Court dismisses claim over FERC decision on hydro facility


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The U.S. Court of Federal Claims on March 11 dismissed a damages action brought by the Skokomish Indian Tribe, as well as the individual members of the Tribe, deriving from the construction and operation of the Cushman Hydroelectric Project, upstream from the Tribe’s reservation in Washington state.

The plaintiffs alleged that the federal government failed to protect their interests with respect to the licensing and operation of the hydroelectric project, thereby violating its obligations arising under a treaty as well as various statutes. They also said that defendant’s actions effectuated a temporary takings under the Fifth Amendment. The court on March 11 granted a federal government motion to dismiss.

Parts of this matter date back decades, to when the dam was first built. More recently, in August 2006, in City of Tacoma v. FERC, the D.C. Circuit held that the Federal Energy Regulatory Commission was required to include the Section 4(e) conditions issued by the Secretary of the Interior in Tacoma’s new license. Notwithstanding, Tacoma was allowed to continue to operate the Cushman Project under the terms and conditions of its 1924 license, without conditions for the protection of the Skokomish Reservation, until July 2010, when FERC issued a final amended license order.

In October 2011, following the dismissal of plaintiffs’ appeal in the Ninth Circuit, the clerk docketed this case. In April 2012, defendant filed its motion to dismiss. Thereafter, the parties participated in several alternative dispute resolution sessions. When a settlement did not materialize, a schedule for briefing the defendant’s motion to dismiss was issued. Briefing and argument on that motion were then completed, resulting in the March 11 dismissal for lack of jurisdiction.

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