Skokomish Indian v. Tacoma Public Utilities

Barker, Tacoma Public Utili misreading of “other than” William Through bur- ca imposed heightened a Board Member his official the court has ties implied to show Hilyard, manufacturers Public pacity; den on the Tom Tacoma Congress’ express despite preemption, Member in his official Board Utilities preemption. statement Lane; Strege; capacity; Tim Robert Defendants-Appellees. Vaughn, G.E. presumption a employs court presumption against preemption —a Tribe, federally a rec Skokomish Indian showing the field to be one triggered by capac ognized tribe its own states. traditionally occupied Unit ity representative and as as a class Locke, 89, 108, 120 ed States v. Hurtado; patriae; Denny parens S. (2001). 1135, 146 Califor L.Ed.2d 69 S.Ct. James; Pavel; Joseph A. Gordon regulates the uses at issue. Cali nia alone Tinaza; Pavel; Anne Maures P. Cel big enough single-handedly fornia is Reed; Gary Roslynne Vigil; L. este F. fate of generate presumption. Peterson; Andrews; Tom Rita C. W. augury “Fleet Rules” California’s Gouley; Strong; Marie E. G. Victoria Engine of what is to come. See Manufac Allen; Joseph Pavel; Dennis W. J. Quality Air turers Ass’n v. South Coast Cush; Andrews, Sr.; M. Zetha Elsie District, Management Allen; Gouley, Jr.; Alex L. Lawrence 1756, 158 L.Ed.2d Kenyon; Miller; B. L. Doris Gerald judgment of the dis- I would affirm the Miller; Rudy; Helen M. Ronald D. trict court. Wilbur, Sr., Twiddy, Sr.; Nick G. Sko members

komish Indian Tribal similarly and all themselves others situated, Plaintiffs-Appellants, TRIBE, a feder INDIAN SKOKOMISH Utilities, Washington Tacoma Public a ally recognized Indian tribe its ow corporation; municipal of Taco representative capacity as class n ma, Washington municipal corpora Denny Hurtado; parens patriae; S. tion; Barker, Tacoma Public William Pavel; James; Joseph A. Anne Gordon Member in his official Utilities Board Tinaza; Pavel; F. Maures P. Celeste capacity; Hilyard, Tom Tacoma Pub Roslynne Reed; Gary Vigil; L. W. Pe lic Utilities Board Member his offi Andrews; terson; Rita C. Tom G. Lane; capacity; Tim cial Robert Gouley; Strong; Marie E. Victoria J. Strege; Vaughn; G.E. United States Pavel; Allen; Joseph Dennis An W. Service, Defen Internal Revenue Sr.; Cush; drews, Al Zetha Elsie M. dants-Appellees. Jr.; len; Gouley, Alex L. Lawrence L. 01-35028, Nos. 01-35845. Kenyon; Miller; B. Mil Doris Gerald ler; Rudy; M. D. Helen Ronald Twid Appeals, United States Court of dy, Sr.; Wilbur, Sr., Plain Nick G. Ninth Circuit. tiffs-Appellants, March Argued and Submitted Filed March America; Tacoma UNITED STATES 3, 2005. Amended June Utilities, Washington Public munic

ipal corporation; City Tacoma,

Washington municipal corporation; Morisset, Morisset, Schloser, D.

Mason McGaw, Seattle, WA, & for the Jozwiak plaintiffs-appellants.

Philip Lynch, H. Assistant United States Tacoma, WA, defendant-ap- Attorney, pellee the United States. Thomas, Creatura, Gordon, Appellant Skokomish Indian Tribe’s mo- Richard

J. Daheim, tion, May for leave to Melanca, filed on file Peterson & Honeywell, City of WA, reply Appellee Tacoma’s re- Tacoma, defendants-appel- LLP, sponse petition to the for additional re- Tacoma and Tacoma Pub- lees hearing rehearing or full court (cid:127) en banc is lic Utilities. curiae, The motion of amici GRANTED. Katzen, Katzen, Kanji & Philip E. 21, 2005, to file a April filed on brief WA, curiae. PLLC, Seattle, for the amici supporting petition for additional re- hearing rehearing or full court en banc is petition for additional GRANTED. rehearing full court en banc rehearing or DENIED. will petitions is No further accepted. OPINION SCHROEDER, Judge, Before: Chief KOZINSKI, Judge: Circuit

PREGERSON, KOZINSKI, RYMER,' GOULD, PAEZ, BERZON, GRABER, bring against Can an Indian tribe claims RAWLINSON, BYBEE and under the Federal Tort United States CALLAHAN, Judges. treaty, Act of a or Circuit Claims for violation city utility under a

against public § treaty and U.S.C. 1983? ORDER March opinion The filed on FACTS B, Part II as follows. Section amended (“Tribe”) Indian Tribe The Skokomish Claim”, Rights “Reserved Water labeled in brought and its members suit federal C, II labeled deleted. Part Section States, against court the United district Claims”, Part II Sec- “State-Law becomes City (“City”) of Tacoma and Tacoma D, II labeled “16 tion B. Part Section (“TPU”), alleging harms Public Utilities 803(c)”, Part II becomes Section U.S.C. Hydroelectric by the caused Cushman C. Project (“Project”), City-owned project dams, reservoirs, di- comprised of two two opinion dissenting Judge Berzon’s works, houses and power two as follows. Footnote of version part is amended Project, complet- The transmission lines. dissenting opinion is revised read as thirty over acres 'of A ed floods “I dissent from subsection follows: Claims”) area of 4700 project II federal land a total (“Treaty-Based of Part (“Claims from the Tribe’s upstream acres located of Tacoma and Against Utilities”) the flow of Project has diverted majority of the land. Tacoma Public pow- North Fork to opin- River’s dissenting Part III of the Skokomish opinion.” aggrada- er-generating facilities and led sentence of the ion is deleted. The second allegedly has tion of the river.1 This dissenting opinion, paragraph final reservation, flooding of.the Tribe’s grant “I from the caused reads also dissent contamination of septic systems, failure on the reserved wa- summary judgment wells, migration, blocking of fish claim,” water is deleted. ter time, leading flooding and elevated deposits over Aggradation occurs when of sedi- up water tables. cause the floor of the river to build ment (“FTCA”), pas- Tort Claims Act 28 U.S.C. the Tribe’s orchards and damage to alleges The Tribe that the United many silting tures and over obligations violated its under the and shellfish beaches. States Tribe’s fisheries Project Treaty by allowing operations continued has caused The Tribe claims legal Project by failing to take nearly in losses. billion $5 litiga- or fund action on the Tribe’s behalf damages resulting The Tribe sued for tion, fiduciary re- thereby breaching its Project’s impact on lands from the tribal Trea- sponsibilities to the Tribe under the fisheries, alleging both state and fed- ty. action, including causes of claims aris- eral properly brought These claims are not Treaty of Point No Point ing under the FTCA, under the which authorizes suits (“Treaty”), Stat. 933. Jan. territory the United States Treaty ceded the Tribe’s States, but reserved a tract for the United injury property, person- or loss of or the Tribe. It also reserved the Tribe injury negli- al or death caused taking fish at usual and right of “[t]he gent wrongful any or act or omission of ... grounds and stations accustomed act- employee of the Government while common with all citizens of the United ing scope within the of his office privilege hunting and “the States” employment, under circumstances where gathering open roots and berries on States, if private person, the United Id., art. 4. unclaimed lands.” claimant in would be liable to the accor- place dance with the law of the where The district court dismissed the United the act or omission occurred. granted as a defendant and sum States 1346(b)(1) added).2 (emphasis § in mary judgment favor of the and 28 U.S.C. treaty-based against The Tribe’s claims the United TPU on the state-law properly The court also the States are characterized not as claims. dismissed 803(c) claims, § Tribe’s claim under 16 U.S.C. tort but as claims the United upon obligations failure to state a claim which relief States violated its under the Treaty. quite A The claims are thus granted. panel could be divided of our differ- affirmed, court but held that the ent from those in eases like Berkovitz v. district States, 531, treaty- court should have dismissed the United S.Ct. 1954, (1988), subject based claims for lack of matter L.Ed.2d 531 and Indian States, jurisdiction. Towing We took the case en banc. Co. United States, (1955), Skokomish Indian Tribe v. United S.Ct. L.Ed. 48 on which (9th Cir.2004). Berkovitz, 1180, 1181 the Tribe 358 F.3d relies. federal in

