Opposition Brief — Skokomish Indian Tribe v. United States

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Seconu, the Treaty reflects the federal government's

then-extant policy of Indian assimilation by providing that

the reservation eventually would be allotted into individ-

ual parcels, with individual Indians assigned parcels as

their homes and farms.’

Third, the Treaty addresses fishing rights from the

standpoint of both Indians and non-Indians. In Article 4,

the Treaty secured to the Tribe the “right of taking fish at

usual and accustomed grounds and stations .. . in common

with all citizens of the United States.” As noted by this

Court, this adaptive nature of the treaty fishing right was

essential as “new conditions came into existence to which

(treaty fishing] rights had to be accommodated.”

B. Accommodation for Hydroelectric Devei-

opment was Explicitly Sanctioned by Con-

gress through the Federal Power Act’s

Comprehensive Licensing Scheme

The change contemplated by the Treaty occurred

quickly. At the time of the Treaty, the Tribe numbered

about 200," and the Washington Territory was home to

approximately 3,965 non-Indians. By 1890 Tacoma’s

' Id. This approach prevailed as American Indian policy during the

mid-19th century until Franklin Rooseveit’s administration in the

1930s. Supp. ER 155

* Supp. ER 157

* United States v. Winans, 198 U.S. 371, 381 (1905). The Petition

raises only that part of the Ninth Circuit's en banc decision that

addresses Article 4 and the off-reservation fishing rights. The Tribe's

claim thai “what remains” also includes a treaty-reserved water right

or any trespass claims is incorrect. Pet. at 10

* Supp. ER 110

population alone was 36,000," and by 1910 the State’s

population had burgeoned to over a million.”

Hydroelectric power was an appropriate and impor-

tant part of the region’s increased settlement and devel-

opment. Congress enacted the Federal Water Power Act of

1920 (“FPA”) to provide for the growing need for hydroelec-

tric power throughout the country.” The express purpose

of the FPA was to implement a “complete scheme of

national regulation which would promote the comprehen-

sive development of the water resources of the Nation.””

The Act established the Federal Power Commission” (“the

Commission”) as the exclusive forum for accommodating

the numerous - and sometimes conflicting — interests that

could be affected by its licensing decisions.”

The FPA expressly addresses fisheries resources and

tribal interests. The Act delegates full authority to the

Secretaries of Interior (which has responsibility for Indian

affairs) and Commerce (the home agency of the National

Marine Fisheries Service, which exercises authority over

anadromous fish) to provide mandatory license conditions

that are designed to mitigate a hydropower operation’s

" Supp. ER 163.

" Supp. ER 165.

* Federal Water Power Act of 1920, Ch. 285, 330, 41 Stat. 1077.

“ First lowa Hydro-Electric Coop. v. Federal Power Comm'n, 328

U.S. 152, 180 (1946). See also California v. Fed. Energy Regulatory

Comm'n, 495 U.S. 490 (1980).

* The Federal Power Commission was reconstituted as the Federal

Energy Regulatory Commission (“FERC”) in 1977. These two entities

will be referred to interchangeably as the “Commission.”

" Federal Power Comm'n v. Oregon, 349 U.S. 435, 445-46 (1955).

impacts on fisheries resources” and that may be necessary

“for the adequate protection and utilization” of Indian

reservations.” The FPA also expressly provides that the

Commission “shall consider ... the recommendations

(including fish and wildlife recommendations) of Indian

tribes affected by a project.”” To issue a license, the

Commission must determine that the project “will not

interfere or be inconsistent with the purpose for which any

reservation affected thereby was created or acquired.”

Importantly, this Court has noted that a federally-licensed

hydroelectric project “is an example of the changing

circumstances that alter the contours of the Tribe’s con-

tinuing property rights.””

C. The Cushman Project

In 1912 the City of Seattle started investigating the

present site of the Cushman Project for a hydroelectric

dam. Seattle’s proposal was vetted by the Commissioner of

Indian Affairs, who concluded that there would be no

adverse effect on the rights of the Skokomish Tribe.” After

Seattle declined to pursue the proposal, in 1923 Tacoma

submitted an application for a federal license for the

Cushman Hydroelectric Project to the Commission for

approval.” The 50-year minor part license granted in 1924

" 16 U.S.C. § S11.

* 16 U.S.C. § 797(e).

” 16 U.S.C. § 803(a(2\B).

* Id. See also Supp. ER. 88.

” Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99,

118 (1960).

* Supp. ER 178-83; Supp. ER 166; Supp. ER 170-77.

” Supp. ER 188, 190.

authorized the flooding of 8.8 acres of federal land in

connection with Tacoma’s construction of the Project on

the North Fork of the Skokomish River. Consistent with

its interpretation of the FPA at the time, the Commission

did not license the entire project but did review its full

scope.” The scope specifically included “(t]he proposed

scheme of development [] to utilize substantially all of the

waters of the North Fork of the Skokomish River.™

Indeed, the Commission found that “the project .. . will be

best adapted to a comprehensive scheme of improvement

and utilization for the purposes of water-power develop-

ment and of other beneficial public uses, and .. . will not

interfere or be inconsistent with the purpose for which any

* Supp. ER 188-207. The Tribe has asserted Tacoma has operated

the project “illegally” simply because the license issued to Tacoma was a

minor-part license that only covered 8.8 acres, not the entire area

occupied by the Project. The Commission, however, specifically consid-

ered this matter and concluded that issuing a minor-part license was

“consistent with the Commission's interpretation of its jurisdiction at

that time, [although) the Commission later concluded that Tacoma

should obtain a license for the entire Cushman Project....” City of

Tacoma, 84 FERC 4 61,107, p. 61,535 (July 30, 1998) (City of Tacoma

1998). Despite finding that Tacoma’s original minor-part license was

“under inclusive,” the Commission ruled that the license had not been

invalidated and that Tacoma was legally entitled to seek a relicense

for the entire project as originally built. City of Tacoma, 71 FERC

7 61,381 at pp. 62,487-88 (June 22, 1995) (City of Tacoma 1995). The

Tribe’s allegations to the contrary are apparently aimed at making

this case resemble the facts in United States v. Pend Oreille, 28 F iid

1544 (9th Cir. 1994), which found a hydropower project unlawfully

trespassed on a tribe's land. But both Judge Boldt’s findings in Skoko-

mish Indian Tribe v. France, No. 1183, Findings of Fact and Conclu-

sions of Law, Finding 43 (W_D. Wash. Jan. 29, 1962), aff'd, 320 F.2d 205

(9th Cir. 1963), cert. denied, 376 U.S. 943 (1964) (Supp. ER 102-03)

(discussed infra at 7-8), and FERC’s determinations in the relicensing

appeal make Pend Oreille readily distinguishable.

* Supp. ER 190.

reservation affecting thereby was created or acquired.™

The license stated further that “the said dam” was “neces-

sary and convenient for the development and utilization of

power.”

As noted by the Tribe, most of the Project’s facilities

are located on the North Fork of the Skokomish River.

Contrary to the implications of the Tribe’s statements,

however, Cushman Powerhouse No. 2 is not located “on”

Tribal lands.” Rather, that powerhouse is located on land

Tacoma owns in fee within the Skokomish Reservation’s

exterior boundaries.” Part of the Project’s transmission

line aud access roads traverse the Reservation, but any

claims regarding the line or roads are not at issue here, as

they were separately litigated” and are not raised in this

case.

The Tribe also repeats what are clearly disputed and

unresolved allegations in its Petition, including its allegation

* Supp. ER 88.

* Id.

* Pet. at 3.

* ER 188-89. See also City of Tacoma 1998, 84 FERC at p. 61,540.

” United States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003).

Indeed, the Tribe’s statement that the Ninth Circuit has held “that the

Project illegally trespasses upon certain Skokomish allotments” as well

as its assertion there is a “remaining issue” for “trespass for lands

illegally condemned for Project transmission lines and access roads,”

Pet. at 4 n. 2, 10, are patently false. In litigation unrelated to this case,

the Ninth Circuit affirmed a District Court holding that the conveyance

of easements (for the transmission line and access roads) across certain

Reservation allotments to Tacoma was invalid at the time that a state

court and the Department of Interior approved it in 1922. United States

v. City of Tacoma, 332 F.3d 574. Importantly, neither the Ninth Circuit

nor the District Court made any findings regarding current ownership

status of the parcels in question.

that the Project has caused “aggradation” in the main

stem of the Skokomish River, allegedly resulting in flood-

ing on the Reservation, and that the Project has taken

nearly one-half of the water flowing through the Reserva-

tion and “thus destroyed a substantial portion of the off-

and on-reservation fisheries.” These assertions remain at

issue in the pending relicensing proceeding.” Moreover,

causes of action related to aggradation or flooding are

state law causes of action dismissed by the trial court,”

and that dismissal was sustained on appeal.” In any

event, the state causes of action are not relevant to the

issue raised in the Tribe’s Petition for Certiorari.”

In sum, the only remaining issue presented to this

Court involves off-Reservation treaty fishing rights, and

the Tribe’s statements to the contrary should be ignored.

D. Project Licensing is under FERC Juris-

diction

No issues related to the Project’s licensing are part of

the Petition. A federal court determined in 1948 that

Tacoma had a valid license and that it complied with its

license and all applicable laws, rules and regulations. In

" Pet. at i (“Question Presented”). The Tribe also incorrectly

represents that six miles of the mainstem of the Skokomish River are

on Tribe’s Reservation. Pet. at 3. This is completely at odds with the

historical record, which shows that the mai«stem borders the Reserva-

tion but is not on the Reservation. ER 445-66, 476-78.

* Supp. ER 35.

* ERY.

* Skokomish Indian Tribe v. United States, 410 F.3d 506, 516-18

(9th Cir. 2005).

* Pet. at 1.

denying the Tribe’s suit to remove the Project’s transmis-

sion lines from tidvlands, Judge George Boldt concluded:

[The FPC) issued a license to the City of Tacoma

for Project No. 460 Washington. That ever since

said time said license has been in full force and

effect and, at all times since the issuance of said

license, the defendant City of Tacoma has oper-

ated said hydroelectric project pursuant to and

in accordance with the terms of said Federal

Power Commission license and all laws, rules

and regulations pertaining thereto... .”

Similarly, FERC asserted its exclusive jurisdiction

under the FPA in the relicensing proceedings when Ta-

coma filed an application for a “new” license (i.e., reli-

cense) for the Project in 1974. After FERC granted the

Tribe the right to intervene, the Tribe played an active role

in the relicensing proceeding and asserted many of the

same claims against Tacoma that it has asserted in this

litigation.” For these reasons, both the trial court and a

majority of the three-judge panel of the Ninth Circuit

concluded that the Tribe’s treaty-based claims were

* Supp. ER 102-03 (emphasis added). Judge Boldt further con-

cluded that the Tribe’s claim impermissibly “constitutes, insofar as

Tacoma is concerned, a collateral attack upon the order of the FPC in

issuing a license to Tacoma for the construction of a hydroelectric

project ... Supp. ER 106. The Ninth Circuit affirmed Judge Boldt’s

decision, and this Court denied certiorari. Skokomish Tribe v. France,

320 F.2d 205 (9th Cir. 1963), cert. denied, 376 U.S. 943 (1964).

” City of Tacoma, 67 FERC ¥ 61,152, p. 61,439 (May 4, 1994). City

of Tacoma, 84 FERC 4 61,107 (July 30, 1998) (City of Tacoma 1998);

City of Tacoma, Order on Rehearing, 86 FERC { 61,311 (Mar. 31, 1999).

Petitions for review of FERC’s decisions are pending before the United

States Court of Appeals for the District of Columbia Circuit. City of

Tacoma v. FERC, No. 05-1054 (D.C. Cir. filed Feb. 18, 2005).

preempted by the FPA, notwithstanding the minor part

license.” The Ninth Circuit en banc panel disagreed in a

footnote” and instead dismissed the Tribe’s treaty-based

claims on the grounds that no private right of action for

damages for off-reservation fishing rights could be implied

from the Treaty.” Both grounds, however, clearly support

the same result.

E. Current Project Operations

Pending the outcome of the relicensing litigation,

Tacoma is not, as suggested by the Tribe, operating “under

the 1924 license, which remains devoid of environmental

conditions.” Many events delayed FERC’s issuance of a

new license, which is now being challenged in the Ccurt of

Appeals for the District of Columbia Circuit by both the

Tribe and Tacoma.” Although the license is stayed pending

the outcome of that challenge, Tacoma has implemented

significant environmental measures that have benefited

the Tribe and the citizens of the state. These include

monetary contributions to the George Adams Fish Hatch-

ery; purchasing the Nalley Ranch and allowing it to return

to its natural estuarine condition; and doubling the flow in

the North Fork of the Skokomish River to at least 60 cubic

* ER 32-33, 37; Skokomish Indian Tribe v. United States, 332 F.3d

551, 560 (9th Cir. 2003), vacated by Skokomish Indian Tribe v. United

States, 410 F.3d 506 (9th Cir. 2005).

* Skokomish Indian Tribe v. United States, 410 F.3d at 512 n. 4.

“ Id. at 514

“ Pet. at 5

“ City of Tacoma v. FERC, No. 05-1054 (D.C. Cir. filed Feb. 18,

2005).

feet per second to provide improvements to spawning and

rearing conditions for salmon.“

Il. ARGUMENT

The Petition presents only a single, narrow issue:

whether Article 4 of the Treaty of Point No-Point, which

secures to the Tribe the “right of taking fish at usual and

accustomed stations in common with all citizens of the

United States," creates an implied private right of action

for money damages associated with the operation of a

hydroelectric project licensed under the FPA.

