfully dissent. Once more, because the majority does
not decide the question, critical though it is, I do not decide
whether the Tribe or its members have alleged a right to
preservation of fisheries that is protected under federal
common law or § 1983.

54a

APPENDIX B — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF WASHINGTON, AT TACOMA GRANTING CITY
OF TACOMA’S MOTION FOR PARTIAL SUMMARY
JUDGMENT DATED JUNE 4, 2001

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
Case No. C99-5606FDB

SKOKOMISH INDIAN TRIBE,
a federally recognized Indian tribe, et al.,

Plaintiffs,
v.

UNITED STATES OF AMERICA, TACOMA PUBLIC
UTILITIES, a Washington municipal corporation; CITY OF
TACOMA, a Washington municipal corporation, et al.,

Defendants.

ORDER GRANTING CITY OF TACOMA’S MOTION
FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION

The Plaintiffs’ Complaint alleges 34 causes of action
stemming from construction of the Cushman Hydroelectric
Project on the North Fork of the Skokomish River during
the 1920s. The claims raise issues of interference with a right

5Sa

Appendix B

to fish, taking of water rights, right to hunt and gather berries,
takings of land, trespass and tortious interference with
property, unjust enrichment, conversion, public and private
nuisance, negligence and negligent misrepresentation, waste,
violation of RCW 2.42.630, violation of Section 401 of the
Clean Water Act, violation of Section 803ic), of the Federal
Power Act, and Declaratory relief in general.

In its motion for partial summary judgment, the City of
Tacoma (“Defendant” or “City”) argues several points: the
Tribe does not have a private right of action for money
damages against Tacoma arising out of any alleged violation
of the Treaty of Point No Point; the Treaty did not create an
immutable property right; the Federal Power Act provides
the complete remedy for the alleged effects of the Cushman
project on the Tribe’s “in common” fishing interest; and the
Tribe’s claim of a federally reserved water right arising from
its “in common” fishing right does not entail an ownership
interest in the waters that the Tribe fishes nor does it impose
an environmental servitude; additionally the North Fork
waters of the Skokomish River are not appurtenant to their
reservation and cannot be part of a federally reserved water
right.

Summary judgment is appropriate when :he moving party
demonstrates that there is no genuine issue as to any material
fact and that the moving party is entitlec to judgment as a
matter of law. Fed. R. Civ. P. 56(c). See, e.g., Nez Perce Tribe
v. Idaho Power Co., 847 F. Supp. 791, 818 (D. Idaho
1994)(summary judgment resolved iss"1e of whether fisheries
clause of the treaty with the Nez Perce could serve as a basis
for a damages claim based on the alleged impact of a federally

S6a

Appendix B

licensed hydropower project on the Tribe’s fisheries); Oregon
Dept. of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S.
753, 762 (1985)(summary judgment in a case addressing the
treaty-reserved fish ng and hunting entitlements of the
Klamath Tribe).

PARTIES’ ARGUMENTS
CITY OF TACOMA’S MOTION

The City argues that while there are cases that allow a
tribe to obtain injunctive relief against a third party for alleged
violations of treaty rights (State of Washington v. Washington
State Commercial Passenger Fishing Vessel Assn., 443 U.S.
658, 693 n. 33 (1979)), the Tribe has no private cause of
action for money damages against a third party for alleged
violations of a treaty. The City contends that the Treaty of
Point No Point does not suggest there was any intent to
provide for such relief and there is no statute that authorizes
such a claim.

The City argues that the Treaty of Point No Point did
not create an immutable property right. Article IV of the
Treaty provided that the Tribe would retain its right to take
fish “in common” with other citizens “at usual and
accustomed grounds and stations.” The City argues that
certain “rights’ under Indian treaties are not static and must
accommodate changing circumstances. This is so, argues the
City, because, otherwise, this Tribe and others could claim
an environmental servitude based upon conditions existing
during the mid-1800s, and that anything occurring since then

S7a

Appendix B

that interfered with that right would be a Treaty violation.
The Ninth Circuit, sitting en banc, upheld a district court
Getermination that under treaties negotiated by Governor
Stevens, hatchery fish are to be included in the Tribes’
allocation on the grounds that the inclusion of such fish would
help compensate for past activities associated with changing
society and development, United States v. Washington, 759
F.2d 1353, 1357 (9* Cir. 1985), but it vacated that portion of
the Ninth Circuit's three-judge panel's decision finding an
implied environmental protection of fish habitat due to lack
of concrete facts on which to base a pronouncement of legal
rules in the context of a declaratory judgment. /d. Therefore,
the City turns to the historical record.

