The Ninth Circuit Hands Hydropower A Significant Victory on Tribal Treaty Rights

On March 9, the United States Court of Appeals for the Ninth Circuit decided, en banc (7-4 vote), in Skokomish Indian Tribe v. United States, No. 01-35028, that the Skokomish Indian Tribe and its members could not bring a claim for damages against the City of Tacoma for alleged harms to off-reservation treaty fishing rights and other damages allegedly caused by the original construction and operation of the City’s Cushman Hydroelectric Project.

If Tacoma had lost, it could have adversely affected hydroelectric development and other development in the Pacific Northwest and elsewhere. The Court rejected the plaintiffs’ argument that the Treaty of Point-No-Point, which included a provision for off-reservation fishing rights, authorized bringing a claim for damages against the City for allegedly interfering with the plaintiffs’ asserted off-reservation fishing rights. Plaintiffs also sued the United States under the Federal Tort Claims Act (FTCA) and under the Federal Power Act (FPA). The Court dismissed the second claim and transferred the FTCA claims to the U.S. Court of Federal Claims.

Claims Against the United States

The Court first reviewed the claims against the United States. The plaintiffs sought relief under the FTCA for the United States’ alleged failure to take legal action on the Tribe’s behalf or fund litigation against the City for operation of the Project, thereby breaching the United States’ fiduciary responsibility to the Tribe pursuant to the Treaty of Point-No-Point (one of the Stevens Treaties). The Court concluded that the plaintiffs’ claims against the United States were not properly characterized as tort claims, but instead were claims that the United States violated its contractual obligations to the Tribe under the Treaty. The Court held that such claims should not be brought under the FTCA, but rather under the Indian Tucker Act, and as such lacked subject matter jurisdiction over the claims and transferred the case to the Court of Federal Claims.

The Tribe also brought claims against the United States under the FPA for alleged failures by the United States during the original licensing process for the Project. The Court held that the plain language of FPA §10(c) clearly exempts the United States from liability due to the construction, maintenance or operation of a project under a license, and dismissed those claims.

Claims Against the City

A majority of the en banc Court rejected the plaintiffs’ argument that they could recover monetary damages against the City for alleged treaty violations. While the Court noted that the Treaty was “self-enforcing” and did not require implementing legislation to form the basis of a lawsuit, specific language in the treaty stated the treaty requirements were obligatory on the “contracting parties.” The City was not a contracting party to the treaty, and the Court found nothing in the language of the treaty which would support a claim for damages against a non-contracting party. The Court reviewed several treaty cases, and found that in no case had a court found a right to sue a non-contracting party for damages under a treaty. In deciding the plaintiffs’ claims against the City, the Court nevertheless rejected the argument that the FPA preempts the treaty-based damage claims. The Court held that the plaintiffs were not attacking the FPA licensing decision, but rather suing for damages based on impacts not covered by the license — and as such the FPA does not preempt the claims.

The Tribe also brought claims under 42 U.S.C. §1983 for deprivation of rights, specifically the communal fishing right reserved by the treaty to the Tribe as a sovereign. An en banc majority, however, held that §1983 was designed to secure private rights, not sovereign rights, and therefore the Tribe could not assert a treaty-based fishing right under this section. The majority further held that the Tribe’s treaty-based rights did not give rise to individual actions under §1983 because the fishing rights were communal rights of the Tribe (even if individual members benefit from those rights).

The Tribe claimed that the City had violated water rights impliedly reserved to the Tribe when it entered into the Treaty. The majority noted that the implied reservation of water doctrine reserves to the Tribe only the amount of water necessary to fulfill the purpose of the reservation. Implied water rights stem from the primary purpose of the reservation, and the Court agreed with the district court that, under the record before that court, the Tribe had not shown that fishing was the primary purpose of the reservation.

The Tribe also brought a series of state law claims against the City based on property damage allegedly resulting from aggradation (build-up of sediment and resulting flooding) of the Skokomish River. The variety of claims included (among others) inverse condemnation, trespass, negligence, and private and public nuisance. The majority found that all the state law claims were barred by the statute of limitations, as the plaintiffs filed their complaint over ten years after the aggradation-related claims accrued. The Tribe also claimed the City violated 16 U.S.C. §803(c), which requires licensees to maintain project works in a condition that does not impair navigation, and provides that the licensee shall be liable for damages to the property of others caused by construction, maintenance or operation of the project. The Court followed the interpretation of §803(c) by the DC Circuit and the Second Circuit, and found that §803(c) does not create a federal private right of action, but only preserves existing state law claims against licensees.

In dissent, some members of the Court opined that both Tribes and individual members of Tribes may sue municipalities for damages for violations of the Tribes’ treaty rights; and individual Tribe members may sue under §1983 for violations of asserted treaty fishing rights. The dissent further disagreed with the majority over whether the Tribe had made a sufficient factual showing that fisheries was the primary purpose of the reservation to survive a summary judgment motion regarding the water rights claim against the City. Also, a dissenting opinion would have held that the statute of limitations for the Tribe’s state law claims had not necessarily run.