No court has ever implied such a private right of

action for money damages for an alleged violation of

Indian treaty fishing rights.“ Rather, this remedy is at

odds with the adaptive and accommodative nature of the

fishing right shared “in common with all citizens.” Indeed,

every federal judge that has considered the Tribe’s claim,

including both the majority and dissenters in the Ninth

Circuit’s en banc determination, characterized the Tribe's

treaty-based claim as one that turns on Article 4’s adap-

tive fishing rights. Given this limitation, the Tribe’s claim

of conflicts with other decisions involving tribal treaty

rights is illusory. Accordingly, the Ninth Circuit en banc

* City of Tacoma, 89 FERC 4 61,273, p. 61,795 (Dec. 16, 1999).

“ Supp. ER 157.

“ The only cases that have considered such a novel claim have

uniformly ruled that the tribe does not have such a remedy. See, e.g,

Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791 (D. Idaho 1994),

Muckleshoot Tribe v. Puget Sound Power & Light Co., No. 472-72C2V

(W.D. Wash. Oct. 8, 1986) (cited in Nez Perce, 847 F. Supp. at 807);

Nisqually Indian Tribe v. City of Centralia, No. C75-31T (W.D. Wash.

Nov. 18, 1981) (cited in Nez Perce, 847 F. Supp. at 807).

Bs OS Sh a

decision does not conflict with any existing case law and,

thus, the Petition does not warrant granting certiorari.

Moreover, there is no other compelling reason to grant

certiorar because the Tribe continues to pursue regulatory

protection for its in-common fishing rights through the

FERC relicensing process. The decision also does not in

any way implicate the extensive precedent providing for

equitable remedies and regulatory protections designed to

protect treaty fishing rights of tribes. Nor does it implicate

recognized remedies in tort or affect common law damages

remedies available to Indian tribes to vindicate possessory

interests in real property. And it does not implicate or

conflict with established precedent governing the implica-

tion of private causes of action under federal statutes and

treaties.

In the end, granting the Tribe’s Petition and reversing

the Ninth Circuit’s decision would create an unprece-

dented cause of action that could greatly expand the

potential exposure of third parties to court-imposed money

damages without Congressional authority. As emphasized

by this Court recently in City of Sherrill v. The Nation of

Oneida,” the law disfavors addressing the wrongs of prior

generations in a manner that fundamentally disrupts

settled long-held and reasonable expectations.” For all of

these reasons, Tacoma respectfully requests that the

Tribe’s Petition be deriied.

“ US. _, 125 S.Ct. 1478 (2005).

” Id. at 1491.

A. The Ninth Circuit Correctly Held the Treaty

Does Not Establish a Private Right of Action

for Money Damages Against A Third Party

Who Indirectly Affected the Amount of Fish

Available for the Tribe to Harvest.

1. Settled Precedent Supports Finding

There is No Private Right of Action for

Damages Implied in the Treaty.

A fundamental tenet of this Court's decisions in which

a private right of action for damages has been implied is

that the conduct to be remedied must be specifically and

unmistakably prohibited by the Congressional scheme.“

Parties must also be clearly on notice that the type of

conduct is prohibited. In this case, the challenged conduct

involves a hydroelectric facility under the aegis of, and

affirmatively encouraged by, the Federal Power Act. The

well-established four-part test set forth in Cort v. Ash” for

determining whether a private right of action exists

demonstrates that no implied right of action exists for the

Tribe’s asserted fishing claim:

(a) Is the piaintiff one of the class for whose special

benefit the statute was enacted? Although the Point-No-

Point Treaty was for the benefit of the Skokomish Tribe, it

also was intended to benefit all citizens by accommodating

settlement and development.

“ Jackson v. Birmingham Bd. of Ed., _ U.S. _., 125 S.Ct. 1497

(2005); Gonzaga University v. Doe, 536 U.S. 273, 280 (2003), Alexander

v. Sandoval, 532 U.S. 275 (2001); Gebser v. Lago Vista Independent Sch

Dist., 524 U.S. 274 (1998)

“” 422 U.S. 66, 78 (1975)

(b) Js there any indication of legislative intent,

explicit or implicit, either to create such a remedy or to

deny one? All parties agree there is no explicit provision in

the treaty for money damages for shared, in-common

fishing rights. Since Congress has not spoken with a “clear

voice” or manifested an “unambiguous” intent to confer

individual rights, the courts should not imply a remedy of

money damages for alleged violation of treaty fishing

rights.

legislative scheme to imply such a remedy for the plaintiff?

Since Congress hes never enacted a statute or approved a

treaty expressly providing money damages to tribes for

alleged violations of in-common, off-reservation treaty

fishing rights, it is not surprising that no court has ever

found a basis for implying such a remedy. The only court-

made remedies for harm to in-common, off-reservation

treaty fishing rights have been prospective and equitable

in nature.” This approach is consistent with the historical

context of these treaties defining such rights. The treaties

were meant to accommodate change, and the fishing rights

were not meant to be static and immutable. Article 4 of the

Treaty, therefore, did not impose an environmental servi-

tude on off-reservation areas, or anything akin to a prop-

erty interest protected at law by remedial money damages.

Indeed, any inference that Congress necessarily

contemplated that the Tribe could entertain a damage

action for allegedly adverse affects on the environment,

™ See eg. Winans, 198 U.S. at 384; Puyallup Tribe v. Dept. of

Game, 391 U.S. 392 (1968) (Puyallup I), United States v. Washington,

384 F. Supp. 312, 328 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir.

1975), cert. denied, 423 U.S. 1086 (1976)

which then affected the availability of fish, is dispelled by

over 150 years of history. Had Congress intended to allow

money damages for impacts of authorized hydropower

projects on treaty fishing rights, certainly it couid have

addressed the issue in the FPA. Instead, it provided only

prospective remedies such as conditions, enhancements

and mitigation.” The FPA explicitly sets forth procedur»s

for accommodating tribal in-common fishing rights as part

of the licensing process.”

The comprehensive character of the FPA not only

determines how the Tribe’s in-common fishing right

accommodates subsequent federal hydropower develop-

ment, it also preempts any federal common law claims

that could be fashioned to enforce those rights.” The

courts have been vigilant in ensuring that this compre-

hensive scheme of the FPA and the Commission’s jurisdic-

tion is not eroded and have rejected collatera! attacks in

similar circumstances.”

Although the Tribe argues the Indian Claims Limita-

tion Act is evidence of Congressional intent to create a

private right of action, this statute does not create — but

“ 16 USC. § 8034).

” 16 USC. % 797(¢), 803(aX 2B), 811

” 16 U.S.C. § 791(a) et seq.; Mobil Oil Corp. v. Higginbotham, 436

U.S. 618, 625-26 (1978). See also In re Oswego Barge Corp., 664 F.2d

327, 335 (2d Cir. 1981) (1Sleparation of powers concerns create a

presumption in favor of preemption of federal common law whenever it

can be said that Congress has legislated on a subject.”)

“ Escondido Mutual Water Co. v. LaJolla Band of Mission Indians,

466 U.S. 765 (1984), City of Tacoma v. Taxpayers of Tacoma, 357 U.S

320 (1958), DiLaura v. Power Auth. Of the State of New York, 982 F.2d

73, 79 (2d Civ. 1992); California Save Our Streams Council, Inc. v.

Yeutter, 887 F.2d 908 (9th Cir. 1989).

only preserves — alleged causes of action from being barred

by a statute of limitations.”

(d) Js the cause of action one traditionally relegated

to state law so that it would be inappropriate to infer a

cause of action based solely on federal law? The Tribe itself

answered this question by pleading and relying on many

state law causes of action for which it sought the same

“damages” as in its treaty-based claim.” The Tribe’s state-

law causes of action were dismissed by the district court

on summary judgment on other grounds —- a decision

sustained by the Ninth Circuit ~ and are not raised in this

Petition. If the Tribe can obtain relief under state-law

causes of action, finding an implied right of action in the

Treaty is unwarranted as a matter of law.

Overall, application of the Cort v. Ash test demon-

strates that no private right of action exists. The Tribe

ignores this test and instead cites Gebser v. Lago Vista

Independent School District” as if it conflicted with the

decision in Cort v. Ash and supported its claim for an

implied private right of action for money damages in the

Treaty. But Gebser does not create a “conflict” that would

warrant granting certiorari, because Gebser rests on the

same, settled Cort v. Ash test described above. Moreover,

” 28 U.S.C. § 2415. Section 10(c) the FPA provides that federal

licensees are not immunized from state damages claims. As with the

ICLA, this provision is intended only to subject licensees to state

damage claims under state law that otherwise exist. It does not create a

federal cause of action for damages. DiLaura v. Power Auth. of the State

of New York , 982 F.2d 73, 78 (2d Cir. 1992).

” Skhokomish Indian Tribe v. United States, 410 F.3d at 516-18. The

state-law claims asserted » the Tribe included negligence, trespass,

public nuisance, private; s»._¢, and inverse condemnation. Jd.

” 524 US. 274.

Gebser, a sexual-harassment case,” did not establish an

implied right of action for money damages under Title [IX

but merely noted that the issue had already been decided

by Cannon v. University of Chicago.” And Cannon ex-

pressly relies on the established Cort v. Ash four-part test

applied above.”

More importantly, the Court in Gebser had the benefit

of Congressional guidance in a similar statute that did

provide money damages to victims of racial discrimination

under Title VII.“ No such Congressional support exists

here. In fact, the comprehensive scheme of the Federal

Power Act demonstrates Congressional intent to disallow

this type of a claim.”

* Id. at 277

” 441 U.S. 677 (1979).

” Id. at 688-89. In Gebser, the Court also noted that it had previ-

ously extended the Cannon holding to imply money damages in such

cases in Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60 (1992).

Therefore, Gebser did not create by only “definc!d] the contours” of the

private right of action for money damages that had already been

established by previous decisions. Gebser, 524 U.S. at 281.

“ Gebser, 524 US. at 283

“The existence of such negative Congressional intent also

distinguishes Alexander v. Sandoval, 532 U.S. 275, 279 (2001), a civil

rights case that the Tribe relies on to argue that a statute that focuses

on “individuals protected” is an expression of Congressional intent to

create a private right of action. In any event, the Alexander court

rejected the plaintiff class’s contention that there was a private right of

action to enforce disparate-impact regulations promulgated under Title

VI of the Civil Rights Act of 1964. Jd. at 290-91

2. The Adaptive Nature of the Treaty Right

Defined by Congress Is Inconsistent With

A Private Right of Action for Damages

Traditional property rights involve the exclusive,

possessory right to own property, while the Tribe’s in-

common fishing right is neither possessory nor exclusive.

Rather, it is often described as a “usufructuary” right,”

which is most closely akin to a profit-d-prendre.™ Even the

Tribe acknowledges that its treaty right to catch fish is an

adaptive use subject to change.” As this Court has previ-

ously noted, the Tribe does not own the fish but rather

secured in the Treaty an opportunity to take a fair share of

the fish at usual and accustomed fishing stations.” There-

fore, the Treaty protects the Tribe’s interest in “available”

fish” but does not guarantee that fish will always be

available.

“ Minnesota v. Mille Lacs Band of Chippewa, 526 U.S. 172 (1999).

Sew also Lac Courte Oreilles Band of Lake Superior Chippewa Indians

v. Voigt, 700 F.2d 341, 352 (7th Cir.), cert. denied, 464 U.S. 805 (1983)

(stating that usufructuary rights include off-reservation hunting,

fishing, trapping, and gathering rights, and they do not require title to

the land and are similar to a profit-d-prendre); Sokaogon Chippewa

Community v. Exxon Corp., 805 F. Supp. 680, 701 (E.D. Wis. 1992),

aff'd, 2 F.3d 219 (7th Cir. 1993), cert. denied, 510 U.S. 1196 (1994).

“ See generally Lac Courte Oreilles Band of Lake Superior Chip-

pewa Indians v. Voigt, 700 F.2d 341.

“ Skokomish Indian Tribe, 332 F.3d at 558. As long ago as 1905,

this Court recognized: “[nJew conditions came into existence to which

[treaty fishing) rights had to be accommodated.” Winans, 198 U.S. at

381.

“ Douglas v. Seacoast Prods., Inc., 431 U.S. 265 284 (1977). See

also Nez Perce Tribe v. Idaho Power Co., 847 F.Supp. 813.

” Washington v. Washington State Commercial Passenger Fishing

Vessel Ass'n, 443 U.S. 658, 684-85 (1979) (“Passenger Fishing Vessel”).

The treaty fishing right is also an “in common” right

that is shared with non-Indian fishers to harvest a “fair

share” of the resource.” The right is not an exclusive right,

but rather must be balanced against the usufructuary

rights of others.

Since the treaty fishing right must accommodate

change and is held “in common” with non-Indians, this

Court and other courts consistently have used equitable

remedies to protect and define these rights. This is pre-

cisely what occurred in United States v. Winans,” where

the United States enforced the treaty (as it would any

federal law) and sought and obtained an injunction — not

damages — to remedy the impact of settler fishing on tribal

harvest.”

In fact, only equitable remedies are consistent with

the nature of the right itself. Equity allows courts and

regulatory agencies to fashion an appropriate remedy

based upon a balancing of competing interests, public

policies, and changing conditions. An action at law for

money damages does not permit such balancing.

Numerous examples exist of courts and regulatory

agencies exercising their unique equitable and statutory

power to protect Indian treaty fisl.ing rights and to ac-

commodate the changes occasioned by new circumstances

facing tribes without invoking any money-damage remedy.

For example, courts have used equity to allow the adaptive

fishing right to extend to hatchery fish resources that did

* Id.

* 198 U.S. 371.

