Opinion
Case No. C99-5606FDB
June 4, 2001
ORDER GRANTING CITY OF TACOMA'S MOTION FOR PARTIAL SUMMARY JUDGMENT
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, and Declaratory relief in general.
In its motion for partial summary judgment, the City of Tacoma ("Defendant" or "City") argues several points: the Tribe does not have a private right of action for money damages against Tacoma arising out of any alleged violation of the Treaty of Point No Point; the Treaty did not create an immutable property right; the Federal Power Act provides the complete remedy for the alleged effects of the Cushman project on the Tribe's "in common" fishing interest; and the Tribe's claim of federally reserved water right arising from its "in common" fishing right does not entail an ownership interest in the waters that the Tribe fishes nor does it impose an environmental servitude; additionally the North Fork waters of the Skokomish River are not appurtenant to their reservation and cannot be part of a federally reserved water right.
Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See, e.g., Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791, 818 (D. Idaho 1994) (summary judgment resolved issue of whether fisheries clause of the treaty with the Nez Perce could serve as a basis for a damages claim based on the alleged impact of a federally licensed hydropower project on the Tribe's fisheries); Oregon Dept. of Fish and Wildlife it Klamath Indian Tribe, 473 U.S. 753, 762 (1985) (summary judgment in a case addressing the treaty-reserved fishing and hunting entitlements of the Klamath Tribe).
PARTIES' ARGUMENTS
CITY OF TACOMA'S MOTION
The City argues that while there are cases that allow a tribe to obtain injunctive relief against a third party for alleged violations of treaty rights ( State of Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 693 n. 33 (1979)), the Tribe has no private cause of action for money damages against a third party for alleged violations of a treaty. The City contends that the Treaty of Point No Point does not suggest there was any intent to provide for such relief and there is no statute that authorizes such a claim.
The City argues that the Treaty of Point No Point did not create an immutable property right Article IV of the Treaty provided that the Tribe would retain its right to take fish "in common" with other citizens "at usual and accustomed grounds and stations." The City argues that certain "rights" under Indian treaties are not static and must accommodate changing circumstances. This is so, argues the City, because, otherwise, this Tribe and others could claim an environmental servitude based upon conditions existing during the mid-1800s, and that anything occurring since then that interfered with that right would be a Treaty violation. The Ninth Circuit, sitting en banc upheld a district court determination that under treaties negotiated by Governor Stevens, hatchery fish are to be included in the Tribes' allocation on the grounds that the inclusion of such fish would help compensate for past activities associated with changing society and development, United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985), but it vacated that portion of the Ninth Circuit's three-judge panel's decision finding an implied environmental protection of fish habitat due to lack of concrete facts on which to base a pronouncement of legal rules in the context of a declaratory judgment. Id. Therefore, the City turns to the historical record.
The City notes that when the Treaty of Point No Point was negotiated, there was "a great abundance of fish and a relative scarcity of people" Passenger Fishing Vessel, 443 U.S. at 675. When Governor Stevens negotiated the treaties with the Washington Territory Indian tribes, he explained that the influx of settlers necessitated that there be a treaty providing for the coexistence of the Indians and the new-comers. (Edward Swindell, typescript, Proceedings of the Commission to Hold Treaties with the Indian Tribes in Washington ("Treaty Proceedings") at 328-29.) Ultimately, because of the concern that the Skokomish Tribe's progress with its development be safeguarded against their possible removal and relocation pursuant to Article 7 of the Treaty, the lands were ultimately patented to the Tribe. Thus, by this time, the Skokomish community lands had been transformed into a community of individually-owned farming plots, and the Skokomish hunting, gathering, and fishing economy continued evolving into a mixed economy resembling that of the surrounding non-Indian economy. (M. Eells, Census of the Clallam and Twana Indians of Washington Territory, THE AMERICAN ANTIQUARIAN 35, 37-38 (January 1884).)
