On December 30, 2022, the U.S. Court of Appeals for the 9th Circuit (“9th Circuit”) affirmed a lower court’s denial of the Sauk-Suiattle Indian Tribe’s (“Tribe”) motion to remand to state court and its dismissal of the Tribe’s action against the City of Seattle (“City”) for lack of subject matter jurisdiction.  The case concerns Gorge Dam, which is located on the Skagit River in Washington and is one of three dams that make up the City’s Skagit River Hydroelectric Project (“Skagit River Project” or “Project”).

The City operates the Skagit River Project pursuant to a 30-year license issued by FERC in 1995.  Prior to FERC’s issuance of the 1995 license, the City entered into a settlement agreement with the Tribe and other stakeholders 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.”  FERC’s 1995 license order incorporated the settlement agreement and explained that, while neither the Secretary of Commerce nor the Secretary of the Interior prescribed fish passage facilities for the Project under section 18 of the Federal Power Act (“FPA”), FERC reserved its own authority “to require fish passage in the future, should circumstances warrant.”  The Tribe did not seek rehearing of FERC’s 1995 license order.

In July 2021, the Tribe filed a complaint in Washington state court, alleging that Gorge Dam “blocks the passage of migrating fish” and that its operation without fishways violates the 1848 Act establishing the Oregon Territory, the 1853 Act establishing the Washington Territory (together, “Congressional Acts”), the Supremacy Clause of the United States Constitution, the Washington State Constitution, and Washington state nuisance and common law.  The City removed the action to the U.S. District Court for the Western District of Washington, which dismissed the Tribe’s complaint for lack of subject matter jurisdiction and found that the complaint was a collateral attack on FERC’s 1995 license order, which the FPA provides can only be challenged in the federal courts of appeal.  The District Court also denied the Tribe’s motion for remand to state court and granted the City’s motion to dismiss.

The Tribe appealed to the 9th Circuit, which examined whether the District Court properly dismissed the case for lack of subject matter jurisdiction pursuant to section 313(b) of the FPA, which provides that the U.S. Courts of Appeal have exclusive jurisdiction over all challenges to FERC orders properly raised by a party to a FERC proceeding.  Relying on City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958), and California Save Our Streams Council v. Yeutter, 887 F.2d 908 (9th Cir. 1989), the Court concluded that “the federal courts of appeals have exclusive jurisdiction under section 313(b) to review all objections to FERC orders issued under the FPA—including objections based on state law.”  It also rejected the Tribe’s allegation that it was not attacking the FERC license itself because it raised claims that allegedly arose under the Supremacy Clause and Congressional Acts, instead of the FPA.  Rather, the Court found that the Tribe’s complaint constituted a challenge to FERC’s 1995 license order, in which FERC made an express determination that fishways were not required at Gorge Dam.  This, the Court found, was “a focal point of the relicensing process,” such that the City’s complaint should have been brought in the court of appeals, and that the District Court properly determined that it lacked subject matter jurisdiction.

The Court’s opinion is available here.