Skokomish Indian Tribe v. United States

Opinion by Judge TROTT; Opinion concurring in part and dissenting in part by Judge TASHIMA.

The Skokomish Indian Tribe (“Skokomish Tribe”) and individual tribe members (collectively “Tribe”) brought this action against the City of Tacoma (“City”), Tacoma Public Utilities (“TPU”), and individual board members of TPU (“Board”), (collectively “Tacoma”), and the United States alleging they were harmed by the Cush-man Hydroelectric Project (“Project”) owned by the City. 1 The Project includes two dams, two reservoirs, diversion works, two power houses, transmission lines, and it floods over thirty acres of federal land within a total project area of 4,700 acres. In Case No. 01-35028, the Tribe appeals the district court’s denial of its motion to certify a class of tribe members who allege *554 they were harmed by the Project. In Case No. 01-35845, the Tribe appeals the district court’s orders (1) denying the Tribe’s recusal motion, (2) dismissing the United States as a defendant, (3) granting summary judgment in favor of Tacoma on the Tribe’s claims asserted against Tacoma; and (4) dismissing the Tribe’s 16 U.S.C. § 803 (c) cause of action for failure to state a claim upon which…

concurring in part and dissenting in part.

I concur in all of the majority opinion, except for Part C.l of the “Discussion” section. Part C.l concludes that the City of Tacoma and Tacoma Public Utility (together, “Tacoma”) constructed and operated the Cushman Project (“Project”) in accordance with the “minor part” license issued in 1924, and that the Tribe’s claims based on the construction and operation of the Project constitute a collateral attack on the license, even though the only purpose of the license was to grant Tacoma the right to clear 8.8 acres of federal land. I respectfully dissent from this conclusion because it is in conflict with our established case law. I would permit the Tribe to sue for damages for the alleged trespass caused by the construction and continued operation of the Project.

*565 FERC 1 is obligated under the Federal Power Act (“FPA”) to ensure that its permits do not “interfere with ... the purpose for which any reservation affected thereby was created or acquired.” 16 U.S.C. § 797 (e). Pursuant to this obligation, FERC concluded that the minor part license issued to Tacoma would not negatively affect the Skokomish Reservation. The 1924 license,…