Full opinion text
ORDER ADOPTING FIRST REPORT AND RECOMMENDATION RYAN, Senior District Judge. I. INTRODUCTION On July 30,1993, United States Magistrate Judge Larry M. Boyle entered his Report and Recommendation in the above-entitled action, attached hereto as Exhibit A. In his Report and Recommendation, Judge Boyle recommends that this court grant the defendant’s Motion for Summary Judgment as to all claims set forth in the plaintiff’s Amended Complaint. Pursuant to 28 U.S.C. § 636(b)(1), the parties had ten days in which to file written objections to the recommendations of Judge Boyle. The court granted the plaintiff an extension of time to file its objections, pursuant to a stipulation entered into by the parties. On August 13, 1993, the plaintiff filed its objections to the Report and Recommendation. Thereafter, on August 30, 1993, the defendant filed its response to the objections. II. DISCUSSION In light of the objections filed by the plaintiff, the court is required to engage in a de novo review pursuant to 28 U.S.C. § 636(b)(1). The court has engaged in an exhaustive and detailed review of the entire record in this matter, including all of the memoranda, affidavits, and exhibits filed by the parties in relation to the Motion for Summary Judgment, as well as the plaintiffs objections to the Report and Recommendation and the defendant’s response. The court has also reviewed the eases cited by the parties in their memoranda and by Judge Boyle in his Report and Recommendation. Having conducted this thorough and independent review of the record, in light of the facts presented in this case and the substantive law applicable thereto, this court finds that Judge Boyle did not err when he concluded that the defendant’s Motion for Summary Judgment should be granted. In its objections, the plaintiff does not offer the court any new authority which would cause it to reverse or modify the Report and Recommendation of Judge Boyle. Nor does the plaintiff offer any new evidence in support of its contentions. The plaintiff simply restates the arguments made to Judge Boyle which he carefully considered and rejected. With respect to the Motion for Summary Judgment, the court notes that its findings are based upon a careful review of the facts, which has been conducted with the principle in mind that the facts are to be viewed in the light most favorable to the plaintiff as the nonmoving party. In summary, the court is simply not persuaded that the Report and Recommendation entered by Judge Boyle on July 30,1993, warrants modification. On the contrary, the court commends Judge Boyle for his erudite and well-reasoned decision which is well founded in both law and fact. The court finds it unnecessary to explain to the plaintiff again the reasons why it may not recover money damages from this defendant for diminished salmon runs. Rather, the court hereby incorporates the findings, reasoning, and conclusions of Judge Boyle by reference in this order. The court notes that in the Report and Recommendation entered July 30, 1993, Judge Boyle appropriately did not address the plaintiffs claim for damages for inundation of usual and accustomed fishing places. The conversion claims were apparently raised for the first time at oral argument and were not clearly pleaded in the Amended Complaint. After consideration, this court again referred the defendant’s Motion for Summary Judgment to Judge Boyle for an additional hearing and the preparation of a supplemental report and recommendation on this narrow issue. In light of these developments, the court will grant the defendant’s Motion for Summary Judgment as to all claims and issues, and on all grounds addressed by Judge Boyle in his Report and Recommendation entered July 30, 1993. The court will deny the motion without prejudice as to the plaintiffs final remaining claim for compensation based on exclusion from its usual and accustomed fishing places. The court will delay entering its final ruling on this last claim until after all objections and responses to objections have been filed with respect to the Second Report and Recommendation entered by Judge Boyle on February 28, 1994. III. ORDER Based on the foregoing and the court being fully advised in the premises, IT IS HEREBY ORDERED that the findings, reasoning, and conclusions contained in the Report and Recommendation entered on July 30, 1993, should be, and are hereby, ADOPTED in their entirety and INCORPORATED herein by reference. IT IS FURTHER ORDERED that defendant’s Motion for Summary Judgment, filed September 18, 1992, should be, and is hereby, GRANTED as to all claims set forth in the plaintiffs Amended Complaint except the plaintiffs claim for compensation based on exclusion from its usual and accustomed fishing places. The motion is DENIED WITHOUT PREJUDICE as to this remaining claim at this time. The court will enter its final ruling on this claim as explained above. EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO NEZ PERCE TRIBE, Plaintiff, v. IDAHO POWER COMPANY, Defendant. Case No. CV 91-0517-S-HLR REPORT AND RECOMMENDATION BOYLE, United States Magistrate Judge. I. INTRODUCTION The Nez Perce Indian Tribe (hereinafter the “Tribe”) brought this action seeking an award of monetary damages from Idaho Power Company for the negative effect the power company’s construction and maintenance of three dams on the Snake River has had on the fall and spring chinook and steel-head runs. Idaho Power Company and/or its predecessors (hereinafter “Idaho Power”) began construction of the dams in 1955, when the Federal Power Commission issued it a license pursuant to the Federal Power Act (hereinafter “FPA”), 16 U.S.C. § 791a et seq. Pursuant to that license, the Hell’s Canyon dam, the Oxbow dam and the Brownlee dam (hereinafter the “Hell’s Dam Complex”) were constructed during the mid 1950’s and early 1960’s. The Tribe bases its claims on the terms of the 1855 treaty with the United States which reserved to the Tribe exclusive rights to take fish in streams “where running through or bordering” its reservation, as well as “the right of taking fish at all usual and accustomed places in common with citizens of the Territory.” Art. Ill, Treaty with the Nez Perce, 12 Stat. 957 (June 11, 1855) (hereinafter the “treaty”). The Tribe alleges that the manner in which Idaho Power has constructed and operated the Hell’s Dam Complex violates its treaty fishing rights by reducing the number of fish on the annual runs and claims it is entitled to compensation for that loss in the form of monetary damages. Idaho Power denies that it constructed or operated the Hell’s Dam Complex in a negligent manner or that it has violated FPA regulations. However, neither party disputes that the number of salmon and steelhead in the Snake River has greatly declined since the Hell’s Dam Complex was commenced in the mid 1950’s. Idaho Power asserts that the fish conservation issues posed by the Hell’s Dam Complex were finally determined as a result of a 1976 petition filed with the Federal Energy Regulatory Commission (hereinafter “FERC”) by the Fish and Game agencies of the states of Idaho, Oregon and Washington. In the 1976 petition, the three states sought a declaratory order pursuant to section 10(a) of the FPA requiring Idaho Power to expand and renovate the Rapid