Skokomish Indian Tribe v. U.S.
| Citation | 332 F.3d 551 |
| Decision Date | 03 June 2003 |
| Docket Number | No. 01-35028.,No. 01-35845.,01-35028.,01-35845. |
| Parties | 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., Petitioners-Appellants, v. 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, Plaintiffs-Appellants, v. 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; United States Internal Revenue Service, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
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, P.L.L.C. (Tacoma Public Utility), Tacoma, WA, for the Defendants-Appellees.
Timothy L. Ashcraft, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, P.L.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.
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.1 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.
On January 26, 1855, Governor Isaac I. Stevens ("Stevens"), Governor of the Washington Territory, negotiated the Treaty of Point No Point ("Treaty") 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. Washington 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. Id.
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").2 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 Power Act ("FPA"), 16 U.S.C. § 791a et seq. 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."3
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 occupancy 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.P.C. 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 project license encompassing the entire Project.4 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. Id. FERC held that although it issued only a minor-part license in 1924, the issuance was consistent with FERC's interpretation of its jurisdiction at that time and the proceeding for a license of the entire Project was "appropriately characterized as a relicensing proceeding." Id. 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." Id. 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 administrative proceeding, FERC addressed within context of the FPA the same contentions raised 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 v. FERC, 2000 WL 1683468 (D.C.Cir.2000). That case is still pending.
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 Conduct. The Tribe quoted the following part of the opinion in its letter:
A judge's status as a utility customer does not indicate 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, who denied the request also...
To continue reading
Request your trial
-
Skokomish Indian Tribe v. United States
...2d 1178, 1179 (W.D. Wash. 2001). On June 3, 2003, the Ninth Circuit affirmed the district court's judgment. Skokomish Indian Tribe v. United States, 332 F.3d 551 (9th Cir. 2003). On February 23, 2004, the Ninth Circuit granted a petition for rehearing en banc. Skokomish Indian Tribe v. Unit......
-
Plys v. Ang (In re Ang)
...For the doctrine to apply, the relevant claim must have been adjudicated in the prior proceeding. See Skokomish Indian Tribe v. United States , 332 F.3d 551, 560 (9th Cir. 2003). The State Court Judgment is predicated on Defendant's being the texter. So, even if Defendant had persuaded this......
-
U.S. v. Southern California Edison Co.
...damages, [although] the Supreme Court has recognized a variety of ... common law causes of action ...." Skokomish Indian Tribe v. United States, 332 F.3d 551, 559 (9th Cir.2003) (citing United States v. Pend Oreille Public Utility Distr. No. 1, 28 F.3d 1544, 1549-51 (9th Cir.1994)). Moreove......
-
Otwell v. Ala. Power Co.
...attacks on the FERC's licensing orders are still governed by the FPA's exclusive judicial review provision. In Skokomish Indian Tribe v. United States, 332 F.3d 551 (9th Cir.2003), the court held that § 825 l(b) still controls even if a party's claims are couched in a damages action: Here, ......