The City contends that the historical record demonstrates that the Pacific Northwest treaties, in particular, the Treaty of Point No Point, were made in anticipation of change, and that they were intended to provide the means for tribal members to become farmers and to assimilate into the developing society. The off-reservation treaty fishing right is a "usufructuary" right. Minnesota v. Mile Lacs Band of Chippewa, 526 U.S. 172, 175 (1999); Sokaogon Chippewa Community v. Exxon Corp., 805 F. Supp. 680, 701 (E.D. Wis. 1992), affirmed, 2 F.3d 219 (7th Cir. 1993), cert. denied, 510 U.S. 1196 (1994) ("Usufructuary rights like hunting and fishing imply temporary presence and minimal physical occupation of the land . . . . The exercise of usufructuary activities is not contingent upon actual ownership of land, since the fee owner retains title and can reap the fruits of his land as well.") In Passenger Fishing Vessel, the meaning of this right was summarized:
Non-treaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to reservations to destroy the rights of other "citizens of the Territory." Both sides have a right, secured by treaty, to take a fair share of the available fish.443 U.S. at 684-85.
This issue was presented in Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791 (D. Idaho 1994). The Tribe in that case claimed damages against a hydropower utility for the alleged injuries to the Tribe's fishing right allegedly caused by the construction and operation of the Hells Canyon Dam Complex. The Nez Perce Treaty was negotiated by Governor Stevens and contains a substantially identical right to that contained the Treaty of Point No Point. The Court framed the issue:
The ultimate issue presented is whether the treaty provides the Tribe with an absolute right to preservation of the fish runs in the condition existing in 1855, free from environmental damage caused by a changing and developing society.Id. at 807. The Court answered this question:
In the Court's view, Indian tribes do not have an absolute right to the preservation of the fish runs in their original 1855 condition, free from all environmental damage caused by the migration of increasing numbers of settlers and the resulting development of the land.Id. at 808-10. The Ninth Circuit has held similarly in rejecting the notion that a treaty-reserved water right for fisheries entailed the reservation of water in amount and quality equal to that present at treaty-time; finding instead that any water right was limited to that necessary to support the tribe's hunting and fishing "as currently exercised." United States v. Adair, 723 F.2d 1394, 1414-15 (9th Cir. 1983), cert. denied, 476 U.S. 1252 (1984).
The adaptive character of the treaty fishing right is also shown, contends the City, in that the "right" is not immune from state or federal regulation. See, e.g., United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 706 (1987). Such regulation may occur as long as it is nondiscriminatory. See generally Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973). Courts will enforce a treaty and require mitigation in appropriate cases if developments in a region impermissibly impact a tribal fishery. United States v. Winans, 198 U.S. 371 (1905).
In summary, argues the City, the Treaty of Point No Point did not create any immutable property right insulated from westward development, but rather established an adaptive subsistence right to continue to go into areas off the reservation and harvest a public resource.
The principle of accommodation applies in this case — concerning the federal authorization of the Cushman Project and all the implications for the Tribe's fishing — with reference to the federal government's enactment and implementation of the Federal Power Act (FPA). The FPA is a comprehensive plan for developing the nation's water power resources, and Congress addressed the rights and concerns of Indian tribes as well:
The Federal Power Act constitutes a complete and comprehensive plan for the development and improvement of navigation and for the development, transmission and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction . . . . It neither overlooks nor excludes Indians or lands owned or occupied by them.Federal Power Comm'n v. Tuscarora Indian Nation 362 U.S. 99, 118 (1960). In 16 U.S.C. § 811 the Commission "require[s] the construction, maintenance, and operation by a licensee [of] such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce, as appropriate." Similarly, the FPA in 16 U.S.C. § 797 (e) requires the Commission to incorporate into a FERC license conditions that the Secretary of the Interior finds are necessary "for the adequate protection and utilization" of the Reservation. The City contends that the Commission's order relicensing the Cushman Project provides ample evidence of the Commission's statutory mandate to address fisheries concerns. The City notes that there is a balancing of interests when implementing the FPA's fisheries resources because they pertain to all the people. For example, in Escondido Mutual Water Co. v. LaJolla Band of Mission Indians, 466 U.S. 765 (1984), the Court discussed this balance in the context of FERC-authorized hydroelectric projects and held that the Commission was not required to defer to either Interior or the aggrieved Indian tribe in regard to off-reservation activities, regardless of their on-reservation implications. Id. at 780. Tribal prerogatives do not include:
the power to override Congress' subsequent decision that all lands, including tribal lands, could, upon compliance with the FPA, be utilized to facilitate licensed hydroelectric projects. Under the FPA, the Secretary [of the Interior], with the duty to safeguard reservations, may condition, but may not veto, the issuance of a license for project works on an Indian reservation. We cannot believe that Congress nevertheless intended to leave a veto power with the concerned tribe or tribes.466 U.S. 765, 787 (1984). This balancing scheme was not changed with the enactment of the Electric Consumers Protection Act of 1986 (ECP).
