ELR Citation: ELR 20779
No(s). 91-0517-S-HLR (D. Idaho Mar 16, 1994)

Incorporating a magistrate judge's findings, reasoning, and conclusions, the court holds that the Nez Perce Tribe does not have a legally cognizable cause of action for an award of monetary damages under the Federal Power Act (FPA), federal common law, or state common law against a power company due to diminished salmon runs caused by the company's construction and operation of three hydroelectric dams on the Snake River in Idaho. The court first holds that it has subject matter jurisdiction pursuant to 28 U.S.C. §1362 and U.S. Supreme Court precedent to hear and determine the tribe's claims that its fishing rights have been abrogated. The court also holds that a 1980 Federal Energy Regulatory Commission (FERC) Order that addressed the conditions of the company's license does not preclude the tribe from bringing an action for damages. Because FERC does not have jurisdiction to award monetary damages, FERC's order was not a final determination of the tribe's claims that bars the tribe's present damage claims.

Next, the court holds that FPA §10(c) does not create a federal cause of action for monetary damages due to the reduction in the number of fish in the salmon runs. Although the tribe is a member of a class that the FPA appears to protect, to the extent the tribe's treaty fishing rights are considered property, the FPA's legislative history indicates that Congress intended to preserve existing state-law causes of action, not to create new private causes of action. Moreover, because the FPA is a comprehensive regulatory scheme intended to foster the development of hydroelectric power, courts should not create further causes of action or implement additional protections from those already existing in §10(c). The court next holds that the tribe does not have a federal common-law cause of action for monetary damages against the company for injuries to the fish runs caused by its action and conduct in the construction, maintenance, and operation of a dam complex. The tribe does not own the fish runs or the fish, but rather owns a treaty right to take fish from its usual and customary places, as specified in the 1855 Stevens treaty. The treaty does not provide a guarantee that there will be no decline in the amount of fish available to take. Moreover, the tribe does not have a vested property interest in a certain quantity of fish in the annual fish runs. The court holds that the tribe does not have a state common-law cause of action for compensation or monetary damages to the fish runs caused by the company's construction and maintenance of a dam on the river. Although §10(c) does not preempt the tribe's state-law cause of action for property damage, the tribe's treaty right to catch or harvest fish that are available is not a property right as contemplated by §10(c) or established case law. The court also holds that the Stevens treaty does not guarantee that subsequent development will not diminish or eventually destroy the fish runs. Indian treaties must be interpreted in light of new, and often changing, circumstances, including conditions that limit the available quantity of fish. Finally, the court declines to fashion a new federal common-law cause of action to protect the tribe's historical off-reservation treaty fishing rights. The FPA preempts any federal common-law damage remedy the court might fashion for the tribe.

Counsel for Plaintiff
Douglas R. Nash
Nez Perce Tribal Executive Committee
P.O. Box 305, Lapwai ID 83540
(208) 843-2253

Counsel for Defendant
Michael Mirande
Bogle & Gates
Two Union Sq., 601 Union St., Ste. 4700, Seattle WA 98101
(206) 682-5151