concurring in part and dissenting in part.
I concur in all of the majority opinion, except for Part C.l of the “Discussion” section. Part C.l concludes that the City of Tacoma and Tacoma Public Utility (together, “Tacoma”) constructed and operated the Cushman Project (“Project”) in accordance with the “minor part” license issued in 1924, and that the Tribe’s claims based on the construction and operation of the Project constitute a collateral attack on the license, even though the only purpose of the license was to grant Tacoma the right to clear 8.8 acres of federal land. I respectfully dissent from this conclusion because it is in conflict with our established case law. I would permit the Tribe to sue for damages for the alleged trespass caused by the construction and continued operation of the Project.
*565FERC1 is obligated under the Federal Power Act (“FPA”) to ensure that its permits do not “interfere with ... the purpose for which any reservation affected thereby was created or acquired.” 16 U.S.C. § 797(e). Pursuant to this obligation, FERC concluded that the minor part license issued to Tacoma would not negatively affect the Skokomish Reservation. The 1924 license, however, did not “authorize the construction and operation of the Cushman Project, but rather merely authorized the inundation of U.S. lands that would result from the construction, operation, and maintenance” of the Project. City of Tacoma, 67 F.E.R.C. 61,152 (1994) (emphasis added). In other words, in issuing the license, FERC never considered the Tribe’s interests in the construction and operation of the Project as a whole, as opposed to its interests in the mere “occupancy and use” of 8.8 acres of federal land situated far from the reservation. The 1924 license is very specific in its purpose and scope:
Article 1. This license is issued for the purpose of authorizing the occupancy and use of a tract of land approximately 8.8 acres in area in the NE % of NW \ of Section 10, T. 23 W., R. 5 W. W.M., said land constituting a minor part of said power project....
See also 67 F.E.R.C. 61,152 (concluding that the use of minor part licenses was a “finding of convenience based on an erroneous conclusion of law ... as constituting ‘minor parts’ of a complete project”).
The majority reasons that because the Tribe represented its interests in the mandatory relicensing proceedings beginning in 1974, any claims premised on harm caused by the Project’s construction and operation constitutes an impermissible collateral attack on the 1924 minor part license. These earlier proceedings, however, cannot immunize parties from damages for harms arising from an illegal minor part license. Indeed, the majority acknowledges that FERC “erroneous[ly] interpreted” the FPA when it granted Tacoma a permit to build the Project based on the minor part license, but it holds nonetheless that the eventual licensing of the Project over 70 years later somehow rectifies any damage caused by the Project in the interim.
The majority asserts that City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958) and California Save Our Streams, Inc. v. Yeutter, 887 F.2d 908 (9th Cir.1989), govern this case. But both cases are readily distinguished in that they prohibited parties from bringing collateral attacks against fully-conditioned licenses that covered every aspect of the parties’ collateral suits. In Save Our Streams, we dismissed a district court action brought by an environmental group seeking declaratory and injunctive relief because the complaint attacked conditions “included in the FERC license.” Id. at 912. We concluded that “even if [plaintiff] attempts] to style this as an independent claim against the Forest Service, the practical effect of the action in district court is an assault on an important ingredient of the FERC license.” Id. Even by the most expansive understanding of artful pleading, the Tribe’s damage claims based on the construction and operation of the Project cannot possibly be construed as an “ingredient” of a license that included only one provision concerning a small portion of federal land situated far upstream.
The majority’s reliance on Taxpayers of Tacoma is similarly misplaced. The Court *566in that case recognized only that Congress “had given [FERC] exclusive jurisdiction to affirm, modify, or set aside” licenses. 359 U.S. at 339, 79 S.Ct. 847. The Tribe’s trespass action that we consider here is not an attempt to modify or set aside the 1924 license. Rather, the Tribe attempts to recover damages caused by actions which were not authorized or made an “ingredient” of the license, namely, the construction and operation of the Project. Where a Tribe’s interests have been fully considered and incorporated into a fully-conditioned license, the FPA operates to preclude the Tribe from bringing a collateral attack. Save Our Streams, 887 F.2d at 911-12. Congress intended the FPA’s scheme comprehensively to cover all interested parties, including Indian tribes, so long as that party’s interests had been fairly considered before licensing. See Nat’l Wildlife Fed’n v. FERC, 801 F.2d 1505, 1507-08 (9th Cir.1986) (reviewing history of congressional regulation of hydro power projects and concluding that the FPA “requires that a comprehensive plan for river basin development be available before licensing” (emphases added)). The FPA thus requires FERC fully to consider reservation land before the licensee can subsequently require an Indian tribe to submit to the FPA’s remedial scheme. See 16 U.S.C. § 797(e); 16 U.S.C. § 803.2 But where the alleged damages arise from an unconditioned project resulting from the “legal mistake” of never taking into account a tribe’s interests, as is true in the case at bench, a challenge brought in district court to recover for harm arising from the project’s operation is not a collateral attack. This is the holding of United States v. Pend Oreille Public Utility District No. 1, 28 F.3d 1544 (9th Cir.1994).
In Pend Oreille, we held that an Indian tribe was entitled to damages for trespass against a public utility for flooding tribal lands. We held in favor of the tribe because, “[biased on the language of [the license], the statutory scheme governing the use of Indian reservation lands, and the other evidence in the record, the project was to be operated in such a way as not to flood Reservation land.” Id. at 1549. We reviewed the relevant provisions of the FPA, including Section 4(e)’s prohibition against the use of Reservation lands for power production unless the Commission finds that the license will not interfere with the purpose for which such Reservation was created or acquired.3 Id. at 1548. In upholding the trespass action, we emphasized that:
Neither the Commission nor the Secretary approved the flooding of the Reservation; the Commission did not find the Reservation could be flooded without interfering with the purpose for which the Reservation was created; the Secretary did not determine what conditions might be necessary for the protection and utilization of the Reservation; the Commission did not fix an annual charge for use of Reservation land, and the Tribe was not asked to approve such a charge.
