Skokomish Indian Tribe v. United States, No. 11-658L

CourtCourt of Federal Claims
Writing for the CourtFrancis M. Allegra
Decision Date11 March 2014
PartiesSKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe in its own capacity, as a class representative and as parens patriae, et al., Plaintiffs, v. THE UNITED STATES, Defendant.
Docket NumberNo. 11-658L

SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe in its own capacity,
as a class representative and as parens patriae, et al., Plaintiffs,
v.
THE UNITED STATES, Defendant.

No. 11-658L

United States Court of Federal Claims

Filed: March 11, 2014


Treaty/takings case; Motion to dismiss for
lack of subject matter jurisdiction - RCFC
12(b)(1); Transferred case under 28 U.S.C. §
1631; 28 U.S.C. § 1500; Pending - County of
Cook; Same operative facts; Four Klamath
tests applied; Claims dismissed by district
court and Ninth Circuit involved substantially
the same operative facts as claims before
court; Section 1500 applicable; Complaint
dismissed.

OPINION

Mason D. Morisset, Morisset, Schlosser, Jozwiak & Somerville, Seattle, WA, for plaintiffs.

Reuben S. Schifman, Environment and Natural Resources Division, United States Department of Justice, with whom was Assistant Attorney General Ignacia S. Moreno, for defendant.

ALLEGRA, Judge:

This is an action for damages brought by the Skokomish Indian Tribe (the Tribe), as well as the individual members of the Tribe, deriving from the construction and operation of the Cushman Hydroelectric Project, upstream from the Tribe's reservation. Plaintiffs allege that defendant failed to protect their interests with respect to the licensing and operation of the hydroelectric project, thereby violating its obligations arising under a treaty as well as various statutes. Plaintiffs further aver that defendant's actions effectuated a temporary takings under the Fifth Amendment. Defendant has moved to dismiss plaintiffs' claims, arguing, inter alia, that 28 U.S.C. § 1500 deprives this court of jurisdiction. For the reasons that follow, the court hereby GRANTS defendant's motion and orders the dismissal of plaintiffs' complaint.

Page 2

I. BACKGROUND

A brief recitation of the facts provides necessary context.1

On January 26, 1855, the Tribe and the United States entered into the Treaty of Point-No-Point (the Treaty), in which the Tribe ceded most of its land, located in northwest Washington State, and retained an approximately four-thousand acre reservation near the mouth of the Skokomish River. The Treaty guaranteed the Tribe the right to fish, hunt, and gather roots and berries outside the reservation, on land that had been traditionally used for those purposes.

The Skokomish River, and particularly its North Fork, was a rich habitat and breeding area for many species of salmon, which were the backbone of the Tribe's economy and integral to its culture, subsistence and religion. The North Fork lies outside the Skokomish Reservation, but was among the Tribe's treaty-protected fishing grounds. Besides hunting and fishing, the Skokomish Reservation included a number of orchards, farm lands and hayfields, which provided income and subsistence to Tribal members.

In 1913, various parties were considering building hydroelectric dams on the North Fork of the Skokomish River. At that time, the Tribe and its members expressed concern to officials of the Departments of the Interior and Justice that constructing a dam on the North Fork would harm the Tribe, its lands and fishing.

Notwithstanding these concerns, in 1924, the City of Tacoma (Tacoma) obtained a license from the Federal Power Commission (FPC) to flood 8.8 acres of national forest land by damming the North Fork of the Skokomish River. The license was designated a "minor part" license because it covered only a small part of Tacoma's much larger Cushman Hydroelectric Project (the Cushman Project). Plaintiffs allege that the Cushman Project diverted the entire North Fork of the Skokomish River from its watershed, thereby decimating fish runs and destroying the Tribe's usual and accustomed fishing places, including fishery and estuary habitats on the Skokomish River.