River, Pahsimeroi River and Niagara Springs hatcheries and to produce greater numbers of juvenile fish in those facilities. The Tribe intervened in that action in August, 1977. Negotiations among the parties resulted in a settlement agreement dated February 14, 1980, executed by the United States Department of Commerce, the states of Washington, Idaho and Oregon, and Idaho Power. The Tribe participated in those negotiations but did not sign the settlement agreement. The parties to the settlement agreement agreed that their compromise would settle all issues concerning the actual number of salmon and steelhead destroyed by the Hell’s Dam Complex. All three states, but not the Department of Commerce, also agreed that the settlement agreement would constitute full and complete mitigation for all numerical losses of salmon and steelhead caused by Idaho Power. In its Order of February 27, 1980 (hereinafter “Order”) FERC approved the settlement agreement. Although the Tribe intervened in the action and participated in the negotiations, it contends that it is not bound by the Order because it did not sign the settlement agreement and because Idaho Power has failed to comply with the terms and requirements of the settlement agreement. II. SUMMARY OF THE COURT’S OPINION Currently before the Court is Defendant’s Motion for Summary Judgment (Docket No. 31) wherein Idaho Power contends that it should be granted summary judgment on the grounds that the Tribe does not have a valid claim or cause of action for monetary damages. In the alternative, Idaho Power asserts that because Congress intended the FPA to be a comprehensive plan of development, it preempts any common law claim for damages asserted by the Tribe. Further, Idaho Power argues that the FERC Order of February 27, 1980 precludes any action by the Tribe for monetary damages because the Order constituted a final determination of the Tribe’s fishing losses. Finally, Idaho Power contends that even if the Tribe has a state common law cause of action for damages, the United States courts do not have subject matter jurisdiction to hear that action. The Tribe responds by asserting that it has both a state and a federal common law cause of action for damages, neither of which has been preempted by the FPA. The Tribe asserts that even if this Court finds that the Tribe’s cause of action is grounded in state common law, that this Court has jurisdiction pursuant to 16 U.S.C. § 803(c). In the alternative, the Tribe argues that rather than preempting its cause of action, 16 U.S.C. § 803(c) expressly provides the Tribe with an action for monetary damages to its property. Finally, the Tribe asserts that it is not precluded by the 1980 FERC Order because it did not sign the settlement agreement and also because the Order addresses only mitigation of the Hell’s Dam Complex’s effect on the fish runs and not the issue of monetary damages for the loss of the fish runs. After a careful and extensive review of the record, the Court is of the opinion that the Tribe does not have a legally cognizable cause of action for an award of monetary damages. The United States courts have subject matter jurisdiction to hear any Tribal claim for protection of rights created by United States treaty. See 28 U.S.C. § 1362. Accordingly, in the Court’s view, the federal courts have subject matter jurisdiction to hear and determine the state common law claim alleged by the Tribe. The Court also concludes that because FERC does not have jurisdiction to award monetary damages, FERC could not have considered the Tribe’s present damage claims and, therefore, the 1980 FERC Order does not preclude the Tribe from bringing an action for damages here. Having concluded that the United States courts have jurisdiction to hear this proceeding and that the 1980 FERC Order does not bar consideration of this instant action, the Court will analyze and resolve in this Report and Recommendation all of the substantive issues presented herein by the parties. The Court has considered each of the Tribe’s asserted grounds for an award of monetary damages, i.e. 16 U.S.C. § 803(c), federal common law and state common law. In the Court’s view, Congress intended section 803(c) to preserve existing causes of action, but not to create new ones. The Court has studied the extensive ease law on this issue and concludes that there is no legal precedent establishing a cause of action for monetary damages due to violation of tribal treaty fishing rights on the grounds of reduction of the number of fish available to catch. The Court concludes that the primary reason that Indian tribes have not been awarded damages for their treaty fishing rights in the past is because the tribes do not own the fish, but only have a treaty right which provides an opportunity to catch fish if they are present at the accustomed fishing grounds. In the Court’s view, monetary damages for loss of property cannot be awarded for injury to a fish run in which the plaintiff tribe owns only an opportunity to exploit. The Tribe has asserted that if it does not have a cause of action for monetary damages stemming from injury to the fish runs, its treaty fishing rights are meaningless. In this respect, the Court has examined the effect that changing circumstances, such as the construction of the Hell’s Dam Complex, has had on tribal treaty fishing rights in the past. After careful analysis, the Court concludes that while treaty fishing rights are subject to changes in circumstances, the treaty fishing rights that the tribes reserved to themselves have not been rendered meaningless because of the hatchery facilities and other mitigation and protection programs. Having concluded that the Tribe does not have a cause of action for an award of monetary damages, and that the lack of such a remedy does not “nullify” the Tribe’s treaty fishing rights, the Court has also seriously considered whether it is able to establish a new cause of action for the Tribe. After extensive analysis and consideration, this Court declines to create a new cause of action for several reasons. First, the FPA is sufficiently broad and comprehensive that it would preempt almost any, if not all, causes of action the Court might devise. Second, the creation of federal common law is a disfavored expedient. Finally, the injunctive remedies already available, the Clean Water Act, the Endangered Species Act, and the FPA itself, all provide some degree of protection for the fish runs. Finally, the Court has reviewed the Fed. R.Civ.P. 56 summary judgment standard and concludes that even assuming that all of the Tribe’s factual allegations as to the significant damage to the fish runs are true, the Tribe would still not have a cause of action for an award of monetary damages. Therefore, inasmuch as there are no genuine issues of material fact, this Court recommends that Defendant’s Motion for Summary Judgment be GRANTED. III. ANALYSIS AND ORDER OF THE COURT After an in-depth review of the parties’ briefs and having read and considered the many cases, statutes, treaties and other authorities cited and relied upon by the parties, and having conducted its own extensive research, it is clear that the threshold question presented here is whether the Tribe has a legally cognizable action for monetary damages due to the destruction of the Snake River salmon and chinook fish runs caused by the construction and operation of the Hell’s Dam Complex. In essence, the Tribe is seeking an award of monetary damages stemming from the destruction of a natural resource, i.e. the Snake River chinook salmon and steelhead, to which the Tribe clearly has treaty fishing rights to fish at all of their usual and accustomed places. However, before this ultimate question can be resolved, the Court must consider the asserted procedural bar issues raised by Idaho Power relating to the Court’s subject matter jurisdiction, and the effect of the 1980 FERC Order on the instant proceedings. A. Asserted Procedural Bars Idaho Power contends that the Court should not consider the merits of the instant action because it does not have subject matter jurisdiction over the action or, in the alternative, because FERC’s 1980 Order was a final decision on the merits of the claims which the Tribe has raised in this action. In the Court’s view, Idaho Power’s position on both issues is without merit. 