The City notes that when the Treaty of Point No Point
was negotiated, there was “a great abundance of fish and a
relative scarcity of people.” Passenger Fishing Vessel, 443
U.S. at 675. When Governor Stevens negotiated the treaties
with the Washington Territory Indian tribes, he explained
that the influx of settlers necessitated that there be a treaty
providing for the coexistence of the Indians and the new-
comers. (Edward Swindell, typescript, Proceedings of the
Commission to Hold Treaties with the Indian Tribes in
Washington (“Treaty Proceedings” ) at 328-29.) Ultimately,
because of the concern that the Skokomish Tribe's progress
with its development be safeguarded against their possible
removal and relocation pursuant to Article 7 of the Treaty,
the lands were ultimately patented to the Tribe. Thus, by this
time, the Skokomish community lands had been transformed
into a community of individualiy-owned farming plots, and
the Skokomish hunting, gathering, and fishing economy
continued evolving into a mixed economy resembling that

58a

Appendix B

of the surrounding non-Indian economy. (M. Eells, Census
of the Clallam and Twana Indians of Washington Territory,
THe AMERICAN ANTIQUARIAN 35, 37-38 (January 1884).)

The City contends that the historical record demonstrates
that the Pacific Northwest treaties, in particular, the Treaty
of Point No Point, were made in anticipation of change, and
that they were intended to provide the means for tribal
members to become farmers and to assimilate into the
developing society. The off-reservation treaty fishing right
is a “usufructuary” right. Minnesota v. Mille Lacs Band of
Chippewa, 526 U.S. 172, 175 (1999); Sokaogon Chippewa
Community v. Exxon Corp., 805 F. Supp. 680, 701 (E.D. Wis.
1992), affirmed, 2 F.3d 219 (7® Cit. 1993), cert. denied, 510
U.S. 1196 (1994)(“Usufructuary rights like hunting and
fishing imply temporary presence and minimal physical
occupation of the land. ... The exercise of usufructuary
activities is not contingent upon actual ownership of land,
since the fee owner retains title and can reap the fruits of his
land as well.”) In Passenger Fishing Vessel, the meaning of
this right was summarized:

Non-treaty fishermen may not rely on property law
concepts, devices such as the fish wheel, license
fees or general regulations to deprive the Indians
of a fair share of the relevant runs of anadromous
fish in the case area. Nor may treaty fishermen
rely on their exclusive right of access to
reservations to destroy the rights of other “citizens
of the Territory.” Both sides have a right, secured
by treaty, to take a fair share of the available fish.

443 U.S. at 684-85.

59a

Appendix B

This issue was presented in Nez Perce Tribe v. Idaho
Power Co., 847 F. Supp. 791 (D. Idaho 1994). The Tribe in
that case claimed damages against a hydropower utility for
the alleged injuries to the Tribe's fishing right allegedly
caused by the construction and operation of the Hells Canyon
Dam Complex. The Nez Perce Treaty was negotiated by
Governor Stevens and contains a substantially identical right
to that contained the Treaty of Point No Point. The Court
framed the issue:

The ultimate issue presented is whether the treaty
provides the Tribe with an absolute right to
preservation of the fish runs in the condition
existing in 1855, free from environmental damage
caused by a changing and developing society.

Id at 807. The Court answered this question:

In the Court’s view, Indian tribes do not have an
absolute right to the preservation of the fish runs
in their original 1855 condition, free from all
environmental damage caused by the migration
of increasing numbers of settlers and the resulting
development of the land.

Id at 808-10. The Ninth Circuit has held similarly in rejecting
the aotion that a treaty-reserved water right for fisheries
entailed the reservation of water in amount and quality equal
to that present at treaty-time; finding instead that any water
right was limited to that necessary to support the tribe’s
hunting and fishing “as currently exercised.” United States
v. Adair, 723 F.2d 1394, 1414-15 (9® Cir. 1983), cert. denied,
476 U.S. 1252 (1984).