The preemption issue of the FPA was addressed in Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791 (D. Idaho 1994). The Tribe sought damages under federal law from a FERC-licensed hydropower utility based on the utility's alleged impacts on the Snake River's fisheries and, derivatively, on the Tribe's Stevens-treaty fishing right. The Court ruled that the FPA preempted such relief:
Thus, it is clear to this Court that Congress, when passing the FPA, considered the legislation's affect and impact on Indian treaty rights. It is also clear that when enacting the FPA, Congress provided for the impact of hydro-electric projects on fish runs, by requiring FERC to consider the recommendations of various agencies and of the adversely affected tribes. . . . Further, the remedies which FERC may impose, i.e. mitigation of damage to fish runs, appear to support the various court decisions imposing a duty of mitigation rather than awarding damages as the remedy to protect the Indian's treaty fishing rights.
It is the considered opinion of this Court relating to damage to the fish runs that enactment of the FPA by Congress preempts any federal common law damage remedy this Court might fashion for the Tribe.Nez Perce Tribe, 847 F. Supp. At 816-17. Thus, the City argues that the Tribe's remedy is at the Commission and at the Court of Appeals, which has exclusive jurisdiction to address the Tribe's contentions regarding the Cushman Project's relicensing and operation under the FPA. 16 U.S.C. § 825 (b) (providing exclusive appellate court jurisdiction to review Commission orders and for their finality absent further review by the United States Supreme Court). The City also argues that 16 U.S.C. § 803 (c) of the FPA concerns injuries "to the property of others" not injuries to a public resource, such as the fish resources at issue here, in which the Tribe has no immutable "property" right.
Finally, the City argues that the Tribe's claim of a federally reserved water right should be rejected because the Treaty of Point-No-Point contains no such express reservation, that only that amount of water absolutely necessary for the federal reservation's purpose is set aside, Cappaert v. United States, 426 U.S. 128, 141 (1976), and that the right to take fish "in common" off its reservation does not entail ownership in the waters that the Tribe fishes — the Tribe doesn't need to own the waters to be able to fish those waters. See In Re: Snake River Basin Adjudication, Idaho State District Court, No. 03-10022 (Nov. 10, 1999) (denying on summary judgment Nez Perce Tribe's claim to an off-reservation federal reserved right to sustain the Tribe's treaty-era fishery) (appeal pending).
PLAINTIFFS' RESPONSE
Plaintiffs contend that the Treaty's meaning has been determined by the Ninth Circuit and the United States Supreme Court. Moreover, they contend that Tacoma has incorrectly recast historical events, particularly that the Treaties sought to assimilate tribes into an agrarian economy and lifestyle. Governor Stevens and the other Commissioners knew that without an agreement for continued Indian fishing, the treaties were not likely to be signed, and the United States wanted to keep the cost of the treaties down by agreeing to continued Indian fishing. Plaintiffs point to statements of Governor Stevens that reveal the expectation of a permanent fishing right; these statements were made at the time the treaties were negotiated as well as in an address to the territorial legislature in 1854. (Citations omitted) That fishing rights were ". . . reserved to the descendants of treaty Indians, without limitation in time, excepting as Congress may determine, has been recognized and applied by the United States Supreme Court from the first to the latest decision of that court involving Indian treaty fishing rights." United States v. Washington, 384 F. Supp. 312 at 331-332 (W.D. Wash. 1974). Therefore,
"[i]t is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the latter `should be excluded from their ancient fisheries,' . . . and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish."Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 676 (1979).
Plaintiffs contend that the Skokomish people did not trade their fishing culture for a farming culture, and they cite to early documents indicating the Skokomish to be a fish eating tribe.
Plaintiffs also contend that the Cushman Project was proposed as a one-dam, one-powerhouse project in 1917-1922, and that the federal agencies were misled. Plaintiffs argue that any riparian rights attached to the condemned state land ( see City of Tacoma v. State of Washington, 121 Wn. 448, 209 P. 700 (1922)) would not allow for out-of-watershed diversions, such as that entailed by the Cushman project. Mally v. Weidensteiner, 88 Wn. 398, 402, 153 P. 342, 343 (1915). Plaintiffs also argue that the United States failed to bring suit on behalf of the Skokomish Tribe owing to a classic conflict of interest — bringing suit would reveal the United States own liability in refusing to rectify the Cushman license defects, to enjoin the Cushman Project, or to pursue assessment of damages.
