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Judge Dismisses Last Of Tribe's Claims Against Dams

Skokomish: Ruling not likely to end long legal fight

By John Gillie
The News Tribune

A Tacoma federal judge Thursday dismissed the last of dozens of claims the Skokomish Tribe made in a $6 billion lawsuit over alleged damage caused by a Tacoma Power dam on the Olympic Peninsula's Skokomish River.

Tacoma officials were pleased with the ruling by U.S. District Judge Frank Burgess, but acknowledged that the decision is probably just the latest battle in a long legal war over Tacoma Power's 1920s-vintage Cushman Project.

"We plan to appeal," said the tribe's lawyer, Mason Morrisette of Seattle. "The tribal council hasn't made a formal decision yet, but their instructions have always been to stay the course.

The tribe has battled the dam project for more than 70 years, first with federal regulators and then in the courts. The tribe filed this most recent suit in November 1999.

In that suit, the tribe claimed that the two dams Tacoma Power erected on theSkokomish River near Hoodsport irreparably damaged fish runs, shellfish and wildiife that were key to the tribe's spiritual heritage and financial prosperity.

Steve Klein, Tacoma Power superintendent, said the city followed all of the guidelines set by the Federal Energy Regulatory Commission (FERC), which licensed the dams. The federal government, he said, is trustee of the tribe's treaty rights and guardian of the environment.

"We followed every rule and regulation they set. How can we be held responsible when we did everything we were told we must do?" Klein said.

The federal government was dismissed from the suit months ago because the judge ruled it had sovereign immunity from suit, said Ron Leighton, the Tacoma attorney who represented the city and its utility.

Earlier this summer, Burgess rejected some tribal claims against the City of Tacoma because the city had followed rules and regulations of the federal agency. The final claims he dismissed Thursday were thrown out because the tribe hadn't raised the issues in the time allowed under the law.

Meanwhile, the two dams' license renewals, pending since 1974, remain in limbo. The FERC several years ago granted the city new licenses for the dams but imposed conditions on the city that Klein said made the projects uneconomical. The city appealed those relicensing conditions to a federal appeals court in Washington, D.C.

The appeals court sent the relicensing question back down to the commission for further consideration. While the license has been under study, the city has continued to operate the dams under a temporary license. Klein said the city has restored some flow to the North Fork of the Skokomish River as a good-faith gesture to the tribe.

When the two dams in the Cushman project were built some 70 years ago, they diverted all of the river's flow into a pipe that connected the reservoirs to a powerhouse located along the Hood Canal.

Klein claims that the river had virtually no remaining fish runs when the two dams were built. Morrisette said the fish runs were abundant in the river.

The two dams created two lakes, one the small, 150-acre Kokanee Lake behind Cushman Dam No.2, and the other Lake Cushman behind Cushman Dam No.1. Lake Cushman has some 23 miles of shoreline. It is the site of dozens of summer homes and a large resort.

The News Tribune
Tacoma, WA
July 10, 2001

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