Confederated Tribes of Colville Reservation v. U.S.

• Citation: 964 F.2d 1102
• Decision Date: 29 April 1992
• Docket Number: No. 90-5099,90-5099
• Parties: The CONFEDERATED TRIBES OF the COLVILLE RESERVATION, Colville, Lake, Sanpoil-Nespelem, Okanogan, Methow, Columbia, Wenatchee, Chelan, Entiat, Palus, and Joseph's Band of the Nez Perce Indians, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1102

964 F.2d 1102

The CONFEDERATED TRIBES OF the COLVILLE RESERVATION Colville, Lake, Sanpoil-Nespelem, Okanogan, Methow Columbia, Wenatchee, Chelan, Entiat, Palus, and Joseph's Band of the Nez Perce Indians, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.

No. 90-5099.

United States Court of Appeals Federal Circuit.

April 29, 1992.

Rehearing Denied June 17, 1992.

Harry R. Sachse, Sonosky, Chambers & Sachse, Washington, D.C., argued, for plaintiffs-appellants. With him on the brief were Anne D. Noto and I.S. Weissbrodt.

Andrew C. Mergen, Dept. of Justice, Washington, D.C., argued for defendant-appellee. Richard B. Stewart, Asst. Atty. Gen., Edward J. Passarelli, John A. Bryson and J. Carol Williams, Attys., Dept. of Justice, Washington, D.C., were on the brief, for defendant-appellee.

Before NIES, Chief Judge, BENNETT, Senior Circuit Judge, and PLAGER, Circuit Judge.

BENNETT, Senior Circuit Judge.

The Confederated Tribes of the Colville Reservation appeal the judgment of the United States Claims Court in Confederated Tribes v. United States, 20 Cl.Ct. 31 (1990). Therein the Claims Court granted the United States' (Government) motion for partial summary judgment on the issue of liability, denied the Tribes' cross motion for partial summary judgment and dismissed their petition which sought compensation for water power values of tribal lands taken in connection with the construction of the Grand Coulee Dam in the State of Washington. The court held that in authorizing the construction of the Dam, "Congress intended to create a multiple-purpose project with navigational benefits" and that the "full and proper assertion" of the U.S.'s navigational servitude was superior to all of the Tribes' legal, equitable and moral claims. Id. at 34. We affirm-in-part and reverse- and remand-in-part.

BACKGROUND

The Colville Reservation, originally an approximately three million acre expanse, bounded on the south and east by the Columbia River, on the west by the Okanogan River and on the north by the Canadian border, was created by Executive Order of President Ulysses S. Grant on July 2, 1872, and was home over the years to fourteen Indian tribes. ¹ In 1891, the Tribes ceded 1.5 million acres of the Reservation, see Confederated Tribes, 20 Cl.Ct. at 34 nn. 4, 5, and were promised in return that their remaining lands would be protected. ² In 1910 Congress passed legislation which authorized the Secretary of the Interior to protect and reserve from "location, entry, sale, allotment, or other appropriation any lands within any Indian reservation, valuable for power or reservoir sites...." Act of June 25, 1910, ch. 431, §§ 13, 14, 36 Stat. 855, 858-59 (the Secretary explained in a letter to Congress, H.R.Rep. No. 1135, 61st Cong.2d Sess. (1910) at 5, that the purpose of this provision was to protect reservation lands from private development).

The United States initially decided to build the Grand Coulee Dam ³ on the Columbia River as a hydroelectric public works project under the National Industrial Recovery Act of 1933, Pub.L. No. 73-67 § § 201-207, 48 Stat. 195, 200-205, formerly codified at 40 U.S.C. §§ 401-403. ⁴ In 1940, in aid of the construction of the Grand Coulee Dam project, Congress granted to the United States "all the right, title, and interest of the Indians in and to the tribal and allotted lands within the Spokane and Colville Reservations ... as may be designated therefor by the Secretary of the Interior from time to time...." Act of June 29, 1940, Pub.L. No. 76-690, 54 Stat. 703, 704, codified as amended, 16 U.S.C. §§ 835d-835h. This Act also provided that the Secretary of the Interior was to determine the amount of "just and equitable compensation" for the tribal lands taken. Id., codified as amended, 16 U.S.C. § 835e.

More than 3,000 acres of tribal "fast lands" ⁵ were designated by the Secretary for the Grand Coulee Dam project and the Department of the Interior compensated the Tribes, as provided in the Act, in the sum of approximately $63,000. However, the compensation made to the Tribes did not include remuneration for the "water power values" ⁶ of upstream lands taken by the Government nor did it take into account both water power and ordinary values of certain riverbed lands upon which the Dam was built and to which the Tribes claim equitable title. ⁷ The Dam was completed in 1942.

