United States v. Pend Oreille County Public Utility District No. 1

Opinion by Judge BOOCHEVER; Dissent by Judge FERGUSON.

The United States and the Kalispel Indian Tribe appeal, and the Pend Oreille County Public Utility District No. 1 cross-appeals, the district court’s decision awarding damages to the Tribe for the utility’s flooding of tribal lands. This is the third appeal to this court from continuing controversies arising out of the 1955 construction of the Box Canyon dam in Washington.

*606 FACTS

The statement of facts is drawn in large part from the two previous Ninth Circuit decisions in this case, United States v. Pend Oreille Public Utility District No. 1, 926 F.2d 1502 (1991) (“Kalispel I ”), cert. denied, 502 U.S. 956 , 112 S.Ct. 415 , 116 L.Ed.2d 436 (1991), and United States v. Pend Oreille Public Utility District No. 1, 28 F.3d 1544 (9th Cir.1994), (“Kalispel II”), cert. denied, 514 U.S. 1015 , 115 S.Ct. 1356 , 131 L.Ed.2d 214 (1995).

The Kalispel Indian Reservation in northeastern Washington has as its western boundary the Pend Oreille river. In 1952, the Federal Power Commission (“FPC”) (called after 1977 the Federal Energy Regulatory Commission, or “Commission”) issued a license under § 4(e) of the Federal Power Act, 16…

dissenting:

For forty years, the Pend Oreille County public utility has maintained a trespass on tribal and allotted trust lands of the Kalispel Indian Reservation in Northeastern Washington. The majority’s decision denies the Kalispel landowners the compensation and injunctive relief to which they are entitled and contravenes the deterrent purpose of the assessment of damages under the Federal Power Act. For these reasons, and because the district court clearly erred in assessing damages against the public utility and abused its discretion in granting an indefinite stay of injunction, I must dissent.

1. Factual and Procedural Background

In 1952, the Pend Oreille County Public Utility District No. 1 (“PUD”) obtained a license from the Federal Power Commission to construct and operate a hydroelectric dam. Since its operation began in 1955, the dam has caused portions of the nearby Kalispel Reservation, formerly flooded only in the spring, to be flooded year round. The district court concluded that the Kalispel Tribe was entitled to damages in trespass for its lost use of this submerged riparian land. United States v. Pend Oreille Pub. Util. Dist. No. 1, No. 80-116 (E.D. Wa.…