The Tribe attempted to prevent the development of the Cushman Project, but its efforts to sue allegedly were hindered by defendant. Under then-existing Federal law, the Tribe could not enter into a contract with an attorney without the approval of the Secretary of the Interior. See Act of May 21, 1872, c. 177, 17 Stat. 136.2 On October 2, 1930, the Tribe sued Tacoma in the

Page 3

United States District Court for the District of Washington, seeking to enjoin the city from diverting the North Fork out of its watershed. The complaint was dismissed by the district court, which found that the Tribe could not represent itself and could be represented only by the United States. On October 30, 1930, the Tribe asked the Acting Commissioner of Indian Affairs to provide it with legal representation to sue Tacoma. The Acting Commissioner declined.

In 1963, the FPC determined that the "minor part license" it issued in 1924 to Tacoma had been improperly granted, finding that its jurisdiction extended to whole projects, not just the parts that occupy or use federal land. See Pac. Gas & Elec. Co., 29 FPC 1265, 1266 (1963). In 1974, Tacoma's license expired and the city applied for a new license, this time seeking a "major project license" that would cover all of its project-related facilities. In 1975, the Tribe intervened in this relicensing proceeding; the United States, however, refused to fund the studies the Tribe needed to quantify the injuries it had incurred from the Cushman Project. On December 28, 1979, Interior acknowledged that Tacoma had illegally condemned land on the Skokomish Reservation to build the Cushman Project, and had interfered with the Tribe's water and fishing rights. On February 8, 1980, Interior recommended that the Justice Department bring suit against Tacoma in order to compensate the Tribe for the derogation of their fishing and water rights in connection with the project. But, the Justice Department filed no such action.

Pursuant to section 15 of the Federal Power Act (the FPA), 16 U.S.C. § 808(a)(1), the FPC's successor agency, the Federal Energy and Regulatory Commission (FERC), must issue annual renewals of an existing license during the application review period that precedes issuance of a new long-term license. In the case of the Tacoma license, this provision was applied in the extreme - for twenty-four years, through 1998, FERC issued annual licenses to Tacoma to run the Cushman Project. None of these licenses made any provision to protect the Reservation or mitigate the harm to Treaty-protected resources.

Meanwhile, in 1996, defendant released technical studies documenting the damage caused or aggravated by the Cushman Project. These studies established that although some of the damage to the Tribe's treaty-protected property and rights occurred shortly after the Cushman Project was constructed, most of the damage occurred gradually over time. That same

Page 4

year, FERC published its Final Environmental Impact Statement relating to impacts of the Cushman Project. On August 4, 1997, the Secretary of the Interior prescribed conditions under the FPA for the protection and utilization of the Skokomish Reservation in any license issued for the operation of the Cushman Project. On July 30, 1998, FERC issued a new 40-year license for operation of the Cushman Project, but expressly declined to include the Section 4(e) conditions prescribed by the Secretary of the Interior.3 The Tribe timely petitioned the United States Court of Appeals for the D.C. Circuit for review of the FERC decision.

On or about November 24, 1998, plaintiffs also filed a claim with the Department of Interior under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, seeking damages arising out of defendant's conduct with respect to the licensing of the Cushman Project. On May 20, 1999, Interior denied this claim. On May 21, 1999, FERC stayed all conditions of Tacoma's new license pending judicial review.

On November 19, 1999, the Tribe and individual members filed suit in the United States District Court for the Western District of Washington against defendant, Tacoma, and Tacoma Public Utilities, seeking "declaratory relief and damages related to the construction, operation, and maintenance of the Cushman Project, a hydroelectric project located in Mason County, Washington." There were 34 counts in this complaint, including seven directed at the United States. One of the claims was for negligence, predicated upon defendant's "breach of duties" under, inter alia, the FPA, the common law and the Treaty. The latter, the plaintiffs averred, obliged defendant "to take action to protect federal rights held by Indian Tribes and individual tribal members," including "treaty fishing and shellfishing rights." While these claims principally focused on defendant's issuance of a license to Tacoma for the Cushman Project and its failure to limit that license, they also cited defendant's failure to support the Tribe's efforts to sue to enjoin the project. Plaintiffs also filed tort claims directed at the United States for trespass, the creation of public and private nuisances, conversion and tortious interference with property. Lastly, the complaint alleged that defendant's "unlawful actions and omissions as described herein constitute[d] agency action" that violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06.

On June 4, 2001, the district court dismissed twenty counts (1-15, 20, 22, 27, 30 and 35) -...

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