On July 31, 1951, the Tribes filed a petition under section 2 of the Indian Claims Commission Act of 1946, Pub.L. No. 79-726, § 2, 60 Stat. 1049, 1050, formerly codified at 25 U.S.C. § 70a (1976) (ICCA). ⁸ In 1976 the Commission allowed the Tribes to file an amended petition in which they sought "just and equitable" compensation for the "water power values" of certain riverbed and upstream lands which had been taken by the Government as part of the Grand Coulee Dam development. ⁹ The Tribes claimed the right to this compensation under legal and equitable standards and also under the "fair and honorable dealings" clause of section 2 of the ICCA which provides a cause of action based upon principles of fairness and morality not cognizable in law or equity.

The Government moved for partial summary judgment on the issue of liability, maintaining that Congress, by constructing the Grand Coulee Dam, "asserted the sovereign's constitutional power to exercise the 'navigational servitude' " which promotes and aids navigation for the public good. The Government further contended that the Tribes could not recover under the "extra-legal" cause of action established in the "fair and honorable dealings" clause of section 2 of the ICCA because the Government did not assume any "special obligation" to secure water power values of the tribal lands taken in the Dam's construction.

The Tribes made a cross motion for partial summary judgment on the liability issue, arguing that "even if the navigational servitude was properly exercised by the defendant, it is subordinate to claims initiated under the extra-legal grounds of recovery provided by clauses (3), (4), and (5) in § 2 of the ICCA." 20 Cl.Ct. at 33. ¹⁰ The Tribes also argued that, regardless of the exercise of the navigational servitude, the Government undertook a special obligation "to secure water power values of tribal trust lands." They further maintained that by construction of the Dam, Congress did not intend to improve navigation in any substantive manner but that instead the Dam project was instituted for the purposes of reclamation thus undermining the existence of the "navigational" servitude. Id.

The Claims Court granted the Government's motion for partial summary judgment and denied the Tribes' motion, dismissing their petition and holding that Congress intended to enhance navigation in the construction of the Grand Coulee Dam and that the "full and proper assertion of the 'navigational servitude' is superior to all the Indian claims presented in this case...." Id. at 34. ¹¹ The Tribes appealed.

DISCUSSION

We review the Claims Court's legal conclusions, such as a grant of summary judgment, de novo. Milmark Servs., Inc. v. United States, 731 F.2d 855, 857 (Fed.Cir.1984); Heisig v. United States, 719 F.2d 1153, 1158 (Fed.Cir.1983). Such a standard of review provides this court with substantial latitude, not being bound by the Claims Court's judgment that no material facts were in dispute but rather free to evaluate de novo the evidence proffered by both parties to determine whether there are indeed genuine factual issues to be tried and whether the law was applied correctly. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987). Furthermore, on appeal from the grant of summary judgment, the record will be viewed in the light most favorable to the party against whom summary judgment was granted, in this case, the Tribes. Lindley v. Amoco Prod. Co., 639 F.2d 671 (10th Cir.1981); Prochaska v. Marcoux, 632 F.2d 848 (10th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed.2d 841 (1981); Bailey v. Hartford Fire Ins. Co., 565 F.2d 826 (2d Cir.1977); Weiss v. Kay Jewelry Stores, Inc., 470 F.2d 1259 (D.C.Cir.1972); Kiess v. Eason, 442 F.2d 712 (7th Cir.1971); Building Mart, Inc. v. Allison Steel Mfg. Co., 380 F.2d 196 (10th Cir.1967).

I.

The Claims Court relied on the Supreme Court's decision in United States v. Cherokee Nation, 480 U.S. 700, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987), for its holding that the navigational servitude was legally superior to the Tribes' claims. The Tenth Circuit in that case had affirmed the District Court's grant of summary judgment for the Cherokee Nation rejecting the position that the navigational servitude protected the Government from liability for such a taking and finding that "the United States did not reserve its navigational servitude...." Id. at 702, 107 S.Ct. at 1489. The Tenth Circuit, however, found that although the Government had in fact retained a navigational servitude in the Arkansas River, the court is required to balance the public and private interests at issue to determine if compensation for the taking of the riverbed lands was due. Thus, the Tenth Circuit ruled that the Cherokee Nation could, under the Fifth Amendment, recover the value of certain riverbed lands taken by the Government as part of a navigation project which included dredging the channel of the Arkansas River.

The Supreme Court reversed the Tenth Circuit's judgment and remanded, rejecting its use of a balancing test and stating that the Commerce Clause gives the Government

"a 'dominant servitude,' which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the...