1. Subject Matter Jurisdiction It is well established that “subject matter jurisdiction ... must be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking.” Therefore, this Court will begin by first considering and determining whether it has jurisdiction to consider the matters at issue in the instant action. Idaho Power contends that if the Tribe’s cause of action is based upon state common law, the United States courts do not have subject matter jurisdiction over the matters raised herein. The Tribe argues that it has: [1] a state common law cause of action preserved by 16 U.S.C. § 803(c); [2] a féderal common law cause of action not preempted by the FPA; and [3] a federal cause of action created by 16 U.S.C. § 803(c). Idaho Power’s contention that this Court lacks subject matter jurisdiction relates only to the Tribe’s claim that it has a state common law cause of action. It is obvious that the Court has subject matter jurisdiction to consider a federal common law claim. Likewise, if 16 U.S.C. § 803(e) creates a federal cause of action, this Court would have jurisdiction over that action. See 16 U.S.C.A. § 825p. However, the Tribe also contends that 16 U.S.C. § 803(c) creates original jurisdiction in the United States district courts to hear any state law claims brought under 16 U.S.C.A. § 803(c), which is one of the nine “Conditions of License” listed in the FPA and provides in pertinent part: Each licensee hereunder shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license, and in no event shall the United States be liable therefor. As written, the above statutory condition provides that the licensee is liable to property owners for all damages caused by its activities. The statute is primarily for the benefit of the United States because it exculpates the government from liability for the actions of licensees. Although this statutory condition preserves causes of action against licensees for damages to property, it does not expressly address whether the United States district courts have jurisdiction to hear the preserved causes of action. A review of the legislative history of the FPA discloses the “vigorous determination of Congress ... to avoid unconstitutional invasion of the jurisdiction of the States.” First Iowa Hydro-Electric Cooperative v. Federal Power Com., 328 U.S. 152, 171, 66 S.Ct. 906, 915, 90 L.Ed. 1143 (1946). The legislative history of section 803(c) itself is representative of Congress’ determination to avoid impinging upon a state’s jurisdiction. After an extensive examination of the legislative history of section 803(c) in an action brought to determine whether the FPA created United States district court jurisdiction, the D.C. Circuit Court summarized the Congressional record as follows: The original version of § 10 [16 U.S.C. § 803(e) ] reported to the House of Representatives by the Committee on Water Power provided that “[n]o license hereunder shall have the effect of relieving the licensee from liability for any injury or damage occasioned by the construction, maintenance, or operation of said project works; and the United States shall in no event be liable therefor.” During the floor debate in the House, Representative Graham of Illinois suggested that the provision be amended to require that, before they began construction, licensees make settlement or compensation for all damages caused by the construction of their projects according to the laws of the state where the project was to be built. See 56 Cong.Rec. 9913-14 (Sept. 3, 1918). Although Representative Dempsey objected to the amendment on the ground that it would be impracticable to make the parties settle “in advance before they can know the amount of the settlement,” no participant in the floor debate questioned the premise that damages should be determined according to state law. See id. Thus, both the Graham amendment, which was accepted, see Cong.Ree. 9972 (Sept. 4, 1918), [footnote omitted] and the language of the original provision demonstrate that the House intended for damages (whether ascertained before or after construction) to be determined in accordance with state law. Nothing in the legislative history indicates that this understanding was ever altered during later discussions of the Act [the FPA]. In particular, while the amendment requiring payment before construction was superceded, in conference with the Senate, by the current language of § 10(c) [16 U.S.C. § 803(c) ], the Conference Report, H.R.Rep. No. 1147, 65th Cong., 3d Sess. 16 (1919), does not indicate any intention to abandon the principle that property damages caused by licensees should be determined in accordance with state law. South Carolina Public Service Authority v. FERC, 850 F.2d 788, 794-95 (D.C.Cir.1988). In addition, the legislative history of section 803(c) has been analyzed as follows: During the course of House debate on the bill, in the years prior to passage of the Federal Water Power Act, Representative LaFollette of Washington, a member of the Special Committee on Water Power, stated: “The property rights are within the State. It can dispose of beds, or parts of them, regardless of the riparian ownership of the banks, if it desires to, and that has been done in some States. If we put this language, [§ 9(b) ] which is practically taken from the Supreme Court decision [United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746], as to the property rights of the States as to the bed and the banks and to the diversion of the water, then it is sure that we have not infringed any of the rights of the States in that respect, or any of their rules of property, and we are trying in this bill above everything else to overcome a divided authority and pass a bill that will make it possible to get development. We are earnestly trying not to infringe the rights of the States. If possible we want a bill that cannot be defeated in the Supreme Court because of omissions, because of a lack of some provision that we should have put in the bill to safeguard the States.” 