” Passenger Fishing Vessel, 443 U.S. at 681 (citing Brief for United

States, O.T. 1904, No. 180, pp. 54-56).

not exist at the time of the treaty."’ Courts also have used

equity to allow treaty tribes to vary their “usual and

accustomed” fishing places to adapt to the diminishment

and geographic dispersal of fish,” and to employ modern

fishing techniques.”

Similarly, the fishing right — a right to share in the

harvest of public resources — is protected by and subject to

" United States v. Washington, 759 F.2d 1353, 1360 (9th Cir.), cert

denied, 474 U.S. 994 (1985) (noting it would be inequitable for tribes to

bear the full burden of the decline of natural fish without sharing the

replacement achieved through hatcheries), United States v. Washington,

506 F. Supp. 187, 198 (W.D. Wash. 1980) (“It is now beyond dispute that

natural fish have become relatively scarce, due at least in part to the

commercialization ot she fishing industry and the degradation of the

fishing habitat caused primarily by non-Indian activity in the case area.

The record also establishes that the State has developed and promoted

its artificial propagation program in order to replace the fish that were

artificially lost.”); United States v. Washington, 459 F. Supp. 1020, 1081

(W.D. Wash. 1978) (“This court has consistently maintained that a trial!

of the treaty right to hatchery fish is inherently interwoven with the

history of Washington State’s developing economy, its effects on the

environment, the Washington State management program for fisheries

and the cumulative effect of the above on the natural anadromous fish

runs.”); id. at 1079-80 (“Due to man's activities, subsequent to the

settlement of the area by non-Indians, and to other environmental

changes, sections of streams or entire streams have been removed from

salmon and steelhead production.”).

™ See, e.g., United States v. Washington, 384 F. Supp. 312, 361-62

(W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423

U.S. 1086 (1976) (a tribe’s “usual and accustomed” fishing place

embraced the new location of fish no longer found in their prior spot).

™ See, e.g., Grand Traverse Band of Chippewa and Ottawa Indians

v. Director, Mich. Dep't of Natural Resources, 141 F.3d 635, 639-40 (6th

Cir. 1998); United States v. Michigan, 471 F. Supp. 192, 260 (W_D. Mich.

1979) (“The right [to fish] may be exercised utilizing improvements in

fishing techniques, methods and gear.”).

state and federal regulation.” This Court has held that a

state may so regulate, so long as the regulation is nondis-

criminatory and properly tailored to the public’s need.”

The 1998 United States v. Washington shellfish

decision” is a good example of a court using both equitable

relief and state regulation to protect and restrict an

adaptive treaty fishing right. The court extended the right

to take shellfish to any species of shellfish, not merely

those harvested by the tribes before the treaty” and

allowed the tribes to take shellfish on privately owned

natural (as opposed to artificial) tidelands.” The tribes’

" See, 2.g., United States v. Cherokee Nation of Oklahoma, 480 U.S.

700 (1987) (finding that the Cherokee Nation's treaty-guaranteed

ownership of portions of the bed of the Arkansas River is not absolute,

but subject to the federal government's dominant navigational servi-

tude); United States v. Dion, 476 U.S. 734 (1986) (a hunting and fishing

right not a defense to violations of the Eagle Protection Act and the

Endangered Species Act); Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000)

(discussing the Makah treaty fishing right and the ongoing efforts to

address the harvesting of the gray whale under federal programs). See

also Washington v. Daley, 173 F.3G 1158 (9th Cir. 1999) (discussing the

United State’s trust obligation to protect the tribes’ treaty fishing rights

and the United State’s regulation allocating groundfish catches off the

Washington coast to four Northwestern Tribes).

” See generally Department of Game v. Puyallup Tribe, 414 U.S. 44

(1973) (Puyallup II); Puyallup I, 391 U.S. 392; Organized Village of

Kake v. Egan, 369 U.S. 60 (1962); Tulee v. Washington, 315 U.S. 681

(1942). See, e.g., United States v. Oregon, 657 F.2d 1009, 1016-17 (9th

Cir. 1981) (affirming a State’s total ban on tribal harvest of spring

Chinook salmon when it was necessary to preserve the species).

" 157 F.3d 630 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999).

The right to harvest shelifish is also an “in common” right, although it

is subject to a restriction against harvesting from beds staked and

cultivated by non-Indians. Jd. at 638-39.

" Id. at 643.

™ Id. at 646-49.

take from the latter, however, was limited to 50 percent of

shellfish that would have been harvested had the beds not

been enhanced through the labor of commercial growers.”

Moreover, the tribes were limited by time, place, and

manner restrictions.”

Importantly, none of these equitable or regulatory

remedies are either implicated or affected by the Ninth

Circuit’s decision in this case.

B. This Ninth Circuit Decision Does Not Con-

flict with Oneida II.

The Tribe insists that the Ninth Circuit decision

conflicts with this Court’s decision in County of Oneida v.

Oneida Indian Nation (“Oneida II”)," in which the Court

held that the Oneidas had a federal common law right to

sue for money damages to enforce a possessory right to

their aboriginal lands that had been conveyed without the

required Congressional authorization.” But the Tribe

ignores obvious and significant differences that distin-

guish Oneida II.

First, the right the Oneidas sought to vindicate was

an exclusive, possessory interest in real property.” Here,

in contrast, the Tribe’s fishing right under the Treaty of

Point No-Point is neither exclusive nor possessory. Rather,

it is a non-exclusive, usufructuary, “in common” right to

” Id. at 651-53.

" 470 U.S. 226 (1985).

" Id. at 235-36.

" Id. at 229.

take a fair share of fish. It was intended to change over

time to adapt to new conditions.

Second, the Court did not imply a private right of

action from a treaty or statute. Instead the Court permit-

ted the Oneidas to sue for unlawful possession of and

trespass on their historical lands because no act of Con-

gress had ever divested the Oneidas of their possessory

rights to aboriginal lands.“ These causes of action are

“well-established federal common law” remedies for

injuries affecting “possessory rights in land.”” The Ninth

Circuit explicitly acknowledged this point.” Conversely,

the damages remedy the Tribe urges this Court to imply

from the Treaty for alleged injury to its non-exclusive, in-

common fishing right has never been approved or recog-

nized by any court. Rather, as discussed above, these

rights have traditionally been protected by equitable

remedies and regulation. Notably, although the Oneidas

urged the Court to imply a private right of action for

“ Id. at 235 (citing Oneida Inaian Nation v. County of Oneida, 414

U.S. 661 (1974) (“Oneida I”)). For this same reason, Pend Oreille, 28

F.3d 1544, also is distinguishable, as it involved a situation where a

licensee had violated its license and trespassed on reservation territory.

* Skokomish Indian Tribe v. United States, 410 F.3d at 514.

Exactly the same analysis can be applied to every other alleged

“conflict” in the cases cited by the Tribe as a basis for granting cert. See

Pet. at 14, citing Mescalero Appache Tribe v. Burgen Floral Company,

503 F.2d 336 (10th Cir. 1974) (involving destruction of trees on real

property owned exclusively by the tribe); Pueblo of Isleta v. Universal

Constructors, 570 F.2d 300 (10th Cir. 1978) (involving blasting damages

to reservation property); and Pend Oreille, 28 F.3d 1544 (involving

trespass on‘real property owned by the tribe). Every one of these cases

involved traditional common law remedies for established causes of

action.

* Skokomish Indian Tribe v. United States, 410 F.3d at 514.

damages in the Nonintercourse Act of 1793,” the Court

expressly declined to do so.”

Third, the claim this Court recognized in Oneida II

was based on aboriginal title. In this case, by contrast, the

Tribe has never asserted that its claim is based on abo-

riginal title. Nor could it do so. By ratifying the Treaty of

Point-No-Point in 1859, Congress extinguished the Tribe’s

aboriginal iitle, leaving only treaty-based rights.”

The Tribe also argues an implied right of action for

damages against local government was “reaffirmed” in

City of Sherrill v. Oneida Indian Nation.” But Sherrill was

a suit in equity, not a suit at law. The Oneidas brought the

claim to avoid local property taxes, and “the question of

damages for the Tribe’s ancient dispossession [was] not at

issue.™ If anything, Sherrill supports the result in this

case, because this Court made a firm distinction between a

theoretical right and the means that might be used to

” In 1795, the Tribe's ancestors sold tribal land to the State of New

York. In 1970, several Oneida bands sued for damages on the ground

that the agreement with the state violated the Nonintercourse Act of

1793, which prohibited the conveyance of Indian land without Congres-

sional authorization pursuant to the treaty power. Oneida II, 470 US.

at 231-33. .

" Id.

" Skokomish Indian Tribe v. United States, 332 F.3d at 554;

Passenger Fishing Vessel Ass'n, 443 U.S. at 661-62. Whether the Treaty

adequately compensated the Tribe for the divesture of aboriginal

possessory rights is not the subject of this case.

” 125 S.Ct. 1478.

" Id. at 1494. The Oneidas had repurchased some of the same

lands at issue in Oneida II within the City of Sherrill and sought to

resist paying property taxes on the ground that the Tribe’s reacquisition

of fee title to parcels of historic reservation land merged the fee and

revived the Oneidas’ ancient sovereignty of each parcel. Jd. at 1488.

enforce it and then denied relief “based upon the long

lapse of time, during which the Oneidas did not seek to

revive their sovereign control through equitable relief in

court, and the attendant dramatic changes in the charac-

ter of the properties . . . [that] preclude [the Oneida Indian

Nation] from gaining the disruptive remedy it now

seeks.”

In sum, the Ninth Circuit’s decision does not conflict

with, or even implicate, Oneida I, Oneida II, or Sherrill.

Accordingly, this case does not warrant certiorari.

C. The Ninth Circuit Decision Does Not Conflict

with This Court’s Decisions Holding That

Treaties are the “Supreme Law of the Land”

It is disingenuous to argue that the Ninth Circuit’s

decision in this case conflicts with Supreme Court cases

finding treaties enforceable against the States as the

“supreme law of the land.” The question is not whether

the Treaty can be enforced, but whether a court can imply

a private remedy for money damages against third parties

to the Treaty, especially where a treaty grants not exclu-

sive, possessory rights, but only an adaptive, “in common”

right to use a shared resource. As stated by the Ninth

" Id. at 1491. As the Tribe notes, this same reasoning was recently

applied by the Second Circuit in Cayuga Indian Nation of New York v

Pataki. 413 F.3d 266 (2d Cir. 2005). The Cayuga court held that the

equitable and monetary relief sought by a tribe relating to a land claim

was “indisputedly disruptive” and barred by equitable doctrines “even

when such a claim is legally viable and within the statute of limita-

tions.” Jd. at 273.

* Pet. at 11-12 (citing Antoine v. Washington, 420 U.S. 194, 201-05

(1975); Choate v. Trapp, 224 U.S. 665 (1912); Perrin v. United States,

232 U.S. 478 (1914); and Dick v. United States, 208 U.S. 340 (1908)).

Circuit opinion, “{hjolding that a state is precluded from

passing laws in sistent with a treaty is quite different

from saying thu non-contracting party can be sued for

damages under the treaty.” In answer to the true ques-

tion presented, no court has ever implied such a remedy

for this type of a right. Therefore, the Court would be

embarking on an entirely new course if it implied such a

cause of action here.

D. The Traditional Tort Cases Cited By the

Tribe Are irrelevant

This Court’s review is not necessary to resolve any

“conflict” between the Ninth Circuit’s decision and tort

cases such as Union Oil v. Oppen.” The Tribe suggests a

double standard would be created by allowing non-Indian

fishers a remedy for despoliation of waters, but not Indian

fishers. But no such “conflict” exists, because there is

nothing in the Ninth Circuit’s opinion that would prevent

a tribe from suing in tort for negligence. Indeed, the Tribe

expressly notes in its petition that it is not seeking review

of any of the counts in its complaint that addressed tor-

tious conduct.” Therefore, the tort cases are not relevant.

Nor is the Ninth Circuit’s decision in conflict with any

of the cases involving money damages for violation of

traditional property rights asserted by tribes against

“ Skokomish Indian Tribe v. United States, 410 F.3d at 514.

* Union Oil v. Oppen, 501 F.2d 558 (9th Cir. 1974). Oppen involved

the tort of negligence for polluting waters through an oil spill. The Tribe

also cites Emerson G.M. Diesel v. Alaskan Enterprise, 732 F.2d 1468

(9th Cir. 1984), a product liability case arising under admiralty that has

no conceivable connection to the present case.

* Pet. at 1.

it. ee | aN a . tx in J a . 7* ind

common law tortfeasors. The Tribe claims” the decision

creates an inter- and intra-circuit conflict with three

trespass cases — Mescalero Apache Tribe v. Burgett Floral

Company,” Pueblo of Isleta v. Universal Constructors,”

and United States v. S. Pac. Transp. Co." To the contrary,

every one of these cases involves money damages arising

from violation of traditional exclusive and possessory

interests in real property and common law torts, in which

money damages is a common remedy, not implied or

created by treaty. Moreover, unlike the prohibited or

wrongful conduct at issue in a tort case, the “conduct”

complained of here consists only of the indirect effects of

the proper operation of a hydroelectric facility authorized

under the FPA™ on the off-reservation, in-common fishing

right secured by the Treaty. In fact, the operation of a

federally-licensed Project under the FPA is just the type of

conduct that this Court has held would alter the contours

of the Tribe’s continuing property rights.”

This same reason distinguishes the case of United

States v. Pend Oreille Public Utility District No. 1."° In

Pend Oreille, the Ninth Circuit allowed a damage action

against a hydroelectric project owner that had violated its

” Pet. at 14.

” 503 F.2d 336 (9th Cir. 1974).

” 570 F.2d 300 (10th Cir. 1978).

” 543 F.2d 676 (9th Cir. 1976).