The Tribe also argues that the Point No Point Treaty is self-executing and limits the activities of those who did not sign the Treaty. For example, in Puyallup Tribe v. Dept. of Game, 391 U.S. 392 (1968), the Supreme Court held that the Treaty of Medicine Creek's fisheries provision (similar to that of the Treaty of Point No Point) prohibited the State of Washington (which did not sign any of the Stevens treaties) from barring the Puyallup Tribe's use of set nets in "usual and accustomed" fishing areas. Accord, Washington v. Fishing Vessel Assn., 443 U.S. 658 (1979).
Plaintiffs also assert that the City has cited no authority to explain why, if tribes are fully able to seek equitable relief against nonsignatory parties for treaty violations, they cannot also seek damages. Plaintiffs argue that Washington courts have not hesitated to find third parties liable for tortiously interfering with other parties' contractual relations, and have awarded damages to a contracting party whose property was interfered with by a municipality. See, e.g., Please v. Seattle, 112 Wn.2d 794, 774 P.2d 1158 (1989) (city's conduct interfered with developer's business expectancy for property). Thus, if Tacoma's actions wreak havoc on the Tribe's traditional fisheries, it has interfered with the agreement between the United States and the Tribe protecting the fisheries and the access thereto.
Plaintiffs argue that they need not seek Congress' permission to seek compensation from someone who injured its property. Plaintiffs assert that the Skokomish Tribe has suffered a legally recognized injury, that case after case has held that the Tribe's treaty fishing right is a property right, see, e.g., United States v. Washington, 157 F.3d 630, 643-44 (9th Cir. 1998), cert. denied ___ U.S. ___ (1999). And see Muckleshoot v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988), which stated:
The treaty fishing right is a property right protected under the fifth amendment, and the harm to this right cannot be measured solely in terms of the amount of lost income the Tribes might suffer. Boldt I, 384 F. Supp. At 404 ("the treaty rights that are asserted are unique and the damages which have been or will be sustained are not susceptible of definite monetary determination"). If the Tribes are to be compensated for a taking of their fishing ground, Congress must first authorize the taking.Id. at 1516. See Also Confederated Tribes of the Umatilla Indian Reservation v. Alexander, 440 F. Supp. 553 (D. Ore. 1977) (treaty fishing clause barred construction of dam that would have flooded some Indian fishing stations, prevented all wild fish from swimming upstream, and completely eliminated the steelhead run above the dam). The Treaty fishing right is a property right in that it protects the tribes' opportunity to harvest a share of the fish "crop" that passes through its usual and accustomed fishing areas. See Washington v. Fishing Vessel, 443 U.S. at 663. The Treaty right also guarantees a property access right to a tribe's usual and accustomed fishing locations. United States v. Winans, 198 U.S. 371, 381-82 (1905).
Plaintiffs argue that even if the Court did not find a property right arising from the treaty fishing provision, the Tribe would still have a cause of action, as courts have repeatedly found a cause of action resulting from wrongful environmental harm that diminishes the fish resource and awarded damages. See, e.g., Robins Dry Dock and Repair Co. v. Flint, 275 U.S. 303 (1927).
Plaintiffs argue that the Supreme Court has rejected the argument that tribes can sue to protect property rights protected by federal common law "only when specifically authorized to do so by Congress." County of Oneida, New York v. Oneida Indian Nation of New York State, 470 U.S. 226, 235 n. 5 (1985) (Oneida II). The Supreme Court then upheld the lower's court's common law authority to award damages for violation of tribal property rights. Id. Alternatively, Plaintiffs argue that 42 U.S.C. § 1983 establishes a cause of action for damages against Tacoma. Because the Treaty of Point No Point is the "law of the Land" under the Supremacy Clause, it falls within the terms of section 1983. See Maine v. Thiboutot, 448 U.S. 1, 4 (1980). The Ninth Circuit has held that a lawsuit seeking redress for violations of the Indians' treaty rights gives rise to a section 1983 action. United States v. Washington, 813 F.2d 1020, 1023 (9th Cir. 1987).
Regarding the "immutable property right" issue raised by Tacoma, the United States Supreme Court has held that the treaty fishing right must adapt to circumstances, such as where the Tribe dwindles to just a few members, Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 686-87 (1979), but this is different than what Tacoma argues that a treaty right can be totally impaired or decimated without express Congressional authorization and full compensation.