60a

Appendix B

The adaptive character of the treaty fishing right is also
shown, contends the City, in that the “right” is not immune
from state or federal regulation. See, ¢.g., United States v.
Cherokee Nation of Oklahoma, 480 U.S. 700, 706 (1987).
Such regulation may occur as long as it is nondiscriminatory.
See generally Department of Game v. Puyallup Tribe, 414
U.S. 44 (1973). Courts will enforce a treaty and require
mitigation in appropriate cases if developments in a region
impermissibly impact a tribal fishery. United States v. Winans,
198 U.S. 371 (1905).

In summary, argues the City, the Treaty of Point No Point
did not create any immutable property right insulated from
westward development, but rather established an adaptive

subsistence right to continue to go into areas off the
reservation and harvest a public resource.

The principle of accommodation applies in this case —
concerning the federal authorization of the Cushman Project
and all the implications for the Tribe's fishing — with
reference to the federal government's enactment and
implementation of the Federal Power Act (FPA). The FPA is
a comprehensive plan for developing the nation’s water
power resources, and Congress addressed the rights and
concerns of Indian tribes as well:

The Federal Power Act constitutes a complete
and comprehensive plan for the development
and improvement of navigation and for the
development, transmission and utilization of
electric power in any of the streams or other bodies
of water over which Congress has jurisdiction. . . .

6la

Appendix B

It neither overlooks nor excludes Indians or lands
owned or occupied by them.

Federal Power Comni'n v. Tuscarora Indian Nation, 362 U.S.
99, 118 (1960). In 16 U.S.C. § 811 the Commission
“require(s} the construction, maintenance, and operation by
a licensee (of] such fishways as may be prescribed by the
Secretary of the Interior or the Secretary of Commerce, as
appropriate.” Similarly, the FPA in 16 U.S.C. § 797(e)
requires the Commission to incorporate into a FERC license
conditions that the Secretary of the Interior finds are
necessary “for the adequate protection and utilization” of
the Reservation. The City contends that the Commission s
order relicensing the Cushman Project provides ample
evidence of the Commission's statutory mandate to address
fisheries concerns. The City notes that there is a balancing
of interests when implementing the FPA's fisheries resources
because they pertain to all the peopic. For example, in
Escondido Mutual Water Co. v. LajJolla Band of Mission
Indians, 466 U.S. 765 (1984), the Court discussed this
balance in the context of FERC-authorized hydroelectric
projects and held that the Commission was not required to
defer to either Interior or the aggrieved Indian tribe in regard
to off-reservation activities, regardless of their on-reservation
implications. Id at 780. Tribal prerogatives do not include:

the power to override Congress’ subsequent
decision that all lands, including tribal lands,
could, upon compliance with the FPA, be utilized
to facilitate licensed hydroelectric projects. Under
the FPA, the Secretary [of the Interior], with the
duty to safeguard reservations, may condition, but

62a

Appendix B

may not veto, the issuance of a license for project
works on an Indian reservation. We cannot believe
that Congrsss nevertheless intended to leave a
veto power with the concerned tribe or tribes.

466 U.S. 765, 787 (1984). This balancing scheme was nut
changed with the enactment of the Electric Consumers
Protection Act of 1986 (ECP).

The preemption issue of the FPA was addressed in Nez
Perce Tribe v. Idaho Power Co., 847 F. Supp. 791 (D. Idaho
1994). The Tribe sought damages under federal law from a
FERC-licensed hydropower utility based on the utility's
alleged impacts on the Snake River's fisheries and,
derivatively, on the Tribe’s Stevens-treaty fishing right. The

Court ruled that the FPA preempted such relief:

Thus, it is clear to this Court that Cong-ess, when
passing the FPA, considered the legislation’s
affect and impact on Indian treaty rights. It is also
clear that when enacting the FPA, Congress
provided for the impact of hydro-electric projects
on fish runs, by requiring FERC to consider the
recommendations 6; various agencies and of the
adversely affected tribes. . . . Further, the remedies
which FERC may impose, i.e. mitigation of
damage to fish runs, appear to support the various
court decisions imposing a duty of mitigation
rather than awarding damages as the remedy to
protect the Indian's treaty fishing rights.

It is the considered opinion of this Court relating
to damage to the fish runs that enactment of the

63a

Appendix B

FPA by Congress preempts any federal common
law damage remedy this Court might fashion for
the Tribe.