56 Cong.Ree. 9810 (1918). DiLaura v. Power Authority of New York, 786 F.Supp. 241, 248, n. 4 (W.D.N.Y.1991), aff'd, 982 F.2d 73 (2nd Cir.1992). Based upon the above legislative history, and the Supreme Court’s admonition against interpretations of the FPA which create a “futile duplication of two authorities over the same subject matter,” the D.C. Circuit Court held that the federal courts did not have jurisdiction over state causes of action preserved by section 803(c). Id. at 248-49. Applying these principles, the court in Di-Laura concluded: Congress did not intend for the determination of when licensees would be liable to their neighbors for property damages to be made in federal court. Instead, Congress intended that such a determination would “remain under the jurisdiction of the States,” and would be decided exclusively by state courts applying state tort law. [footnote omitted] See South Carolina Pub. Serv. Auth., 850 F.2d at 795. DiLaura, 786 F.Supp. at 247. This Court agrees with the analysis and holdings in DiLaura and South Carolina Pub. Serv. Auth. to the extent that Congress did not intend to grant the federal courts subject matter jurisdiction over state law causes of action which were preserved by 16 U.S.C. § 803(c). Thus, it would appear that the federal courts have jurisdiction to hear only those claims which are based upon either federal common law or upon the FPA. In addition, 28 U.S.C.A. § 1362 provides: The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States. In the instant action, it is beyond any reasonable dispute that the Tribe’s fishing rights and their claims in this regard are derived from the 1855 treaty. The courts have consistently held that 28 U.S.C. § 1362 creates federal jurisdiction when an Indian tribe brings a tort action, if the interest which the tribe alleges to have been injured or damaged is created by treaty or other federal law. In Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), the United States Supreme Court considered whether the district court had jurisdiction to determine a quiet title action brought by the Oneida Tribe: Here, the right to possession itself is claimed to arise under federal law in the first instance. Allegedly, aboriginal title of an Indian tribe guaranteed by treaty and protected by statute has never been extinguished. [T]he assertion of a federal controversy does not rest solely on the claim of a right to possession derived from a federal grant of title whose scope will be governed by state law. Rather, it rests on the not insubstantial claim that federal law now protects, and has continuously protected from the time of the formation of the United States, possessory rights to tribal lands, wholly apart from the application of state law principles which normally and separately protect a valid right of possession. For the same reasons, we think the complaint before us satisfies the additional requirement formulated in some eases that the complaint reveal a “dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.” [citations omitted, footnote omitted]. Here, the Oneidas assert a present right to possession based in part on their aboriginal right of occupancy which was not terminable except by act of the United States. Their claim is also asserted to arise from treaties guaranteeing their possessory right until terminated by the United States, and ‘it is to these treaties (that) we must look to ascertain the nature of these (Indian) rights, and the extent of them.’ [citation omitted] ... To us, it is sufficiently clear that the controversy stated in the complaint arises under the federal law within the meaning of the jurisdictional statutes and our decided eases. 414 U.S. at 676-78, 94 S.Ct. at 782-83. The principle quoted above has also been applied to actions brought against private defendants. In Mescalero Apache Tribe v. Burgett Floral Co., 503 F.2d 336 (10th Cir.1974) the court, citing Oneida, held that because the Apache Tribe’s title to its reservation land was confirmed by treaty, that it had original jurisdiction over the Oneida Tribe’s action against defendants for allegedly entering onto the reservation and destroying trees. Id. at 338. However, an opposite result occurred in Chilkat Indian Village v. Johnson, 870 F.2d 1469 (9th Cir.1989) wherein the Chilkat Indian Village brought an action for possession of four carved wooden posts and a wooden partition called a rain screen. The Chilkat Indians alleged both conversion and violation of a tribal ordinance prohibiting taking traditional Indian artwork from either reservation or private land owned by the tribal members without the permission of tribal counsel. Id. at 1471. The United States district court ruled, sua sponte,. that it did not have jurisdiction over either the conversion claim or the violation of tribal ordinances. On appeal, the Ninth Circuit agreed that the tribe’s conversion claim did not raise a question of federal law and distinguished Oneida as follows: The Village strongly asserts that its possessory interest arises under and is protected by federal law, but it has neither alleged nor offered any factual or legal bias for that assertion. The artifacts are not alleged to be trust property, nor property held pursuant to federal statute or federal common law. Whatever proprietary interest the Village has in the artifacts is a creature of tribal law or tradition wholly unconnected with federal law. No construction of federal law is necessary to adjudicate title. The claim is therefore entirely different from the claim successfully maintained in Oneida [citation omitted]. In that case, the Oneida Nation was suing on a possessory interest, a right of occupancy, that had been shaped and protected by federal common law, reinforced by a treaty and the federal Nonintercourse Acts [citations omitted]. No such federal foundation underlies the Village’s conversion claims in this ease. Id. at 1472-78. In the instant action, however, the Tribe’s right to fish is aboriginal in origin, as it was in Oneida, and is reinforced by federal common law and the 1855 treaty. As will be discussed hereinbelow, there is substantial federal case law devoted to the determination of infringements of Indian fishing treaty rights. Accordingly, after a careful consideration of the issues, this Court concludes pursuant to 28 U.S.C. § 1362 and the Supreme Court’s holding in Oneida that the United States courts have subject matter jurisdiction over the Tribes’ claim in this action alleging that its treaty fishing rights have been violated. 2. 