Sauk-Suiattle Indian Tribe v. City of Seattle
| Decision Date | 02 December 2021 |
| Docket Number | 2:21-cv-1014 |
| Court | U.S. District Court — Western District of Washington |
| Parties | SAUK-SUIATTLE INDIAN TRIBE, Plaintiff, v. CITY OF SEATTLE and SEATTLE CITY LIGHT, a subdivision of the City of Seattle, Defendants. |
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
This matter comes before the Court on a Motion to Dismiss filed by Defendants City of Seattle and Seattle City Light.[1] Plaintiff, the Sauk-Suiattle Indian Tribe filed a complaint seeking a declaration that the “presence and operation” of the Gorge Dam, a hydroelectric dam owned and operated by Defendants, violate the constitutions of Washington and the United States, in addition to state and federal law, by blocking the passage of fish. For the following reasons, the Court concludes that it lacks jurisdiction over Plaintiff's claims and that Defendants' Motion to Dismiss must therefore be granted.
The Gorge Dam in Newhalem, Washington is one of three dams constituting the Skagit River Hydroelectric Project (the “Project”), which is owned and operated by Defendants. Am. Comp., ¶ 4.A, Dkt. No. 1, Ex. A. That Project, which provides electricity to residents of the City of Seattle, is located within the Ross Lake Recreational Area in North-Central Washington, and is bounded by the North Cascades National Park, and the Mount Baker-Snoqualmie, Okanogan, and Wenatchee National Forests. See Order Accepting Settlement Agreement, Issuing New License, and Terminating Proceeding (“Relicensing Order”), 71 FERC ¶ 61159, 61528 (May 16, 1995). The Gorge Dam is the furthest downriver of the three dams, and as constructed, “blocks fish passage within the Skagit River from the area below to the area above such dam.” Am. Compl., ¶¶ 4.B, 4.C.
Construction of the Skagit River Project was completed in the early 1920s, and in 1927, the Federal Power Commission (“FPC”) issued Defendants a 50-year license to operate the Project. See Relicensing Order, 71 FERC at 61, 552.[2] In 1977, Defendants applied to the Federal Energy Regulatory Commission (“FERC” or the “Commission”), the FPC's successor agency, for a new license. Id. at 61, 548, n. 1. The following year, FERC instituted a proceeding to study the impact of the Project's “flow regime” on the Skagit River fisheries resource. Id. at 61, 527. Nearly two decades later, in 1995, FERC issued the “Order Accepting Settlement Agreement, Issuing New License, and Terminating Proceeding.” Id. That Relicensing Order, as its title indicates, terminated the fisheries study proceeding and accepted the settlement agreements between Defendants and multiple intervenors in the proceeding, including Plaintiff.[3] The Relicensing Order incorporated provisions of those agreements into issuance of a new license, which authorized operation of the Project for another 30 years As outlined in the Relicensing Order, those settlement agreements-ten in all-concerned myriad aspects of the Project, and “purport[ed] to resolve all issues related to project operation, fisheries, wildlife, recreation and aesthetics, erosion control, archaeological and historic resources, and traditional cultural properties.” Id. at 61, 527.
Particularly relevant to this lawsuit, the Relicensing Order approved a “Fisheries Settlement Agreement” joined by Defendants and several of the intervenors, including Plaintiff, which agreement “establishe[d] Seattle's obligations relating to fishery resources affected by the project, including numerous provisions to protect resident and migratory fish species.” Id. at 61, 530. To that end, the settlement incorporated an “Anadromous Fish Flow Plan, ” which was “intended to mitigate the impacts of daily and seasonal downstream fluctuations.” Id. The flow plan prescribed “a filling schedule for Ross Lake reservoir, flows downstream of Gorge powerhouse, flow releases and limits to protect salmon and steelhead spawning and development, requirements for dry water years, advance scheduling of hourly generation, ” and other measures. Id.
The settlement agreement acknowledged, however, that:
even with the complete implementation of the Anadromous Fish Flow Plan, some level of these impacts would continue to occur. Fish will still be exposed to daily and seasonal flow fluctuations, which will result in the continuation of chronic fry stranding at a reduced, unknown level. In addition, the configuration and operation of the project has rendered some formerly productive fish habitat inaccessible.