Plaintiffs argue that the Federal Power Act does not preempt damages actions because, unlike statutes that provide an administrative process for bringing monetary claims, the FPA has no mechanism for filing a damage claim, so it cannot be said to provide a "complete remedy." Also, FERC has no jurisdiction to award monetary damages, and neither do circuit courts hearing license appeals. See 16 U.S.C. § 803 (c) (FPA); 16 U.S.C. § 8251 (b) (FERC); South Carolina Public Service Authority v. FERC, 850 F.2d 788 (D.C. Cir. 1988).
Plaintiffs distinguish the DiLaura and Nez Perce cases cited by the City. DiLaura merely held that Section 10(c) of the FPA would not give the Federal Court jurisdiction, and that a viable federal cause of action must be asserted. The Nez Perce case did not hold that Congress through Section 10(c) eliminated all causes of action for decimated Indian treaty fisheries under the federal constitution or Section 1983.
Plaintiffs argue that treaty water rights are violated if there is insufficient water to fulfill the purposes of the fishing clause. In Winters v. United States, 207 U.S. 564, 576 (1980), the Supreme Court held that a sufficient quantity of water to carry out the purpose of a reservation is reserved when the reservation is created. A treaty fishing right guarantees water sufficient to maintain those fisheries. Joint Board of Control v. United States, 832 F.2d 1127 (9th Cir. 1987), cert. denied, 108 S.Ct. 732 (1988).
Plaintiffs argue that Tacoma may not eliminate Skokomish usual and accustomed fishing grounds. The right to take fish has a "geographic" aspect, and even if tribes must share the fish "in common" with other citizens, that duty does not "displace their right of access to fishing places." Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1510 (W.D. Wash. 1988). The United States Supreme Court stated that it was "inconceivable" that the parties to the treaty would have agreed to allows future settlers "to crowd the Indians out of any meaningful use of their accustomed places to fish." Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 676 (1979).
DISCUSSION
Both parties extensively discuss the background leading up to the treaties negotiated by Governor Stevens, in particular, the Treaty of Point No Point, which is the source of the Skokomish Tribe's "in common" fishing right. The Skokomish Tribe's fishing right is not an immutable property right but an entitlement that must be adapted to changing circumstances. The United States Supreme Court stated in United States v. Winans, 198 U.S. 371, 381 (1905):
New conditions came into existence, to which those [treaty fishing] rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away.
The Tribe states that it has not argued for an immutable wilderness servitude, but for a finding that Tacoma has egregiously harmed the Tribe's fishing rights and other property and should compensate the Tribe.
Nevertheless, the question for the Court concerns the implications for the treaty fishing right in the face of a federally authorized and licensed hydropower development. The Court agrees with the proposition that the Federal Power Act constitutes a complete and comprehensive plan for the development, transmission, and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction, and that the Act neither overlooks nor excludes Indians or lands owned or occupied by them. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 118 (1960); Escondido Mutual Water Company v. La Jolla Band of Mission Indians, 466 U.S. 765, 787 (1984).
The Tribe argues that the Federal Power Act does not provide a complete remedy in that actions for past damages are not preempted and that the FPA does not provide for monetary damages. But the FPA addresses fisheries concerns and Tribal interests in 16 U.S.C. § 811 by delegating full authority to the Secretaries of Interior and Commerce to provide mandatory license conditions mitigating a hydropower operation's impacts on fisheries resources. This is what occurred in regard to the Cushman Project; concerning the relicensing of the project, see generally, City of Tacoma 1998, 84 FERC at ¶¶ 61,550-59. The Skokomish Tribe does not have special authority over licensing projects; rather, the Secretary of the Interior may condition — but not veto — the licensing of certain projects. Escondido Mutual Water Co., 466 U.S. at 787.