“' Again, this is an issue properly determined by FERC. See

discussion, supra, at fn. 24.

Federal Power Comm'n vu. Tuscarora Indian Nation, 362 U.S. at

118.

28 F.3d 1544.

license and trespassed on reservation real property." This

claim is far different from an alleged violation of an “in

common” treaty fishing right that is regulated for the

common benefit of the Tribe and other citizens of the state

and subject to equitable remedies. Unlike Pend Oreille, the

Tribe is asking for an unprecedented new cause of action

that substantially departs from traditional common law

remedies.

E. The Federal Power Act Preempts any Im-

plied Private Right of Action.

The Tribe’s in-common fishing rights have been, and

continue to be considered by FERC as part of the re-

licensing process. This case represents a collateral attack

on that proceeding, and there is no “compelling reason” to

allow the Tribe to disrupt that proceeding.

The federal government has traditionally considered

Indian treaty fishing rights through its licensing authority

for hydroelectric projects under the FPA, which authorizes

the Commission to balance tribal and other public inter-

ests when licensing a project:

The Federal Power Act constitutes a complete

and comprehensive plan for the development and

improvement of navigation and for the develop-

ment, transmission and utilization of electric

power in any of the streams or other bodies of

water over which Congress has jurisdiction... .

'™ Id. at 1549. Unlike the claim at issue in this case, Pend Oreille

would not have been preempted by the FPA because it was a common

law trespass claim allowed by Section 10(c) of the FPA.

!t neither overlooks nor excludes Indians or lands

owned or occupied by them.”

As noted above, FERC and the D.C. Circuit in the re-

licensing proceeding have exercised continuing jurisdiction

over substantially the same issues raised by the Tribe in

this case. Both the trial court and the majority of the

three-judge Ninth Circuit panel held that the Federal

Power Act preempted the Tribe’s treaty-based damage

claims and that the Tribe’s suit was an impermissible

collateral attack on the Commission’s licensing authority,

the jurisdiction of the Commission, and the exclusive

remedy the FPA provides for licensing decisions.”

'* Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. at

118 (emphasis added). Courts routinely hold that congressional

treatment of a substantive area within its Article | powers divests

feaeral courts of the authority to create or adapt federal common law

remedies to vindicate interests Congress has addressed comprehen-

sively by statute. See, e.g., City of Milwaukee v. Illinois, 451 U.S. 304,

317 (1981) (Federal Water Pollution Control Act (FWPCA) preempts

federal common law of nuisance). See also Middlesex County Sewerage

Authority v. National Sea Clammers, 453 U.S. 1, 22 (1981) (Clean

Water Act preempts federal common law remedy); Connor v. Aerovox,

730 F.2d 835, 840-842 (1st Cir. 1984), cert. denied, 470 U.S. 1050 (1985)

(FWPCA preempts private federa) maritime law damages remedy for

water pollution); In re Oswego Barge Corp., 664 F.2d at 335, 339-44

(Clean Water Act preempts the federal maritime remedy for govern-

mental oil spill cleanup cost recovery); Lee v. United States, 629

F. Supp. 721, 728-29 (D. Alaska 1985) (Alaska Native Claims Settle-

ment Act preempts federal common law remedy for invasion of posses-

sory interest in land); United States v. Price, 523 F. Supp. 1055, 1069

(D.N.J. 1981) (RCRA and CERCLA preempt federal common law of

nuisance), aff’d, 688 F.2d 204 (3rd Cir. 1982).

“ ER 37 (District Court Opinion) (“ ... [T)he Tribe’s claims flow

directly from FERC’s licensing decisions. The Court agrees with the

City of Tacoma that the Tribe’s claims belong before FERC and not this

Court.”); Skokomish Indian Tribe v. United States, 332 F.3d at 560

(“The Tribe’s claims were raised and addressed in the FERC licensing

(Continued on following page)

- or. . i Vee Pa > —. . LE pad ee oD eP

Ket WM A OP ae oe ee

The en banc opinion correctly noted in footnote 4 that

the FPA “provides exclusive jurisdiction for the Courts of

Appeals to review and make substantive modifications to

FERC licensing orders.” By focusing on the minor part

license, however, the en bunc panel failed to acknowledge

that the FPA itself would preempt any Court-created cause

of action, not the four corners of the license. Although

certiorari is not warranted on this issue, it was extensively

argued below and is another ground upon which the exact

same result would have been reached.

Ill. CONCLUSION

There is no disagreement between the circuits or other

compelling interest to be served by granting the Tribe’s

Petition for Certiorari. Tacoma respectfully requests that

the Petition be denied.

Respectfully submitted,

J. RICHARD CREATURA

Counsel of Record

DIANNE K. CONWAY

GORDON, THOMAS, HONEYWELL,

MALANCA, PETERSON & DAHEIM LLP

1201 Pacific Avenue, Suite 2100

Post Office Box 1157

Tacoma, Washington 98401-1157

(253) 620-6500

Attorneys for Tacoma Respondents

proceeding, and any dispute over FERC’s decision belongs first before

FERC and then the circuit courts, not the district courts. Thus, the Tribe’s

claims are impermissible collateral attacks on FERC’s licensing order.”)

'" Skokomish Indian Tribe v. United States, 410 F.3d at 512 n. 4

(citing Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. at

118 (emphasis in original)).

App. 1

SKOKOMISH INDIAN TRIBE, a federally recognized

Indian tribe in its own capacity as a class representa-

tive 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., Petitioners-Appellants,

Vv.

UNITED STATES of America; Tacoma Public Utility, 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.

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, Plain-

tiffs-Appellants,

App. 2

Tacoma Public Utility, a Washingten municipal corpora-

tion; City of Tacoma, a Washington municipal corpo-

ration; 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; United States

Internal Revenue Service, Defendants-Appellees.

Nos. 01-35( 18, 01-35845

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Jan. 6, 2003.

June 3, 2003.

Mason D. Morisset, Morisset, Schlosser. Ayer &

Jozwiak, Seattle, WA, for the Petitioners-Appellants.

Phillip H. Lynch, Assistant United States Attorney,

Tacoma, WA, for the Defendants-Appellees.

J. Richard Creatura, Gordon, Thomas, Honeywell,

Malanca, Peterson & Daheim, PL.L.C. (Tacoma Public

Utility), Tacoma, WA, for the Defendants-Appellees.

Timothy L. Ashcraft, Gordon, Thomas, Honeywell,

Malanca, Peterson & Daheim, PL.L.C. (Tacoma Public

Utility), Tacoma, WA, for the Defendants-Appellees.

Appeal 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.

Before: WALLACE, TROTT, and TASHIMA, Circuit

Judges.

Opinion by Judge TROTT,; Opinion concurring in part

and dissenting in part by Judge TASHIMA.

App. 3

TROTT, Circuit Judge.

The Skokomish Indian Tribe (“Skokomish Tribe”) and

individual tribe members (collectively “Tribe”) brought this

action against the City of Tacoma (“City”), Tacoma Public

Utilities (“TPU”), and individual board members of TPU

(“Board”), (collectively “Tacoma”), and the United States

alleging they were harmed by the Cushman Hydroelectric

Project (“Project”) owned by the City.’ The Project includes

two dams, two reservoirs, diversion works, two power

houses, transmission lines, and it floods over thirty acres

of federal land within a total project area of 4,700 acres. In

Case No. 01-35028, the Tribe appeals the district court’s

denial of its motion to certify a class of tribe members who

allege they were harmed by the Project. In Case No. 01-

35845, the Tribe appeals the district court’s orders (1)

denying the Tribe’s recusal motion, (2) dismissing the

United States as a defendant, (3) granting summary

judgment in favor of Tacoma on the Tribe’s claims asserted

against Tacoma; and (4) dismissing the Tribe’s 16 U.S.C. §

803(c) cause of action for failure to state a claim upon

which relief can be granted.

We have jurisdiction under 28 U.S.C. § 1291 over the

Tribe's timely appeal in 01-35845, and we affirm, in part,

and vacate and remand with instructions to the district

court to dismiss in part. Because of our holding with

respect to the Tribe’s appeal in 01-35845, we need not

address the Tribe’s appeal! in 01-35028.

' The Tribe is seeking almost $6 billion in monetary damages.

App. 4

BACKGROUND

On January 26, 1855, Governor Isaac I. Stevens

(“Stevens”), Governor of the Washington Territory, negoti-

ated the Treaty of Point No Point (“Ireaty”) with the Tribe.

The Treaty ceded territory belonging to the Tribe to the

United States and reserved a tract of land for the Tribe. In

Article 4, the Treaty provides: “[t)he right of taking fish at

usual and accustomed grounds and stations is further

secured to said Indians, in common with all citizens of the

United States; ... together with the privilege of hunting

and gathering roots and berries on open and unclaimed

lands.” The Treaty was one of several negotiated by

Stevens on behalf of the United States with various Pacific

Northwest Indian Tribes between 1854 and 1855. Wash

ington v. Washington State Commercial Passenger Fishing

Vessel Ass'n, 443 U.S. 658, 661-62, 99 S.Ct. 3055, 61

L.Ed.2d 823 (1979). The treaties extinguished tribal

claims to portions of what is now Washington State in

exchange for monetary payments. /d.

In 1923, the City filed an application to license the

Project with the Federal Power Commission, a predecessor

to the Federal Energy Regulatory Commission (“FERC”).’

The application described the Project virtually as it

remains today. In 1924, FERC issued a 50 year “minor

part” license to the City pursuant to the Federal Water Act

of 1920 (“FWA”), now codified as Part I of the Federal

* FERC is used throughout this opinion tu refer to FERC and the

Federal Power Commission

App. 5

Power Act (“FPA”), 16 U.S.C. § 791a et seg. The license

authorized the flooding of 8.8 acres of federal land in

connection with the City’s construction of the Project,

which was only a part of the entire Project. As required by

§ 4(d) of the FWA, FERC stated in its license that the

Project “will not interfere or be inconsistent with the

purpose for which any reservation affected thereby was

created or acquired.’

The original license was limited to a minor part of the

Project because the then-current legal view was that

FERC only had authority to issue licenses for the occu-

pancy and use of federal lands. Pacific Gas & Elec. Co., 29

F.P.C. 1265, 1266, 1963 WL 4558 (1963); City of Tacoma,

67 F.E.R.C. 61,152, 1994 WL 170164 (1994). In 1963,

FERC reconsidered this view, concluding that its authority

“runs to the ‘project works’; i.e., the dams, reservoirs,

power-houses, etc., themselves, and not to the mere

occupancy and use of the government lands involved, as

was the expressed purpose of these licenses.” Pacific Gas,

29 F.PC. at 1266.

In light of FERC’s decision that it had authority to

license entire projects where only a minor part occupies

federal land, in 1974 the City filed an application for a

new license in the form of an application for a major

* Section 4(d) is now codified as 16 U.S.C. §797(e), and the

statutory language has remained the same:

That licenses shall be issued within any reservation only after a

finding by the commission that the license will not interfere or be

inconsistent with the purpose for which such reservation was cre-

ated or acquired, and shall be subject to and contain such condi-

tions as the Secretary of the department under whose supervision

such reservation falls shall deem necessary for the adequate pro-

tection and utilization of such reservation.

App. 6

project license encompassing the entire Project.‘ City of

Tacoma, 67 F-E.R.C. 61,152, 1994 WL 170164 (1994). The

Tribe was granted the right to intervene in the relicensing

proceedings, and twenty-four years of litigation followed.

In 1992, the Tribe filed a petition with FERC for a

declaratory order that the City’s relicensing application

was an original license proceeding because the 1924

license was only for a minor part of the Project. Jd. FERC

held that although it issued only a minor-part license in

1924, the issuance was consistent with FERC’s interpreta-

tion of its jurisdiction at that time and the proceeding for a

license of the entire Project was “appropriately character-

ized as a relicensing proceeding.” Jd. FERC also noted that

“the Commission’s initial failure to issue a license for the

complete project was founded upon a mistaken view of the

law and the facts.” Jd. Accordingly, in 1998, FERC issued a

subsequent license for the entire Project, which included

the required finding that the Project “will not interfere or

be inconsistent with the purpose for which any reservation

affected thereby was created or acquired.” City of Tacoma,

84 F-E.R.C. 61,107, 1998 WL 608611 (1998). In the admin-

istrative proceeding, FERC addressed within context of

the FPA the same contentions raisec by the Tribe that

they raise in this case. Id.

The parties eventually petitioned for review of FERC’s

licensing order to the United States Court of Appeals for

the District of Columbia, which remanded to FERC for

further development of the record. City of Tacoma uv.

* FERC subsequently confirmed that holders of minor-part licenses

for hydroelectric projects would be required to file license applications

covering all project works. Pacific Gas & Elec. Co., 56 F.P.C. 994, 1008,

1976 WL 14641 (1976).

App. 7

FERC, 2000 WL 1683468 (D.C.Cir.2000). That case is still

~ pending.

DISCUSSION

Orders Denying the Tribe’s Recusal Motion

We review the district court’s denial of the Tribe’s

recusal motion for an abuse of discretion. Kulas v. Flores,

255 F.3d 780, 783 (9th Cir.2001). An abuse of discretion is

“a plain error, discretion exercised to an end not justified

by the evidence, a judgment that is clearly against the

logic and effect of the facts as are found.” Wing v. Asarco,

Inc., 114 F.3d 986, 988 (9th Cir.1997).

Sixteen months after filing its complaint, and after

numerous issues had been resolved by the district court,

the Tribe wrote a letter to Judge Burgess informing him of

an opinion following the federal judiciary’s Code of Con-

duct. The Tribe quoted the following part of the opinion in

its letter:

A judge’s status as a utility customer does not indi-

cate recusal in cases involving the utility, unless the

outcome of the case could substantially affect the

judge’s utility bill. A ten dollar per month increase is

one which might reasonably be considered substantial

and accordingly recusal was suggested.

