Sauk-Suiattle Indian Tribe v. City of Seattle

• Decision Date: 30 December 2022
• Docket Number: 22-35000
• Parties: SAUK-SUIATTLE INDIAN TRIBE, Plaintiff-Appellant, v. CITY OF SEATTLE ; Seattle City Light, a subdivision of the City of Seattle, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.4th 1179

SAUK-SUIATTLE INDIAN TRIBE, Plaintiff-Appellant,

v.CITY OF SEATTLE ; Seattle City Light, a subdivision of the City of Seattle, Defendants-Appellees.

No. 22-35000

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 7, 2022 Seattle, Washington

Filed December 30, 2022

Jack Warren Fiander (argued), Towtnuk Law Offices LTD, Yakima, Washington, for Plaintiff-Appellant.

Kari L. Vander Stoep (argued), Elizabeth Thomas, and Christina A. Elles, K&L Gates LLP, Seattle, Washington, for Defendants-Appellees.

Before: Mary H. Murguia, Chief Judge, and William A. Fletcher and Mark J. Bennett, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge W. Fletcher ;

Concurrence by Judge Bennett

PER CURIAM:

The City of Seattle/Seattle City Light¹ ("Seattle") owns and operates the Gorge Dam, which is part of the Skagit River Hydroelectric Project ("Project"). Seattle operates the Project pursuant to a thirty-year license that was issued by the Federal Energy Regulatory Commission ("FERC") in 1995. The Sauk-Suiattle Indian Tribe ("Tribe") sued Seattle in Washington state court, alleging that Seattle's operation of the Gorge Dam without fish passage facilities ("fishways") violates certain federal and state laws. Seattle removed the case to federal court. The district court denied the Tribe's motion to remand, finding that it had jurisdiction because the Tribe's complaint raised substantial federal questions. The district court then granted Seattle's motion to dismiss for lack of subject matter jurisdiction under the Federal Power Act ("FPA") and dismissed the complaint. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I

A

The Gorge Dam, located in Newhalem, Washington, is one of three dams that make up the Project. In 1927, FERC's predecessor licensed the Project for fifty years.² See Order Accepting Settlement Agreement, Issuing New License, and Terminating Proceeding ("FERC Order"), 71 FERC 61159, 61527 n.1 (1995).

Seattle applied for a new license in 1977, id. , and FERC allowed the Tribe, among others, to intervene in the proceedings, id. at 61528–29. The Tribe and other entities also engaged in settlement negotiations with Seattle regarding the Project. Id. at 61527 n.1, 61529. The negotiations resulted in several settlement agreements (collectively, "Settlement Agreement") that "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 61527.

As relevant here, the Settlement Agreement included the "Fisheries Settlement Agreement," which the Tribe joined. Id. at 61529. "The Fisheries Settlement Agreement incorporate[d] the Anadromous Fish Flow Plan and the Anadromous and Resident Fish Non-Flow Plan and 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 61530. The Settlement Agreement also asked FERC to dismiss a separate proceeding that FERC had opened to "examine the effects of the project's flow regime on the Skagit River's fisheries resource." Id. at 61527.

In 1995, almost twenty years after Seattle submitted its application for a renewed license, FERC issued an order granting Seattle a new thirty-year license to operate the Project (" FERC Order").³ Id. at 61527, 61538. The FERC Order incorporated into the new license all parts of the Settlement Agreement "over which [FERC had] jurisdiction" and as requested in the Settlement Agreement, terminated FERC's separate proceeding to examine the Project's effects on fishery resources. Id. at 61527–28.

The FERC Order also contained a section on "Fish Passage." Id. at 61535. In it, FERC explained that neither the Secretary of Commerce nor the Secretary of the Interior had prescribed a fishway under 16 U.S.C. § 811.⁴ It also explained that both the Department of Commerce and the Department of the Interior were parties to the Settlement Agreement in which they had agreed "that all issues concerning environmental impacts from relicensing of the Project, as currently constructed, are satisfactorily resolved by [the Settlement Agreement]."⁵ Id. at 61535 (internal quotation marks omitted). Thus, the FERC Order contained no fishway requirement. FERC did however "reserve[ ] [its] authority to require fish passage in the future, should circumstances warrant." Id.