The Plaintiffs (The Tribe) assert that the license issued for the Cushman Hydroelectric Project in 1924 is invalid. The Tribe says it was harmed by destruction of the fisheries in the North Fork of the Skokomish River because the North Fork was diverted out of its watershed. The Tribe raised these issues before the FERC in opposition to relicensing the Project. From the beginning, as early as 1913, the understanding was that the flow of water from the North Fork would be cut off. (Letter from H. H. Johnson to Commissioner of Indian Affairs (August 5, 1913); Report on Proposed Dam on Skokomish from L. M. Holt to Commissioner of Indian Affairs (November 5, 1913).) Moreover, a letter from S.G. Hopkins, Assistant Secretary of the Interior to Hamilton Gronen, Tacoma's Commissioner of Light and Water (October 4, 1917) indicates that there was concern by Tacoma for the proximity of the North Fork to the Skokomish Reservation, but that the Reservation did not require water from the North Fork and that its diversion would meet with no objection from the Indians, although the letter did reflect the Indians' concern, when Seattle was interested in the project, with the depreciation of their land's value owing to the undesirability of living under the dam. Assessment of the situation continued (see outline set forth by Tacoma in its opening brief). Ultimately, the Washington Supreme Court held that Tacoma could condemn the state property and all the associated water rights and noted that the project would
. . . take all of the water of the North Fork and carry and discharge it by means of a canal and pipeline through its power house and into Hoods Canal without returning it to the stream. The result will be that the only water flowing from the North Fork into the mainstream will be such as goes through or over the dam by wastage, and such as is discharged into the North Fork by tributary streams between the dam and the confluence of the two forks.Tacoma v. Washington, 121 Wn. 448, 450, 209 P. 700 (1922). Tacoma then applied to the Federal Power Commission for a license for the Cushman Project. The application described a two-dam/two-powerhouse project that would utilize substantially all waters of the North Fork of the Skokomish River, and a map of the entire project described certain federal lands that would be flooded if the Project were built. (See Exhibit C to Tacoma's opening brief) The Commission approved the Project in 1924 stating that it
will be best adapted to a comprehensive scheme of improvement and utilization for the purposes of water-power development and of other beneficial public uses, and the license will not interfere or be inconsistent with the purpose for which any reservation affected thereby was created or acquired. . . .
(License for a Minor Part of a Complete Project, No. 460 (June 3, 1924) (Exhibit A to Tacoma's opening brief). The Commission issued Tacoma a license approving that "minor part" of the Project that involved the flooding of 8.8 acres of federal land. Id. While the Tribe may contend that there were "assurances" made that were untrue, that is conjecture today, and Tacoma notes that in reports cited by the Tribe, in 1937 and 1944, Tribal members "continue to make good utilization of the abundant supply of fish, oysters, and clams.
The Tribe also contends that Tacoma lacks the necessary water rights to operate the Cushman Project and that the relicense was obtained through deception, fraud, and misrepresentation. The Tribe submits in support of its water rights contention a letter from an assistant attorney general, Ecology Division to the Secretary of the Federal Energy Regulatory Commission dated November 18, 1993. (Attachment B to Plaintiff's Response) This letter (which contends that either the full water rights claimed is not warranted, or they were waived by certain procedural failures by the City of Tacoma) was submitted in connection with FERC's adjudication of issues surrounding relicensing beginning in 1974, when the original license expired. Tacoma applied for relicense of the Cushman Project in November 1974, and the Skokomish Tribe was allowed to intervene in those proceedings in November 1975. Litigation of this project followed during the intervening decades until 1998 when Tacoma was issued a relicense for the Project. ( City of Tacoma 1998, 84 EERC at ¶ 61,535). The Tribe raised many of the same contentions about the effects of the Project during that litigation as it raises here, (See City of Tacoma 1994, 67 FERC at ¶ 61,439). After addressing the issues and the remedies pursuant to the FPA, the Commission issued a 40-year license to Tacoma for the Cushman Project; this license included forty-six pages of license articles and conditions that mitigated the Cushman Project's alleged impacts. ( Id. ¶¶ 61,576-61602) The Tribe sought a rehearing making allegations such as submitted in this case, that the Project "shattered the foundation of the Skokomish economy/culture" and assessing damage at $5.7 billion. (Skokomish Indian Tribe's (1) Objections to and Request for Rehearing Re Commission Order of July 30, 1998; and (2) Renewed Request for Interim Relief, FERC No. 460-001 at 134 (August 312, 1998). (Exhibit W to Tacoma's opening brief).) The Commission denied this request and reaffirmed its licensing decision. ( City of Tacoma, 89 FERC ¶ 61,275 (Dec. 16, 1999). In litigation in 1962 in this United States District Court, Skokomish Indian Tribe v. France, Cause No. 1183, Findings of Fact, Conclusions of Law, Finding 43 (W.D. Wash., Jan. 29, 1962) (Exhibit V to Tacoma's opening brief), Judge Boldt found that the City of Tacoma had operated the Cushman Project at all times in accordance with the terms of the Federal Power Commission license and all laws, rules and regulations pertaining thereto and concluded:
