Nez Perce Tribe v. Idaho Power Co.

• Decision Date: 21 March 1994
• Docket Number: Civ. No. 91-0517-S-HLR.
• Citation: 847 F. Supp. 791
• Parties: NEZ PERCE TRIBE, Plaintiff, v. IDAHO POWER COMPANY, Defendant.
• Court: U.S. District Court — District of Idaho

847 F. Supp. 791

NEZ PERCE TRIBE, Plaintiff, v. IDAHO POWER COMPANY, Defendant.

Civ. No. 91-0517-S-HLR.

United States District Court, D. Idaho.

March 21, 1994.

Walter H. Bithell, Holland & Hart, Boise, ID, Peter C. Houtsma, M. Julia Hook, Richard G. Schneebeck, Stephanie D. Welsh, Holland & Hart, Denver, CO, Douglas Nash, Nez Perce Tribal Executive Committee, Office of Legal Counsel, Lapwai, ID, for plaintiff Nez Perce Tribe.

John D. Lowery, Riddell Williams Bullitt & Walkinshaw, Michael Mirande, Bogle & Gates, Seattle, WA, James C. Tucker, Rosholt Robertson & Tucker, Boise, ID, for Idaho Power Co.

ORDER ADOPTING FIRST REPORT AND RECOMMENDATION

RYAN, Senior District Judge.

I. INTRODUCTION

On July 30, 1993, United States Magistrate Judge Larry M. Boyle entered his Report and Recommendation in the above-entitled action, attached hereto as Exhibit A. In his Report and Recommendation, Judge Boyle recommends that this court grant the defendant's Motion for Summary Judgment as to all claims set forth in the plaintiff's Amended Complaint.

Pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days in which to file written objections to the recommendations of Judge Boyle. The court granted the plaintiff an extension of time to file its objections, pursuant to a stipulation entered into by the parties. On August 13, 1993, the plaintiff filed its objections to the Report and Recommendation. Thereafter, on August 30, 1993, the defendant filed its response to the objections.

II. DISCUSSION

In light of the objections filed by the plaintiff, the court is required to engage in a de novo review pursuant to 28 U.S.C. § 636(b)(1). The court has engaged in an exhaustive and detailed review of the entire record in this matter, including all of the memoranda, affidavits, and exhibits filed by the parties in relation to the Motion for Summary Judgment, as well as the plaintiff's objections to the Report and Recommendation and the defendant's response. The court has also reviewed the cases cited by the parties in their memoranda and by Judge Boyle in his Report and Recommendation. Having conducted this thorough and independent review of the record, in light of the facts presented in this case and the substantive law applicable thereto, this court finds that Judge Boyle did not err when he concluded that the defendant's Motion for Summary Judgment should be granted.

In its objections, the plaintiff does not offer the court any new authority which would cause it to reverse or modify the Report and Recommendation of Judge Boyle. Nor does the plaintiff offer any new evidence in support of its contentions. The plaintiff simply restates the arguments made to Judge Boyle which he carefully considered and rejected.

With respect to the Motion for Summary Judgment, the court notes that its findings are based upon a careful review of the facts, which has been conducted with the principle in mind that the facts are to be viewed in the light most favorable to the plaintiff as the nonmoving party. In summary, the court is simply not persuaded that the Report and Recommendation entered by Judge Boyle on July 30, 1993, warrants modification. On the contrary, the court commends Judge Boyle for his erudite and well-reasoned decision which is well founded in both law and fact. The court finds it unnecessary to explain to the plaintiff again the reasons why it may not recover money damages from this defendant for diminished salmon runs. Rather, the court hereby incorporates the findings, reasoning, and conclusions of Judge Boyle by reference in this order.

The court notes that in the Report and Recommendation entered July 30, 1993, Judge Boyle appropriately did not address the plaintiff's claim for damages for inundation of usual and accustomed fishing places. The conversion claims were apparently raised for the first time at oral argument and were not clearly pleaded in the Amended Complaint. After consideration, this court again referred the defendant's Motion for Summary Judgment to Judge Boyle for an additional hearing and the preparation of a supplemental report and recommendation on this narrow issue.

In light of these developments, the court will grant the defendant's Motion for Summary Judgment as to all claims and issues, and on all grounds addressed by Judge Boyle in his Report and Recommendation entered July 30, 1993. The court will deny the motion without prejudice as to the plaintiff's final remaining claim for compensation based on exclusion from its usual and accustomed fishing places. The court will delay entering its final ruling on this last claim until after all objections and responses to objections have been filed with respect to the Second Report and Recommendation entered by Judge Boyle on February 28, 1994.