Id. We explained that the omissions in the license “apparently resulted from the failure of the Utility to disclose that Reservation land would be flooded by the project,” because the license itself indicated that the project would be constructed and main*567tained in a way that the Reservation would not be affected. Id. The license provided that the water level would exceed normal flows “for possibly 24 miles upstream,” but the reservation, which was situated 30 miles upstream, was flooded nonetheless. Id. Emphasizing that the terms of the license did not envision the flooding that occurred, we noted that the license incorporated a map identifying the project’s boundary, and showing that the Reservation was located six miles outside that boundary. Id.
In this case, Tacoma’s minor part license does not include any terms relating to the primary issue raised in the district court action, much less the design, construction, or maintenance of the Project itself. By failing to include any terms addressing the design, construction, or operation of the Cushman Project, the minor part 1924 license, just like the license in Pend Oreille, indicates by its silence that the “project would be so constructed and maintained that the Reservation would not be affected.” Id. Thus, Pend Oreille, in all material respects, cannot be distinguished from this case. If anything, the minor part license here presents an a fortiori case because of its brevity, limited purpose, and, above all, its unlawfulness.
The majority reasons that the Tribe should be restricted to the FPA’s remedial scheme because had FERC known that the 1924 license was unlawful, it would have granted a lawful license because it intended fully to consider the Tribe’s interests in the whole Project. This assertion is pure speculation and is unsupported by the record. Because nothing in the license indicates that FERC undertook lawfully to consider the entire project, as mandated by the FPA, the Tribe is entitled to pursue its damage claims outside the confines of the FPA’s remedial scheme, pursuant to Pend Oreille. The majority tries to avoid this outcome by referencing language in the minor part license as alleged proof that FERC in fact considered the Tribe’s interests. But the language of the minor part license only supports the Tribe’s claims. The relevant provision states that the license, as hereinafter described, will not “interfere or be inconsistent with the progress for which any reservation affected thereby was created or acquired.” As noted above, the 1924 license is limited to authorizing the flooding of 8.8 acres of federal land, and nothing else. It thus cannot possibly encompass, contrary to the majority’s holding, the Tribe’s interests in the Project “as a whole.” Pend Oreille requires that where a license plainly indicates that FERC failed to ensure that the Project would not interfere with Tribal purposes, the licensee cannot avoid potential liability by speculating that FERC never would have granted an inadequate license if it knew that it was insufficient.
The City and FERC knew as early as 1939 that the Cushman license was “arbitrary, capricious, without statutory or other authority, and contrary to law,” yet neither Tacoma nor the Commission acted to remedy the situation by applying for or issuing a “proper major project license for [the Cushman Project] in accordance with the provisions of the Federal Power Act.” Pac. Gas & Elec. Co., 2 F.P.C. 632, 1939 WL 1446 (1939) (informing Pacific Gas, as transferee, that the minor part license was unlawful). In 1994, FERC acknowledged once again that the 1924 license did not “authorize the construction, operation, and maintenance of the Cushman Project, but rather merely authorized the inundation of U.S. lands that would result from the construction, operation, and maintenance” of the Project. City of Tacoma, 67 F.E.R.C. 61,152. Although FERC has admitted the inability of its minor part licenses to serve as proxies for major water projects, the majority today is unwilling to accept this *568admission, and holds that “the City constructed and operated the Project in accordance with its federal license.” Maj. op. at 7159.
Pend Oreille permits recovery in district court where a license issued by FERC fails to contemplate flooding that occurs outside the scope of the license. Here, the 1924 minor part license “merely authorized the inundation of [8.8 acres of] U.S. lands that would result from the construction, operation, and maintenance” of the Cush-man Project. The Tribe’s lands are not within or even near this territory, nor does the Tribe seek damages caused by the clearing and eventual flooding of this relatively small area of land. Instead, it seeks damages caused by the construction and operation of the Cushman Dam and Power Plant. These claims are outside the scope of the minor part license. Because Tacoma failed fully to avail itself of the FPA’s comprehensive scheme by obtaining a major, fully-conditioned license, and knowingly operated the Project for 70 years under an unconditioned minor part license, I disagree that it should now be allowed to seek refuge under the FPA’s comprehensive remedial scheme to preempt the Tribe from seeking damages caused by the Project. I do not believe Congress intended Tacoma to have it both ways. Because this is not a collateral attack on the 1924 minor part license, this case is not governed by 16 U.S.C. § 825i(b).4 I respectfully dissent from Part C.l.
. For convenience, I refer to both the Federal Energy Regulatory Commission and its predecessor, the Federal Power Commission, as ''FERC.”
. In relevant part, 16 U.S.C. § 803(a)(1) provides: "All licenses issued under this sub-chapter shall be on the following conditions: (a) That the project adopted ... shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan....” The original version of the FPA used the phrase "comprehensive scheme” rather than "plan”, to the same effect.
. Section 4(e) of the FPA is now codified as 16 U.S.C. § 797(e).
. Ignoring Pend Oreille, the majority states in a non sequitur that “we have not found any court decisions that have awarded damages for actions taken pursuant to a federal license to construct and operate a hydroelectric project.” Maj. op. at 561. The point the majority repeatedly ignores is that the Cushman Project was not built “pursuant to a federal license to construct and operate a hydroelectric project.”