agency allegedly tortiously ap- acted ANALYSIS proving polio the release of a vaccine that safety did not meet standards. In Indian Against I. Claims United States Towing, negligently the Coast Guard acted A. Treaty-Based Claims operation lighthouse in its of a it because against The Tribe seeks relief did not “use due care to make certain that order,” pursuant light kept good working United States the Federal was requires plaintiffs filing damages 2. The FTCAalso to exhaust an administrative claim for on bringing their administrative remedies before September rejected which was States, suit. See McNeil v. United Complaint November Amended 124 L.Ed.2d 21 at 32. requirement by The Tribe met this treaty, which was later codi- to a nated with a $60,000 damages than causing more very law. This is much like 76 fied federal cargo. 350 U.S. and its barge case, in which the Tribe’s claims claiming the our Tribe is not 122. The States are for breach against rath- United tortiously, but behaved States United Treaty. fiduciary obligations under the by its failed to abide States er that the United un- to the Tribe obligations its contractual subject jurisdic Because we lack matter r Treaty. der damages the Tribe’s claims tion ove States, they best be charac- Tribe’s claims United but believe Act, the Tucker under arising might properly brought under have been terized as Act, for Indi- counterpart § Tucker we exercise our or the Indian U.S.C. Act, claims, Indian Tucker to transfer these claims to the an discretion gives Tucker Act § 1505. The of Federal Claims. See 28 U.S.C. U.S.C. Court (“Whenever jurisdic- ... appeal, Federal Claims exclusive an includ Court of exceeding for review of administrative ing petition tion over claims any action, ... ... $10,000 upon for or filed with that are “founded is noticed the Unit- there is .a implied or contract with court and that court finds that express 1491(a)(1). shall, if it is jurisdiction, the court ed States.” 28 U.S.C. want justice, Act extends the Court in the-interest transfer such Tucker jurisdiction any other such court appeal Claims’ action or Federal appeal could have been which the action tribe, band, identifiable or other any filed or noticed brought at the time was residing American Indians group of Co., ”); .... Beck v. Atl. limits of the United within the territorial Richfield (9th Cir.1995) curiam). (per 1242 n. 4 such claim is or Alaska whenever States Constitution, laws arising one under the Act Claims B. Federal Power States, Ex- or of the United

or treaties President, or is one ecutive orders The Tribe also asserts United cognizable otherwise would be Power Act violated the Federal States if the claim- of Federal Claims the Court 791a-828c, (FPA), by failing §§ 16 U.S.C. tribe, or an Indian band ant were not conditions and include license to submit group. Reservation protective of Skokomish wildlife, fully consider environ fish and under the Tucker 1505.3 It is 28 U.S.C. li issuing project factors before mental Acts that the federal and Indian Tucker cense, that require evidence and claims most similar courts have considered suf possessed City, applicant, as a license example, For of the Tribe. to those Project and (Mitchell II), water for the 463 ficient Mitchell States v. United laws re 2961, state federal 208, complied with and 77 L.Ed.2d 103 S.Ct. prohibiting fishways at dams and (1983), quiring a Tuck- brought an Indian tribe FPA, how navigation. impairment in the Court Act cause of action er ever, “Each licensee (the provides: pre- specifically of Federal Claims’ Court Claims for all decessor) shall be liable for hereunder against the United States by the of others property to the origi- occasioned responsibilities breach of trust Gregory C. applied See Act to Indian tribes. to the Tucker Act is identical 3. The Indian Indians, Sisk, Act, specifies Yesterday Today: Breach except it and Tucker Of eligible Trust, Immunity, Tuck- Sovereign The Indian Money, tribes as claimants. and passed there had been (2003). was because er Act Tulsa L.Rev. Tucker as to whether the considerable doubt maintenance, construction, operation contract sovereign between two nations.” project appurte- works or of the works Washington v. Wash. State Commercial thereto, accessory Ass’n, nant or constructed un- Passenger Fishing Vessel 443 U.S. license, 658, 675, der the and in no event shall the 99 S.Ct. 61 L.Ed.2d 823 (1979) Vessel). United States be liable (Fishing Nonetheless, therefor.” 803(c) added). (emphasis U.S.C. “supreme treaties constitute the law of the land,” Greene, 371, 376, Breard v. 523 U.S. plain language of the FPA is clear. 1352, 140 118 S.Ct. L.Ed.2d 529 (per It differentiates between the United States curiam), they occasionally have been licensees, unequivocally exempts provide rights found to equi action for liability. United States from When against table relief non-contracting parties, clear, statutory language trumps. Winans, see United States v. Tr., Lamie v. United States 25 S.Ct. 49 L.Ed. 1089 157 L.Ed.2d 1024 (2004). We therefore affirm the district relief, however, Equitable merely court’s dismissal of all FPA against claims compliance treaty; is, ensures with a the United States. governmental it forces state entities and their officers to conform their conduct to Against City II. Claims of Tacoma federal law. The Tribe here would have and Tacoma Public Utilities go us further and hold that it recover A. Treaty-Based Claims monetary damages against City 1. A between the alleged United TPU for treaty violations. We find States and an Indian tribe essentially “is a no doing basis for so.5 reject 4. We defendants’ licensing contention that the FERC orders.” Cal. Save Our preempts treaty-based Council, FPA Yeutter, the Tribe’s dam- Streams Inc. v. ages City claims and TPU. (9th Cir.1989). Defen- But the Tribe is not at- argument dants’ is based on the fact that in tempting collaterally attack the 1924 li- City received a license from the decision; rather, censing suing it is for dam- (FPC) authorizing Federal Power Commission ages impacts based on that are not covered flooding of 8.8 acres of federal land that the license. The preempt FPA does not Project. would result from the treaty-based Tribe’s claims. Tacoma, 61,152, ¶ 61,440, 67 F.E.R.C. at WL 170164 Defendants assert that Judge 5. Berzon's opin dissent misreads our treaty-based the actually Tribe's claims are assuming ion as upholding that "the cases decision, licensing collateral attacks the on causes of action treaty for violation of Indian governed by which are the FPA and which the providing only equitable but relief im subject district jurisdic- court lacked matter plicitly damages held that are not available.” 8251(b). tion to consider. See 16 U.S.C. Berzon dissent only at 526. We find that The 1924 a license was narrow "minor recognize those implied right cases did not an license, part” applying by its terms to damages, of action for and that there are no occupancy "the and use of a tract of land grounds inferring parties that the to the approximately 8.8 area acres in ... said land Treaty intended to create such an action. Cf. constituting part power a pro- minor of said Dist., Lago Gebser Indep. Vista Sch. ject.” Energy As the Regulatory Federal 274, 284, 1989, 118 S.Ct. 141 L.Ed.2d Commission.—the FPC's successor—has rec- (1998) (stating implying that courts ognized, the license did not "authorize of shape action "have a measure of latitude to construction, operation, and maintenance of a sensible remedial scheme that best com Tacoma, Project.” City Cushman ports” enactment). with the relevant ¶ 61,440. F.E.R.C. at It is true "provides Similarly that the FPA descrip- exclusive mistaken dissent’s jurisdiction Appeals for the Courts of opinion holding to re- tion our as that "Indian cannot, view and make substantive modifications to tribes and their members under feder- signifi- But the misunderstands that Tribe has held Court Supreme The Vessel, Fishing In of those cases. cance trea and similar Point No Point Treaty of treaties, interpreted group a the Court do not “self-enforcing” and thus ties here, issue which including one at. form legislation to implementing require “ of tak- Vessel, right granted ‘[t]he Indian tribes Fishing a lawsuit. See the basis fish, ing all usual accustomed 33, To at n. 99 S.Ct. 3055. at 693 443 U.S. ... in with common determination, grounds and stations looked the Court make this ” 443 U.S. at 99 S.Ct. treaties, all citizens....’ to the common language at Creek, Treaty Medicine (quoting obligatory the treaties “shall stated that sub- art. 10 Stat. Dec. [they contracting parties as soon No Treaty to of Point stantially similar President and Senate by the ratified are] 4). Point, The held that this art. Court add (emphasis Id. States.” of the United (internal right to to the tribes (alteration provision secured ed) quota original) a of each run anadromous harvest share omitted); Treaty, art. see also marks tion fishing ar- through tribal passed that However, are not fish City and TPU merely right compete a and not Nor is eas Treaty. contracting parties to equal on an basis. non-treaty fishermen language anything there 683-85, tribes 99 S.Ct. 3055. The support a Treaty would claim that equal, an thus measure were entitled non-contracting party. against a of each Sandoval, portion run the harvestable Alexander Cf. (2001) through a “usual accustomed” passed 1511, 149L.Ed.2d 517 121 S.Ct. adjusted downward ground, tribal (“The fishing the stat interpret is to judicial task aby lesser if tribal could be satisfied needs Congress passed has determine ute 685-89, Id. at 99 S.Ct. amount. an intent create displays whether private right but also just private order was held that its then Court Reding Ross & Co. v. remedy.”); Touche id., by injunction. See enforceable ton, different quite This is n. 99 S.Ct. 3055. (“[O]ur limited task is L.Ed.2d a non-contract to sue finding Congress determining whether solely to treaty damages under ing party for —a right of private to create the intended avoided Supreme Court theory the any case as with And action asserted.... Fishing Vessel. statute, of a involving interpretation contrary. I not to the Puyallup language with the analysis begin must our case, that the held State the Court itself”). of the statute to a be- non-party Washington —a Tribe and United Puyallup Fishing tween argued Tribe has fish- regulate the modes of States —could Department Tribe v. Puyallup Vessel and of appropriate an exercise I.), allowed as ing 391 (Puyallup Washington Game of of man- power because police 392, 1725, State’s 20 L.Ed.2d 88 S.Ct. U.S. ‘.‘the be done fishing may ner in that tribes (1968), held Supreme Court in the are not mentioned ... purpose non- action a may have cause 398, 1725. 88 S.Ct. Treaty.” a even treaty, under contracting parties that, though even suggested The Court treaty provision. a specific the absence occasion to consider law, we have no damages thus municipalities for for al sue might rights rights treaties.” of action secured Indian whether different violation analyze specific a We dissent at 522. Berzon treaties. implied other from treaty, brought specific a under set of claims instance, regulate contrast, could in this By state -it 1245. the Tribe in our case is pass legislation seeking could not that would damages di- collect for violation of rectly fishing interfere with secured a reserved to it treaty. (“We treaty. id. quite would have a Thus, we hold that there is no basis for Treaty different if the preserved case had implying right of action damages right to fish at the ‘usual and accus- that the Tribe seeks to assert. places’ in the ‘usual and tomed accus- 2. We turn next to the Tribe’s manner.”). But tomed’ did not Court claims under U.S.C. Su The private right hold the Tribe had a preme recently Court in Inyo County held Treaty damages. under the action Indians, v. 701, Paiute-Shoshone 538 U.S. fact, Puyallup Tribe bring did not a 708-12, 1887, 123 S.Ct. 155 L.Ed.2d 933 claim at all. It was the Washing- State of (2003), that a “person” Tribe is not a capa Tribe, ton that had sued the seeking an ble of bringing claim under section 1983 injunction declaratory relief for violation of sovereign prerogative. would allow regulate State certain The Court reasoned that “qualification of a fishing areas Treaty. named sovereign ‘person’ as a who maintain Court did not consider whether the Tribe a particular claim depends for relief ... on had a of action -equitable even for ‘legislative environment’ in which the relief, monetary let alone damages' going appears.” 711, word Id. at S.Ct. nearly seventy-five years. back Evans, (quoting Georgia 159, 316 U.S. gets The Tribe no help from Antoine v. 161, 972, (1942)). 62 S.Ct. 86 L.Ed. 1346 194, Washington, 420 U.S. 95 S.Ct. 43 To illustrate circumstances in which sover L.Ed.2d stands for Antoine eigns may assert claims under section proposition that when a treaty has Evans, the Court cited in which “a implemented by been Congress, “neither State, as purchaser asphalt shipped an express provision precluding qual- state commerce, interstate qualified ‘per as a ification nor the consent of the State [is] son’ entitled to seek redress under required” subject provi- state to the Sherman Act for restraint Inyo of trade.” treaty. sions Id. at 95 S.Ct. County,. 538 U.S. S.Ct. Holding precluded a state is Evans, (citing 160-63, 316 U.S. at 62 S.Ct. passing laws inconsistent with a trea- 972). It also Pfizer, cited Inc. v. Govern ty quite saying different from that a India, ment 98 S.Ct. non-contracting party can be sued for (1978), 54 L.Ed.2d 563 which “held that a treaty. under the nation, foreign purchaser antibiotics, ranked ‘person’ qualified as a phar sue Finally, County Oneida Oneida maceuticals manufacturers under anti our Nation, 105 S.Ct. trust laws.” 538 U.S. at 84 L.Ed.2d 169 (County of Pfizer, 1887 (citing 309-20, 434 U.S. at II), Oneida inapposite. case, In that 584). Supreme Court found that plaintiff could tribes assert a federal common law suing Tribe here is not ag- as an damages claim for possession unlawful grieved purchaser, or in any other capacity land. The Court’s decision was not based resembling “private person[].” Id. at any Rather, on treaty. 712, it was based on Rather, 123 S.Ct. 1887. the Tribe is well-established federal law prin common attempting to assert communal fishing ciples regarding aboriginal possessory rights it, reserved to sovereign, by as a rights 235-36, in land. See id. at 105 treaty S.Ct. into entered with the United

