Tribe v. United States, Case No.: C99-5606RJB
| Decision Date | 27 July 2011 |
| Docket Number | Case No.: C99-5606RJB |
| Court | U.S. District Court — Western District of Washington |
| Parties | SKOKOMISH INDIAN TRIBE, a federally recognized Indian tribe, in its own capacity, as a class representative, and as parens patriae, et al., Plaintiffs, v. UNITED STATES OF AMERICA; TACOMA PUBLIC UTILITIES, a Washington municipal Corporation, et al., Defendants. |
CONSENT DECREE, ORDER, AND FINAL JUDGMENT
A. On November 19, 1999, Plaintiffs Skokomish Indian Tribe and individual named tribal members ("Tribe") filed a complaint against Tacoma Public Utilities, the City of Tacoma, and members of the Tacoma Public Utilities Board in their individual capacities (collectively "Tacoma") and the United States of America for damages to the Skokomish Indian Reservation, associated trust assets, and treaty rights allegedly resulting from the construction, maintenance, operation, and existence of the Cushman Hydroelectric Project. (Dkt. #1).
B. On May 26, 2000, the Court dismissed the United States as a defendant (Dkt. #41). In orders dated June 4, 2001 (Dkt. # 127) and August 9, 2001 (Dkt. #168), the Court dismissed all claims against Tacoma. Skokomish Indian Tribe v. United States, 161 F. Supp. 2d 1178 (W.D. Wash. 2001).
C. On June 3, 2003, a three-judge panel of the Ninth Circuit Court of Appeals affirmed. Skokomish Indian Tribe v. United States, 332 F.3d 551 (9th Cir. 2003). The Ninth Circuit subsequently issued an en banc decision affirming dismissal of the Tribe's claims against Tacoma and ruling that the Tribe's claims against the United States should be transferred to the United States Court of Federal Claims. Skokomish Indian Tribe v. United States, 401 F.3d 979 (9th Cir. 2005), amended by 410 F.3d 506 (9th Cir. 2005). On May 9, 2006, pursuant to the mandate of the Ninth Circuit, this Court entered an order to transfer the Tribe's claims against the United States to the Court of Federal Claims. (Dkt. #187).
D. On February 9, 2006, the Tribe filed a Motion for Relief from Judgment under Fed. R. Civ. P. 60(b), or to alter or amend the Judgment under Fed. R. Civ. P. 59(e), in order to allow the case to proceed on federal common law claims against Tacoma. (Dkt. #179). TheCourt denied the Tribe's motion on April 12, 2006. (Dkt. #184). On May 12, 2006, the Tribe appealed the April 2006 order regarding relief from judgment to the Ninth Circuit Court of Appeals. (Dkt. #188).
E. On December 22, 2006, the Ninth Circuit Court of Appeals directed the Tribe and Tacoma to mediation under the supervision of a court-appointed mediator. From January 2007 through January 2009, Tacoma and the Tribe engaged in settlement negotiations under the supervision of the Ninth Circuit Mediation Program.
F. On January 12, 2009, the Tribe and Tacoma entered into a Settlement Agreement to resolve all Claims (as defined in Section 1.6 of the Settlement Agreement) between the Tribe and Tacoma pertaining to the construction, maintenance, operation and/or existence of the Cushman Hydroelectric Project. The Settlement Agreement is attached as Attachment A to this Decree. The Settlement Agreement became effective on July 18, 2011.
G. On July 19, 2011, at the joint request of the Tribe and Tacoma, the Ninth Circuit Court of Appeals remanded the case to this Court for further proceedings consistent with the Settlement Agreement.
NOW, THEREFORE, with the consent of the Tribe and Tacoma, IT IS HEREBY ADJUDGED, ORDERED, and DECREED as follows:
I. JURISDICTION
1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § § 1331 and 1362, this being an action by an Indian tribe with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, and treaties of the United States. The Court has jurisdiction over the parties,who reside, own property, or otherwise conduct business in Mason County, Washington. Venue is proper in that the claim arose in this judicial district.
II. INCORPORATION OF SETTLEMENT AGREEMENT
2. The Settlement Agreement entered into between the Tribe and Tacoma on January 12, 2009, and which became effective on July 18, 2011, is attached hereto as Attachment A, and is adopted and incorporated by reference into this Decree. The Court has reviewed the Settlement Agreement and concludes that it is fundamentally fair, adequate, and reasonable, both procedurally and substantively, in the public interest, consistent with applicable law, and has been negotiated by the parties in good faith. The terms and conditions of the Settlement Agreement attached hereto as Attachment A, are fully enforceable as terms and conditions of this Decree.
III. DISMISSAL OF CLAIMS AGAINST TACOMA
3. All of the Tribe's Claims (as the term "Claims" is defined in Section 1.6 of the Settlement Agreement attached hereto as Attachment A) that the Tribe has brought in this litigation against Tacoma are hereby dismissed with prejudice upon the entry of this Decree.
IV. COMPENSATION TO THE TRIBE
4. Pursuant to Section 4.1.1 of the Settlement Agreement, Tacoma shall pay the Tribe six million ($6,000,000) in cash. Tacoma shall transmit this payment to the United States for deposit into a trust account held by the United States in trust for the Skokomish Indian Tribe. Not later than October 15, 2011, the Tribe shall provide Tacoma with the appropriate trust account information for the transmittal of this payment. Within thirty days of receiving this information, Tacoma shall transmit this payment.
5. Pursuant to Section 4.1.2 of the Settlement Agreement, Tacoma shall pay the Tribe five million ($5,000,000) in cash. Tacoma shall transmit this payment to the United States for deposit into a trust account held by the United States in trust for the Skokomish Indian Tribe. Not later than October 15, 2011, the Tribe shall provide Tacoma with the appropriate trust account information for the transmittal of this payment. Within thirty days of receiving this information, Tacoma shall transmit this payment.
6. Pursuant to Section 4.1.3 of the Settlement Agreement, not later than September 16, 2011, Tacoma shall transfer to the Tribe by general warranty deed the properties described on Exhibits A-1 through A-3 (and graphically depicted on Exhibits B-1 through B-3) of the Settlement Agreement attached hereto as Attachment A.
7. Pursuant to Section 4.2 of the Settlement Agreement, Tacoma shall pay $1.6 million as consideration for the release of all claims of trespass arising from the construction, operation, maintenance and/or existence of the Cushman Hydroelectric Project transmission lines on the Allotment Parcels (as "Allotment Parcels" are defined in Section 1.2 of the Settlement Agreement). Tacoma shall transmit this payment to the United States for deposit into a trust account held by the United States in trust for the allottees with interests in the Allotment Parcels, as determined by the Bureau of Indian Affairs. Not later than September 1, 2011, the Tribe shall provide Tacoma with the appropriate trust account information for the transmittal of this payment. Within fourteen days of receiving this information, Tacoma shall transmit this payment.
8. Pursuant to Section 4.1.10 of the Settlement Agreement, commencing on April 1, 2012, and for forty (40) years or until the Settlement Agreement terminates, whichever is earlier, Tacoma will provide an annual payment to the Tribe in accordance with Section 4.1.10of the Settlement Agreement attached hereto as Attachment A. Tacoma shall transmit these annual payments directly to...
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