Judge Burgess denied recusal on the ground that the

motion was untimely. The Tribe moved to reconsider, and

Judge Burgess again denied recusal but acknowledged he

was a TPU ratepayer. Judge Burgess then referred the

Tribe’s recusal motion to Chief District Judge Coughenour,

App. 8

who denied the request also holding that it was untimely.

Judge Coughenour stated that Judge Burgess had already

ruled on at least fifteen different motions in the case and

trial was scheduled four and one half months away.

The Tribe appeals ali three denials of its recusal

motion. According to the Tribe, the fact that Judge Bur-

gess is a TPU ratepayer requires recusal. We disagree

because the Tribe’s motion was untimely, and we hold that

neither Judge Burgess nor Judge Coughenour abused

their discretion in denying the Tribe’s recusal motion.

A motion for recusal must be made with “reasonable

promptness” after the movant learns of the ground for

making the motion. Preston v. United States, 923 F.2d 731,

733 (9th Cir.1991); see also E. & J. Gallo Winery v. Gallo

Cattle Co., 967 F.2d 1280, 1294-96 (9th Cir.1992) (holding

that a motion for recusal made after entry of an adverse

judgment, although the movant had discovered the

grounds for recusal before entry of judgment, was un-

timely because the “unexplained delay suggests that the

recusal statute is being misused for strategic purposes”).

The Tribe knew they were litigating a case against TPU in

a Tacoma federal court with a Tacoma area judge, and

therefore they should have known when they filed their

complaint that they might want to seek recusal of the

Tacoma area judge assigned to the matter. In addition, the

Tribe made its recusal request sixteen months after filing

its complaint, and six months after learning of the rate-

payer opinion. This was untimely. Judge Burgess had

ruled on several motions including a ruling against the

Tribe on whether to certify the class, and trial was less

than four and one half months away.

App. 9

Order Dismissing the

United States as a Defendant

We review de novo a district court’s dismissal for lack

of subject matter jurisdiction. La Reunion Francaise SA v.

Barnes, 247 F.3d 1022, 1024 (9th Cir.2001). We review for

clear error the district court’s factual findings relevant to

its determination of subject matter jurisdiction. United

States v. Peninsula Communications, Inc., 287 F.3d 832,

836 (9th Cir.2002).

16 U.S.C. § 803(c) (* § 803(c)”) provides:

That the licensee shall maintain the project works in

a condition of repair adequate for the purposes of

navigation and for the efficient operation of said

works in the development and transmission of power,

shall make all necessary renewals and replacements,

shall establish and maintain adequate depreciation

reserves for such purposes, shall so maintain and op-

erate said works as not to impair navigation, and

shall conform to such rules and regulations as the

Commission may from time to time prescribe for the

protection of life, health, and property. ch licensee

hereunder shall be liable for all damages occasioned

to the property of others by the construction, mainte-

nance, or operation of the project works or of the works

appurtenant or accessory thereto, constructed under

the license and in no event shall the United States be

liable therefor.

(Emphasis added.) This language is patently clear: the

United States cannot be held liable for damages caused by

hydroelectric projects federally licensed under the FPA.

Because we conclude that Tacoma had a valid federal

license to build and operate the Project, the FPA bars the

App. 10

Tribe’s claims against the United States relating to the

Project.

The Tribe attempts to distinguish its tort claims

against the United States from § 803(c), claiming that §

803(c) does not grant the United States “immunity from its

failure to take action to properly license and condition

projects and to take care of its Indian wards.” This at-

tempt is unconvincing. In Pacific Power and Light Co. v.

Bonneville Power Admin., 795 F.2d 810, 816 (9th Cir.1986),

we stated:

Congress has decided that jurisdiction under the Act

should be a function of the agency whose actions are

being challenged rather than a function of the cause

of action which petitioner asserts. ... Unless consti-

tutional issues are raised, jurisdiction under the [Pa-

cific Northwest Electric Power Planning and

Conservation Act] does not turn on the legal theory

underlying a suit. For jurisdiction purposes, there-

fore, it matters not whether the utilities’ suit is

grounded in contract, administrative law or some

other legal theory. Instead, jurisdiction arises because

the actions of a particular agency are being chal-

lenged and because of the nature of the agency action

at issue. The proper inquiry focuses on the agency be-

ing attacked and whether the factual basis for the at-

tack is an agency action authorized by the Act.

The Tribe made claims against the United States Depart-

ment of Energy and FERC, the United States Department

of Interior and Bureau of Indian Affairs, and the United

States Department of Commerce. All these claims arise

from the Tribe’s objection to FERC’s licensing of the

Project. Therefore, the Tribe challenges the “construction,

maintenance, or operation” of the Project and the United

States is immune from that challenge. Thus, we affirm the

Aj ». 11

district court’s order dismissing the United States as a

defendant.

Cc.

Orders Granting Summary Judgment in Favor of

Tacoma and Dismissing the Tribe’s § 803 Claim

For Failure to State a Claim Upon Which Relief

Can be Granted.

We review the district court’s grant of summary

judgment de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th

Cir.2002). We must determine, after viewing the evidence

in the light most favorable to the nonmoving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant

substantive law. Jd. After applying this standard, we

conclude that the district court correctly refused to enter-

tain the Tribe’s claims, but inappropriately granted sum-

mary judgment on certain Treaty-based claims where the

district court lacked subject matter jurisdiction.

1. The District Court’s June 4, 2001 Order

On June 4, 2001, the district court granted summary

judgment in favor of Tacoma on certain Treaty-based

claims asserted by the Tribe: (1) unlawful taking of water

needed to effectuate the Tribe’s Treaty fishing rights; (2)

unlawful interference with the Tribe’s Treaty rights to fish,

hunt, and gather roots and berries; (3) unlawful taking of

access easements to usual and accustomed fishing and

shell-fishing grounds and stations; (4) unlawful taking of

the Tribe’s land and airspace by constructing the Project;

(5) unjust enrichment from constructing, operating, and

App. **

maintaining the Project; (6) negligence in designing,

constructing, operating, ard maintaining the Project; (7)

negligence by violating state and federal approvals of the

Project; (8) waste by diverting more water than is needed

for the Project; and (9) declaratory judgment that the

City’s construction, operation, and maintenance of the

Project violates state and federal law. The district court

granted summary judgment on these claims because it

held that it lacked subject matter jurisdiction to entertain

the claims under the FPA.

The Treaty created property rights on behalf of the

Tribe, and the parties agree that the dimensions and

contours of these rights have changed over the years in

connection with changing relevant circumstances. Thus,

the Tribe has an adaptive entitlement that is not the

equivalent of an immutable property right. United States

v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089

(1905) (“New conditions came into existence, to which

those [Treaty fishing] rights had to be accommodated.

Only a limitation on them, however, was necessary and

intended, not a taking away.”); see also Fishing Vessel, 443

U.S. at 686-87, 99 S.Ct. 3055 (finding that the Indian tribe

had a right to a “fair share” of the available fish, but that

right may be modified by changing circumstances such as

when the tribe dwindles to just a few members).

The federally-licensed Project is an example of chang-

ing circumstances that alter the contours of the Tribe's

continuing property rights. In Federal Power Comm'n v.

Tuscarora Indian Nation, the Supreme Court made clear

that the Tribe’s adaptive entitlement was necessarily

informed by the FPA:

App. 13

The Federal Power Act constitutes a complete and

comprehensive plan for the development and im-

provement 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 under its commerce powers,

and upon the public lands and reservations of the

United States under its property powers. /t neither

overlooks nor excludes Indians or lands owned or oc-

cupied by them. Instead, as has been shown, the Act

specifically defines and treats with lands occupied by

Indians — tribal lands embraced within Indian reser-

vations.

362 U.S. 99, 118, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960)

(emphasis added) (internal quotation marks omitted).

The FPA provides a scheme governing challenges to

FERC licensing decisions. Under 16 U.S.C. § 825l(b) (“§

8251(b)”):

Any party to a proceeding under this chapter ag-

grieved by an order issued by the Commission in such

proceeding may obtain a review of such in the United

States Court of Appeals for any circuit wherein the li-

censee or public utility to which the order relates is

located ... or in the United States Court of Appeals

for the District of Columbia, by filing in such court...

a written petition ... . Upon the filing of such petition

such court shall have jurisdiction, which upon the fil-

ing of the record with it shall be exclusive, to affirm,

modify, or set aside such order in whole or in part.

Any collateral attacks on FERC’s licensing orders are also

governed by § 825l(b). City of Tacoma v. Taxpayers of

Tacoma, 357 U.S. 320, 335-341, 78 S.Ct. 1209, 2 L.Ed.2d

1345 (1958); California Save Our Streams Council, Inc. v.

Yeutter, 887 F.2d 908, 910-12 (9th Cir.1989); Skokomish

App. 14

Indian Tribe v. France, No. 1183 (W.D.Wash. 1962), aff’d,

320 F.2d 205 (9th Cir. 1963).

In California Save Our Streams, FERC issued a

license to construct and operate a hydroelectric power

facility in the Sierra National Forest. 887 F.2d at 909-10.

After failing to get relief from an administrative review of

FERC’s decision, the plaintiffs filed a complaint in district

court against the United States Forest Service under the

National Environmental Policy Act (“NEPA”) and Ameri-

can Indian Religious Freedom Act (“AIRFA”). Id. at 910-

11. The plaintiffs argued that § 825l(b) was inapplicable

because they filed a lawsuit against the Forest Service

that arose under NEPA and AIRFA, and that they were

not attacking the licensing decision made by FERC, but

were alleging the failure of the Forest Service to follow

necessary procedural steps in statutes outside the purview

of the FPA. Id. at 911-12. We rejected the plaintiffs’ argu-

ment, holding that the FPA governs review of all disputes

concerning the licensing of hydroelectric projects, and that

the plaintiffs’ action was at its core an attempt to restrain

the licensing procedures authorized by FERC. /d.

Likewise, Taxpayers of Tacoma involved a FERC

license to the City of Tacoma to construct a power facility

on the Cowlitz River, which FERC granted despite Wash-

ington State’s contention that the project could not be built

without its approval. 357 U.S. at 323-28, 78 S.Ct. 1209. In

a separate proceeding, the State appealed FERC’s licens-

ing decision to this court, which we affirmed and the

Supreme Court denied writ of certiorari. Jd. at 327-28, 78

S.Ct. 1209. At the same time, the City of Tacoma filed a

state court action seeking a declaratory judgment that its

issue of revenue bonds in connection with the building of

the project was valid. Jd. at 329, 78 S.Ct. 1209. After

App. 15

extensive state court proceedings, the Washington Su-

preme Court held that the FERC license could not give the

City of Tacoma power to condemn state land necessary for

the project without specific state legislation.

The United States Supreme Court accepted certiorari

and framed the question as whether FERC’s license gave

the City of Tacoma federal eminent domain power to take

state land necessary for construction of the project without

state legislation conferring such authority. Jd. at 333, 78

S.Ct. 1209. Relying on § 8251l(b), the Supreme Court held:

This statute is written in simple words of plain mean-

ing and leaves no room to doubt the congressional

purpose and intent. It can hardly be doubted that

Congress, acting within its constitutional powers,

may prescribe the procedures and conditions under

which, and the courts in which, judicial review of ad-

ministrative orders may be had ... . So acting, Con-

gress in [§ 825l(b)] prescribed the specific, complete

and exclusive mode for judicial review of the Commis-

sion’s orders ... . It thereby necessarily precluded de

novo litigation between the parties of all issues inher-

ing in the controversy, and all other modes of judicial

review. Hence, upon judicial review of the Commis-

sion’s order, al! objections to the order, to the license it

directs to be issued, and to the legal competence of

the licensee to execute its terms, must be made in the

Court of Appeals or not at all.

[E]ven if it might be thought that this issue was not

raised in the Court of Appeals, it cannot be doubted that

it could and should have been, for that was the court to

which Congress had given “exclusive jurisdiction to af-

firm, modify, or set aside” the [FERC] Commission’s

App. 16

order. And the State many not reserve the point, for

another round of piecemeal litigation

357 U.S. at 335-37, 339, 78 S.Ct. 1209 (internal citations

omitted). More importantly, the Supreme Court noted that

FERC rejected the same contentions made by the State

and made a finding required by the FPA that the City of

Tacoma submitted satisfactory evidence of compliance

with all applicable state laws. Jd. at 337, 78 S.Ct. 1209.

Thus, the State’s contentions were impermissible collat-

eral attacks on FERC’s licensing decision. Jd. at 341, 78

S.Ct. 1209.

Moreover, in 1948, the Tribe filed a quiet title action

to establish title to a strip of tidelands adjoining the

Tribe's reservation on the Hood Canal. France, 320 F.2d at

206. In France, the Tribe asserted that the Treaty, and an

1874 Executive Order setting aside the Skokomish Indian

Reservation, vested the Tribe with title to the tidelands.

Id. The district court rejected the Tribe’s claim, which was

affirmed by this court. Jd. at 207-213. In its Findings of

Fact and Conclusions of Law, the district court found that

FERC issued a license to the City in 1924, and that:

[E]ver since said time said license has been in full

force and effect and, at all time since the issuance of

said license, the defendant City of Tacoma has oper-

ated said hydroelectric project pursuant to and in ac-

cordance with the terms of said [FERC] license and

all laws, rules and regulations pertaining thereto

France, No. 1183, Findings of Fact and Conclusions of

Law. The court .ccordingly made a conclusion of law that

App. 17

the Tribe’s claim constituted “insofar as the defendant City

of Tacoma is concerned, a collateral attack upon the order

of [FERC] in issuing a license to the City of Tacoma” for

construction of the Project. Id.