III. ORDER

Based on the foregoing and the court being fully advised in the premises,

IT IS HEREBY ORDERED that the findings, reasoning, and conclusions contained in the Report and Recommendation entered on July 30, 1993, should be, and are hereby, ADOPTED in their entirety and INCORPORATED herein by reference.

IT IS FURTHER ORDERED that defendant's Motion for Summary Judgment, filed September 18, 1992, should be, and is hereby, GRANTED as to all claims set forth in the plaintiff's Amended Complaint except the plaintiff's claim for compensation based on exclusion from its usual and accustomed fishing places. The motion is DENIED WITHOUT PREJUDICE as to this remaining claim at this time. The court will enter its final ruling on this claim as explained above.

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

NEZ PERCE TRIBE, Plaintiff,

v.

IDAHO POWER COMPANY, Defendant.

Case No. CV 91-0517-S-HLR

REPORT AND RECOMMENDATION

BOYLE, United States Magistrate Judge.

I. INTRODUCTION

The Nez Perce Indian Tribe (hereinafter the "Tribe") brought this action seeking an award of monetary damages from Idaho Power Company for the negative effect the power company's construction and maintenance of three dams on the Snake River has had on the fall and spring chinook and steel-head runs. Idaho Power Company and/or its predecessors (hereinafter "Idaho Power") began construction of the dams in 1955, when the Federal Power Commission issued it a license pursuant to the Federal Power Act (hereinafter "FPA"), 16 U.S.C. § 791a et seq. Pursuant to that license, the Hell's Canyon dam, the Oxbow dam and the Brownlee dam (hereinafter the "Hell's Dam Complex") were constructed during the mid 1950's and early 1960's.

The Tribe bases its claims on the terms of the 1855 treaty with the United States which reserved to the Tribe exclusive rights to take fish in streams "where running through or bordering" its reservation, as well as "the right of taking fish at all usual and accustomed places in common with citizens of the Territory." Art. III, Treaty with the Nez Perce, 12 Stat. 957 (June 11, 1855) (hereinafter the "treaty").

The Tribe alleges that the manner in which Idaho Power has constructed and operated the Hell's Dam Complex violates its treaty fishing rights by reducing the number of fish on the annual runs and claims it is entitled to compensation for that loss in the form of monetary damages.¹ Idaho Power denies that it constructed or operated the Hell's Dam Complex in a negligent manner or that it has violated FPA regulations. However, neither party disputes that the number of salmon and steelhead in the Snake River has greatly declined since the Hell's Dam Complex was commenced in the mid 1950's.

Idaho Power asserts that the fish conservation issues posed by the Hell's Dam Complex were finally determined as a result of a 1976 petition filed with the Federal Energy Regulatory Commission (hereinafter "FERC") by the Fish and Game agencies of the states of Idaho, Oregon and Washington. In the 1976 petition, the three states sought a declaratory order pursuant to section 10(a) of the FPA requiring Idaho Power to expand and renovate the Rapid River, Pahsimeroi River and Niagara Springs hatcheries and to produce greater numbers of juvenile fish in those facilities. The Tribe intervened in that action in August, 1977. Negotiations among the parties resulted in a settlement agreement dated February 14, 1980, executed by the United States Department of Commerce, the states of Washington, Idaho and Oregon, and Idaho Power. The Tribe participated in those negotiations but did not sign the settlement agreement. The parties to the settlement agreement agreed that their compromise would settle all issues concerning the actual number of salmon and steelhead destroyed by the Hell's Dam Complex. All three states, but not the Department of Commerce, also agreed that the settlement agreement would constitute full and complete mitigation for all numerical losses of salmon and steelhead caused by Idaho Power. In its Order of February 27, 1980 (hereinafter "Order") FERC approved the settlement agreement.

Although the Tribe intervened in the action and participated in the negotiations, it contends that it is not bound by the Order because it did not sign the settlement agreement and because Idaho Power has failed to comply with the terms and requirements of the settlement agreement.

II. SUMMARY OF THE COURT'S OPINION

Currently before the Court is Defendant's Motion for Summary Judgment (Docket No. 31) wherein Idaho Power contends that it should be granted summary judgment on the grounds that the Tribe does not have a valid claim or cause of action for monetary damages. In the alternative, Idaho Power asserts that because Congress intended the FPA to be a comprehensive plan of development, it preempts any common law claim for damages asserted by the Tribe. Further, Idaho Power argues that the FERC Order of February 27, 1980 precludes any action by the Tribe for monetary damages because the Order constituted a final determination of the Tribe's fishing losses. Finally, Idaho Power contends that even if the...