Skokomish Indian v. Tacoma Public Utilities

ORDER

The opinion filed on March 9, 2005, is amended as follows. Part II Section B, labeled “Reserved Water Rights Claim”, is deleted. Part II Section C, labeled “State-Law Claims”, becomes Part II Section B. Part II Section D, labeled “16 U.S.C. § 803(c)”, becomes Part II Section C.

Judge Berzon’s opinion dissenting in part is amended as follows. Footnote 1 of the dissenting opinion is revised to read as follows: “I dissent only from subsection A (“Treaty-Based Claims”) of Part II (“Claims Against the City of Tacoma and Tacoma Public Utilities”) of the majority opinion.” Part III of the dissenting opinion is deleted. The second sentence of the final paragraph of the dissenting opinion, which reads “I also dissent from the grant of summary judgment on the reserved water rights claim,” is deleted.

Appellant Skokomish Indian Tribe’s motion, filed on May 10, 2005, for leave to file a reply to Appellee City of Tacoma’s response to the petition for additional rehearing or full court rehearing en banc is GRANTED. The motion of amici curiae, filed on April 21, 2005, to file a brief supporting the petition for additional rehearing or full court rehearing en banc is GRANTED. The…

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 529-31. 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…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SKOKOMISH INDIAN TRIBE, a federally  recognized Indian tribe in its own capacity as a class representative and as parens patriae; DENNY S.

HURTADO; GORDON A. JAMES; JOSEPH

PAVEL; ANNE PAVEL; MAURES P.

TINAZA; CELESTE F. VIGIL; ROSLYNNE

L. REED; GARY W. PETERSON; RITA

C. ANDREWS; TOM G. STRONG; MARIE

E. GOULEY; VICTORIA J. PAVEL;

DENNIS W. ALLEN; JOSEPH ANDREWS,

SR.; ZETHA CUSH; ELSIE M. ALLEN;

ALEX L. GOULEY, JR.; LAWRENCE L.

KENYON; DORIS MILLER; GERALD B.

MILLER; HELEN M. RUDY; RONALD D. No. 01-35028 TWIDDY, SR.; NICK G. WILBUR, SR.,  D.C. No. Plaintiffs-Appellants, CV-99-05606-FDB v.

UNITED STATES OF AMERICA; TACOMA

PUBLIC UTILITIES, a Washington municipal corporation; CITY OF TACOMA, a Washington municipal corporation; WILLIAM BARKER, Tacoma Public Utilities Board Member in his official capacity; TOM HILYARD, Tacoma Public Utilities Board Member in his official capacity; ROBERT LANE; TIM STREGE;

G. E. VAUGHN,

Defendants-Appellees. 

6169 6170 SKOKOMISH INDIAN TRIBE v. UNITED STATES

SKOKOMISH INDIAN TRIBE, a federally  recognized…