Nez Perce Tribe, 847 F. Supp. at 816-17. Thus, the City argues
that the Tribe’s remedy is at the Commission and at the Court
of Appeals, which has exclusive jurisdiction to address the
Tribe’s contentions regarding the Cushman Project's
relicensing and operation under the FPA. 16 U.S.C.
§ 825(b)(providing exclusive appellate court jurisdiction to
review Commission orders and for their finality absent further
review by the United States Supreme Court). The City also
argues that 16 U.S.C. § 803(c) of the FPA concerns injuries
“to the property of others” not injuries to a public resource,
such as the fish resources at issue here, in which the Tribe
has no immutable “property” right.

Finally, the City argues that the Tribe’s claim of a
federally reserved water right should be rejected because the
Treaty of Point No Point contains no such express
reservation, that only that amount of water absolutely
necessary for the federal reservation’s purpose is set aside,
Cappaert v. United States, 426 U.S. 128, 141 (1976), and
that the right to take fish “in common” off its reservation
does not entail ownership in the waters that the Tribe fishes
— the Tribe doesn t need to own the waters to be able to fish
those waters. See In Re: Snake River Basin Adjudication,
Idaho Staie District Co’:.*. No. 03-10022 (Nov. 10,
1999)(denying on summ ry judgment Nez Perce Tribe's
claim to an of — reservati . federal reserved right to sustain
the Tribe’s treaty-era fishery)(appeal pending).

64a

Appendix B
PLAINTIFFS’ RESPONSE

Plaintiffs contend that the Treaty’s meaning has been
determined by the Ninth Circuit and the United States
Supreme Court. Moreover, they contend that Tacoma has
incorrectly recast historical events, particularly that the
Treaties sought to assimilate tribes into an agrarian economy
and lifestyle. Governor Stevens and the other Commissioners
knew that without an agreement for continued Indian fishing,
the treaties were not likely to be signed, and the United States
wanted to keep the cost of the treaties down by agreeing to
continued Indian fishing. Plaintiffs point to statements of
Governor Stevens that reveal the expectation of a permanent
fishing right; these statements were made at the time the
treaties were negotiated as well as in an address to the
territorial legislature in 1854. (Citations omitted) That fishing
rights were “. . . reserved to the descendants of treaty Indians,
without limitation in time, excepting as Congress may
determine, has been recognized and applied by the United
States Supreme Court from the first to the latest decision of
that court involving Indian treaty fishing rights.” United
States v. Washington, 384 F. Supp. 312 at 331-332. (W.D.
Wash. 1974). Therefore,

“[{i}t is absolutely clear, as Governor Stevens
himself said, that neither he nor the Indians
intended that the latter ‘should be exc!uded from
their ancient fisheries,’ ... and it is accordingly
inconceivable that either party deliberately agreed
to authorize future settlers to crowd the Indians
out of any meaningful use of their accustomed
places to fish.”

Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 676 (1979).

65a

Appendix B

Plaintiffs contend that the Skokomish people did not
trade their fishing culture for a farming culture, and they
cite to early documents indicating the Skokomish to be a
fish eating tribe.

Plaintiffs also contend that the Cushman Project was
proposed as a one-dam, one-powerhouse project in 1917-
1922, and that the federal agencies were misled. Plaintiffs
argue that any riparian rights attached to the condemned state
land (see City of Tacoma v. State of Washington, 121 Wash.
448, 209 P. 700 (1922)) would not allow for out-of-watershed
diversions, such as that entailed by the Cushman project.
Mally v. Weidensteiner, 88 Wash. 398, 402, 153 P. 342, 343
(1915). Plaintiffs also argue that the United States failed to
bring suit on behalf of the Skokomish Tribe owing to a classic
conflict of interest — bringing suit would reveal the United
States own liability in refusing to rectify the Cushman license
defects, to enjoin the Cushman Project, or to pursue
assessinent of damages.

The Tribe also argues that the Point No Point Treaty is
self-executing and limits the activities of those who did not
sign the Treaty. For example, in Puyallup Tribe v. Dept. of
Game, 391 U.S. 392 (1968), the Supreme Court held that
the Treaty of Medicine Creek’s fisheries provision (similar
to that of the Treaty of Point No Point) prohibited the State
of Washington (which did not sign any of the Stevens treaties)
from barring the Puyallup Tribe’s use of set nets in “usual
and accustomed” fishing areas. Accord, Washington v.
Fishing Vessel Ass'n., 443 U.S. 658 (1979).