515 “is one ‘that right asserted Washington, whether v. States See United States. Cir.1975) (“The (9th against government individual 676, protects the 688 F.2d 520 ” Nevins, Valley Tribe Hoopa v. agreements intrusion,’ as be must viewed treaties (9th Cir.1989) na sovereign 657, (quoting and independent 662 F.2d 881 between enti v. bargained as an Apache Tribe Each tribe Mountain ... White tions. enjoyed (9th were to be Williams, rights 844, 848, for ty Cir. 810 F.2d that Recognizing “[s]ec communally.”). instance, Valley, 1987)). Hoopa we private to secure designed was 1983 tion used to 1983 could not be held that section encroachment,” government rights to tribal collective enforce a self- “longstanding 712, as the id. at as well government. that ‘person’ presumption interpretive rights do treaty-based The Tribe’s Agen sovereign,” Vt. not include does cogniza actions rise to individual give not rel. States ex Res. v. cy Natural United 1983. we stated under section As Stevens, ble (9th Lameer, 231, 237 v. 507 F.2d Settler (2000), that we conclude L.Ed.2d 836 146 rights treaty-based Cir.1974), fishing regard may not assert Tribe 1983.6 members under section those that Tribe’s fishing rights similar to here, fishing rights reserved “the assert members individual As for the rights treaty] are communal [the relevant some suggested that Tribe, while we have Tribe, individual though even on cognizable be rights might treaty-based rights.” those members benefit from under section of a tribe’s members behalf States, 155 Ct.Cl. v. United also Washington, v. States see United Whitefoot (noting that 293 F.2d (9th Cir.1987), we have 1020, 1023 F.2d communal, in ... are fisheries “interests determining the hallmark that noted Because regulation”).7 subject tribal coverage scope of section Moreover, 530. dissent, Berzon dissent at 1983.” Unit Judge Berzon relies on 6. In her rights of individual dealt with the cases Washington, 935 F.2d 1059 ed States II). In 1991) at tribe terminated. Berzon dissent after their was (Washington Indians Cir. deed, Washington, distinguished expressly that case we ruled we in that 529-30. But litiga distinguish Whitefoot, 293 F.2d at "between must F.2d at lower courts 520 663, enforcing” treaty defining rights of these ground "[n]either tion on I, concerned, attorney’s be determining fees should whether as was Kimball ... was cases 1988. U.S.C. rights awarded under 42 Indians tribal individual with the resolve, consider, II, alone not let We did Kimball upon tribe.” termination may properly sue whether Indian tribes does not likewise at 772.' Our case 1983 for section violation “persons” under Indians claims made individual involve ap question does treaty-based rights; the entity terminated. has been tribal after the pear to have been raised. byI not Kimball II further limited Kimball /] Kimball [in court’s statement ing “the disagrees with our conclusion Judge Berzon rights fish to hunt and v. Calla part on Kimball significant in han, based understood Indian must the individual (9th Cir.1979) (Kimball F.2d in its cases cited of the two within context holding II), prior our where we reaffirmed omitted). (footnote 772-73 support.” Id. at Callahan, (9th Cir. F.2d 564 Kimball cases, v. Arizona of these McClanahan The first I), (Kimball 1974) Indian that an individual Commission, Tax fish, hunt, State treaty rights "possessing (1973), "in L.Ed.2d 129 S.Ct. those "retained trap” on a former reservation question narrow whether volved] relinquished tribal though his even he for income tax reservation State pursuant to” a tribal termination membership reservation,” id. exclusively on .the earned II, at 772. As the F.2d act. Kimball based however, was concedes, cases the Kimball dissent "leaving free from Indians general policy of brought under a suit involve "did not sance, the Tribe’s members seek vindicate and violation of Washington Revised communal, rather than individual rights, 4.24.630, prohibits Code section per- they cognizable do not have section 1983 going sons from onto the land another against City claims or TPU.8 wrongfully causing injury waste or personal the land or property. We find therefore affirm the We district court’s that all of the Tribe’s state-law claims are grant summary judgment favor of the by barred applicable statutes of limita- City and The Tribe’s claims TPU. cannot tions. Treaty be asserted under' the or under

section 1983. law, Washington

Under the stat B. State-Law Claims ute limitations for inverse condemnation years. Highline is ten Sch. Dist. No. brought

The Tribe a series of state-law Seattle, v. Port 87 Wash.2d 548 P.2d against claims and TPU based on 1085, 1089 The statutes limita damage resulting the property aggra- trespass, conversion, tions for negligence, dation of the Skokomish River. The interference, tortious condemnation, claims included inverse nuisance and actions trespass, Washington tortious under proper- interference with Revised Code section ty, conversion, negligence, negligent years. mis- 4.24.630 are three See Wash. Rev. representation, private public nui- Code 4.16.080.9 control,” jurisdiction state (quoting id. rested them. This was a traditional section Olson, arrest, Rice v. clearly 1983 suit for unlawful distin- (1945)) (internal quotation 89 L.Ed. 1367 guishable from our case. second, omitted). Sams, marks Mason v. Similarly, Shoshone-Bannock Tribes v. Fish (W.D.Wash.1925), 5 F.2d 255 dealt with Commission, (9th & Game 42 F.3d 1278 Cir. whether “the Commissioner of Indian Affairs 1994), plaintiff addressed whether the actual regulations by could enforce made him with- ly intended to sue officers of the Idaho Fish required out tribal consent which [tribe mem- and Game Commission in their individual ca royalty pay they caught bers] to for the fish pacities under section 1983. See id. at 1284- reservation streams to be used the Tribe Following analysis a close textual aged care of the and destitute mem- complaint, we held that it did name one offi general bers agency pur- of the Tribe and for capacity, cer in his alleging individual viola II, Here, poses.” Kimball 590 F.2d at 773. tions Equal of the Due Process and Protection .contrast, the Tribe’s members are not at- Clauses, treaty rights. as well as We did not tempting challenge governmental regula- consider when a section 1983 claim could be tion of opinions individual Indians. Our brought treaty rights. to vindicate II, then, Kimball I provide and Kimball little guidance. argues 9. The Tribe that the Indian Claims argues protects (“ICLA”), The Tribe that section 1983 Limitation Act of 1982 28 U.S.C. rights. communal But preserves the cases on which the aggradation-re the Tribe’s support Tribe relies position. ICLA, do not lated claims. Under claims County, Kitsap Romero v. brought by 931 F.2d 624 subject Indian tribes are to a six- Cir.1991), acknowledged we year limitations, ninety-day section 1983 statute of un deprivations treaty rights may claims for preserved by publication less in the Federal circumstances,” cognizable specified "under Register. Any published cause of action not id. at (citing Valley, 627 n. 5 Hoopa Register sixty days Federal is barred after 661-63), but we publication. offered no additional in- the date of Id. Claims included sight into the issue. Romero itself was list are not barred until after the Secre others, brought by, among tary Department individual tribal of the Interior either (1) members gathering who were arrested publishes Register in the Federal a notice they treaty- claim, shellfish in areas rejection claimed were complaint and a protected. brought individuals suit year un- not filed the claimant within one notice; der section Register officers who ar- the Federal submits a the reduce Applicant’s actions Tribe that the found that court

