Skokomish Indian Tribe v. U.S., 01-35028.
| Decision Date | 09 March 2005 |
| Docket Number | No. 01-35845.,No. 01-35028.,01-35028.,01-35845. |
| Citation | 401 F.3d 979 |
| 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., Plaintiffs-Appellants, v. UNITED STATES of America; Tacoma Public Utilities, a Washington municipal corporation; City of Tacoma, a Washington municipal corporation; William Barker, Tacoma Public Utilities Board Member in his official capacity; Tom Hilyard, Tacoma Public Utilities Board Member in his official capacity; Robert Lane; Tim Strege; G.E. Vaughn, Defendants-Appellees. 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 Utilities, a Washington municipal corporation; City of Tacoma, a Washington municipal corporation; William Barker, Tacoma Public Utilities Board Member in his official capacity; Tom Hilyard, Tacoma Public Utilities Board Member in his official capacity; Robert Lane; Tim Strege; G.E. Vaughn; United States Internal Revenue Service, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mason D. Morisset, Morisset, Schloser, Jozwiak & McGaw, Seattle, Washington, for the plaintiffs-appellants.
Philip H. Lynch, Assistant United States Attorney, Tacoma, Washington, for defendant-appellee the United States.
J. Richard Creatura, Gordon, Thomas, Honeywell, Melanca, Peterson & Daheim, LLP, Tacoma, Washington, for defendants-appellees the City of Tacoma and Tacoma Public Utilities.
Philip E. Katzen, Kanji & Katzen, PLLC, Seattle, Washington, for the amici curiae.
Appeals from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-99-05606-FDB.
Before: SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, RYMER, GRABER, GOULD, PAEZ, BERZON, RAWLINSON, BYBEE and CALLAHAN, Circuit Judges.
Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge GRABER; Dissent by Judge BERZON.
Can an Indian tribe bring claims against the United States under the Federal Tort Claims Act for violation of a treaty, or against a city and a public utility under a treaty and 42 U.S.C. § 1983?
The Skokomish Indian Tribe ("Tribe") and its members brought suit in federal district court against the United States, the City of Tacoma ("City") and Tacoma Public Utilities ("TPU"), alleging harms caused by the Cushman Hydroelectric Project ("Project"), a City-owned project comprised of two dams, two reservoirs, diversion works, two power houses and transmission lines. The Project, completed in 1930, floods over thirty acres of federal land in a total project area of 4700 acres located upstream from the Tribe's land. The Project has diverted the flow of the Skokomish River's North Fork to power-generating facilities and led to aggradation of the river.1 This has allegedly caused flooding of the Tribe's reservation, failure of septic systems, contamination of water wells, blocking of fish migration, damage to the Tribe's orchards and pastures and silting over of many of the Tribe's fisheries and shellfish beaches. The Tribe claims the Project has caused it nearly $5 billion in losses.
The Tribe sued for damages resulting from the Project's impact on tribal lands and fisheries, alleging both state and federal causes of action, including claims arising under the Treaty of Point No Point ("Treaty"), Jan. 26, 1855, 12 Stat. 933. The Treaty ceded the Tribe's territory to the United States, but reserved a tract for the Tribe. It also reserved for the Tribe "[t]he right of taking fish at usual and accustomed grounds and stations ... in common with all citizens of the United States" and "the privilege of hunting and gathering roots and berries on open and unclaimed lands." Id., art. 4.
The district court dismissed the United States as a defendant and granted summary judgment in favor of the City and TPU on the treaty-based and state-law claims. The court also dismissed the Tribe's claim under 16 U.S.C. § 803(c) for failure to state a claim upon which relief could be granted. A divided panel of our court affirmed, but held that the district court should have dismissed the treaty-based claims for lack of subject matter jurisdiction. We took the case en banc. Skokomish Indian Tribe v. United States, 358 F.3d 1180, 1181 (9th Cir.2004).
The Tribe seeks relief against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. The Tribe alleges that the United States violated its obligations under the Treaty by allowing continued operations of the Project and by failing to take legal action on the Tribe's behalf or fund litigation, thereby breaching its fiduciary responsibilities to the Tribe under the Treaty.
These claims are not properly brought under the FTCA, which authorizes suits against the United States
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added).2 Tribe's claims against the United States are properly characterized not as tort claims, but as claims that the United States violated its obligations under the Treaty. The claims are thus quite different from those in cases like Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), and Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), on which the Tribe relies. In Berkovitz, a federal agency allegedly acted tortiously in approving the release of a polio vaccine that did not meet safety standards. In Indian Towing, the Coast Guard acted negligently in its operation of a lighthouse because it did not "use due care to make certain that the light was kept in good working order," causing more than $60,000 in damages to a barge and its cargo. 350 U.S. at 69, 76 S.Ct. 122. The Tribe is not claiming the United States behaved tortiously, but rather that the United States failed to abide by its contractual obligations to the Tribe under the Treaty.
The Tribe's claims may best be characterized as arising under the Tucker Act, 28 U.S.C. § 1491, or its counterpart for Indian claims, the Indian Tucker Act, 28 U.S.C. § 1505. The Tucker Act gives the Court of Federal Claims exclusive jurisdiction over claims for damages exceeding $10,000 that are "founded ... upon any express or implied contract with the United States." 28 U.S.C. § 1491(a)(1). The Indian Tucker Act extends the Court of Federal Claims' jurisdiction to
any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group.
28 U.S.C. § 1505.3 It is under the Tucker and Indian Tucker Acts that the federal courts have considered claims most similar to those of the Tribe. For example, in United States v. Mitchell (Mitchell II), 463 U.S. 206, 208, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), an Indian tribe brought a Tucker Act cause of action in the Court of Claims (the Court of Federal Claims' predecessor) against the United States for breach of trust responsibilities that originated with a treaty, which was later codified in federal law. This is very much like our case, in which the Tribe's claims against the United States are for breach of its fiduciary obligations under the Treaty.
Because we lack subject matter jurisdiction over the Tribe's damages claims against the United States, but believe they might properly have been brought under the Indian Tucker Act, we exercise our discretion to transfer these claims to the Court of Federal Claims. See 28 U.S.C. § 1631 (); Beck v. Atl. Richfield Co., 62 F.3d 1240, 1242 n. 4 (9th Cir.1995) (per curiam).
The Tribe also asserts the United States violated the Federal Power Act (FPA), 16 U.S.C. §§ 791a-828c, by failing to submit and include license conditions protective of the Skokomish Reservation fish and wildlife, to fully consider...
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