Skokomish Indian v. Tacoma Public Utilities

Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge GRABER; Dissent by Judge BERZON.

Can an Indian tribe bring claims against the United States under the Federal Tort Claims Act for violation of a treaty, or against a city and a public utility under a treaty and 42 U.S.C. § 1983 ?

FACTS

The Skokomish Indian Tribe (“Tribe”) and its members brought suit in federal district court against the United States, the City of Tacoma (“City”) and Tacoma Public Utilities (“TPU”), alleging harms caused by the Cushman Hydroelectric Project (“Project”), a City-owned project comprised of two dams, two reservoirs, diversion works, two power houses and transmission lines. The Project, completed in 1930, floods over thirty acres of federal land in a total project area of 4700 acres located upstream from the Tribe’s land. The Project has diverted the flow of the Skokomish River’s North Fork to power-generating facilities and led to aggradation of the river. 1 This has allegedly caused flooding of the Tribe’s reservation, failure of septic systems, contamination of water wells, blocking of fish migration, damage to the Tribe’s orchards and pastures and silting over of many of…

with whom PREGERSON, PAEZ, and BERZON, Circuit Judges, join, concurring in part and dissenting in part:

I concur in the majority opinion with two exceptions. First, with respect to the right of individual members of the Tribe to bring a § 1983 claim against the City and TPU, I agree with Judge Berzon’s dissent at pages 1002-04. Second, I disagree with the majority’s conclusion that the statute of limitations has run on the Tribe’s Washington-law claims for nuisance and trespass. Under Washington law, even a permanent structure (like a dam or a sewer) can result in a “continuing” nuisance or trespass. If there is a “continuing” nuisance or trespass, then the plaintiff can seek damages for the three years immediately preceding the filing of the complaint, because the act for which damages are sought is a present, ongoing act rather than a past, completed act. Here, a question of fact remains concerning the proper application of the statute of limitations.

Under Washington law the difference between a “permanent” nuisance or trespass and a “continuing” nuisance or trespass is that the latter is “reasonably abatable,” that is, the defendant can take curative action to stop the…

dissenting in part, 1 with whom PREGERSON, PAEZ, and RAWLINSON, Circuit Judges, concur:

According to the majority, Indian tribes and their members cannot, under federal law, sue municipalities for damages for violation of rights secured by Indian, treaties. The case law simply does not support the majority’s broad pronouncement. Indeed, County of Oneida v. Oneida Indian Nation, 470 U.S. 226 , 105 S.Ct. 1245 , 84 L.Ed.2d 169 (1985) (County of Oneida II), is quite directly to the contrary, permitting suits for damages under federal common law for violation of aboriginal rights reserved by treaty.

More specifically, Supreme Court precedent, as well as cases from the courts of appeals, support the conclusions that (a) both tribes and individual members of tribes may sue municipalities for damages for violations of the tribes’ treaty rights; and (b) individual tribe members may sue under 42 U.S.C. § 1983 for violations of their asserted right to take fish at the usual and accustomed times. The majority’s contrary assertions largely ignore two centuries of understandings concerning the federal protection of Indian aboriginal and treaty-based rights — in particular, the understanding…

FACTS

The Skokomish Indian Tribe (“Tribe”) and its members brought suit in federal district court against the United States, the City of Tacoma (“City”) and Tacoma Public Utilities (“TPU”), alleging harms caused by the Cushman Hydroelec- tric Project (“Project”), a City-owned project comprised of 2956 SKOKOMISH INDIAN TRIBE v. UNITED STATES two dams, two reservoirs, diversion works, two power houses and transmission lines. The Project, completed in 1930, floods over thirty acres of federal land in a total project area of 4700 acres located upstream from the Tribe’s land. The Project has diverted the flow of the Skokomish River’s North Fork to power-generating facilities and led to aggradation of the river.1 This has allegedly caused flooding of the Tribe’s reservation, failure of septic systems, contamination of water wells, block- ing of fish migration, damage to the Tribe’s orchards and pas- tures and silting over of many of the Tribe’s fisheries and shellfish beaches. The Tribe claims the Project has caused it nearly $5 billion in losses.

The Tribe sued for damages resulting from the Project’s impact on tribal lands and fisheries, alleging both state and federal…