The district way a the river such natural flow of began claims aggradation-related Tribe’s (1) treaty fisheries are seri- Indian that: February later than no to accrue on the Reservation ously both Busch, attorney reduced date, then Russell On accustomed usual and and other Gary Han at Tribe, a letter wrote the Treaty of Point of in violation the places, Department of Washington at the sen (2) water Point; reserved the federal No stating: Ecology, rights of the Skokomish Reservation a both for- this letter consider Please with; and the interfered unlawfully intergovernmental an and protest mal by tributary caused of inflow reduction Indian Tribe by the Skokomish comment impoundments diversions Tacoma’s water to the referenced regard with cause of chan- proximate is a direct and any for Permit Applications flooding [and] on aggradation' nel by sought use authorizations other water the reservation. above Skokomish City the of Tacoma .the Supp. River Basin. E.R. at 408. court that the district agree

We date of accrual. applicable' the a this was upon resides Tribe The Skokomish a argues that this is the Tribe Though on Sko- Reservation the Indian federal have been submit- that should Ap- factual from the issue River downstream komish is clear evi- jury, where there and ted to' the diversions [City Tacoma] of plicant’s accrued, the claims dence of when of position It is the impoundments. 1920's, of Tacoma constructed Congress, proposal legislative high on the North complex of two dams action on that claim any of case River, diverting thus the Skokomish Fork of complaint files unless the claimant barred power generating facilities flow to its entire Con years of the submission three within . Reserva- on Skokomish located nei long a listed claim is as gress. Id. "So destroyed the .... .... The diversion tion by formally rejected upon acted nor ther producing stream significant fish most County Oneida Secretary, live.” it remains system its excel- River the Skokomish II, 470 U.S. at salmon and lent steelhead. runs apply to state-law does not The ICLA 406-07. Supp. E.R. claims, argument. conceded Tribe the effect claims concern The state-law Instead, apply statutes of limitations we state whereas the property, aggradation on tribal Co. v. Nev. Power See to state-law claims. diversion preserved claims center around Co., Cir. F.2d Monsanto Tribe itself and loss fish. of water 1992). apply, were to even the ICLA But if aggra about the it did not know admits that claims are distinct state-law the Tribe's listed its damage it when dation-related pre fishery The Tribe preserved claims. early 1980s. under the ICLA in claims "fishery” damage relating to claims Though served Opening at 40. Br. Appellant's Though there Dam. caused the Cushman preserved its urges construe the Tribe us to detailing the the record evidence in aggradation-related not much liberally to include claims claims, Depart Solicitor preserved (citing damages, see id. Montana Blackfeet Indians, based them as described ment of Interior Tribe of " (1985)), require fishery diversion [destruction L.Ed.2d Fork and treaties project interpret on North hydroelectric we statutes water for ment that cannot In a letter sub tribes Supp. broadly at 404K. in favor of Indian E.R. River.” particular reach cases where Congress urging an extension extended mitted to limitations, been contem interpretation could have the Tribe described statute Thus, if the ICLA even parties. plated claims as preserved follows: any of extend would not damage applicable, were major fisheries The first case is claims. During state-law the Tribe's City Tacoma. claim court make this determination. See ... dition can be removed ‘without unrea ” Reichelt v. Johns-Manville Corp., 107 sonable hardship and expense,’ id. 761, 530, (1987); Wash.2d P.2d 535-36 1270 n. 25 (quoting Mangini Aerojet- Dist., Fradkin v. Northshore Util. Corp., 1087, Gen. 12 Cal.4th 51 Cal.Rptr.2d 118, 1265, Wash.App. 977 P.2d (1996)). 912 P.2d It is the To start the statute of running limitations plaintiffs prove burden to reasonable abat- in Washington, required all is is: ability. Mangini, Cal.Rptr.2d a plaintiff placed

[W]hen is 912 P.2d at by notice 1225-26. some appreciable harm occasioned The district court held the Tribe’s conduct, another’s wrongful plaintiff alleged damages reasonably were not abat- must diligent inquiry make further able, precluding a finding of a continuing scope ascertain the of actual harm. The violation. The Tribe’s expert estimated plaintiff charged with what a reason- the value of the property Tribe’s before able inquiry would have discovered. $2,170,040. the damage at Supp. E.R. at Stated more succinctly, the law does not 410, 421. The same expert estimated the require smoking gun for order total $3,770,500. remediation cost at statute of limitations to commence. large Given this discrepancy between the Chem., Giraud v. Quincy Farm & 102 cost repair and the actual value of the (2000) (in Wash.App. 6 P.3d land, clear it is that the damages could be ternal quotation marks and citations omit only abated with unreasonable hardship ted). Busch’s “formal protest” of the and expense.10 The district court correctly Project in 1989 is sufficient to meet this concluded that there was no continuing Thus, standard. because the did Tribe violation. not file its complaint until November 803(c) years more than ten C. 16 aggra after U.S.C. its accrued, dation-related claims its claims The Tribe also claims City and

are time-barred. 803(c), TPU violated U.S.C. There exception an requires the stat licensees to project maintain ute of for trespass limitations certain works a condition so as not to impair claims. plaintiff Where can 803(c) show navigation. Section provides that claim violation, is a “continuing” “the stat “[e]ach licensee hereunder shall be liable ute of limitation only serves to limit dam for all property occasioned ages to those incurred in the three-year construction, others maintenance, period before the suit was filed.” Frad or operation project works or of the kin, 977 P.2d at 1267. To show a continu appurtenant works thereto, or accessory violation, ing plaintiff must demon license, constructed under the and in no strate that the damage is “reasonably event shall the United States be liable abatable,” id., which means that con- “[t]he therefor.” dissent, Judge In her Graber on the relies cost of abatement materially would be less license that City FERC issued to the than Judge this maximum. As for Graber's which directed plan to file a reliance on the possibility that the cost of “enhancing conveyance capacity channel might "perhaps” abatement be lower than the of the mainstem Skokomish River.” See E.R. remediation cost estimates offered 177; Tribe, Graber dissent at 520-21. But the see Graber dissent at the Tribe license states financing that the cost of cannot overcome defendants' motion for sum- plan may million, be $5 no more than mary judgment on the conjec- basis of such the Tribe offers no reason to think actual ture. himself to recuse obligation an had gess for failure court dismissed district customer, utility he was could because relief upon which a claim

to state substantially 808(c) might the case does outcome section holding that granted, de- Judge utility Burgess bill. This of action. affect his private provide motion, untimely. finding decision nied the Second Circuit’s follows reconsideration, Authority State moved Tribe Power DiLaura (2d Cir.1992), denied recusal. again Burgess N.Y., Judge F.2d Carolina referred motion in South then Judge Burgess decision D.C. Circuit’s FERC, 850 also Coughenour, v. who Authority Judge District Service Chief Public Bur- (D.C.Cir.1988). Judge untimely, was because 788 held it F.2d fifteen on at least already ruled gess had Public Carolina and South DiLaura than trial was less motions different 803(c) that section Authority held Service away. months five right of private federal a not create does existing preserves action, instead but be recusal must A motion for DiLau licensees. against claims state-law after promptness with “reasonable made 77-79; Serv. S.C. Pub. ra, F.2d motion is ascer for such ground holdings Their Auth., at 793-95. F.2d States, 923 Preston v. United tained.” of the statute reading aon based were (9th Cir.1991); also see F.2d legisla history. The legislative its well as (9th McEwen, F.2d v.Wood all that discussion history revealed tive curiam) Cir.1981) (waiting sixteen (per centered on floor debates during the grounds discovering the after months- caused licensees “damages that premise untimely and resulted was recusal with, in accordance determined be should waiver). litigating it was The Tribe knew Cir As the D.C. law.” Id. state federal in Tacoma case .TPU intended “Congress since explained, cuit It judge. court, a Tacoma-area before exist merely preserve statute] for [the com it its filed known when have should damage liabil governing ing state laws recusal to seek might it that want plaint licensees, that the Commis it follows ity of -At to the matter. assigned judge upon this state may not encroach sion it be least, the Tribe admits very lia rules of its own by engrafting domain at least recusal grounds lieved had interpretation this believe bility.” We the motion. filing before seven months 803(c) one and correct is the of section its did not abuse thus court The district company parting cause for see no thus motion. recusal denying the discretion in We affirm circuits. our sister Flores, F.3d Kulas sec of the Tribe’s dismissal district court’s Cir.2001).11 803(c) claim. tion Certification Class IV. Motion Recusal III. court, we district affirm-the Because-we district appeals the also The Tribe denial court’s the district not need address disqualify motion to of its denial court’s See Alexander class after certification. months judge. Sixteen the district (3d n. 7 Whitman, F.3d district after the complaint, filing that dis- Cir.1997)-(because held the court on a number already ruled had court it did proper, complaint was missal Bur- Judge claims, Tribe asserted timely implying that read as course, say be not, should as to express a view 11. We do been successful. motion; have nothing motion we would of the recusal merits need address the propriety pass and a “continuing” nuisance or tres- district plaintiffs’ court’s denial of pass motion is that “reasonably latter certification). for class abatable,” is, the defendant can take curative action to stop continuing AFFIRMED IN PART AND TRANS- damages. Prae., 16 Wash. Tort Law and FERRED TO THE COURT OF FED- (2d ed.). Practice 9.13 The question of ERAL IN PART. CLAIMS “permanent” versus “continuing” nuisance

