Shoshone-Bannock Tribes - Idaho Power

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Responses to CommentsShoshone-Bannock Tribes—SBT1Idaho Power CompanyPage 48Hells Canyon Complex
Idaho Power CompanyResponses to CommentsRESPONSE TO COMMENT SBT1-1IPC believes that its Snake River projects will continue to be clean, efficient, and cost-effectiverenewable resources for the foreseeable future. IPC welcomes tribal participation but believesthat it is the responsibility of the tribes to fund their own participation.RESPONSE TO COMMENT SBT1-2The Shoshone-Bannock Tribes refer to two agreements: the 1980 Hells Canyon SettlementAgreement and the settlement agreement between the Nez Perce Tribe and IPC. We address themin reverse order.The agreement that IPC entered into in 1996 with the Nez Perce Tribe constituted the termsunder which IPC and the Nez Perce Tribe settled certain litigation that the Nez Perce Tribe hadinitiated against IPC. That litigation, reported in Nez Perce Tribe v. Idaho Power Company, 847F. Supp. 791 (D. Idaho 1994), concerned the alleged fisheries losses that the Nez Perce Tribepurportedly suffered due to IPC’s construction, operation, and maintenance of the Hells CanyonComplex (HCC). That claim was predicated on the tribe’s right, under its Treaty of 1855 with theUnited States, to take fish in common with citizens off of its reservation at its usual andaccustomed fishing places. The Nez Perce Tribe’s claim was further predicated on the IndianClaims Commission’s determination that the Nez Perce Tribe aboriginally had exclusive use andoccupation of significant portions of the HCC area, thus giving color to the tribe’s claim that itsusual and accustomed fishing places embraced portions of the Snake River affected by the HCC.IPC contested successfully the merits of the Nez Perce Tribe’s alleged claim. Indeed, theagreement settling that litigation notes that IPC denied all liability, and it remains the case thatthe decision judicially rejecting the Nez Perce Tribe’s claim has never been vacated and iscontrolling. Nevertheless, it also remained clear as a legal matter that the Nez Perce Tribe’sstanding to seek to negotiate an agreement with IPC embracing fisheries issues was wellestablished. Moreover, given the continued efficacy of the Nez Perce Tribe’s treaty-reservedright to take fish in common, it made good sense for IPC and the tribe to try to establish a basisfor a long-term relationship addressing their continuing common interests in the well-being ofthe fishery.The Shoshone-Bannock Tribes stand on a very different footing than does the Nez Perce Tribe.First, there is no Indian Claims Commission determination, or any other legal determination, thatthe Shoshone-Bannock Tribes aboriginally had exclusive use and occupation of any portion ofthe HCC project area. In fact, the Indian Claims Commission determination regarding theNez Perce Tribe’s exclusive use and occupation of the relevant territory makes any suchShoshone-Bannock Tribal claim inappropriate. Moreover, if the Fort Bridger Treaty, which theShoshone-Bannock Tribes entered into with the United States in 1868, did reserve a right to takefish—a matter IPC does not concede—that right (and any other off-reservation rights) wasdefeasible, and the rights at issue in that case were in fact eliminated when the State of Idahoassumed jurisdiction over the fish and game within the state. See Ward v. Race Horse,163 U.S. 504 (1896), reaffirmed in relevant part in Minnesota v. Mille Lacs Band of ChippewaIndians, 526 U.S. 172, 206-207 (1999). See also Shoshone-Bannock Tribes v. Reno, 56 F. 3d1476 (D.C. Cir. 1995).Hells Canyon Complex Page 49
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Shoshone-Bannock Tribes - Idaho Power

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