Tribe v. City of Seattle

Decision Date30 December 2022
Docket Number22-35000
PartiesSAUK-SUIATTLE INDIAN TRIBE, Plaintiff-Appellant, v. CITY OF SEATTLE; SEATTLE CITY LIGHT, a subdivision of the City of Seattle, Defendants-Appellees
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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

December 30, 2022


Argued and Submitted October 7, 2022

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein No. 2:21-cv-01014-BJR, District Judge, Presiding

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.

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SUMMARY [*]

Federal Power Act / Removal

The panel affirmed the district court's denial of the Sauk-Suiattle Indian Tribe's motion to remand to state court and the district court's dismissal, for lack of subject matter jurisdiction under the Federal Power Act, of the Tribe's action alleging that the City of Seattle's operation of the Gorge Dam without fish passage facilities, or fishways, violated certain federal and state laws.

The Gorge Dam is one of three dams that make up the Skagit River Hydroelectric Project. The Federal Energy Regulatory Commission issued an order granting Seattle a new license to operate the Project. The order contained no fishway requirement.

The Tribe sought (1) a declaration that the Gorge Dam violates the 1848 Act establishing the Oregon Territory and the 1853 Act establishing the Washington Territory ("Congressional Acts"), the Supremacy Cluse of the United States Constitution, and the Washington State Constitution; (2) an injunction that either prohibits Seattle from maintaining the Gorge Dam in its present condition or

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requires Seattle to provide a fishway; and (3) other "just and equitable" relief.

The panel affirmed the district court's order denying the Tribe's motion to remand the action to state court. The panel held that the City properly removed the action to federal court under 28 U.S.C. § 1441(a) because the Tribe's right to relief depended on resolution of a substantial question of federal law. Applying a four-part test, the panel concluded that the Tribe's complaint necessarily raised federal issues because it expressly invoked federal laws, and it was uncontested that the federal issues were disputed. The question whether the Supremacy Clause and Congressional Acts governed Seattle's operation of the FERC-licensed Project implicated the federal government's strong interest in national regulation, and thus the issue was a substantial one. Finally, exercising jurisdiction would not disturb any congressionally approved balance of federal and state judicial responsibilities.

The panel also affirmed the district court's dismissal for lack of subject matter jurisdiction because the Tribe's complaint was subject to section 313(b) of the Federal Power Act, which vests exclusive jurisdiction in the federal courts of appeals over all objections to FERC orders by a party to a FERC proceeding. The panel concluded that the Tribe's complaint did not expressly challenge the FERC order granting Seattle a new license to operate the Project, but the gravamen of the complaint, that the Gorge Dam must have fishways, was a direct attack on FERC's decision that no fishways were required.

The panel held that the district court properly dismissed the action. 28 U.S.C. § 1447(c) provides: "If at any time before final judgment it appears that the district court lacks

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subject matter jurisdiction, the case shall be remanded [to state court]." The panel concluded that it was bound by the court's precedent establishing a futility exception to § 1447(c). The panel concluded that the futility exception applied because there was absolute certainty that the state court would dismiss the action following remand for the same reason that the district court lacked jurisdiction: section 313(b) of the Federal Power Act vested the federal courts of appeals with exclusive jurisdiction over the Tribe's action.

Judge W. Fletcher concurred in the result but did not concur fully in the reasoning of the majority's per curiam opinion. He wrote that the question was not whether the district court was correct in its initial denial of the Tribe's motion to remand, but rather whether the district court was correct in its ultimate dismissal for lack of subject matter jurisdiction. Judge W. Fletcher wrote that, absent the futility exception, once the district court correctly concluded that it did not have original subject matter jurisdiction, the required course would have been for the district court to remand the suit to the state court as improperly removed. Judge W. Fletcher agreed with Judge Bennett both that dismissal was proper under the futility exception, and that the exception is based on a misinterpretation of the relevant statute.

Concurring, Judge Bennett, joined by Chief Judge Murguia and Judge W. Fletcher, wrote that the court's precedent required the panel to apply the futility exception to 28 U.S.C. § 1447(c)'s remand requirement. Judge Bennett wrote that the futility exception does not comport with § 1447(c)'s plain text, and, in the appropriate case, the court should reconsider the futility exception en banc and abandon it.

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OPINION

PER CURIAM

The City of Seattle/Seattle City Light[1] ("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.

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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

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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

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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...

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