Skokomish Indian Tribe v. U.S.

• Decision Date: 09 August 2001
• Docket Number: No. C99-5606FDB.,C99-5606FDB.
• Citation: 161 F.Supp.2d 1178
• Parties: SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe, et al., Plaintiffs, v. UNITED STATES of America, Tacoma Public Utilities, a Washington municipal corporation; City of Tacoma, a Washington municipal corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

Page 1178

161 F.Supp.2d 1178

SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe, et al., Plaintiffs, v.UNITED STATES of America, Tacoma Public Utilities, a Washington municipal corporation; City of Tacoma, a Washington municipal corporation, et al., Defendants.

No. C99-5606FDB.

United States District Court, W.D. Washington, Tacoma Division.

August 9, 2001.

Mason D. Morisset, Morisset, Schlosser, Ayer & Jozwiak, Seattle, WA.

Ronald B. Leighton, Gordon Thomas Honeywell, Malanca, Peterson & Daheim, Tacoma, WA.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON ALL REMAINING CLAIMS

BURGESS, District Judge.

INTRODUCTION

The Plaintiffs' Complaint alleges 34 causes of action stemming from construction of the Cushman Hydroelectric Project on the North Fork of the Skokomish River during the 1920s.The claims raise issues of interference with a right to fish, taking of water rights, right to hunt and gather berries, takings of land, trespass and tortious interference with property, unjust enrichment, conversion, public and private nuisance, negligence and negligent misrepresentation, waste, violation of RCW 2.42.630, violation of Section 401 of the Clean Water Act, violation of Section 803(c), of the Federal Power Act.Plaintiffs seek Declaratory relief as well as damages.

By order entered June 5, 2001, this Court dismissed Counts1-15, 20, 22, 27, 30, and 35; these counts generally concerned treaty rights, which the Court concluded have been conditioned to the extent necessary to accommodate the Cushman Hydroelectric Project.Fourteen causes of action remain, two of which are federal claims: Count 16, a claim under 803(c) of the Federal Power Act; and Count 34, a Clean Water Act claim.The claims remaining are as follows: 16-19, 21, 23-26, 29, (there is no claim 28) 31-34.

Defendants move for summary judgment on the remaining claims.Plaintiffs resist this motion and also move for partial summary judgment on their state claims of inverse condemnation (claim 17), trespass (claim 18), tortious interference with property (claim 19), negligence (claims 23-25), private nuisance (claim 31), and public nuisance (claim 32).

DISCUSSION

Claim 16: Violation of 16 U.S.C. § 803(c)

The federal claims will be discussed first, beginning with the claim pursuant to Section 803(c).The 803(c) provision concerns maintenance and repair of project works and exempts the United States from liability while stating that licensees will be liable for damage to the property of others occasioned by the construction, maintenance, or operation of the project works.The plaintiff claim that "Tacoma's construction, maintenance, and operation of the Cushman Project and its appurtenant or accessory works has caused damage to Plaintiffs' property and other legal interests."(Plaintiffs' Complaint, Claim 16, ¶ 272)

In DiLaura v. Power Authority of State of NY,982 F.2d 73(2nd Cir.1992), plaintiffs who owned land on the Niagara River sued the Power Authority of the State of New York(PASNY) for damages and injunctive relief resulting from PASNY's ice control procedures on the River.Plaintiffs argued that 16 U.S.C. § 803(c) created a private claim and that, therefore, the district court had subject matter jurisdiction over their claim for compensatory and punitive damages and injunctive relief.The Court addressed the matter of whether Congress intended to create such a right of action by applying the four-part test from Cort v. Ash,422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26(1975), which it noted had been "refocused" to emphasize the centrality of the factor of Congressional intent with the remaining factors serving as "proxies for legislative intent."DiLaura982 F.2d at 77-78.The Court concluded

There is nothing in the legislative history to contradict the district court's assertion that "Congress simply wanted to preserve the right of injured property owners to bring actions for damage against licensees in state court under traditional state tort law, and to shield the United States against liability."786 F.Supp. at 249