Id. In addition to the flow plan, therefore, the fisheries settlement also incorporated an “Anadromous and Resident Non-flow Plan, ” which was “specifically intended to address these residual impacts and habitat losses.” Id. That plan provided that “[a]dditional nonflow measures will be implemented for enhanced steelhead production, chinook salmon research, fish habitat development, sediment reduction, and trout protection and production.” Id. at 61532. It was anticipated that “Seattle's expenditures to accomplish the nonflow plan [would] total $6, 320, 000 over the term of the license.” Id. Conditions of both the flow plan and the non-flow plan were incorporated, through the Fisheries Settlement Agreement, into the 1995 license.
Neither the Department of the Interior nor the Department of Commerce, as authorized under 16 U.S.C. §811, prescribed as a condition of relicensing the construction of a fishway at Gorge Dam (or any of the other two dams in the Project) to enable the passage of migrating fish. Therefore, while the Relicensing Order conceded that “[a] short reach of the river below Gorge dam will continue to be dewatered, and the slight detriment to resident and anadromous fish will persist, ” the license was issued without any requirement for fish passageway.[4] Relicensing Order, 71 FERC at 61, 535. Plaintiff, which was a party to the Fisheries Settlement Agreement, did not seek review of the Relicensing Order or otherwise appeal the terms of the license.
Defendants' 30-year license is scheduled to expire in 2025, and the reauthorization process has already begun, again involving numerous state and federal agencies and other stakeholders, including Plaintiff. See Study Plan Determination for the Skagit River Hydroelectric Project dated July 16, 2021, Request for Jud. Not., Dkt No. 12, Ex. 6. There is no dispute that the impact of the Gorge Dam and the entire Project on the habitat of salmon and other resident and anadromous fish in the Skagit River will be an issue central to the debate over conditions and issuance of a new license.
Plaintiff asserts that the “presence and operation” of Defendants' dam, and in particular Defendants' failure to provide a fishway, violate the 1848 Act Establishing the Territorial Government of Oregon (the “1848 Establishing Act”), which provided, in part relevant here, that “the rivers and streams of water in said Territory of Oregon [including an area that would later become Washington State] in which salmon are found, or to which they resort, shall not be obstructed by dams or otherwise, unless such dams or obstructions are so constructed as to allow salmon to pass freely up and down such rivers and streams.” ch. 177, 9 Stat. 323. Plaintiff also argues that the dam constitutes a nuisance, and violates the common law of Washington State. Id., 5.C., 5D. Plaintiff seeks equitable relief, including a declaration that Defendants are in violation of the law, and an injunction requiring Defendants to provide a means for migratory fish species to bypass the dam, or prohibiting Defendants “from maintaining such dam in its present condition.” Id., 6.A.-6.D.
Plaintiff filed the operative Amended Complaint in the Skagit County Superior Court on July 26, 2021. Defendants removed the complaint to this Court. Plaintiff moved for remand, which Defendants opposed. On November 9, 2021, this Court ruled that Plaintiff's Supremacy Clause claim, asserted at 5.B. and 6.B. of its Amended Complaint, constituted a federal question over which this Court had jurisdiction; and that in addition, several of Plaintiff's claims raised a “disputed, substantial federal issue” requiring interpretation of the 1848 Establishing Act. The Court also asserted supplemental jurisdiction over Plaintiff's remaining state-law claims, concluding they “are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” See Order Denying Plaintiff's Motion for Remand, Dkt. No. 19.
Defendants' Motion to Dismiss challenges Plaintiff's claims on multiple fronts, starting with a threshold challenge to this Court's jurisdiction to hear those claims. Defendants characterize the claims as a grossly untimely appeal of FERC's 1995 Relicensing Order, which by statute must be made directly to the U.S. Court of Appeals “or not at all.” Mot. to Dismiss at 11 (citing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958)). Invoking the prudential doctrine of “primary jurisdiction, ” Defendants also ask the Court to defer any ruling on these issues to FERC, which they argue have primary jurisdiction over the question of fish passage at the dams. Id. at 12-13.
On the merits, Defendants argue that the 1848 Establishing Act is no longer good law, as it was never incorporated into Washington, either when Washington became a territory distinct from Oregon, or upon its statehood. Defendants alternatively argue that even if that law was continued in force in Washington, it was repealed, on any of several...
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