1980 FERC Order Having determined that the Court has subject matter jurisdiction over the Tribe’s claims, it will now consider Idaho Power’s contention that the 1980 FERC Order was a final determination of the Tribe’s claims which precludes it from bringing the present action. In the Court’s opinion, the present action is not barred by the 1980 administrative proceeding because the nature of this litigation differs significantly from the FERC proceedings. In the FERC action, the primary matters at issue were the conditions of Idaho Power’s license. The resulting settlement agreement concerned what action Idaho Power would be required to take to mitigate the anadromous fish losses caused by the Hell’s Dam Complex. The FERC proceeding was concerned with and limited to regulatory requirements, whereas the instant action is an action for monetary compensation for damage to the Tribe’s asserted fishing rights. It is clear that FERC does not have jurisdiction to adjudicate property disputes or to award monetary damages. In South Carolina Public Service Authority v. FERC, 850 F.2d 788, the South Carolina Public Service Authority (hereinafter the “Authority”) appealed one of the conditions imposed by FERC for the renewal of its FPA license on the Santee North Dam. The challenged condition was that the Authority provide compensation for all foreseeable property damage caused by seismieally induced dam failure. Id. at 789. In that proceeding, the Authority contended that FERC did not have jurisdiction to impose liability for property damages. In response, FERC argued that because sections 10(a) and (c) of the FPA obligated it to ensure that each project is safe before licensing it, FERC’s requirement that the Authority compensate its neighbors for property damages resulting from an earthquake-induced flooding was a proper exercise of its authority. Id. at 792. On appeal, the D.C. Circuit Court of Appeals disagreed and held: We find this proposition ... troubling. This is apparently the first time an agency authorized to regulate in the interest of safety has interpreted that authority to support a compensation scheme. The dearth of authority to support the Commission’s [FERC] interpretation, which equates “the protection of ... property” with “compensation for damage to property,” is not surprising: “compensation” bears little resemblance to “protection” as those terms are used in ordinary language or in statutes regulating various hazards. Unlike a requirement that a licensee take a measure to prevent a loss from occurring, such as installing an alarm system or rebuilding a dam, the compensation condition does not contribute in any way to the protection of property. Instead, it merely substitutes the Commission’s preferred rule of compensation for existing state law in the event that the earth should move and the dam give way. We do not believe that Congress intended such a result when it authorized the Commission to issue licenses and to condition those licenses upon conformity to “regulations ... for the protection of ... property.” The impossibility of the Commission’s position is manifest when one considers the linguistically necessary implication, namely, that it could also require compensation for death or disease in lieu of “protection of life [and] health.” Id. at 792. In South Carolina Public Serv. Auth., the D.C. Circuit Court of Appeals also noted that while 16 U.S.C. § 803(c) specifically addressed the issue of property damages, that section merely preserves any existing cause of action under state law. Id. at 794. In the 1980 Order, FERC acted only to protect the anadromous fish runs. FERC did not, and indeed could not, order monetary compensation for past or present injury to the fish runs. In the present action, the Tribe seeks such monetary compensation for injury to the fish runs. Such an action is properly brought in the courts, not before FERC. Therefore, as the matter was not, and could not have been, at issue therein, the Court concludes that the Tribe’s action for damages to its treaty fishing rights is not barred by the 1980 FERC Order. Idaho Power also contends, in reliance on Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958) that because a favorable verdict for the Tribe may threaten the economic viability of the Hell’s Dam Complex, this action is, in effect, a collateral attack on FERC’s 1980 Order. In Tacoma, FERC granted a license to construct a facility on the Cowlitz River. The State of Washington intervened in FERC hearings to raise objections concerning the .facility’s adverse affects on the Cowlitz River. The State of Washington contended that the facility could not be built absent its approval. FERC granted the license and Washington State ultimately appealed FERC’s Order to the Ninth Circuit, which confirmed FERC’s Order. The Supreme Court denied certiorari. Id. at 323-29, 78 S.Ct. at 1211-15. In the face of the State’s objections, the City filed an action in state court seeking a declaration that the bond issue the City contemplated using to finance to project was valid. The State responded, alleging that the project itself was contrary to state law. This time, however, the State based its objection on a different statute than the one it had relied on in its objections before FERC. The Washington trial court enjoined the City from constructing the facility and the Washington Supreme Court affirmed, holding that FERC could not grant the City power to condemn the State’s hatehery when state law did not provide the City with such authority. Id. at 329-33, 78 S.Ct. at 1215-17. The United States Supreme Court reversed on the grounds that the State’s action constituted an impermissible collateral attack on the FERC Order granting the license. The Supreme Court relied on 16 U.S.C. § 825Z (b) which provides that jurisdiction of the federal courts in reviewing a FERC decision “shall be exclusive, to affirm, modify, or set aside such order in whole or in part” and that “[t]he judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part any such order of the commission, shall be final, subject to review by the Supreme Court....” The Supreme Court held: This statute is written in simple words of plain meaning and leaves no room to doubt the congressional purpose and intent. It can hardly be doubted that Congress, acting within its constitutional powers, may prescribe the procedures and conditions under which, and the courts in which, judicial review of administrative orders may be had____ So acting, Congress in § 313(b) prescribed the specific, complete and exclusive mode for judicial review of the Commission’s orders____ It thereby necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review. Hence, upon judicial review of the Commission’s order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all. Tacoma, 357 U.S. 320 at 335-37, 78 S.Ct. 1209 at 1218-19. The Supreme Court continued by emphasizing that: [E]ven if it might be thought that this issue was not raised in the Court of Appeals, it cannot be doubted that it could and should have been, for that was the court to which Congress had given “exclusive jurisdiction to affirm, modify, or set aside” the [FERC] Commission’s order. And the State may not reserve the point, for another round of piecemeal litigation____ Id. at 339, 78 S.Ct. at 1220. After a careful review of the record and the cited legal authorities, this Court agrees with Idaho Power to the extent that if the Tribe had brought this action to amend the conditions of the 1980 FERC Order, or of Idaho Power’s license in general, or to bar Idaho Power from operating the Hell’s Dam Complex in compliance with its license, that the Tribe’s action would be a collateral attack on the 1980 FERC Order. However, the Tribe’s present action cannot reasonably be construed as a collateral attack on the 1980 FERC Order because the Tribe does not seek herein either to modify, rescind or otherwise alter the 1980 FERC Order, or to prohibit Idaho Power from availing itself of the privileges granted by the 1980 Order. Rather, in this instant action, the Tribe seeks monetary compensation for property damage, a remedy, which as discussed above, is not within FERC’s jurisdiction. See South Carolina Pub. Serv. Auth. v. FERC. Finally, Idaho Power contends that the Tribe’s present action threatens the economic