If the plaintiff, or its members felt aggrieved at the issuance of the license for the construction of a hydroelectric project across lands in which they claimed an interest, an adequate remedy was afforded them at the time of the issuance of said license under the laws of the United States, and particularly, 16 U.S.C. § 791, et seq. [the Federal Power Act].Id. Conclusion 23. The Court accordingly determined that the Tribe's claim impermissibly
constitutes, insofar as the City of Tacoma is concerned, a collateral attack upon the order of the Federal Power Commission in issuing a license to the City of Tacoma for the construction of a hydroelectric project, together with transmission lines, across the area in question.Id. There is no basis for Plaintiffs' assertion that Tacoma lacks insufficient water rights to operate the Cushman Project. Concerning the assertions of misrepresentations, the Plaintiffs evidently have not yet explained to the Defendants how the subject statements were misrepresentations as they were commanded in this Court's Order of January 31, 2001. Instead, the Plaintiffs produced documents and an index. Fraud or misrepresentation must be alleged with particularity:
a plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about the statement, and why it is false. In other words, the plaintiff must set forth an explanation as to why the statement or omission complained of was false or misleading. A plaintiff might do less and still identify the statement complained of, indeed, the plaintiff might do less and still set forth some of the circumstances of the fraud. But the plaintiff cannot do anything less and still comply with the Rule 9(b)'s mandate to set forth with particularity those circumstances which constitute the fraud.In re Glenfed, Inc. Securities Litigation, 42 F.3d 1541, 1548 (9th Cir. 1994) (emphasis in original). Accordingly, the Court will not consider any of the Plaintiffs' contentions of misrepresentation in this Motion for Partial Summary Judgment. Also, if the required disclosures concerning how certain statements were misrepresentations are not made by the revised discovery cut-off date, the Plaintiffs will be barred from producing any evidence in support of their misrepresentation claim.
The Tribe asserts that Section 803(c) of the Federal Power Act does not abolish claims other than state law based claims. DiLaura v. Power Authority of the State of New York, 982 F.2d 73, 78 (2nd Cir. 1992), examined the issue and the actions in other courts and adopted the majority rule that Section 803(c) does not create an independent federal right of action but simply preserves existing state tort law with its own rules of liability for damages caused by licensees. While DiLaura did not involve Indian treaty rights, that case did acknowledge FERC's strict administrative process. Id. at 79. Under Section 313(b) of the FPA, any party aggrieved by a FERC licensing decision must seek review in the circuit, not the district courts. California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908 (9th Cir. 1989). The Plaintiffs in that case, which involved a hydroelectric project in the Sierra National Forest, argued that the FPA review provisions were inapplicable because their lawsuit was filed against the U.S. Forest Service and arose under the provisions of the National Environmental Policy Act (NEPA) and the American Indian Religious Freedom Act (AIRFA); that they were not attacking the licensing decision made by FERC, but were alleging the failure of the Forest Service to follow necessary procedural steps in statutes outside the purview of power and energy regulation. The Ninth Circuit found the argument unpersuasive:
[A]lthough [plaintiffs] seek to characterize the proceedings as an attack on the Forest Service's actions, it is clear that the suit is an attempt to restrain the licensing procedures authorized by FERC. The . . . conditions imposed by the Service have no significance outside the licensing process, and we do not believe that the jurisdictional remedy prescribed by Congress hangs on the ingenuity of the complaint . . . . Ultimately, appellants object to the proposed conditions only because they are included in the FERC license. Thus, even if they attempt to style this as an independent claim against the Forest Service, the practical effect of the action in district court is an assault on an important ingredient of the FERC license.Save Our Streams, 887 F.2d at 912. Here, the Skokomish allege claims based on the Treaty of Point No Point, 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments, and federal common law as the basis for this Court's jurisdiction. But the Tribe's claims flow directly from FERC's licensing decisions. The Court agrees with the City of Tacoma that the Tribe's claims belong before FERC and not this Court.
