Thursday, June 5, 2003

Court rejects tribe's $6 billion claim
Dams were licensed properly, but other issues affecting tribe still to be decided

By GENE JOHNSON
THE ASSOCIATED PRESS

A three-judge panel of the 9th U.S. Circuit Court of Appeals has rejected the Skokomish Tribe's $6 billion claim against the city of Tacoma, in which the tribe argued that construction of two Skokomish River dams interfered with its treaty-based fishing rights.

The 2-1 ruling Tuesday largely upheld a 2001 decision by U.S. District Judge Franklin Burgess, who found that Tacoma followed federal regulations for licensing the dams and that the statute of limitations had expired on other claims made by the tribe.

"We're very pleased with the court's decision," said Richard Creatura, a lawyer for the city.

"We have always maintained that we've done everything the government has asked us to do in the operation of this project."

In a separate case, a different three-judge panel of the 9th Circuit ruled yesterday that in 1921 the city did not properly obtain the rights to reservation land that became the site of power lines.

The implications of that ruling aren't clear.

The tribe has fought the Cushman Hydroelectric Project for more than 70 years.

The $6 billion lawsuit, outlining numerous arguments against the project, was filed in 1999.

In it, the tribe claimed that the license for the dams was not properly granted and that the project damaged reservation land and violated its fishing rights under the 1855 Treaty of Point No Point.

Mason Morisset, the tribe's lawyer, pointed out that the 1924 license for the project authorized the city to flood only 8.8 acres of federal land near the reservation.

The two dams, built near Hoodsport, wound up flooding some reservation land and creating two lakes: the 150-acre Kokanee Lake and the much larger Lake Cushman, which has 23 miles of shoreline dotted with summer homes and a resort.

At the time, the Federal Energy Regulatory Commission believed it had the authority to approve the entire project based on the 1924 license for the 8.8 acres.

The agency later changed its opinion, requiring Tacoma to apply for a new license in 1974. That license approval is still being disputed in court in Washington, D.C.

Judges J. Clifford Wallace and Stephen Trott ruled Tuesday that because Tacoma was following what it believed to be the correct procedure for getting permission to build the dams, the city should not be held liable for damages.

"The government made those decisions back in the 1920s, and we built the project," Creatura said. "To be told 80 years later by the tribe that we somehow violated their rights misses the mark."

The judges also agreed with Burgess that the tribe could not sue the United States for damages because the Federal Power Act grants the government immunity from such claims.

The dissent was by Judge A. Wallace Tashima, who wrote that FERC "never considered the tribe's interests in the construction and operation of the project."

The tribe claims that the dams destroyed a major segment of its economy -- fishing -- because they diverted the river. Tashima said the tribe should be allowed to sue Tacoma for damages.

And that was enough to give Morisset some hope. He said the tribe would likely ask for an appeal before an 11-judge 9th Circuit panel.

In yesterday's decision, another three-judge appellate panel ruled on a separate lawsuit related to the Cushman project.

In that case, the United States, on behalf of the tribe, sued the city of Tacoma on the grounds that it did not properly acquire five parcels of reservation land that became the site of power lines.

Tacoma acquired easements on the land in 1921, after going through condemnation proceedings in state court and paying $1,411.61 to the owners.

In a 2-1 ruling, the 9th Circuit judges upheld an earlier ruling by Burgess that said the proceedings were void because they were brought in state court.

Morisset said the ruling indicates that the power lines are on the reservation illegally, and that as long as they're there, Tacoma Power is trespassing. He said the tribe might seek damages or require the city to pay to keep the lines there.

But Creatura, the city's lawyer, said it's not that simple.

"The court has said the city did not properly condemn those properties," he said.

"Nevertheless, we paid for them. What do we get for what we paid? These are issues that have to be resolved."