Id. at 78.The Court then noted that most courts considering the issue have concluded that § 803(c) does not create an independent federal cause of action but simply preserves existing state tort law with its own rules of liability for damages caused by licensees.Id.Plaintiffs cite Dalrymple v. Grand River Dam Authority,932 F.Supp. 1311, 1314(N.D.Okla.1996), aff'd in part, dismissed in part,145 F.3d 1180(10th Cir.1998) as stating that Section 803(c)"squarely plac[es] potential liability on licensees...."This case does not help Plaintiffs, as it merely states the obvious— that liability is upon the licensees, and not the United States—and does no analysis of the issue of whether this section was intended to create an independent basis for federal jurisdiction.Moreover, Dalrymple was removed from state court where it brought claims for inverse condemnation, consequential damage to private property, trespass, and nuisance, inter alia.The 10th Circuit concluded that it was precluded from reviewing the District Court's remand order, as it was based to a fair degree upon a finding that it lacked subject matter jurisdiction over the claims.The Grand River Dam Authority asserted entitlement to immunity pursuant to Section 803(c) as it was essentially an agent of the United States because it operated the dam and reservoir on navigable waters subject to the Commerce Clause and pursuant to the terms and conditions of its FERC license and Corps of Engineers directive during flood stage.The Court of Appeals noted that the District Court remanded the matter because there was no basis for removal pursuant to Section 1441(a) & (b), there being no federal right or immunity implicated in the plaintiffs' complaint nor pursuant to 1442(a)(1), for an officer or agency of the United States.145 F.3d at 1185.Therefore, as it did in its earlier Order, this Court adopts the analysis of DiLaura.Accordingly, Section 803(c) does not provide a separate basis for a cause of action, and this claim must be dismissed for failure to state a claim upon which relief could be granted.

Claim 34: Violation of Section 401 Certification

In this claim, Plaintiffs allege that Tacoma has failed to comply with conditions contained in the Section 401 certification under the Clean Water Act (CWA).(Presumably, although the Complaint does not state to which statuteSection 401 refers).One of the conditions asserted was a failure to complete a study of the effect of additional flows from the North Fork on the main stem, periodic flushing flows, and monitoring.There are several problems with this claim.

First, this section of the CWA provides for citizen lawsuits against any person or government instrumentality who is alleged to be in violation of "an effluent standard or limitation under this chapter."33 U.S.C. § 1365(a).In alleging violation of a condition concerning with North Fork water flow, the Complaint does not allege any such violation of an effluent standard.

Second, the notice requirements of 33 U.S.C. § 1365(b) apparently have not been observed.A citizen suing under this section must give 60 days notice to the Administrator, to the State in which the alleged violation occurs, and to the alleged violator before filing suit.

Third, the language of this section —"alleged to be in violation"—requires a continuous or intermittent violation and does not confer federal jurisdiction over citizen suits for wholly past violations.Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,484 U.S. 49, 57-66, 108 S.Ct. 376, 98 L.Ed.2d 306(1987).

Fourth, the remedy provided by 33 U.S.C. § 1365(a) is enforcement of the effluent standard or limitation, not damages.

Plaintiffs have not made any response to these infirmities.This claim must be dismissed.

Claims against Individual Board Members

Defendants contend that the individual Tacoma Public Utility Board Members —William Barker, Tom Hilyard, Robert Lane, Tim Strege, and G.E. Vaughn— who were named in their official capacities, should be dismissed pursuant to RCW 35.21.415:

[o]fficials and employees of cities and towns shall be immune from civil liability for mistakes and errors of judgment in the good faith performance of acts within the scope of their official duties involving the exercise of judgment and discretion which relate solely to their responsibilities for electrical utilities.

Plaintiffs have responded with no contrary authority other than to defend the rationale for including the individual Board members in this lawsuit.Therefore, the individual Tacoma Public Utility Board Members named in this lawsuit are dismissed.

State Law Claims

The remaining claims based on state law are as follows: 17, inverse condemnation; 18, trespass; 19, tortious interference with property; 21, conversion; 23-26, negligence; 29, negligent misrepresentation; 31-32, private and public nuisance; 33, violation of RCW 4.24.630.

The applicable state statute of limitations for these claims are ten years for inverse condemnation, Highline School Dist. v. Port of Seattle,87 Wash.2d 6, 11, 548 P.2d 1085(1976), three years for trespass, fraud, negligence, conversion, and tortious interference, RCW 4.16.080, and two years for nuisance.Riblet v. Spokane-Portland Cement Co.,41 Wash.2d 249, 257-58, 248 P.2d 380(1952).The Indian Claims Limitation Act (ICLA), 28 U.S.C. § 2415, may apply as well, but Plaintiffs must have preserved their claims by submission to the Secretary of the Department of the Interior.It appears that the Cushman Dam fishery damage claim was so preserved, but treaty based fishery damage claims were dismissed in the Court's earlier order.

The alleged harms surviving the Court's earlier order granting partial summary judgment, are flooding or elevated water tables affecting property on the reservation.These harms began accruing in the 1920s when the...