No case has been cited to this Court that awards an Indian tribe damages against a private hydropower facility with a valid license from FERC for injuring "in common" treaty fishing rights. There is a case with facts similar to these where the Court held that a tribe may not recover damage: from a licensed hydropower facility for alleged injury to "in common" treaty fishing rights. In Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791 (D. Idaho 1994), the Court addressed the Tribe's claim for damages caused by a FERC-licensed hydropower utility impact upon the Snake River's fisheries, and derivatively, on the Tribe's Stevens-Treaty fishing right. The Court held that the FPA preempted such relief. The relevant passage was quoted earlier in setting forth the parties' arguments, but it is worth quoting again in part:
Further, the remedies which FERC may impose, i.e. mitigation of damage to fish runs, appear to support the various court decisions imposing a duty of mitigation rather than awarding damages as the remedy to protect the Indian's treaty fishing rights.
It is the considered opinion of this Court relating to damage to the fish runs that enactment of the FPA by Congress preempts any federal common law damage remedy this Court might fashion for the Tribe.Nez Perce, 847 F. Supp. at 816-17. Contrary to Plaintiffs' attempt to distinguish Nez Perce, in a second order in the Nez Perce case (see Reply Brief; Exhibit A to Leighton Decl.), the Court addressed and rejected the Tribe's claim for harm to usual and accustomed fishing places, reasoning that the right was adaptive and was subject to the implications of a federally authorized hydropower development. The other cases cited by Plaintiffs for the proposition that interference with "in common" fishing rights can support a damage action are inapposite as they did not involve the FPA. and the fishermen were not covered by any comprehensive federal scheme.
Concerning the claims under 42 U.S.C. § 1983, this claim is preempted and is improper for the reasons stated earlier in the discussion of Save Our Streams. Additionally, the "in common" treaty fishing rights reserved to the Tribe in the Treaty of Point No Point are communal rights vested in the Tribe, not in the individual members who benefit from those rights. United States v. Washington, 520 F.2d 676, 692 (9th Cir. 1975). cert. denied, 423 U.S. 1086 (1976). In an analogous situation, the Court in Hoopa Valley Tribe v. Nevins, 881 F.2d 657 (9th Cir. 1989). cert. denied, 494 U.S. 1055 (1990), rejected a Section 1983 claim brought by the Tribe alleging infringement of its right to tribal self-government:
The tribe is asserting its right to exercise sovereignty, as opposed to protecting the personal liberty of its members. Because the right to tribal government protects the powers conferred upon the tribe, and not individual rights, it falls outside the scope of § 1983.Id. at 662. And see, United States v. Washington, 813 F.2d 1020, 1023 (9th Cir. 1987) (We therefore hold that the Tribes' treaty interpretation claims do not give rise to a claim cognizable under § 1983). The dicta in that case suggesting that perhaps the now well-delineated rights might give rise to a § 1983 action would refer only to rights that could have arisen only after 1979, the year the United States Supreme Court interpreted the Stevens treaties "in common" fishing right provisions. This Court has already held that "causes of action arising from treaty rights belong to the Tribe" in its Order Denying Class Certification, p. 4 (Sept. 7, 2000).
Concerning the argument that Tacoma violated the Tribe's federally reserved water rights with the Cushman Project (because there are insufficient waters to maintain fisheries in the North Fork and mainstream) does not survive the "primary purpose" and "need" tests of the cases cited by both parties. The water diverted by the Cushman project was not needed for any purpose central to the existence of the Reservation because, for example, in 1917, the Superintendent in charge of the Skokomish informed the Commissioner of Indian Affairs that the Cushman Project would affect no water rights of the Tribe: "So far as I am able to ascertain no water right of the Indians of the Skokomish Reservation will be involved as irrigation is not required. (Exhibit 39 to Tacoma's opening brief) The Department of the Interior wrote in 1917 that "[t]he Skokomish reservation falls within an area where irrigation is not needed, the annual rainfall being amply sufficient for the production of crops . . . ." (Exhibit 42 to Tacoma's opening brief). United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) is distinguishable as it involved fishing rights on the reservation. But here, the Skokomish share their fishing rights "in common" with all citizens of the United States.
Therefore, for the reasons advanced by the City and discussed in this Order, Tacoma's Motion for Partial Summary Judgment must be granted.
ACCORDINGLY,
IT IS HEREBY ORDERED:
(1) The parties have thoroughly and completely briefed this matter and have provided voluminous material in support of their arguments; therefore, the requests for oral argument are DENIED;
(2) Defendant City of Tacoma's Motion for Partial Summary Judgment is GRANTED and Counts 1-15, 20, 22, 27, 30 and 35 are DISMISSED.