Client Alert

Ninth Circuit Issues Latest Decision in Series of Cases Strengthening FERC's Authority Under Federal Power Act: Skokomish Indian Tribe v. United States

6/17/2003
In Skokomish Indian Tribe v. United States, issued June 3, 2003, the Ninth Circuit reaffirmed that under the Federal Power Act ("FPA") the Federal Energy Regulatory Commission's ("FERC") orders may not be subjected to "collateral attack" in federal district courts. The court made it clear that if a party does not agree with the outcome of a FERC decision, the exclusive remedy is to appeal the FERC decision to a federal circuit court, and the party may not litigate the issues anew in the federal trial courts.

For over twenty-four years, the Skokomish Indian Tribe ("Tribe") has been fighting the City of Tacoma ("City"), in proceedings before FERC, as well as in the federal courts, alleging harm to the Tribe resulting from the City-owned Cushman Hydroelectric Project ("Project"). The Project involves dams, reservoirs, and powerhouses, and spans over 4,700 acres of land, only a small portion of which is federal land.

In 1923, when the City first applied for a federal license for the Project, the then-current view was that the federal licensing agency (the Federal Power Commission, FERC's predecessor) "only had authority to issue licenses for the use and occupancy of federal lands." As a result, the original license covered only the small part of the Project involving federal land. However, in 1963, FERC expansively re-interpreted its authority to license and regulate "project works," and concluded that it had authority to license entire projects involving dams, reservoirs, and powerhouses. Based on FERC's revised view of its licensing authority, the City in 1974 filed for a major project license from FERC encompassing the entire Project. The Tribe intervened in the re-licensing proceedings, and has contested the Project licensing proceedings and the FERC-issued Project license, granted in 1998, ever since.

The Tribe petitioned for review of the FERC-issued Project license by the United States Court of Appeals for the District of Columbia, as provided by the FPA. The circuit court remanded the case back to FERC, and those proceedings are still pending. Subsequently, the Tribe filed a complaint for relief from the Project license in federal court, giving rise to the instant case. In the latest suit, the Tribe alleged that the FERC-issued Project license interferes with the 1855 Treaty of Point-No-Point ("Treaty") between the Tribe and the United States. Under the terms of the Treaty, the Tribe ceded land to the United States in exchange for money, and a portion of land was set aside for the Tribe as a reservation. Additionally, the Treaty provided that the Tribe would retain traditional fishing, hunting, and gathering rights in "open and unclaimed lands."

In this suit, the Tribe alleged that the Project interfered with its Treaty-based rights by (1) unlawfully taking water needed to effectuate the Tribe's Treaty fishing rights; (2) unlawfully interfering with the Tribe's rights to fish, hunt, and gather; (3) unlawfully taking the Tribe's access to easements to usual and accustomed fishing and shell-fishing grounds; (4) unlawfully taking the Tribe's land and airspace; (5) unjustly enriching the City; (6) negligently harming the Tribe; (7) negligently violating state and federal Project approvals; (8) resulting in waste by diverting more water than necessary; and (9) violating state and federal law.

The district court granted summary judgment against the Tribe on all of these claims, because it ruled that it lacked jurisdiction to review the claims under the FPA. On appeal, the Ninth Circuit "agree[d] with the district court's result," but held that the claims should have been dismissed, rather than resolved on summary judgment, for the reason that the district court lacked jurisdiction to hear the claims.

Additionally, the Ninth Circuit made it clear that the Tribe's claims were precluded by the FPA, because even though the claims were "artfully pleaded" as Treaty-based, the claims nevertheless "flow[ed] directly from the FERC's licensing order." The Ninth Circuit also noted that the FPA required the FERC to consider the effects of the Project on the Tribe. The court therefore held that, since the Tribe's claims were "raised and addressed in the FERC licensing proceeding, any dispute over FERC's decision belongs first before FERC and then the circuit courts, not the district courts."

The Ninth Circuit's decision in this case reaffirms the strict procedures a claimant must follow when dissatisfied with a FERC decision. This precedent serves as an example that parties may not seek to open new litigation on issues within FERC's jurisdiction under the FPA, and upon which FERC has already ruled. This decision provides another brick in the wall of FERC's exclusive jurisdiction over matters committed to its purview by the FPA, and serves as a sign that federal courts will likely not allow attempts to re-litigate FERC decisions on matters ranging from hydroelectric project works to the energy crisis.

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