feasibility of the Hell’s Dam Complex, and that to allow the Tribe to recover monetary damages would provide the Tribe with a “back door veto” over all hydro-electrical projects which affect tribal fishing rights. See Defendant’s Memorandum in Support of Idaho Power Company’s Motion for Summary Judgment, pp. 71-72. Idaho Power further contends that while Congress intended FERC to consider the recommendations of Indian tribes regarding natural resources (see 16 U.S.C.A. § 803(j)), it did not intend to give any Indian tribe affected by a proposed power project a right to veto that project. This Court agrees with Idaho Power to the extent that Congress did not intend to require FERC to accept the recommendations of Indian tribes. However, the Court cannot accept Idaho Power’s further contention that because Congress gave the Indian tribes the right to advise FERC regarding mitigation of damage to wildlife, that Congress also intended to preclude any actions for damages to Indian property. Although FERC is required to consider the safety of the public when licensing power projects, its consideration of public safety clearly and obviously does not release the licensee from liability for any injury or damage it may cause to private property. See 16 U.S.C. § 803(c). Nor does FERC’s determination that a project is economically feasible constitute a guarantee that it will be economically feasible. For example, if FERC licensed a project which would submerge private property, it is naturally to be expected that in determining the economic feasibility of the project, both FERC and the licensee would attempt to place a value on the submerged or otherwise damaged property. However, as discussed above, the state courts, not FERC, have the ultimate responsibility for determining the value of the submerged land and awarding damages. If the state court determined that the submerged land was substantially more valuable than FERC and the licensee had estimated, it is entirely possible that the owner’s claim for damages would terminate the project. The courts could not justify, under those circumstances, preclusion of the submerged owner’s action on the grounds that it constituted a back door veto of FERC’s decision, no more than it could justify precluding the Tribe’s present action on the grounds that the Tribe’s treaty fishing rights are worth more or are more valuable than FERC and Idaho Power had originally anticipated. In summary, FERC does not have jurisdiction or authority to make an award of monetary damages, thus the Tribe’s claim for an award of monetary damages is not barred by the 1980 FERC Order. B. Actions For Interference With Fish Runs Having concluded in the preceding sections that the United States district court has subject matter jurisdiction over this action, and that the Tribe’s action is not barred by the 1980 FERC Order, the Court will now consider whether the Tribe has a claim or cause of action for damage to or destruction of the fish runs to which its members have a treaty right to fish. 1. Section 803(c) Claims In determining whether a federal statute provides a private litigant with a cause of action, the United States Supreme Court has held “[t]he ultimate issue is whether Congress intended to create a private cause of action....” Karahalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 532, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989) (quoting California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1778, 68 L.Ed.2d 101 (1981)). “Unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988). To assist the courts in making this determination, the Supreme Court has established a four part test: [1] is the plaintiff one of the class for whose benefit the statute was enacted; [2] is there any indication of legislative intent, implicit or explicit, to create or deny a private remedy; [3] would the creation of such a remedy be consistent with the underlying purposes of the legislative scheme; and [4] is the cause of action traditionally regulated by state law, in an area basically regulated by the states, making it inappropriate to infer a cause of action based solely on federal law. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). The above test was obviously intended to be applied to statutes which either prohibit an act or require an action, and not to a statute like 16 U.S.C. § 803(c) which provides on its face an action for an award of private monetary damages, but does not prohibit or require an act. Nevertheless, the test does give the Court an indication of the matters it should consider in determining whether section 803(c) creates a cause of action for monetary damages under these circumstances. The language of section 803(c) makes it clear that the statute was intended to protect two parties: the United States, which it expressly protects from liability for property damage caused by the licensee; and owners whose property is damaged. Thus, to the extent that the Tribe’s treaty fishing rights are considered property, the Tribe is a member of a class which the statute appears to protect. However, it is clear from the legislative history of the section that Congress’ intent when passing section 803(c) was to preserve existing state law causes of action, not to create new causes of action. (See discussion regarding the affect of 16 U.S.C. § 803(c) on subject matter jurisdiction, pp. 796-800, supra.) Thus, in the Court’s considered opinion, it is clear that Congress, in adopting section 803(c), did not intend to create a new private cause of action. Rather, it intended to preserve state common law rights. Most courts, when considering whether section 803(c) creates a new private cause of action, have reached the conclusion that it does not. DiLaura v. Power Authority of New York, 786 F.Supp. 241 at 249 (see quoted portion of DiLaura, p. 798, supra). Torts involving damage to property are an area of law traditionally regulated by state law. Thus, in this instant action the Court concludes that it would be inappropriate to imply or assume that section 803(c) creates a federal cause of action for property damage. Finally, the Court notes that the FPA is a comprehensive regulatory scheme intended to foster the development of hydro-electric power. The Act also considers and creates compromises and provisions for the protection of wildlife, 16 U.S.C. § 803(j). Therefore, the courts should not judicially create further causes of action, or implement additional protections from those already existing in section 803(c). Accordingly, the Court concludes that 16 U.S.C. § 803 does not create a federal cause of action for monetary damages due to reduction in the number of fish in the runs. See authorities cited in footnote 19. 