or trespass separate question GRABER, of damages Circuit Judge, with remediation of consequen- whom harms, PREGERSON, tial PAEZ, though money even BERZON, is involved in each analysis. Judges, join, Circuit For example, concurring in a tres- part pass can huge damages cause dissenting but part: very fix, cheap to or vice versa. I concur majority opinion with produced Tribe has sufficient evi First, two exceptions. respect to the dence to raise a genuine issue of material right of individual members the to Tribe as fact to whether the aggradation alleged bring a 1983 claim against the ly caused Project’s Cushman Dam TPU, I agree with Judge Berzon’s dissent diversion of the North Fork of the Sko pages Second, 529-31. I disagree with komish River reasonably abatable. To majority’s conclusion that the statute survive summary judgment, the had Tribe of limitations run has on the Tribe’s Wash- to produce evidence from which a rational ington-law claims for nuisance and tres- finder of fact could conclude that ag- pass. law, Under Washington even a per- gradation of the Skokomish River’s main- (like manent sewer) structure a dam or a stem can be abated “without unreasonable can result in a “continuing” nuisance or hardship expense.” Fradkin trespass. If there is a “continuing” nui- Dist., Northshore Util. 96 Wash.App. sance or trespass, then plaintiff can 977 P.2d seek damages years for the three immedi- pieces Two of evidence support ately preceding the filing complaint, of the claim Tribe’s aggradation that the is rea- because the act for which damages are sonably First, abatable. at least two sought is present, a ongoing act rather the Tribe’s technical consultants stated than past, completed Here, act. a ques- aggradation can be abated dredg- tion of'fact remains concerning the proper ing the river or decreasing the amount of application of the statute of limitations. water away diverted from the North Under Washington law the Second, difference Fork.1 Tacoma’s 1998 from license “permanent” between a nuisance or tres- FERC it to develop directed “specific cost- 1. One analyst opined: technical Another concluded: Flushing flow releases from Restoring Cushman maintaining con- mainstem would be more effective transporting veyance 13,000 capacity of cfs will contain through sediment the mainstem Skokomish 1,3-year flow event within the banks of if the mainstem channel deeper was made the channel. This will afford the Tribe the through dredging.... Restoration of the protection, same level of flood terms transport capacity natural. sediment of the probability and frequency of overbank lessen, river would possibly halt or even flow, that under existed natural conditions. reverse the aggradation. current trends in protect 1,400 This will approximately acres least, very At the it would por- address the of Reservation lands from the effects of aggradation tion of the problem attributable frequent flooding. to the Project. Cushman lessening of the nuisance or reduction increase to proposed measures effective can be abated A nuisance insufficient.... capacity” conveyance the channel longer no it is degree ma- where mainstem, “flow to the including Skokomish interference.”). flows.” substantial flushing [and] nipulation Tribe’s supports FERC order in the record is evidence There judgment purposes, summary showing, fact could finder a reasonable aggradation abate measures that these aggrada- that abatement conclude Fradkin, the court In be feasible. would economically feasible. tion itself is improp judgment was summary held that the “cost- license states 1998 FERC a re produced had plaintiff er where increase mainstem measures effective” measures recommending certain port not to exceed $5 conveyance capacity are (and tres where condition remedy the purposes summary judgment For million. to fix attempted utility had itself passing FERC considered presume should we not dis court did Id. The problem). sum, as of this well reasonableness the value measures cost of such cuss the measures, in relation feasibility of the in relation property the plaintiffs City and situation to the economic Pioneer Jacques these measures. rea- Project. For this Dam the Cushman (cit (Me.1996) Plastics, Inc., 676 A.2d judgment that, summary son, I believe 23), n. Fradkin, P.2d ined law, Washington purposes under FERC to the more similar even document that evidence is sufficient order FERC issue of genuine raise to order sufficed could aggradation mainstem of abatement from order compliance fact: material economically feasible. be the contaminat that directed agency state contrast, that concludes majority, in feasi a remediation submit to ing parties as a matter is unreasonable abatement courts at 508. Several study. bility remediating the law, the cost of because necessar abatability is not noted that have aggra- by property to caused damage aor quo ante the status ily a return flooding is about See, and associated dation problem. complete elimination of the Tribe’s than value more percent Corp., Aerojet-Gen. Mangini e.g., Maj. op. at condition. prior in its property P.2d 1087, Cal.Rptr.2d Cal.4th tag price this agree that I not do than 517-18. (1996) less (“something 1220, 1226 mat- as a unabatable the condition renders to show may suffice total decontamination Moreover, cited estimate of law. Fradkin, ter (cited P.2d abatability”) repairs for primarily costs Pac. remediation S. 23); Dev. Co. v. Beck 1270 n. water-delivery systems and and to sewer 52 Cal. Co., Cal.App.4th Transp. ad- It not does flood-damaged homes. (1996) “the (noting that 518, 558 Rptr.2d lower cost perhaps much by dress levels demanded remediate to ability to itself, way of by aggradation abate was sufficient agencies regulatory The aggrada- Co., flushing flows. dredging v. Cont'l Grain abatability”); Hanes caused underlying (“We condition tion is the dis (Mo.Ct.App.2001) 58 S.W.3d the Cushman water diversion nuisance to show a order agree ... the focus it should be Project and abated, be shown it must can abatability inquiry.2 eliminated, and a can be nuisance entire program for $36 million treatment garding a Whittaker Agency v. Lake Water Castaic Cf. did by contamination affected (C.D.Cal. drinking water F.Supp.2d Corp., 272 abatability claim of plaintiff’s support the testimony re- 2003) deposition (holding that conclusion, persuaded I am that the More specifically, Supreme prece- Court dent, Tribe’s state-law claims for nuisance and as well as cases from the courts of trespass survive summary appeals, judgment support (a) the conclusions that statute of both grounds.3 limitations tribes and respect- I individual members of fully may tribes sue dissent for majority’s contrary municipalities damages conclusion. violations of the tribes’ rights; (b) individual tribe members sue under 42 U.S.C. 1983 for violations of BERZON, Circuit Judge, dissenting in their asserted to take fish at the part,1 PREGERSON, PAEZ, whom usual accustomed majori- times. The RAWLINSON, Circuit Judges, ty’s contrary largely ignore assertions two concur: centuries understandings concerning According to majority, Indian tribes protection federal of Indian aboriginal and cannot, their members under federal treaty-based rights particular, the un- —in law, sue municipalities for damages for derstanding that Indian in large treaties violation secured Indian trea- part simply preserve pre-existing some ab- ties. The simply case law does not sup- original exchange for cession of a port majority’s pronouncement. broad portion of Indian land. Whether the ma- Indeed, County Oneida v. Oneida Indi- jority’s conclusions would make if sense we Nation, an 84 were developing the of Indian rights law L.Ed.2d 169 (County II), Oneida the use of land and water afresh —which I quite directly to the contrary, permitting do not they think would—is not ques- suits under federal tion, common as we are not free to reinvent estab- law for violation aboriginal rights re- lished doctrine. I respectfully therefore by treaty. served dissent.2 facility because the treatment would not abate I do note challenging question most "the namely, actual the under open thus left is the whether nuisance — Tribe's off-reser ground contamination”). fishing rights vation give rise to a cause of limiting action for the numbers of fish that considered, I have not express and opin- no formerly inhabited the streams and rivers in on, City's ion die arguments alternative for fished, which the traditionally Tribe or wheth granting summary judgment er, instead, on the merits of Treaty the preserves only right trespass the Tribe’s and nuisance claims. given to take proportion of such fish as remain extant. previously This court ad 1. I dissent from ("Treaty- subsection A dressed important question that but subse Claims”) ("Claims Based of Part Against II quently vacated the decision and has not City the of Tacoma and Tacoma Public Utili since had occasion to resolve it. See United ties”) majority opinion. Washington, States v. (9th F.2d 1374 694 Cir. 1982), reh'g, en banc 759 F.2d 1355 majority Because the (9th 1985) does not reach the (failing Cir. to determine whether questions raised this logically in case that right "the to necessarily take fish includes the follow a plaintiffs determination that these to have protected those fish from man- may bring damages suit against these de made despoliation”); see also Kittitas Recla including whether the federal mation Sunnyside Dist. v. Valley Irrigation fendants — causes of action Dist., are barred by statutes of 1035 Cir. preserved limitations or 1985) the Indian Claims (approving court district order releas (ICLA), note, Limitation Act 28 U.S.C. 2415 ing project water from a water preserve and Treaty whether the of Point No Point nests eggs of salmon preserve so as to ("Treaty”), (1855), 12 Stat. 933 in fact estab Indian right taking off-reservation fish "in lishes the claimed—I do do so citizens”); common with Perce Tribe v. Nez , either. Idaho Power F.Supp. 847 Co. Ante at treaties. to Indian parties ing”