Here, the Tribe does not explicitly seek to modify,

rescind, or set aside FERC’s licensing order. Rather, the

Tribe artfully pleads its claims based on the Treaty, 42

U.S.C. § 1983, the Fifth and Fourteenth Amendments, and

federal common law as a basis for the district court’s

jurisdiction. However, the Tribe’s claims flow directly from

FERC’s licensing order. The FPA required FERC to make a

specific finding that the Project “will not interfere or be

inconsistent with the purpose for which any reservation

affected thereby was created or acquired.” Moreover, the

Tribe raised its claims in context of the FERC relicensing

proceeding and FERC attached certain conditions to its

license to mitigate any harm to the Tribe. The Tribe is now

asking us to find that Tacoma’s operation of the Project

pursuant to its federal license gives rise to a damages

action, which in turn requires us to conciude that FERC

erred when it found that the license would not interfere

with the purpose for which the reservation was created. As

in Taxpayers of Tacoma, the Tribe’s claims were raised and

addressed in the FERC licensing proceeding, and any

dispute over FERC’s decision belongs first before FERC

and then the circuit courts, not the district courts. Thus,

the Tribe’s claims are impermissible collateral attacks on

FERC’s licensing order.

Finally, the Tribe mistakenly relies on our decision in

United States v. Pend Oreille Public Utility Distr. No. 1, 28

F.3d 1544 (9th Cir.1994) for the proposition that it may

bring this damage action. In Pend Oreille, we found that

the license issued by FERC did not authorize the Utility to

App. 18

flood reservation land, nor did it specify the amount of

damages the Utility would owe to the Indian Tribe if it did.

Id. at 1547-48. Moreover, we found that the condition in 16

U.S.C. § 797(e) requiring a finding that the license wil] not

interfere or be inconsistent with the purpose for which

such reservation was created or required was not met. Jd.

at 1548. In sum, there was no approval of the flooding

done by the Utility. We recited that FERC cannot award

damages, and noted that the Supreme Court has recog-

nized a variety of federal common law causes of action to

protect Indian lands from trespass, and authorized dam-

ages for the trespass action at issue. Jd. at 1549-1551.

Here, on the other hand, the Tribe is asking us to

award damages although the City constructed and oper-

ated the Project in accordance with its federal license. We

find unconvincing the Tribe’s argument that the City could

not have constructed and operated the Project in accor-

dance with its federal license because FERC only issued a

minor-part license for flooding of 8.8 acres of federal land.

FERC issued only a minor-part license in 1924 because of

its erroneous interpretation of its jurisdiction at that time.

In 1963, FERC correctly interpreted its jurisdiction to

issue licenses covering entire projects and not just those

parts occupying or using federal land. In light of this

interpretation, FERC characterized the City’s subsequent

application for a major project license covering the Project

as a relicensing proceeding. FERC also noted that “the

Commission’s initial failure to issue a license for the

complete project was founded upon a mistaken view of the

law and the facts.” Accordingly, in 1998, FERC issued a

subsequent license for the entire Project. In the adminis-

trative proceeding, FERC addressed within context of the

FPA the same contentions raised by the Tribe that they

App. 19

raise in this case. The Tribe’s claims are merely collateral

attacks on FERC’s licensing order, and are not similar to

the extrinsic trespass claim in Pend Oreille where the

Utility's activity under scrutiny was not authorized by the

FERC license. In fact, we have not found any court deci-

sions that have awarded damages for actions taken pursu-

ant to a federal license to construct and operate a

hydroelectric project.

Relying on Pend Oreille, the dissent asserts that “in

issuing the [minor-part] license, FERC never considered

the Tribe’s interests in the construction and operation of

the Project as a whole, as opposed to its interests in the

mere ‘occupancy and use’ of 8.8 acres of federal land

situated far from the reservation.” We believe this is a

mistaken view of the record. The record in this case is

clear: FERC comprehensively considered the Tribe’s

interests in the Project “as a whole” in connection with

issuing the license.

First, the City’s 1923 license application, which

resulted in the 1924 minor-part license, describes the

Project in its entirety as it was then contemplated, as it

was subsequently built, and as it remains today.

The CITY OF TACOMA, a municipality, organized

and existing under and by virtue of the Laws of the

State of Washington, and situated in the County of

Pierce, State of Washington, hereby makes applica-

tion to the FEDERAL POWER COMMISSION, for a

license for a project described herein and show on

general and detail maps, signed by the applicant on

the 21st day of November, 1923, which maps are filed

herewith and made a part hereof, said license to au-

thorize the construction, operation and maintenance

of certain project works, the principal ones of which

App. 20

are designated as follows on said maps: The project

consists of an addition to the present municipal light-

ing plant of the City of Tacoma, and generally known

as “Cushman Power Project, Hydro Electric Power,

Unit No. 2, City of Tacoma.”

The application states that “The proposed scheme of

development is to utilize substantially all of the waters of

the North Fork of the Skokomish River to generate electric

power by water power ....” The application states also

that “[nJo part of the Project is or will be located upon any

lands of the United States and will not flood or otherwise

affect any lands of the United States except [the 8.8

acres}.” Clearly, unlike the situation in Pend Oreille, the

Project was to occupy and to impact identified lands other

than those owned by the government, including the Tribe’s

reservation.

Second, when considering the City’s application, § 4(d)

of the FWA, now codified at 16 U.S.C. § 797(e), obligated

FERC under the FPA to ensure that its licenses did not

“interfere with ... the purpose for which any reservation

affected thereby was created or acquired.” In the license at

issue, FERC explicitly referred to the City’s application for

a “complete power Project” and specifically found that

The project, as hereinafter described, will be best

adapted to a comprehensive scheme of improvement

and utilization for the purposes of water-power devel-

opment and of other beneficial public uses, and the li-

cense will not interfere or be inconsistent with the

purpose for which any reservation affected thereby was

created or acquired.

(Emphasis added.)

App. 21

The flooding of 8.8 acres of federal land was a sine qua

non of the Project. By force of law, we believe that pursu-

ant to § 4(d) FERC could not and would not have issued its

license had it concluded that the Project “as a whole”

would interfere or be inconsistent with the purposes for

which the Tribe’s reservation was created. Thus, we

believe also that FERC did fully and fairly comply with §

4(d) and consider the Tribe’s interests in the Project as a

whole during the licensing process, notwithstanding the

ultimate issuance of only a minor-part license. It is clear to

us that had FERC not been laboring under a mistake of

law as to the extent of its actual authority, it would have

indeed issued the license for the entire Project, as it

concluded in 1963 when it rectified its mistaken belief, and

again in 1998 when it issued a license for the entire

Project. Given that FERC’s choice of the limited form of its

license was a mistake, the form should not on this record

triumph over substance.

The key to deciding this issue is not what the license

says, but whether the Tribe’s interests were fully and

comprehensively considered. Here, they were. It is this

salient fact that distinguishes this case from Pend Oreille

upon which the dissent relies, a case where the licensing

decision did not take into account whether the Project

would affect a reservation six miles removed from the

Project’s boundary.

Although we agree with the district court’s result,

summary judgment was not the appropriate vehicle to

implement its conclusions. The district court’s holding -

affirmed here by us — that these claims are impermissible

collateral attacks on FERC’s licensing order means the

district court lacked jurisdiction to hear the case under §

825l(b). Summary judgment is an inappropriate disposition

App. 22

when the district court lacks jurisdiction. Yeutter, 887 F.2d

at 912-13. Consequently, we must vacate the judgment on

these claims and remand with directions for the district

court to dismiss these claims. Jd. at 913.

2. The District Court’s August 9, 2001 Order

The district court granted summary judgment in favor

of Tacoma on the following state law claims based on

aggradation’ harms because the applicable statute of

limitations had passed: (1) inverse condemnation; (2)

trespass; (3) tortious interference with property; (4)

conversion; (5) negligence; (6) negligent misrepresentation;

(7) private and public nuisance; and (8) violation of Wash.

Rev.Code § 4.24.630 prohibiting persons from going onto

the land of another and wrongfully causing waste or injury

to the land, or wrongfully injuring personal property. The

applicable state statutes of limitation for these claims are

(1) ten years for inverse condemnation, Highline Sch.

Distr. v. Port of Seattle, 87 Wash.2d 6, 548 P.2d 1085, 1089

(1976); and (2) three years for trespass, negligence, con-

version, tortious interference, and nuisance, Wash.

Rev.Code § 4.16.080.

On February 16, 1989, Russell Busch (“Busch”), the

then attorney for the Skokomish Tribe, wrote a letter to

Gary Hansen at the Washington Department of Ecology

that stated:

Please consider this letter both a formal protest and

an intergovernmental comment by the Skokomish In-

dian Tribe with regard to the referenced water rights

* Aggradation causes flooding and elevated water tables affecting

property on the reservation.

App. 23

Applications for Permit and any other water use au-

thorizations 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 Ap-

plicant’s actions reduce the natural flow of the river

in such a way that: (1) Indian treaty fisheries are se-

riously 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 wa-

ter rights of the Skokomish Reservation are unlaw-

fully 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.

We agree with the district court that the Tribe’s aggrada-

tion-related claims accrued at least by February 16, 1989

when Busch wrote the above letter, and that summary

judgment was therefore proper. The Tribe filed its com-

plaint on November 19, 1999, more than ten years after its

aggradation-related claims accrued. Thus, the aggrada-

tion-related claims are barred by the statute of limitations.

We note also that the state causes of action dismissed as

impermissible collateral attacks on FERC’s licensing

decision above — unjust enrichment, negligence, and waste

— are also barred by the applicable statute of limitations.

App. 24

3. 16 U.S.C. § 803(c)

The Tribe asserted also a federal claim under § 803(c),

which requires licensees to maintain project works in a

condition of repair adequate for the purpose of navigation

and as not to impair navigation. Section 803(c) specifically

exempts the United States from liability while stating that

licensees will be liable for damage to the property of others

occasioned by the construction, maintenance, or operation

of the project works. In its August 9, 2001 order, the

district court dismissed this claim for failure to state a

claim upon which relief could be granted, holding that §

803(c) does not provide for a private cause of action. We

review de novo a dismissal for failure to state a claim.

Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 (9th

Cir.2002).

We agree with the district court, and, as it did, adopt

the holding of DiLaura v. Power Auth. of State of NY, 982

F.2d 73, 77-79 (2d Cir.1992). In DiLaura, the Second

Circuit held that § 803(c) did not create a private cause of

action, but merely preserved existing state causes of action

against licensees. Jd. The Second Circuit noted that

neither the statutory language nor legislative history of §

803(c) revealed any Congressional intent to create a

private cause of action against FERC licensees. Jd. Thus,

we affirm the district court’s dismissal of the Tribe’s §

803(c) claim for failure to state a claim upon which relief

could be granted.

Order Denying Class Certification

Because we affirm the district court, except with

respect to the Tribe’s treaty-based claims against Tacoma

App. 25

where we remand with instructions to dismiss, we need

not address the Tribe’s appeal from the district court's

denial of class certification. See, e.g., Alexander v. Whit-

man, 114 F.3d 1392, 1398 n. 7 (3rd Cir.1997) (noting that

because the court held that dismissal of the complaint

under Federal Rule of Civil Procedure 12(b)(6) was proper,

the court did not need to address the propriety of the

district court’s denial of plaintiffs’ motion for class certifi-

cation); Hennessy v. Fed. Deposit Ins. Corp., 58 F.3d 908,

924 (3rd Cir.1995) (noting that because the court held the

relevant claims could not survive summary judgment, the

court did not need to address the propriety of the district

court’s decision to deny class certification).

CONCLUSION

We affirm the district court’s (1) denial of the Tribe’s

recusal motion, (2) summary judgment in favor of Tacoma

on the Tribe’s aggradation-based state law claims, and (3)

dismissal of the Tribe’s § 803(c) claim for failure to state a

claim upon which relief could be granted. Finally, because

the district court inappropriately granted summary

judgment in favor of Tacoma on the Tribe’s Treaty-based

claims where the district court lacked jurisdiction to hear

those claims, we vacate the judgment on those claims and

remand with directions to the district court to dismiss

those claims. Parties shail bear their own costs.

AFFIRMED, in part, VACATED and REMANDED

with instructions to dismiss, in part.

TASHIMA, Circuit Judge, concurring in part and

dissenting in part.

App. 26

I concur in all of the majority opinion, except for Part

C.1 of the “Discussion” section. Part C.1 concludes that the

City of Tacom: and Tacoma Public Utility (together,

“Tacoma”) constructed and operated the Cushman Project

(“Project”) in accordance with the “minor part” license

issued in 1924, and that the Tribe’s claims based on the

construction and operation of the Project constitute a

collateral attack on the license, even though the only

purpose of the license was to grant Tacoma the right to

clear 8.8 acres of federal land. I respectfully dissent from

this conclusion because it is in conflict with our estab-

lished case law. I would permit the Tribe to sue for dam-

ages for the alleged trespass caused by the construction

and continued operation of the Project.

FERC’ is obligated under the Federal Power Act

(“FPA”) to ensure that its permits do not “interfere with

... the purpose for which any reservation affected thereby

was created or acquired.” 16 U.S.C. § 797(e). Pursuant to

this obligation, FERC concluded that the minor part

license issued to Tacoma would not negatively affect the

Skokomish Reservation. The 1924 license, however, did

not “authorize the construction and operation of the

Cushman Project, but rather merely authorized the

inundation of U.S. lands that would result from the con-

struction, operation, and maintenance” of the Project. City

of Tacoma, 67 F.E.R.C. 61,152 (1994) (emphasis added). In

other words, in issuing the license, FERC never considered

the Tribe’s interests in the construction and operation of

the Project as a whole, as opposed to its interests in the

' For convenience, I refer to both the Federal Energy Regulatory

Commission and its predecessor, the Federal] Power Commission, as

“FERC.”