The Tribe did not seek rehearing or appeal the FERC Order.

B

In July 2021, the Tribe filed the operative amended complaint against Seattle in Washington state court, seeking only declaratory and injunctive relief under Washington's Declaratory Judgments Act. The complaint alleged that the Gorge Dam "blocks the passage of migrating fish" and thus its "presence and operation" without fishways violates several laws: the 1848 Act establishing the Oregon Territory and the 1853 Act establishing the Washington Territory ("Congressional Acts");⁶ the Supremacy Clause of the United States Constitution; the Washington State Constitution, which purportedly incorporates the Congressional Acts; and Washington nuisance and common law. The complaint alleged that all these provisions prohibit dams, like the Gorge Dam, that block fish passage.

The complaint sought (1) a declaration that the Gorge Dam violates the Washington State Constitution, common law, and the Supremacy Clause because Seattle is subject to the Congressional Acts; (2) an injunction that either prohibits Seattle from maintaining the Gorge Dam in its present condition or requires Seattle to provide a fishway; and (3) other "just and equitable" relief.

C

Seattle timely removed to federal court, and the district court denied the Tribe's remand motion. The district court determined that it had jurisdiction under 28 U.S.C. §§ 1441(a) and 1331 because the complaint raised substantial federal questions: whether Seattle's actions violate the Congressional Acts and the Supremacy Clause. The district court also determined that because all the Tribe's claims "center on a single, discrete issue: whether [Seattle] may continue to operate the Gorge Dam in the absence of a passageway for fish," it had supplemental jurisdiction over the remaining state-law claims under 28 U.S.C. § 1367(a).

The district court then granted Seattle's motion to dismiss for lack of subject matter jurisdiction. It found that the complaint was a collateral attack on the FERC Order because it challenged an issue decided by FERC: whether Seattle was required to construct Gorge Dam fishways. And because only a federal court of appeals can review such challenges under section 313(b) of the FPA, 16 U.S.C. § 825l (b), the district court found that it lacked subject matter jurisdiction and dismissed the complaint.

The Tribe appeals from the district court's orders denying remand and granting the motion to dismiss. Pursuant to this court's order, the parties have also filed supplemental briefs on whether it was proper for the district court to dismiss the action considering 28 U.S.C. § 1447(c), which provides, in part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded [to state court]."

II

We review "issues of subject matter jurisdiction and denials of motions to remand removed cases de novo." Ritchey v. Upjohn Drug Co. , 139 F.3d 1313, 1315 (9th Cir. 1998). We also review "de novo ... whether the district court had supplemental jurisdiction." Trustees of Constr. Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc. , 333 F.3d 923, 925 (9th Cir. 2003).

III

A⁷

The federal removal statute provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction ... may be removed by the defendant ... to the district court of the United States." 28 U.S.C. § 1441(a). District courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Where, as here, state law creates the cause of action,⁸ the action arises under federal law when "a well-pleaded complaint establishes ... that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S. Cal. , 463 U.S. 1, 27–28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). A substantial federal question exists when the question is "(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Gunn v. Minton , 568 U.S. 251, 258, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013). All four requirements are met here.

As to the first two requirements, the Tribe's complaint necessarily raises federal issues because it expressly invokes federal laws, and it is uncontested that the federal issues are disputed. The complaint alleges that the Gorge Dam's "presence and operation" violates "the governing Congressional Acts" and "violates [the Supremacy Clause] ... in that the [Congressional Acts] imposed a prior restriction against such dams." The complaint also asks for corresponding declarations that the Gorge Dam's presence and operation violate the Congressional Acts and Supremacy Clause. Indeed, at oral argument before the district court, the Tribe's counsel conceded that the suit involved federal questions: "But clearly [there's] a federal question, because the Supremacy Clause, the laws enacting this provision going back to 1848, were enacted by Congress as a matter of the supreme law of the nation."

Turning to the third requirement, "[t]he substantiality inquiry ... [looks] to the importance of the issue to the federal system as a whole." Gunn , 568 U.S. at 260, 133 S.Ct. 1059. As evidenced by the FPA, the federal government has a strong interest ...