I however, starting point, this 512. From pre-existing examining what Without unsupported to the majority rushes under the Tribe reserved any, if rights, recover may not that .a Tribe conclusion (“Treaty”), No Point of Point Treaty treaty viola alleged monetary damages for mistakenly (1855),3 majority Stat. so, majority makes doing In' tions. can Tribe possibility all dismisses (1) inter conflating major missteps: three any such for violations damages seek pri Treaty with this by a mis- pretation conclusion-induced rights. This trea attempts under non-Indian concerning of action cases vate focus on cause placed (2) statutes; asserting from statutes action and federal imply causes ties set- ignores Public international of Tacoma non-signatory status treaties — treaty- concerning Indian (“TPU”) precedent tled of Tacoma Utilities cause of scope of a The protected rights. those entities (“City”) somehow absolves aboriginal rights, Indians’ to enforce action (3) here; conjuring a responsibility in treaties rights reserved including such equitable between distinction States, sensibly cannot the United authority. binding inconsistent with relief authority de- invoking lines resolved majority rests constrained long lacking the of the law veloped areas by— rights reserved interpretation protection law common of federal tradition available to enforce—this relief and the and related property accorded Indian wholly irrele a foundation Treaty upon reasoning fails majority’s theAs rights. Title VI of construing Cases vant cases. federal" nature uniquely appreciate (Alexander v. Sando Act Rights land, water, fishing claims the Civil point. val, Indians, largely beside (2001)) Ex case concern- or the Securities issues this

There are hard L.Ed.2d prece- (Touche several import of & Co. precise Ross ing change Act of treaty-protected concerning Indians’ dents Redington, simplistic ap- majority’s (1979))

rights, but little relevance have L.Ed.2d them all. proach misses treaties.4 of Indian interpretation that Indian made clear has Supreme Court majority at the outset that I note by different unique, governed are treaties recognizing quite correct —albeit ap those than construction canons available rights of action passing—that See, e.g., treaties. and other statutes ply to “non-contract- relief equitable treaties.” commonly to as "Stevens referred 1994) In- (D.Idaho (holding a Northwest Tribe, F.Supp. at 847 Perce generally Nez in this case one treaty similar to the dian 805-06. will guarantee that there a provide "does not of fish available in the amount be no decline Also, of simple glance at text take”); of W. Attorneys to Gen., Conference might still that it reveals Treaty at issue here & n. 330-33 Law Deskbook American Indian of the for members provide a cause of-action ed.2004) ed., (noting that (Clay 3d Smith 194 individuals, Treaty speak to does The Tribe. advocated have "[m]any commentators members, regard to namely the Tribe's right” cit- protection and treaty-based habitat Although land is "right taking of fish”: commentary). ing to the occupation present use and "for reserved bands,” right of "[t]he said tribes and of the one of a Point is Treaty of Point No 3. The grounds accustomed and taking fish at usual Gov- by Territorial brokered series of treaties Indi- said secured to is further stations and ans,” be- mid-1800’s in the Stevens ernor Isaac (empha- and bands.” to the "tribes not various Pacific and United States tween the added). sis are These treaties tribes. Indian Northwest 524 II,

County 247-48, 470 U.S. at case involving Oneida the interpretation of a stat- of 105 S.Ct. 1245. ute, our analysis begin must with the lan- itself.”). guage of the statute majori- The Moreover, general there is no pre rule ty points to no indication that Congress ferring equitable relief over when intended to allow suits in equity but not implying a Rather, cause of action. were for damages to enforce Indian statutory fishing private of cause action cases rights reserved by pertinent, treaties. they would support any dis equitable between tinction and damages short, by cases cited majority relief, unless there is some indication that proposition that equitable but not Congress specifically intended such a dis damages relief is regard available with to Sandoval, tinction. 286, 532 U.S. 121 rights reserved a federal (“The judicial S.Ct. 1511 task is to inter are of no help at all in establishing that pret the statute Congress passed has point. whether it displays determine an intent to (2) In just create not addition private right to its but also reliance on inappo- private remedy.”); Co., site law, Touche Ross strands of & 442 case the majority also 568, (“[O]ur U.S. 99 suggests that, S.Ct. 2479 if task is even the Treaty is self- solely limited to determining enforcing, whether Con the Treaty cannot be enforced gress intended to the private create against City and they TPU because of action asserted.... And any as with are parties.5 non-contracting No case eit- majority's focus “non-contracting authorities, recognize respect that in parties” suggests that City because the activities.”); terest course of their see signatories TPU not Treaty, are to the they Carbone, are C & also town, A Inc. v. Town Clarks of responsible somehow less respect 383, 394-95, 1677, 511 U.S. 114 S.Ct. Treaty reserved than is 'the federal (1994); 128 L.Ed.2d Cmty. Communica government. suggestion This appear Co., would Boulder, Colo., City tions Inc. v. of question to call into understandings bedrock 40, 57, 835, 102 S.Ct. 70 L.Ed.2d 810 concerning judicial enforcement (1982); City Burbank v. LockheedAir Termi of governments municipal obligation nal, 624, 640, 1854, Inc. 411 U.S. 93 S.Ct. abide by federal law. (1973); L.Ed.2d City Chicago v. Atchi TPU, City entities, governmental son, Co., Topeka Ry. & Santa Fe 357 U.S. 84-85, bound reserved in the Trea 78 S.Ct. (1958); 2 L.Ed.2d 1174 ty. are, governments Cities and local Seattle, City 332, 343, v. Asakura course, subject Supremacy to the Clause. As (1924); 44 S.Ct. City L.Ed. 1041 constitutionality "the Qwest local ordinances is Corp., Auburn 260 F.3d 1175- analyzed way in the (9th same as that of Cir.2001); statewide United City States v. purposes Clause, laws” Supremacy Pittsburg, 661 F.2d 785-86 Cir. Hillsborough County Labs., 1981); Automated Med. Helicopter Nat’l Corp. City Am. v. Inc., York, (2d Cir.1998); New 137 F.3d (1985) (citation L.Ed.2d omitted), Clearwater, cities Pirolo v. governments local pass (11th Cir.1983). cannot ordi " with, nances or laws that interfere or are Treaties are among listed the types of law to,’ contrary federal law.” Id. at up supreme that make "the Law of the Land.” S.Ct. (citing Ogden, v. Gibbons VI, 22 U.S. U.S. Clause) Const, art. cl. 2 (Supremacy (9 Wheat.) 1, 211, (1824)); ("This 6 L.Ed. 23 see Constitution, and the Laws of the Unit- Brendale v. Tribes & the Bands ed States which be Confederated shall made in Pursuance of Nation, Yakima Indian thereof; made, and all Treaties or which shall S.Ct. (1989) made, 106 L.Ed.2d 343 (plurality be Authority under the of the United ("Since opinion) protectible States, the tribes' inter Land; supreme shall be the Law of the law, est is arising one under federal Su Judges the and every State be shall bound premacy requires Clause state gov and thereby, local any Thing in the Constitution or ernments, including County Yakima zoning any Laws of Contrary State to the notwith- to on the treaty rights fish off-reservation I have no case and majority, by ed See 198 property. private defendants’ the conclusion discovered, supports held 662. The Treaty can 25 S.Ct. Court at in an Indian U.S. created rights States against the United signatory treaty between by one that the enforced for relief or privately in the other, equitable [now for Tribe and the “fixe[d] whether relying on Instead, eases as enable easements damages. land such owned] agents their that states and at 25 S.Ct. principle be exercised.” right to treaty-created rights respect to are bound Winans: Explained II, See, Oneida County e.g., legion. of fishing to the to resort right (approv 235-36, 105 S.Ct. larg- part of controversy was places two against suit law common ing a federal ... the Indians possessed rights er aboriginal of.federal counties violation to necessary less not much which were Washing treaty); partly secured than the the Indians the existence Passenger State Commercial v. Wash. ton [T]he breathed.... atmosphere they 669-70, Ass’n, 443 U.S. Fishing Vessel to the grant treaty was not a (Fish (1979) 3055, L.Ed.2d 823 99 S.Ct. right from Indians, grant of but a Vessel) (suit by the United brought ing not grant- of those reservation them —a and as trustee behalf its own “on States servitude treaty] imposed a [The ed.... against State tribes” seven Indian though as de- of land every piece upon treaty rights; to enforce Washington contingency of therein.... scribed and Fisheries tribes, the state’s other lands, there- ownership of the the future one commercial Departments, Game for—in fore, provided foreseen was parties); as joined were fishing group words, given Indians were other 157 F.3d Washington, v. States United it crossing right in the land—the right Cir.1998) (suit (9th brought 630, 638 occupy right river —the to the and the United Indian tribes numerous men- purpose and for the extent behalf) (on against the tribes’ States give would other conclusion No tioned. treaty enforce Washington State was And treaty. to the effect intervened parties private rights; several against continuing to be intended Callahan, 493 Kimball v. appealed); as well grantees and its States United (suit Cir.1974) brought 564, 565 F.2d grantees against as State officers against Indians by individual treaty Oregon to enforce the State add- 381-82, (emphasis Id. at