66a

Appendix B

Plaintiffs also assert that the City has cited no authority
to explain why, if tribes are fully able to seek equitable relief
against nonsignatory parties for treaty violations, they cannot
also seek damages. Plaintiffs argue that Washington courts
have not hesitated to find third parties liable for tortiously
interfering with other parties’ contractual relations, and have
awarded damages to a contracting party whose property was
interfered with by a municipality. See, e.g., Please v. Seattle,
112 Wash.2d 794, 774 P.2d 1158 (1989)(city’s conduct
interfered with developer’s business expectancy for
property). Thus, if Tacomas actions wreak havoc on the
Tribe s traditional fisheries, it has interfered with the
agreement between the United States and the Tribe protecting
the fisheries and the access thereto.

Plaintiffs argue that they need not seek Congress’
permission to seek compensation from someone who injured
its property. Plaintiffs assert that the Skokomish Tribe has
suffered a legally recognized injury, that case after case has
held that the Tribe’s treaty fishing right is a property right,
see, e.g., United States v. Washington, 157 F.3d 630, 643-44
(9 Cir. 1998), cert. denied, __ U.S. __ (1999). And see
Muckleshoot v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988),
which stated:

The treaty fishing right is a property right
protected under the fifth amendment, and the harm
to this right cannot be measured solely in terms
of the amount of lost income the Tribes might
suffer. Bold 1, 384 F. Supp. at 404 (“the treaty
rights that are asserted are unique and the damages
which have been or will be sustained are not

67a

Appendix B

susceptible of definite monetary determination”).
If the Tribes are to be compensated for a taking
of their fishing ground, Congress must first
authorize the taking.

Id. at 1516. See Also Confederated Tribes of the Umatilla
Indian Reservation v. Alexander, 440 F. Supp. 553 (D. Ore.
1977)(treaty fishing clause barred construction of dam that
would have flooded some Indian fishing stations, prevented
all wild fish from swimming upstream, and completely
eliminated the steelhead run above the dam). The Treaty
fishing right is a property right in that it protects the tribes’
opportunity to harvest a share of the fish “crop” that passes
through its usual eed accustomed fishing areas. See
Washington v. Fishing Vessel, 443 U.S. at 663. The Treaty
right also guarantees a property access right to a tribe’s usual
and accustomed fishing locations. United States v. Winans,
198 U.S. 371, 381-82 (1905).

Plaintiffs argue that even if the Court did not find a
property right arising from the treaty fishing provision, the
Tribe would still have a cause of action, as courts have
repeatedly found a cause of action resulting from wrongful
environmental harm that diminishes the fish resource and
awarded damages. See, e.g., Robins Dry Dock and Repair
Co. v. Flint, 275 U.S. 303 (1927).

Plaintiffs argue that the Supreme Court has rejected the
argument that tribes can sue to protect property rights
protected by federal common law “only when specifically
authorized to do so by Congress.” County of Oneida, New
York v. Oneida Indian Nation of New York State, 470 U.S.

68a

Appendix B

226, 235 n.5 (1985)(Oneida II). The Supreme Court then
upheld the lower’s court’s common law authority to award
damages for violation of tribal property rights. /d.
Alternatively, Plaintiffs argue that 42 U.S.C. § 1983
establishes a cause of action for damages against Tacoma.
Because the Treaty of Point No Point is the “law of the Land”
under the Supremacy Clause, it falls within the terms of
section 1983. See Maine v. Thiboutot, 448 U.S. 1, 4 (1980).
The Ninth Circuit has held that a lawsuit seeking redress for
violations of the Indians’ treaty rights gives rise to a section
1983 action. United States v. Washington, 813 F.2d 1020,
1023 (9 Cir. 1987).

Regarding the “immutable property right” issue raised
by Tacoma, the United States Supreme Court has held that
the treaty fishing right must adapt to circumstances, such as
where the Tribe dwindles to just a few members, Washington
v. Washington State Commercial Passenger Fishing Vessel
Ass'n, 443 U,S. 658, 686-87 (1979), but this is different than
what Tacoma argues that a treaty right can be totally impaired
or decimated without express Congressional authorization
and full compensation.

Plaintiffs argue that the Federal Power Act does not
preempt damages actions because, unlike statutes that provide
an administrative process for bringing monetary claims, the
FPA has no mechanism for filing a damage claim, so it cannot
be said to provide a “complete remedy.” Also, FERC has no
jurisdiction to award monetary damages, and neither
do circuit courts hearing license appeals. See 16 U.S.C.
§ 803(c)(FPA); 16 U.S.C. § 8251(b)(FERC); South Carolina
Public Service Authority v. FERC, 850 F.2d 788 (D.C. Cir.
1988).