2. Federal Common Law The Tribe contends that it has a federal common law cause of action for monetary damages based upon its 1855 treaty fishing rights and specifically seeks compensation for damages to a natural recourse (i.e. anadromous fish runs) which it has the right in common with non-treaty fishermen to exploit. The Tribe’s right to share in the harvest of that natural resource was created by the 1855 treaty which reserved to the Tribe the exclusive right to take fish in streams “where running through or bordering” the Tribe’s reservation as well as “the right of taking fish at all usual and accustomed places [off reservation] in common with citizens of the Territory.” Art. Ill, Treaty with the Nez Perce, 12 Stat. 957 (June 11, 1855). The Tribe is not seeking damages for any infringement of its tribal members’ ability to fish, or because other fishermen are taking an unfair proportion of the fish. Rather, the Tribe seeks an award of monetary damages for destruction of the quantity of fish in the runs. Thus, in the Court’s view, a threshold question presented is whether the Tribe’s treaty right to harvest fish from certain accustomed fishing places includes a right to bring an action for damages against licensees or other persons for damages arising from interference with the fish runs. Idaho Power contends that the fishing rights reserved to the Indians under the 1855 treaty are subject to the effects of the passage of time and that the United States government can make policy choices which affect the available number of fish without violating its treaties with the various Indian tribes. Idaho Power argues that the need for electricity and the passage of the FPA constitute such a change in circumstances and that Congress knowingly limited the Indian’s treaty rights when it passed the FPA. The Tribe argues, however, that although the United States government can make such a policy choice, to limit the Tribe’s treaty fishing rights requires action on the part of Congress and that legislative body has not so expressly acted. In response, Idaho Power asserts that Congress modified the 1855 treaty by passage of the FPA and further, that 16 U.S.C. § 803(c) was intended to apply only to state causes of action and argues that the Tribe’s fishing rights are federal in nature. Finally, Idaho Power asserts that the nature of the Tribe’s fishing rights preclude an award of monetary damages. a) The 1855 Stevens Treaty The determination of all of the above questions is related to the nature and extent of the Tribe’s treaty fishing rights. Therefore, it is necessary to examine the history of the Tribe’s treaty fishing rights and the remedies which other courts have previously awarded to the Tribe in regard to those historical rights. The 1855 treaty at issue in the instant action was one of a number of treaties (hereinafter referred to as the “Stevens treaties”) negotiated by Territorial Governor Isaac Stevens with the various Pacific Northwest Indian Tribes during the mid 1800’s. In addition to the Nez Perce treaty at issue here, the Treaty of Medicine Creek, Stat. 1132 (1853), Treaty with the Yakimas, 12 Stat. 951 (1855), and Treaty of Point Elliott, 12 Stat. 927 (1855) were all negotiated during this same general period of time. The United States negotiated these treaties for the purpose of extinguishing tribal claims to portions of what were then the Washington and Oregon Territories, in order to allow settlement of the region by its citizens. In return for the Tribe’s relinquishment of its claim to portions of what is now the northwestern United States, the United States made certain payments to the tribes and promised future assistance. The tribes reserved certain rights over the relinquished lands, including the rights to fish and hunt off-reservation. Typically, the reserved right to fish and hunt was exclusive on reservation lands and in common with non-tribal members on relinquished or off-reservation lands. Generally, in these treaties off-reservation rights to take fish were limited to “the usual and accustomed places.” Because of the similarity of these treaties, and the almost identical language employed therein, the United States Supreme Court has, when interpreting one of these treaties, generally looked to cases construing other Stevens treaties for guidance. The Ninth Circuit has likewise considered other Stevens treaties when construing Indian rights under the various treaties. See, e.g. United States v. Oregon, 718 F.2d 299, 301-302 & n. 2 (9th Cir.1983); Sohappy v. Smith, 529 F.2d 570, 573-574 (9th Cir.1976). Therefore, this Court will consider not only cases construing the 1855 Stevens treaty at issue here, but also cases and authorities construing other Stevens treaties in determining the Tribe’s treaty rights asserted in this instant action. In general, the Tribe’s treaty rights to fish are limited geographically to their historical fishing grounds, and in instances where the Indians have been precluded from their historic fishing grounds, the courts have awarded injunctions prohibiting others from interfering. See United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905) (fishing wheel destroyed access to fishing grounds); and Confederated Tribes of Umatilla Indian Reservation v. Alexander, 440 F.Supp. 553, 555 (D.Or.1977) (the Corp. of Engineers flooding Indian fishing stations with two hundred feet of water would violate treaty rights unless Congress gave specific approval of the project). In Confederated Tribes of Umatilla, the Supreme Court held that because Congress had authorized the taking of the Indian fishing stations, the United States government would have to compensate the tribe. When interpreting Indian treaties, it is well established that certain canons are of special importance and the courts are required to consider the treaties’ central purpose and construe the treaties as they were originally understood by the tribal representatives. In addition, the courts have traditionally resolved ambiguities in favor of the tribes and interpreted the treaties in the Indians’ favor. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676, 99 S.Ct. 3055, 3069, 61 L.Ed.2d 823 (1979) (hereinafter referred to as “Fishing Vessel”); Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49 (1899); Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942); Seufert Brothers Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919); United States v. Winans, 198 U.S. at 380-81, 25 S.Ct. at 663-64; as cited in United States v. Washington, 759 F.2d 1353, 1358 (9th Cir.1985). In interpreting the several Stevens treaties, the courts have consistently held that the reserved fishing rights grant the Indians an “opportunity to take, by reasonable means, a fair and equitable share of all fish from any given run.” United States v. Oregon, 769 F.2d 1410, 1416 (9th Cir.1985). Similarly, the United States District Court for Oregon has held that the tribes have a right to harvest “a fair share of the fish produced by the Columbia River system.” Sohappy v. Smith, 302 F.Supp. 899, 911 (D.C.Or.1969). While construing the Medicine Creek Treaty, the United States Supreme Court in Fishing Vessel, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823, held that “[b]oth sides [Tribal and non-Tribal] have a right, secured by treaty, to take a fair share of the available fish.” Id. at 684-85, 99 S.Ct. at 3074. According to this doctrine, the percentage of the total available fish the Tribe is entitled to take may be limited by tribal population, the abandonment of the fisheries by the tribal members as they find other means of support, and the number of fish necessary to provide the tribal members with a moderate living. Id. at 686-87, 99 S.Ct. at 3074-75. In any event, the maximum percentage of fish the Tribe is entitled to take was held by the United States Supreme Court in Fishing Vessel