rights). Washing- ed). v. States Similarly, United majority recognizes, Further, Winans, Fish- that, light “[i]n ton held Winans, States United Treaties’ Vessel, [Stevens] and the ing (1905), enforced 49 L.Ed. law supreme as the power language and private against rights even correctly de- land, court the district States did United third-parties. So right to have a Tribes that the termined F.3d Washington, 157 tidelands.” private shellfish harvest States, on Winans, behalf the United added). (emphasis at 647 Nation, Yakima certain members then, Treaty is So, if the self-enforc- land owners enjoin private suit brought can be enforced Treaty ing and of their Indians’ exercise preventing by Clause, or re- rights respect created governments standing.”). Cities local treaties. bound, in Indian Supremacy served under therefore 526

non-contracting parties, what is left of supporting awarding monetary relief when majority’s assertion that the Tribe cannot Indians seek. to enforce their aboriginal damages seek for fishing elimination of rights, including rights such reserved rights secured treaty? To fill this treaty. gap, majority asserts, repeatedly but e The first sentenc of Justice Powell’s any pertinent

without citation to authority, opinion County Oneida II explains: that in a case involving a nonsignatory to “These present cases the question whether Treaty, there is a determinative dis- three Tribes of the Oneida Indians in enforcing tinction these between bring a suit damages for occupation for an action damages for and an action for and use of tribal allegedly land conveyed equitable relief. Ante at 513. unlawfully 1795.” 229, 470 U.S. 105 entirety majority’s reasoning added). (emphasis S.Ct. 1245 To answer on point this seems to be that the cases question, this explored Court at some upholding causes, of action for violation of length the historical availability of federal treaty rights Indian providing only but causes of action to enforce Indian aborigi equitable implicitly relief held dam nal rights, whether secured treaties or ages are not available. In not, neither Fishing concluding that “Indians have a feder Vessel nor Puyallup Tribe v. Department al right common[ ]law to sue to enforce Game Washington, 88 their aboriginal land rights.” Id. at S.Ct. (1968), 20 L.Ed.2d 689 howev 105 S.Ct. 1245. Consequently, the Oneidas er, were the Indians seeking damages. could maintain their action “for Vessel, See Fishing U.S. at 99 violation of their possessory rights based (suit “seeking an interpretation on federal common law.” Id. at injunction the treaties and an requiring Moreover, S.Ct. 1245. circuit, this citing to protect State the Indians’ share of County II, Oneida similarly has af runs”); Tribe, anadromous fish Puyallup firmed the ability of an Indian tribe to (“These 88 S.Ct. 1725 suits bring a damages against action a public brought by were respondents in the state utility upon based common law federal court the Indians for declaratory cause action. See United States v. Pend relief injunction.”). and for an That, pre Oreille Pub. Util. Dist. No. sumably, why availability (9th of dam n. Cir.1994);6 see also ages discussed; was are not in courts Apache Mescalero Tribe v. Burgett Floral of commenting habit on Co., availability Cir.1974). F.2d So, relief no one wants. if even this This authority plain makes availability of damages were a question of tribes may bring a damages action under first impression, majority would need federal common law to enforce their more ipse than .its dixit to support to use of land. damages/ equitable relief distinction cen A closer examination the nature of

tral to its conclusion. the Tribe’s claimed rights further reveals important,

More question before us the majority’s fundamental misunderstand- emphatically is not one regarding an ing unde- very claim it summarily dismiss- cided question. There binding authority es. Like Oneidas,7 the Tribe here is agreed 6. We plain- 1549; Pend Oreille with the 28 F.3d at see also id. at n. argument tiffs’ “damages (citing County trespass II support). Oneida Indian lands are controlled law.” federal 7. That aboriginal asserted here is enshrined in separate does not this major- The issue is inverted. treaty rights creat rights seeking to enforce simply premise the that federal Rather, claiming to on ity proceeds it is Treaty. by the ed an Indi- right “of to right rights of traceable aboriginal enforcement an enforce —the princi- and accustomed the treaty always at follows same fish usual an taking added)— (emphasis non- and stations” of treaties with grounds ples as enforcement Indi Oneida Treaty. See fishing in the reserved But Indian nations. domestic Oneida, U.S.. County indicates, an Nation were not rights, as Winans of L.Ed.2d 94 S.Ct. treaties; rather, they were by the granted I) the (characterizing (County Oneida are traceable by the treaties and reserved of in as one which by the Tribe claimed right interests, up given possessory aboriginal to and has continu protects, now law “federal such, As the in in treaties. part of the for the time from ously protected all, enforceable, if un- at thus derived States, possessory the United of mation County See common law. der federal of the lands, wholly apart from tribal right to 233-36, II, at 105 S.Ct. Oneida which principles law of state application Co., v. Idaho Power 1245; Perce Tribe Nez a valid protect separately normally and (D.Idaho 1994) F.Supp. 799-800 Winans, 198 also see possession”); right law ac- the federal common (holding that 381-82, 25 S.Ct. at U.S. I County in Oneida is recognized tion right instance, primary the In this based on damages actions available possession plenary to not a claim issue is noting that fishing rights, tribal purported to but, instead, right a claim of land aboriginal in to fish is right “the Tribe’s in enforced the kind “servitude” both ],I [County Oneida as it was origin, of the fish Winans, preservation and to a common law by and is reinforced federal might matter This distinction itself. flow treaty.”). and the 1855 merits, consider, the the we to were more, is not to settle so to state Once rights reserved reach of the asserted here as- whether the question the conceptual no But is Treaty. there from de- fish runs preserve explain why serted —to that would distinction Treaty of County by the reserved asserted right possession to structions —were (which 2. It II, supra is what note it existed Point No Point. Oneida if addressed, reserved, see was opinion of that say right bulk to that if 1245) sup- 233-40, would 105 S.Ct. action under in a U.S. it is enforceable while damages, failing a cause of action to port common law. the federal asserted, they instead, rights here fishing and, possibility, acknowledge that if I (which majority nor neither trea- analogies exist to inappropriate resting on 2) not. address, would supra note see fed- and on governments foreign ties with with nothing to do having eral statutes reasons, above-quoted these For a con- majority reaches rights, Indian prism suggests, from Winans language binding law. conflict direct clusion in viewing majority through I). (1974) (County Oneida 39 L.Ed.2d County precedents. Oneida case here, right possession itself "the As is true challenge the 1795 cession Oneidas' law in the federal arise under part is claimed predicated in was of New York state aboriginal title of Allegedly, an first instance. possession under the "Indians' upon protect- guaranteed tribe between the United federal treaties'' extinguished." never has been ed statute in the 1780s States and Oneidas majority is thus County Id. at Indian Nation Oneida 1790s. Ante at 514. 664-65, stating otherwise. wrong Oneida, II property right or a water right, com- monly by private held parties, including concluding treaties, After that though corporations entities such as or associa- self-enforcing and enforceable in equity 714, tions. Compare id. at 123 S.Ct. 1887 may third parties, not be enforced (“[T]he Tribe rests its entirely case on its in damages against party than other that, claim a sovereign, as it should be signatories, majority goes on to hold accorded a special immunity private any neither the tribe nor individual (Stevens, J., casinos do not enjoy.”) con- may bring members suit under 42 U.S.C. curring judgment). Inyo County § conclusion, 1983. This like the conclu- therefore does not settle pur- whether for sion that there is no possible federal com- poses case, of this qualifies Tribe mon law as a of action cause based “person” may who § sue under upon treaty-secured 1983 to rights, reflects an in- the rights vindicate attention to asserted its com- nuance the case law with plaint. regard to of Indian tribes

their members. Nevins, Hoopa Valley Tribe v.

First, majority Cir.1989), relies upon Inyo is not to the contrary. County v. Paiute-Shoshone Hoopa Indians Valley held that “[b]ecause the Bishop Community, 701, 123 right government tribal protects the (2003), 155 L.Ed.2d 933 to sup- powers upon tribe, conferred and not port its not, conclusion that may the Tribe rights, individual it falls scope outside the because of its status as a sovereign, bring §of But, 1983.” Id. at 662. as in Inyo a claim under section 1983. See ante at County, tribe in Hoopa Valley was 514-15. attempting to assert a government tribal right, solely held it was a because sover

Inyo County held that a may tribe eign- namely, its freedom from state taxa § sue under 1983 to right vindicate a held — tion.