69a

Appendix B

Plaintiffs distinguish the DiLaura and Nez Perce cases
cited by the City. DiLaura merely held that Section 10(c) of
the FPA would not give the Federal Court jurisdiction, and
that a viable federal cause of action must be asserted. The
Nez Perce case did not hold that Congress through Section
10(c) eliminated all causes of action for . ~‘mated Indian
treaty fisheries under the federal constitution or Section 1983.

Plaintiffs argue that treaty water rights are violated if
there is insufficient water to fulfill the purposes of the fishing
clause. In Winters v. United States, 207 U.S. 564, 576 (1980),
the Supreme Court held that a sufficient quantity of water to
carry out the purpose of a reservation is reserved when the
reservation is created. A treaty fishing right guarantees water

sufficient to maintain those fisheries. Joint Board of Control
v. United Slates, 832 F.2d 1127 (9 Cir. 1987), cert. denied,
108 S. Ct. 732 (1988).

Plaintiffs argue that Tacoma may not eliminate
Skokomish usual and accustomed fishing grounds. The right
to take fish has a “geographic” aspect, and even if tribes must
share the fish “in common” with other citizens, that duty
does not “displace their right of access to fishing places.”
Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1510
(W.D. Wash 1988). The United States Supreme Court stated
that it was “inconceivable” that the parties to the treaty would
have agreed to allow future settlers “to crowd the Indians
out of any meaningful use of their accustomed places to fish.”
Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 676
(1979).

70a

Appendix B
DISCUSSION

Both parties extensively discuss the background leading
up to the treaties negotiated by Governor Stevens, in
particular, the Treaty of Point No Point, which is the source
of the Skokomish Tribe’s “in common” fishing right. The
Skokomish Tribe’s fishing right is not an immutable property
right but an entitlement that must be adapted to changing
circumstances. The United States Supreme Court stated in
United States v. Winans, 198 U.S. 371, 381 (1905):

New conditions came into existence, to which those
{treaty fishing) rights had to be accommodated. Only
a limitation of them, however, was necessary and
intended, not a taking away.

The Tribe states that it has not argued for an immutable
wilderness servitude, but for a finding that Tacoma has
egregiously harmed the Tribe’s fishing rights and other
property and should compensite the Tribe.

Nevertheless, the question for the Court concerns the
implications for the treaty fishing right in the face of a
federally authorized and licensed hydropower development.
The Court agrees with the proposition that the Federal Power
Act constitutes a complete and comprehensive plan for the
development, transmission, and utilization of electric power
in any of the streams or other bodies of water over which
Congress has jurisdiction, and that the Act neither overlooks
nor excludes Indians or lands owned or occupied by them.
Federal Power Commission v. Tuscarora Indian Nation, 362
U.S. 99, 118 (1960); Escondido Mutual Water Company v.
La Jolla Band of Mission Indians, 466 U.S. 765, 787 (1984).

Tila

Appendix B

The Tribe argues that the Federal Power Act does not
provide a complete remedy in that actions for past damages
are not preempted and that the FPA does not provide for
monetary damages. But the FPA addresses fisheries concerns
and Tribal interests in 16 U.S.C. § 811 by delegating full
authority to the Secretaries of Interior and Commerce to
provide mandatory license conditions mitigating a
hydropower operation's impacts on fisheries resources. This
is what occurred in regard to the Cushman Project;
concerning the relicensing of the project, see generally, City
of Tacoma 1998, 84 FERC at ¥¥ 61,550-59. The Skokomish
Tribe does not have special authority over licensing projects;
rather, the Secretary of the Interior may condition — but not
veto — the licensing of certain projects. Escondido Mutual
Water Co., 466 U.S at 787.