App. 27

mere “occupancy and use” of 8.8 acres of federal land

situated far from the reservation. The 1924 license is very

specific in its purpose and scope:

Article 1. This license is issued for the purpose of au-

thorizing the occupancy and use of a tract of land ap-

proximately 8.8 acres in area in the NE 1/4 of NW 1/4

of Section 10, T. 23 W., R. 5 W. W.M., said land consti-

tuting a minor part of said power project. . ..

See also 67 F.E.R.C. 61,152 (concluding that the use of

minor part licenses was a “finding of convenience based on

an erroneous conclusion of law ... as constituting ‘minor

parts’ of a complete project”).

The majority reasons that because the Tribe repre-

sented its interests in the mandatory relicensing proceed-

ings beginning in 1974, any claims premised on harm

caused by the Project’s construction and operation consti-

tutes an impermissible collateral attack on the 1924 minor

part license. These earlier proceedings, however, cannot

immunize parties from damages for harms arising from an

illegal minor part license. Indeed, the majority acknow]l-

edges that FERC “erroneous|[ly] interpreted” the FPA

when it granted Tacoma a permit to build the Project

based on the minor part license, but it holds nonetheless

that the eventual licensing of the Project over 70 years

later somehow rectifies any damage caused by the Project

in the interim.

The majority asserts that City of Tacoma v. Taxpayers

of Tacoma, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345

(1958) and California Save Our Streams, Inc. v. Yeutter,

887 F.2d 908 (9th Cir.1989), govern this case. But both cases

are readily distinguished in that they prohibited parties from

bringing collateral attacks against fully-conditioned licenses

App. 28

that covered every aspect of the parties’ collateral suits. In

Save Our Streams, we dismissed a district court action

brought by an environmental group seeking declaratory

and injunctive relief because the complaint attacked

conditions “included in the FERC license.” Jd. at 912. We

concluded that “even if [plaintiff] attempt(s] to style this

as an independent claim against the Forest Service, the

practical effect of the action in district court is an assault

on an important ingredient of the FERC license.” Jd. Even

by the most expansive understanding of artful pleading,

the Tribe’s damage claims based on the construction and

operation of the Project cannot possibly be construed as an

“ingredient” of a license that included only one provision

concerning a small portion of federal land situated far

upstream.

The majority’s reliance on Taxpayers of Tacoma is

similarly misplaced. The Court in that case recognized

only that Congress “had given [FERC] exclusive jurisdic-

tion to affirm, modify, or set aside” licenses. 359 U.S. at

339, 79 S.Ct. 847. The Tribe’s trespass action that we

consider here is not an attempt to modify or set aside the

1924 license. Rather, the Tribe attempts to recover dam-

ages caused by actions which were not authorized or made

an “ingredient” of the license, namely, the construction and

operation of the Project. Where a Tribe’s interests have

been fully considered and incorporated into a fully-

conditioned license, the FPA operates to preclude the Tribe

from bringing a collateral attack. Save Our Streams, 887

F.2d at 911-12. Congress intended the FPA’s scheme

comprehensively to cover all interested parties, including

Indian tribes, so long as that party’s interests had been

fairly considered before licensing. See Nat'l Wildlife Fed’n

v. FERC, 801 F.2d 1505, 1507-08 (9th Cir.1986) (reviewing

App. 29

history of congressional regulation of hydro power projects

and concluding that the FPA “requires that a comprehen-

sive plan for river basin development be available before

licensing” (emphases added)). The FPA thus requires

FERC fully to consider reservation land before the licensee

can subsequently require an Indian tribe to submit to the

FPA’s remedial scheme. See 16 U.S.C. § 797(e); 16 U.S.C. §

803.’ But where the alleged damages arise from an uncon-

ditioned project resulting from the “legal mistake” of never

taking into account a tribe's interests, as is true in the

case at bench, a challenge brought in district court to

recover for harm arising from the project's operation is not

a collateral attack. This is the holding of United States v

Pend Oreille Public Utility District No. 1, 28 F.3d 1544

(Sth Cir.1994).

In Pend Oreille, we held that an Indian tribe was

entitled to damages for trespass against a public utility for

flooding tribal lands. We held in favor of the tribe because,

“[blased on the language of [the license], the statutory

scheme governing the use of Indian reservation lands, and

the other evidence in the record, the project was to be

operated in such a way as not to flood Reservation land.”

Id. at 1549. We reviewed the relevant provisions of the

FPA, including Section 4(e)’s prohibition against the use of

Reservation lands for power production unless the Com-

mission finds that the license will not interfere with the

* In relevant part, 16 U.S.C. § 803(aX1) provides: “All licenses

issued under this subchapter shal! be on the following conditions: (a)

That the project adopted shall be such as in the judgment of the

Commission will be best adapted to a comprehensive plan " The

original version of the FPA used the phrase “comprehensive scheme”

rather than “plan”, to the sume effect

App. 30

purpose for which such Reservation was created or ac-

quired.” Jd. at 1548. In upholding the trespass action, we

emphasized that:

Neither the Commission nor the Secretary approved

the flooding of the Reservation; the Commission did

not find the Reservation could be flooded without in-

terfering with the purpose for which the Reservation

was created; the Secretary did not determine what

conditions might be necessary for the protection and

utilization of the Reservation; the Commission did not

fix an annual charge for use of Reservation land, and

the Tribe was not asked to approve such a charge.

Id. We explained that the omissions in the license “appar-

ently resulted from the failure of the Utility to disclose

that Reservation land would be flooded by the project,”

because the license itself indicated that the project would

be constructed and maintained in a way that the Reserva-

tion would not be affected. Jd. The license provided that

the water level would exceed normal flows “for possibly 24

miles upstream,” but the reservation, which was situated

30 miles upstream, was flooded nonetheless. Jd. Empha-

sizing that the terms of the license did not envision the

flooding that occurred, we noted that the license incorpo-

rated a map identifying the project’s boundary, and show-

ing that the Reservation was located six miles outside that

boundary. /d.

In this case, Tacoma’s minor part license does not

include any terms relating to the primary issue raised in

the district court action, much less the design, construc-

tion, or maintenance of the Project itself. By failing to

* Section 4(e) of the FPA is now codified as 16 U.S.C. § 797(e)

App. 31

include any terms addressing the design, construction, or

operation of the Cushman Project, the minor part 1924

license, just like the license in Pend Oreille, indicates by

its silence that the “project would be so constructed and

maintained that the Reservation would not be affected.”

Id. Thus, Pend Oreille, in all material respects, cannot be

distinguished from this case. If anything, the minor part

license here presents an a fortiori case because of its

brevity, limited purpose, and, above all, its unlawfulness.

The majority reasons that the Tribe should be re-

stricted to the FPA’s remedial scheme because had FERC

known that the 1924 license was unlawful, it would have

granted a lawful license because it intended fully to

consider the Tribe’s interests in the whole Project. This

assertion is pure speculation and is unsupported by the

record. Because nothing in the license indicates that

FERC undertook lawfully to consider the entire project, as

mandated by the FPA, the Tribe is entitled to pursue its

damage claims outside the confines of the FPA’s remedial

scheme, pursuant to Pend Oreille. The majority tries to

avoid this outcome by referencing language in the minor

part license as alleged proof that FERC in fact considered

the Tribe’s interests. But the language of the minor part

license only supports the Tribe’s claims. The relevant

provision states that the license, as hereinafter described,

will not “interfere or be inconsistent with the progress for

which any reservation affected thereby was created or

acquired.” As noted above, the 1924 license is limited to

authorizing the flooding of 8.8 acres of federal land, and

nothing else. It thus cannot possibly encompass, contrary

to the majoritys holding, the Tribe’s interests in the

Project “as a whole.” Pend Oreille requires that where a

license plainly indicates that FERC failed to ensure that

App. 32

the Project would not interfere with Tribal purposes, the

licensee cannot avoid potential liability by speculating

that FERC never would have granted an inadequate

license if it knew that it was insufficient.

The City and FERC knew as early as 1939 that the

Cushman license was “arbitrary, capricious, without

statutory or other authority, and contrary to law,” yet

neither Tacoma nor the Commission acted to remedy the

situation by applying for or issuing a “proper major project

license for [the Cushman Project] in accordance with the

provisions of the Federal Power Act.” Pac. Gas & Elec. Co.,

2 F.P.C. 632, 1939 WL 1446 (1939) (informing Pacific Gas,

as transferee, that the minor part license was unlawful).

In 1994, FERC acknowledged once again that the 1924

license did not “authorize the construction, operation, and

maintenance of the Cushman Project, but rather merely

authorized the inundation of U.S. lands that would result

from the construction, operation, and maintenance” of the

Project. City of Tacoma, 67 F.E.R.C. 61,152. Although

FERC has admitted the inability of its minor part licenses

to serve as proxies for major water projects, the majority

today is unwilling to accept this admission, and holds that

“the City constructed and operated the Project in accor-

dance with its federal license.” Maj. op. at 7159.

Pend Oreille permits recovery in district court where a

license issued by FERC fails to contemplate flooding that

occurs outside the scope of the license. Here, the 1924

minor part license “merely authorized the inundation of

{8.8 acres of] U.S. lands that would result from the con-

struction, operation, and maintenance” of the Cushman

Project. The Tribe’s lands are not within or even near this

territory, nor does the Tribe seek damages caused by the

clearing and eventual! flooding of this relatively small area

App. 33

of land. Instead, it seeks damages caused by the construc-

tion and operation of the Cushman Dam and Power Plant.

These claims are outside the scope of the minor part

license. Because Tacoma failed fully to avail itself of the

FPA’s comprehensive scheme by obtaining a major, fully-

conditioned license, and knowingly operated the Project

for 70 years under an unconditioned minor part license, I

disagree that it should now be allowed to seek refuge

under the FPA’s comprehensive remedial scheme to

preempt the Tribe from seeking damages caused by the

Project. I do not believe Congress intended Tacoma to have

it both ways. Because this is not a collateral attack on the

1924 minor part license, this case is not governed by 16

U.S.C. § 8251(b).* I respectfully dissent from Part C.1.

* Ignoring Pend Oreille, the majority states in a non sequitur that

“we have not found any court decisions that have awarded damages for

actions taken pursuant to a federal! license to construct and operate a

hydroelectric project.” Maj. op. at 561. The point the majority repeat-

edly ignores is that the Cushman Project was not built “pursuant to a

federal license to construct and operate a hydroelectric project.”

DEC 20 2025

! \ . = > 2. > 2 .

No. 05-434

IN THE

Supreme Court of the United States

SKOKOMISH INDIAN TRIBE, SKOKOMISH INDIAN TRIBAL

MEMBERS DENNY S. HURTADO, GORDON A. JAMES,

JOSEPH PAVEL, ANNE PAVEL, CELESTE F. VIGIL, et al.,

Petitioners,

TACOMA PUBLIC UTILITIES, CITY OF TACOMA,

TACOMA PUBLIC UTILITIES BOARD MEMBERS

WILLIAM BARKER, ef al., and

UNITED STATES OF AMERICA,

Respondents.

On PETITION FoR A Writ or CERTIORARI TO THE

Unitrep STates Court oF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF

Mason D. Morisset

MorIsSET, SCHLOSSER,

Jozwiak & McGaw

801 Second Avenue

Suite 1115

Seattle, WA 98104-1509

(206) 386-5200

Attorneys for Petitioners

198538 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

RULE 29.6 CORPORATE DISCLOSURE STATEMENT

Petitioners’ corporate disclosure statement was set forth

at page ii the Petition for a Writ of Certiorari, and there are

no amendments to that statement.

TABLE OF CONTENTS

Page

Rule 29.6 Corporate Disclosure Statement ....... i

ee er SED ov cvcdnwec cdeddcdduscuseaen il

Table of Cited Authorities .................006- ili

I a wc onde kédeine vbhéakedndetaan ce - |

1. The Majority’s Erroneous Decision Will Have

PD NO, ove cb dccosvesccsoecs I

2. The United States Fails To Explain The Ninth

Circuit Majority’s Failure To Apply Binding

Precedent To Determine Whether A Damages

Remedy Was Available. ................. 2

3. The Court Should Decline Tacoma’s Invitation

to Conduct A Gebser Analysis Now. ...... 4

4. The FPA Does Not Preempt This Case Because

Tacoma’s Activity Is Not Authorized By The

FPA Or By Any Other Federal Or State

PE. pn. be wbdhcecdtwoedéetusbecdaecas 5

5. The Off-Reservation, Treaty-Reserved Fishing

Right Is A Possessory Right. ............. 7

a a oe ee ae re eee ears 10

TABLE OF CITED AUTHORITIES

Cases:

Antoine v. Washington, 426 U.S. 194 (1975)

Cort v. Ash, 422 U.S. 66 (1975)

County of Oneida v. Oneida Indian Nation, 470 U.S.

226 (1985) (“Oneida IT’)

Gebser v. Lago Vista Independent School District,

524 U.S. 274 (1998) passim

Menominee Tribe v. United States, 391 U.S. 404

(1968)

Muckleshoot v. Hall, 698 F. Supp. 1504 (W.D. Wash.

Skokomish Indian Tribe v. United States, 410 F.3d 506

(9th Cir. 2005) passim

Skokomish Tribe v. United States, No. 01-35028

(9th Cir., Order filed Feb. 23, 2004)

United States v. Pend Oreille Public Utility District

No. 1, 28 F.3d 1544 (9th Cir. 1994)

Cited Authorities

Page

United States v. Washington, 384 F.Supp. 312 (W.D.

Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975),

aff'd sub nom Washington v. Washington State

Commercial Passenger Fishing Vessel, 443 U.S.

PTE cadndbovecesbhdecdubeandseisdecks 3

United States v. Virginia Electric Co., 365 U.S. 624

SED Wb 60:0 6646 siw'ed 4ddEMRES PERLE CERT 8

United States v. Winans, 198 U.S. 371 (1905)...... 7,8,9

Washington v. Washington State Commerciai

Passenger Fishing Vessel, 443 U.S. 658 (1979)

Pde V eevee cébcavcovverenecreureereuedes passim

Whitefoot v. United States, 293 F.2d 658 (Ct.Cl. 1961),

cert. denied, 369 U.S. 818 (1962) ............ 8

Statutory Provisions:

Se Gc at TPOEEE 6 66 ba dncdnpideskescuetuasers 4

Pe Chae STEED oc ccevesecbessivineccwaets 5

Other Authorities:

City of Tacoma, 67 FERC § 61,152 (1994) ....... 6

INTRODUCTION

The Question Presented is whether a Congressionally-

ratified treaty that has been held to provide an implied right

of action against states and their instrumentalities, allows a

cause of action for damages egainst a municipality alleged

to have knowingly and without Congressional or state

authorization taken nearly one-half of the water flowing

throvgh a Reservation and thus destroyed a substantial

portion of off- and on-Reservation Treaty-protected fisheries.

The Oppositions filed by the United States and Tacoma fail

to describe in any meaningful way compelling reasons why

this Court should deny the Petition.

The majority's sweeping ruling conflicts with precedent

established by this Court that has consistently recognized

that once a private cause of action has been found to exist,

all appropriate relief, including damages, ordinarily is

available to vindicate the underlying federal right. The

majority’s ruling dramatically curtails the remedies available

to all persons, not only Indians and Indian tribes, to enforce

their federal rights. In this case, the Ninth Circuit has

established binding precedent in the Nation's largest Circuit

that directly violates the teaching of this Court in Gebser v.

Lago Vista Independent School District, 524 U.S. 274 (1998),

that recognizes an implied right of action for damages.

1. The Majority’s Erroneous Decision Will Have A

Sweeping Effect.

The United States incorrectly states that this case

involved “only” a specific set of claims under a specific treaty

and thus the ruling below “would not effect other cases.”

U.S. Oppos. at 8-9. The fact that the majority, as the United

States points out, restricted its ruling to Treaty-based claims

and did not foreclose claims based on “federal common law”

such as in Oneida I/,' does not detract from the sweeping

effect of the majority’s ruling. In fact, there are many treaties

with nearly identical language affecting many tribes

throughout the nation.’ We know of no treaty that expressly

authorizes damages suits against non-signatories that destroy

treaty-reserved rights.

2. The United States Fails To Expiain The Ninth Circuit

Majority’s Failure To Apply Binding Precedent To

Determine Whether A Damages Remedy Was

Available.

The majority denied a damages remedy in this case based

only on the absence in the Treaty of any express provision

for a damages ren.edy. Tribe’s Pet. at 16-19; Skokomish

Indian Tribe v. United States, 410 F.3d 506, 513 (9th Cir.

2005). This is in direct violation of this Court’s ruling in

Gebser v. Lago Vista Independent School District, 524 U.S.

274 (1998). Gebser and earlier cases held that once a private

cause of action is found to exist, a damages remedy is

available. Such a remedy is overridden only “where necessary

to carry out the intent of Congress or to avoid frustrating the

purposes of the statute involved.” Gebser, 524 U.S. at 285.

1. U.S. Oppos. at 6-9; 410 F.3d at 514 (“By contrast [to Oneida

IT|, the Tribe in our case is seeking to collect damages for violation

of fishing rights reserved to it by treaty.”). Tacoma also makes this

distinction. Tacoma’s Oppos. at 22-23. Some of the Tribe’s claims,

however, may be construed as being based on federal common law.

See, e.g., Tac. ER 605 (Claim 8), at 612 (Claim 18), at O13 (Clam

19), at 618 (Claim 25). Contrary to Tacoma’s assertion, however,

the Petition does not state that the Tribe “is not secking review of

any of the counts in its complaint that addressed tortuous conduct.”

Tacoma’s Oppos. at 25

2. The majority’s erroneous ruling also applies te reservations

created by statutes and executive orders.

The majority’s decision conflicts with Gebser, since the

majority failed to find a reason to deny a damages remedy when

there is clearly a private cause of action for equitable relief.

However, the United States asserts that this Court’s decision in

Washington v. Washington State Commercial Passenger Fishing

Vessel, 443 U.S. 658 (1979), supplies no basis for review because

that decision did not expressly hold that the treaties created a

private cause of action for equitable relief. U.S. Oppos. at 9-10.

Since the United States was the plaintiff, it argues, the Court

did not address whether the tribes alone had viable causes of

action to enforce the treaties. /d. at 9-10. That argument is clearly

mistaken.

The United States ignores the cases of Puyallup Tribe v.

Dept. of Game, 391 U.S. 392 (1968) and Antoine v. Washington,

420 U.S. 194 (1975), which were cited by the en banc majority,

the dissent, the Tribe, and even Tacoma in which federal courts

awarded tribes equitable relief in treaty-based causes of action

where the United States was not the plaintiff. Skokomish, 410

F.3d at 512 (majority found that treaties “provide rights of action

for equitable relief against non-contracting parties.”’); Tacoma’s

Oppos. at 24 (“The question is not whether the Treaty can be

enforced. ...”) and at 21 (“{N]Jone of these equitable or

regulatory remedies are either implicated or affected by the Ninth

Circuit’s decision in this case’’). It is therefore well-settled that

treaties afford tribes implied causes of action for equitable relief.

And, the trial court in Fishing Vessel expressly found that

the tribes, separate from the United States, had treaty-based

equitable claims for the non-signatory State’s “violation{s] of”

and “depriv[ation] of rights secured to them in the treaties”.

United States v. Washington, 384 F. Supp. 312, 399 (W.D. Wash.

1974), aff'd, 520 F.2d 676, 683 (9th Cir. 1975), aff'd sub nom

Washington v. Washington State Commercial Passenger Fishing

Vessel, 443 U.S. 658 (1979). Accordingly, the trial court tailored

the equitable relief to each tribe’s individual circumstances.

See generally United States v. Washington, 384 F. Supp. 312.

The United States ignored these issues, as well as whether

the majority decision conflicts with Gebser

3. The Court Should Decline Tacoma’s Invitation to

Conduct A Gebser Analysis Now.

Tacoma inappropriately asks this Court to conduct a Gebser

analysis now, and supplies a lop-sided version of why the criteria

in Gebser and Cort v. Ash, 422 U.S. 66 (1975), disallow a

damages remedy here. Tacoma’s Oppos. at 12-16. The Court

should view Tacoma’s argument as a concession of the majority's

application of an improper standard for determining whether

the Tribe may assert an implied cause of action for damages as

against a non-signatory.

Ironically, Tacoma emphasizes that in a Gebser/Cort

analysis, “the conduct to be remedied must be specifically and

unmistakably prohibited by the Congressional scheme”, and that

“(parties must be clearly on notice that the type of conduct is

prohibited.” Tacoma’s Oppos. at 12. Tacoma, of course, tails to

inform the Court that, from the start, Tacoma has been “clearly

on notice” that 99.9% of its hydropower activity is unlicensed

and directly’ infringes on the Tribe's rights. Congress in the

FPA “specifically and unmistakably prohibited” unlicensed

hydropower activities.‘

3. Tacoma makes an unsupported assertion that the conduct at

issue before this Court case consists only of “indirect” Project effects

Tacoma’s Oppos. at 26. The effects now at issue occurred promptly

and directly wpon the cutting off of North Fork flow, which resulted

in two lawsuits by the Tribe or individual Skokomish within one

year that sought relief from those direct effects. Petition at 5-6

4. The 1920 FPA expressly requires that FERC issue licenses

covering whole projects and their operations. 16 U.S.C. § 797(e)

(requires an original license “for the purpose of constructing,

operating, and maintaining dams, water conduits, reservoirs, power

houses, transmission lines, or other project works” that are in a

(Cont'd)

4. The FPA Does Not Preempt This Case Because

Tacoma’s Activity Is Not Authorized By The FPA Or

By Any Other Federal Or State Authority.

The Question Presented is whether the Treaty allows an

implied right of action for damages against a municipality

that “without Congressional or state authorization” took

nearly one-half of the water flowing through the Reservation

and destroyed treaty fisheries. Petition at i (emphasis added).

Tacoma obfuscates the issue by asserting that its hydropower

activities are “licensed”, and by discussing the FPA’s

comprehensive coverage and accommodation of Indian

interests. Tacoma’s Oppos. at 2-10, 12-14, 26-29. The FPA

has a wide reach and provides for the accommodation of

Indian interests, but only when projects are properly licensed

and conditioned. The majority opinion and the record

establish that since Tacoma’s activities at issue are unlicensed

and Skokomish interests were not accommodated, Tacoma

cannot hide behind the FPA. See discussion below;

Skokomish, 410 F.3d at 512 n.4; Petition at 3-4. Notably,

every FPA case that Tacoma cites involved fully and properly

licensed hydropower projects, not “minor part licenses” that

did not authorize the activities at issue.

The majority correctly ruled that Tacoma’s damaging

activities were not sanctioned or protected under the FPA.

(Cont'd)

“stream| | over which Congress has jurisdiction under its authority

to regulate commerce among the several States” and are “upon

any part of the public lands and reservations of the United States.”),;

and § 817(1) (declaring it “unlawfu! for any municipality” “to

construct, operate, or maintain any dam, water conduit, reservoir,

power house, or other works incidental thereto” in a Commerce

Clause stream or upon the public lands or reservations “except under

an in accordance with the terms of a license granted pursuant to

this chapter.”)

Tacoma attempts to minimize this issue. Tacoma’s Oppos.

at 9 (“The Ninth Circuit en banc panel disagreed in a

footnote”). Instead, Tacoma searches for FPA protection in

the trial court opinion, which the majority reversed, and the

majority opinion from the three-judge panel, which the Ninth

Circuit declared “shall not be cited as precedent . . . except

to the extent adopted by the en banc court.” /d. at 28; Order,

Skokomish Tribe v. United States, No. 01-35028 (filed Feb.

23, 2004).

The majority considered exactly the same arguments that

Tacoma now raises, including the references to the France

case and FERC’s 1994 and 1995 orders. Tacoma’s Brief at

5, 7-8. “The FPA does not preempt the Tribe’s treaty-based

claims.” Skokomish, 410 F.3d at 512 n.1. The majority also

rejected Tacoma’s attempt to characterize the Tribe’s damages

case as a “collateral attack” on FERC’s licensing decision.

Id. (“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.”).

Tacoma’s 1924 minor part license, the majority found, was

but a “narrow” license that applied only to “the occupancy

and use of approximately 8.8 acres” of National Forest land.

Id. The majority agreed with FERC and its predecessor

Federal Power Commission (“FPC”) that the minor part

license “did not ‘authorize the construction, operation, and

maintenance of the Cushman Project.’” /d. (emphasis by

court), quoting City of Tacoma, 67 FERC 4 61,152 at 4 61440

(1994); See also Tacoma’s Oppos. at 5 (“the Commission

did not license the entire project”). Accordingly, this case is

like United States v. Pend Oreille Public Utility District No.

1, 28 F.3d 1544 (9th Cir. 1994), where the license did not

authorize flooding the Kalispel Reservation. Finally, Tacoma

has not asked this Court to review the question of whether

the Tribe’s damages claim is precluded by the FPA or by the

FPC’s issuance of the minor part license.

5. The Off-Reservation, Treaty-Reserved Fishing Right

Is A Possessory Right.

Tacoma also attempts to cloud the issue on which

certiorari is sought by asking the Court to find that the

Stevens’ treaty fishing right is now obsolete, presenting a

skewed view of treaty negotiations to argue that the treaty

fishing right was vaporized through “new conditions.”

Tacoma’s Oppos. at 2, 19, 22. The Court outright rejected

this position 100 years ago in United States v. Winans, 198

U.S. 371 (1905). There, the Court rejected the notion that

new circumstances such as granting fee title to land to non-

Indians somehow defeated the reserved treaty right. /d. at

380. To do so, said the Court, would certainly be “an impotent

outcome to negotiations and a convention which seemed to

promise more, and give the word of the nation for more.” id.

The Court did so again in the modern-day case of Fishing

Vessel by holding the fishing rights secured by the treaties

had continued viability and were enforceable through

injunctive relief against non-signatory parties.’ See generally

Fishing Vessel. Additionally, this issue was not even

addressed by the court below and therefore is not ripe for

review or consideration by this Court.

5. Tacoma attempts to relitigate the State of Washington’s

unsuccessful position in Fishing Vessel, in which the State argued that

at the phrase “common fishery” only meant a nonexclusive right of

access”, and “nothing more than a guarantee that individual Indians

would have the same right as individual non-Indians”. 443 U.S. at 677

and n.23. Instead, the Court held that the tribes preserved a “right of

taking fish” (emphasis in original), as opposed to “merely the

‘opportunity’ to try to catch” some of the which “had no special meaning

at common law” but “obvious significance to the tribes” who were

“relinquishing a portion of their pre-existing rights to the United States

in return for this promise.” /d. at 678. The Court, after examining

historical legal treaties, further held, “[I]t would hardly make sense that

the Indians effectively relinquished all of their fishing rights by granting

a merely non-exclusive right.” /d. at 678 n.22.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.