to be fifty percent (50%). Id. It should be noted, however, that the “fair share doctrine” was adopted for the purpose of protecting Indians as well as non-treaty fishermen. In Fishing Vessel, the various state game and fishery departments argued that the treaties gave the Indians no more rights than that given to non-treaty fishermen with the exception of the right to cross over private land to access their usual and accustomed fishing grounds. Id. at 670-71, 99 S.Ct. at 3066-67. In Fishing Vessel, the Supreme Court held that the treaties reserved more to the Indians than the mere opportunity to fish, therefore, while both the Indians and the non-Indians have the right to fish, neither group may deny the other of their fair share of fish. Id. at 685, 99 S.Ct. at 3074. Thus, the fair share doctrine protects, as well as limits, the Tribe’s treaty fishing rights. In summary, the cases demonstrate that the relief granted to both treaty and non-treaty fishermen for violation of the fair share doctrine to this point in time has been injunctive, rather than monetary. Historically, according to Fishing Vessel, tribes deprived of their fair share of fish in one season are granted a larger percentage of fish in a subsequent season to make up the fair share deficit. The Tribe’s right to fish is also limited by the need to protect the fish runs from over-harvest. It is well established that the states and the federal government can regulate the total treaty and non-treaty fish catch if regulation becomes necessary for the preservation of the species, is tailored to the conservation of that species, and is non-discriminatory in its treatment of the Indians. See Sohappy v. Smith, 302 F.Supp. at 908; United States v. Oregon, 769 F.2d at 1416; United States v. Oregon, 657 F.2d 1009, 1016—1017 (1981) (affirming a total ban on tribal harvest of spring chinook salmon); Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 176-177, 97 S.Ct. 2616, 2623, 53 L.Ed.2d 667 (1977) (affirming the right to regulate on-reservation fishing). The instant action, however, does not involve either limitations on catch or exclusion from traditional hunting grounds. Rather, the Tribe seeks compensation for the destruction of the fish runs themselves. In other words, the Tribe argues that developments such as dams which damage, reduce or destroy the fish runs violate their 1855 Stevens treaty fishing rights and entitles them to an award of monetary damages. b) Treaty Rights to Preservation of Fish Runs The ultimate issue presented is whether the treaty provides the Tribe with an absolute right to preservation of the fish runs in the condition existing in 1855, free from environmental damage caused by a changing and developing society. Only if such a right exists is the Tribe entitled to an award of monetary damages. The parties have cited, and the Court’s own independent research has disclosed only three cases which directly address this ultimate issue. United States v. Washington (hereinafter “Washington 1982”), 694 F.2d 1374 (9th Cir.1982); Muckleshoot Tribe v. Puget Sound Power and Light, CV No. 472-72C2V (W.D.Wash.1986); and Nisqually Tribe v. City of Centralia, No. C75-31 (W.D.Wash.1981). However, Washington 1982 was vacated by the Ninth Circuit on other grounds in a subsequent en bane decision. United States v. Washington, 759 F.2d 1353 (9th Cir.1985). Muckleshoot Tribe v. Puget Sound expressly relied on the Washington 1982 opinion which was not vacated until after the decision in Muckleshoot was issued. Therefore, it appears that this Court is required to address and determine an issue of first impression without the benefit of any binding precedent available for guidance and direction. See Los Angeles News Service v. Tullo, 973 F.2d 791, 795 n. 4 (9th Cir.1992) which held that a vacated decision is not binding precedent. However, it is noteworthy that the Ninth Circuit, in subsequently vacating its Washington 1982 holding did not overrule its decision or reverse the analysis of the legal issues and its reasoning. See United States v. Washington, 759 F.2d 1353 (9th Cir.1985). In its 1985 United States v. Washington opinion, the Ninth Circuit vacated its 1982 decision on the environmental declaratory judgment issue. In its 1985 decision, the Ninth Circuit held: “That portion of the district court’s judgment granting a declaratory judgment with regard to the hatchery fish issue is AFFIRMED. The declaratory relief granted with regard to the environmental issue is VACATED.” Id. at 1360 (capitalization in original). After carefully and thoroughly analyzing the legal issues presented in the instant action, the Court has independently reached a conclusion on the treaty rights issue similar to that reached by the Ninth Circuit in its Washington 1982 opinion. Although the Ninth Circuit’s 1982 opinion was vacated on other grounds, the Court in the instant action has considered and analyzed the legal analysis and holding contained in that opinion and concludes that the rationale utilized therein is sound and well reasoned. Rather than paraphrasing the analysis of that opinion and its reasoning without candidly acknowledging that the Court considered that language in resolving these issues would be inappropriate. The Court is of the view that the rationale of the Washington 1982 opinion is persuasive and thus has considered its legal analysis and language in the same context as if it had been a law review article or other non-binding, but well reasoned legal authority. On occasion, the Ninth Circuit has relied on a reported opinion which has been subsequently vacated on other grounds. In Ablers v. Whitley, 743 F.2d 1372, 1375 (9th Cir.1984) the Ninth Circuit knowingly relied on the reasoning contained in an earlier decision which had been vacated to allow for an en banc rehearing. In this regard, it is obvious that the Court is presented with a dilemma in resolving the instant action. If the Court considers the language or legal analysis contained in the vacated Washington 1982 opinion, regardless of how well reasoned that decision or language may be, any decision rendered is subject to challenge or criticism on the grounds that it was based in part on language, reasoning or analysis from an opinion that had been vacated. On the other hand, to avoid considering sound legal reasoning and analysis which has not been reversed solely because it is set forth in an opinion that has been vacated on other grounds is not good jurisprudence and is likewise subject to criticism. There is no truly attractive alternative or solution to this dilemma other than to address the issues directly and utilize the best legal reasoning and analysis available. Therefore, the Court in resolving the instant issues, has considered the legal analysis and reasoning contained in the 1982 opinion. However, the Court would have reached the same legal conclusion and ultimate decision in this action even without considering the 1982 decision. In the Court’s view, Indian tribes do not have an absolute right to the preservation of the fish runs in their original 1855 condition, free from all environmental damage caused by the migration of increasing numbers of settlers and the resulting development of the land. A review of the language used in Washington 1982 is instructive on this issue wherein t