solely because of its status as a sovereign. Inyo See County, 538 U.S. at Valley Hoopa also relies on a distinction S.Ct. 1887. As majority recognizes, “power between provisions” conferring 514-15, ante at this narrow holding leaves “rights conferring provisions” of federal open possibility that a tribe bring law, holding “power conferring provi- suit to vindicate similar to those sions, as Supremacy Clause,” such held private- persons. id. not rights that can be vindicated under 123 S.Ct. (discussing cases in which § 1983. Id. Supremacy While the Clause Supreme Court had held states and cannot, itself, form § the basis of a foreign “persons”). nations claim, see Golden State Transit Corp. v. here, The Tribe unlike the tribe in Inyo City Angeles, Los County, did any § not base 1983 S.Ct. (1989), 107 L.Ed.2d 420 that is “ claims on rights or privileges held as a because the Supremacy ‘is not a Clause ” sovereign (e.g. sovereign immunity), but any (cita- source of federal rights.’ rather on fishing rights assertedly omitted). tracea- tion v. Higgins, Dennis ble to federal law and beyond therefore 112 L.Ed.2d 969 the authority governmental of local (1991), entities however, the Supreme up- Court to impair, because the Supremacy held a § cause of action under 1983 based Clause. No special immunity premised on on Clause, the Commerce rejecting the sovereignty such Instead, is claimed. argument that the Commerce Clause could underlying asserted is one akin not be the basis of a cause of action remedy the viola available 1983 is power be- “merely allocates because Tribe.8 alleged by Governments law and State tions of federal the Federal tween ” Id. at ‘rights.’ not confer does defini- question answer that I need not held Court instead 865. The 111 S.Ct. however, I certain that quite as am tively, both Clause was the Commerce that by the § can be maintained 1983 suit and constitut- allocating” provision “power majority’s The tribe members. individual permissi- restriction ed a “substantive The contrary to the runs thus: reasoning com- of interstate regulation state ble § under 1983 are only rights cognizable (internal quotation marks merce.” right to fish rights; the Tribe’s individual omitted). in similarly, Somewhat citation therefore, right; individual held a communal Corp., Court is Transit State Golden National Labor bring suit to enforce may created not rights that members action, §a 1983 support can Act Relations rights. fishing their “ ‘pre-emp- in that circumstance because I note addressing syllogism, this Before a matter of substantive ... as tion follows support for the more no that there is right.’” treaty-based general proposition Hotel & Restaurant Brown v. (quoting §a 1983 cause of support rights cannot Int’l Union and Bartenders Employees action, only that even The case period. 104 S.Ct. Local much, States v. Wash United (1984)). suggests L.Ed.2d (9th Cir.1987) F.2d ington, 813 § the Tribe’s Here, the bases I), re only that claims held (Washington Process Takings and Due are the claims interpretation in of trea solely sulting Constitution, al of the federal Claúses § under but cognizable not ties are assertedly uncon fishing rights though the now “violates these known that if a state stitutionally are traceable to taken rights, there would (and, aboriginal pos and well-delineated ultimately, to Treaty session). treaty this state and feder conflict between it was an actual While assertedly preserved § 1983 give to a might instance rise al law omitted). instances rights, (citation in other similar fishing So at 1023 action.” Id. pre hunting rights are fishing and odd) (rather holding indicates even this statute, treaty. not or by agreement served in which violations are cases that there Washington, 420 Antoine by Indian treaties part rights secured 200-01, L.Ed.2d And, in §to 1983 claims. give can rise issue, then, here in a later fact, recognized we have so status central self-governmental unlike Washington, States in United appeal Tribe, Valley Hoopa County Inyo Cir.1991) (Washington 935 F.2d 1059 marginally connect indirectly and only under II), fees we awarded where Tribe. status sovereign to the ed 1988, explaining: U.S.C. Takings also assert can entities Private from these us differs case before [T]he claims, as tracing their Due Process respect: single critical cases earlier grants, to federal property serted attempted has litigation while previous I reservations, or agreements statutes. proceed- treaty rights, [this hold that define inclined to therefore be would majority, addressed only question addressing the merits again, I not Once am address, I one Treaty and therefore in fact creates questions whether judicial whether, to a Tribe is entitled right, whether preserves the asserted questions. those so, answer to § 1983. impairing violates if ing] purely an action to enforce While Kimball did not involve a suit them.... brought reject under it did logic majority opinion: that individ-

The tribes are entitled section 1988 ual tribe members treaty enforce fees to such treaty enforce well-defined fishing rights they because are communal. rights. explained: As Kimball (citation omitted). Id. at 1061 Although giving exclusive light II, Washington Washington I fishing rights Quinaielts to the was with should be reconsidered rather than relied Tribe, the court held Mason v. [in upon. Ordinarily, whether a case is cogni Sams, (W.D.Wash.1925) 5 F.2d 255 ] § zable under 1983 not turn does that the right taking fish was a right rights are whether well-established or common to the members of the Tribe not, although qualified immunity does turn and that “a right to a common is the upon that consideration. See Saucier v. right of an individual of community.” Katz, 194, 201, 121 2151, 150 533 U.S. [Id.]. (2001); INS, L.Ed.2d 272 Wong v. U.S. From Mason it is clear that an indi- (9th Cir.2004). 373 F.3d 966 vidual Indian enjoys right of user in pertinent precedent for present purposes property tribal derived legal from the or II, Washington therefore recognizing equitable property right of the Tribe of treaty fishing rights give can which he is a member. § rise to a 1983 action. Mason, 590 F.2d at (quoting 773 5 F.2d at As to majority’s fishing individual 258) (parallel omitted). citation The hunt- rights syllogism, this granted circuit has ing and fishing rights Kimball, at issue in relief to individual tribe suing members here, like the fishing rights were non- treaty enforce their fishing rights. See rights. exclusive See id. at 774.9

Kimball, at 493 F.2d (granting 569-70 de claratory relief to individual Indians suing Individual Indians have brought a num their-rights-to hunt, enforce trap, and § ber of 1983 cases the district courts to fish within the Klamath Indian Reserva treaty enforce their rights. I recog While tion free Oregon game fish regular nize these opinions do not squarely ad tions, pursuant Treaty). to a Kimball was dress whether the individual plaintiffs have later cited Supreme Court in sup cognizable stated a cause of action under port proposition treaty § -they “[s]uch do indicate that other courts rights [as the to hunt and fish] can have found marriage this by Dion asserted as an individual mem See, 1983 acceptable. to be e.g., ber of the Dion, Tribe.” United States v. Canadian Regis St. Band Mohawk In n. 738 106 S.Ct. 90 York, dians ex rel. Francis v. New 278 L.Ed.2d 767 Dion cited for F.Supp.2d this (N.D.N.Y.2003); 313 Oyler v. proposition, Kimball, in addition to Win Finney, F.Supp. 870 (D.Kan.1994), 1018 ans Felter, and United States v. (10th 752 aff'd, Cir.1995) F.2d 52 F.3d 338 (unpub (10th Cir.1985). 1505 decision); lished table Mille Lacs Band of Lameer, (9th Settler v. 507 F.2d 231 Cir. subject are regulation, to tribal not whether 1974), States, v. United 155 individual consistent regula Whitefoot with tribal (1961); Ct.Cl. 293 upon F.2d 658 tion be asserted individual Indians. the majority rely, Settler, 232; were decided before both Whitefoot, F.2d Also, Kimball they and Dion. such, concern the they As informa question whether the fishing rights individual tive respect problem to the before us. Minnesota, U.S., Inc.; Assicurazioni Reinsurance Indians Chippewa S.P.A.; (D.Minn.1994), Insurance aff'd, 124 American Generali F.Supp. Association; Re-Insurance (8th Cir.1997), American aff'd, F.3d 904 Plaintiffs-Appellants, (1999); Company, 143 L.Ed.2d Superi Lake Band Oreilles Lac Courte Wisconsin, 663 Indians v. Chippeiva In America International Winterthur (W.D.Wis.1987), appeal dis F.Supp. Company; Inter Winterthur surance Cir.1987) (7th missed, (per F.2d 601 America Insur national Underwriters Smith, F.Supp. curiam); Sohappy Casualty Company; ance General (D.Or.1969), 529 F.2d 570 part, aff'd Wisconsin; Regent Company Insur curiam). Cir.1976) (per Company; Republic Insurance ance that the individu- I therefore hold would Company; Insurance Com Southern suit under may bring al Indians Indemnity Company; Unigard pany; treaty-secured fish- violation of asserting Company; Blue Unigard Insurance ing rights. Plaintiffs, Co., Ridge Insurance * * * * GARAMENDI, capacity as in his John the Insurance Commissioner support for sum, I no because find Defendant-Appel California, State its members the Tribe and barring lee. the federal under bringing suit—either Treaty-secured common law based Association; American Insurance dis- respectfully

rights or via 1983—I Com American Re-Insurance more, majority Once because sent. Plaintiffs-Appellants, pany, critical question, does not decide the is, whether the I do not decide though alleged its members have

Tribe or Garamendi, capacity as the in his John that is protect- preservation fisheries State Insurance Commissioner law or federal common ed under California, Defendant-Appellee. 04-15332, 04-15455.

Nos. Appeals, Court of United States Ninth Circuit. 13, 2004. Dec.

Argued and Submitted 10, 2005. Filed March 3, 2005. June Amended Brown, Rothfeld, Mayer, A. Charles GLOBAL REINSURANCE GERLING D.C., Maw, LLP, Washington, & Rowe AMERICA, U.S. OF CORPORATION plaintiffs-appellants. Branch; Gerling Life Rein Global Grossman Kaplan, Alschuler Frank Gerling Company; Global surance Monica, CA, Kahan, LLP, Santa Stein & Gerling Company; Life Insurance of In- Tick, Department Leslie California Company; Consti Insurance America Francisco, CA; surance, and Andrew San Company; Revios Insurance tution Mennemeier, Stroud, & Glassman Canada, Ltd.; Revios W. Reinsurance

Case Details

Case Name: Skokomish Indian v. Tacoma Public Utilities

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 3, 2005

Citation: 410 F.3d 506

Docket Number: 01-35028, 01-35845

Court Abbreviation: 9th Cir.