The Plaintiffs (The Tribe) assert that the license issued
for the Cushman Hydroelectric Project in 1924 is invalid.
The Tribe says it was harmed by destruction of the fisheries
in the North Fork of the Skokomish River because the North
Fork was diverted out of its watershed. The Tribe raised these
issues before the FERC in opposition to relicensing
the Project. From the beginning, as early as 1913, the
understanding was that the flow of water from the North Fork
would be cut off. (Letter from H. H. Johnson to
Commissioner of Indian Affairs (August 5, 1913); Report
on Proposed Dam on Skokomish from L. M. Holt to
Commissioner of Indian Affairs (November 5, 1913).)
Moreover, a letter from S. G Hopkins, Assistant Secretary
of the Interior to Hamilton Gronen, Tacoma’s Commissioner
of Light and Water (October 4, 1917) indicates that there
was concern by Tacoma for the proximity of the North Fork

72a

Appendix B

to the Skokomish Reservation, but that the Reservation did
not require water from the North Fork and that its diversion
would meet with no objection from the Indians, although
the letter did reflect the Indians’ concern, when Seattle was
interested in the project, with the depreciation of their land’s
value owing to the undesirability of living under the dam.
Assessment of the situation continued (see outline set forth
by Tacoma in its opening brief). Ultimately, the Washington
Supreme Court held that Tacoma could condemn the state
property and all the associated water rights and noted that
the project would

... take all of the water of the North Fork and
carry and discharge it by means of a canal and

pipeline through its power house and into Hoods
Canal without returning it to the stream. The result
will be that the only water flowing from the North
Fork into the mainstream will be such as goes
through or over the dam by wastage, and such as
is discharged into the North Fork by tributary
streams between the dam and the confluence of
the two forks.

Tacoma v. Washington, 121 Wash. 448, 450, 209 P. 700
(1922). Tacoma then applied to the Federal Power
Commission for a license for the Cushman Project. The
application described a two-dam/two-powerhouse project
that would utilize substantially all waters of the North Fork
of the Skokomish River, and a map of the entire project
described certain federal lands that would be flooded if the
Project were built. (See Exhibit C to Tacoma’s opening brief)
The Commission approved the Project in 1924 stating that it

73a

ippendix B

will be best adapted to a comprehensive scheme
of improvement and utilization for the purposes
of water-power development and of other
beneficial public uses, and the license will not
interfere or be inconsistent with the purpose for
which any reservation affected thereby was
created or acquired. ...

(License for a Minor Fart of a Complete Project, No. 460
(June 3, 1924)(Exhibit A to Tacoma’s opening brief). The
Commission issued Tacoma a license approving that “minor
part” of the Project that involved the flooding of 8.8 acres of
federal land. Jd. While the Tribe may contend that there were
“assurances” made that were untrue, that is conjecture today,
and Tacoma notes that in reports cited by the Tribe, in 1937
and 1944, Tribal members “continue to make good utilization
of the abundant supply of fish, oysters, and clams.

The Tribe also contends that Tacoma lacks the necessary
water rights to operate the Cushman Project and that the
relicense was obtained through deception, fraud, and
misrepresentation. The Tribe submits in support of its water
rights contention a letter from an assistant attorney general,
Ecology Division to the Secretary of the Federal Energy
Regulatory Commission dated November 18, 1993.
(Attachment B to Plaintiff's Response) This letter (which
contends that either the full water rights claimed is not
warranted, or they were waived by certain procedural failures
by the City of Tacoma) was submitted in connection with
FERC’s adjudication of issues surrounding relicensing
beginning in 1974, when the original license expired. Tacoma
applied for relicense of the Cushman Project in November

74a

Appendix B

1974, and the Skokomish Tribe was allowed to intervene in
those proceedings in November 1975. Litigation of this
project followed during the intervening decades until 1998
when Tacoma was issued a relicense for the Project. (City of
Tacoma 1998, 84 FERC at ¥ 61,535) The Tribe raised many
of the same contentions about the effects of the Project during
that litigation as it raises here. (See City of Tacoma 1994, 67
FERC at 7 61,439) After addressing the issues and the
remedies pursuant to the FPA, the Commission issued a 40-
year license to Tacoma for the Cushman Project; this license
included forty-six pages of license articles and conditions
that mitigated the Cushman Projects alleged impacts.
(Id 4¥ 61,576 -61,602) The Tribe sought a rehearing making
allegations such as submitted in this case, that the Project
“shattered the foundation of the Skokomish economy/
culture” and assessing damage at $5.7 billion. (Skokomish
Indian Tribe’s (1) Objections to and Request for Rehearing
Re: Commission Order of July 30, 1998; and (2) Renewed
Request for Interim Relief, FERC No. 460-001 at 134
(August 312, 1998). (Exhibit W to Tacoma’s opening brief).)
The Commission denied this request and reaffirmed its
licensing decision. (City of Tacoma, 89 FERC 4 61,275 (Dec.
16, 1999). In litigation in 1962 in this United

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0295%3A2. Public record. Not legal advice.