Today U.S. District Court Judge Barbara Rothstein dismissed a lawsuit brought by the Sauk-Suiattle Tribe against Seattle City Light over the Gorge Dam on the Skagit River, which impedes salmon fisheries upriver.
The Gorge Dam and the attached hydroelectric power generation station is owned and operated by Seattle City Light.
The Tribe originally filed the case in state court, arguing that the dam violated a federal law predating the formation of the State of Washington but that was incorporated into its original set of laws. The city successfully got the case moved to federal court, arguing that the plaintiffs’ claims cited federal laws as well that take precedence over state claims. The Tribe attempted unsuccessfully to have the case moved back to state court. Then the city moved for the case to be dismissed for lack of jurisdiction.
The dam was originally granted a 50-year license by the Federal Power Commission (FPC) in 1927. In 1977 Seattle City Light applied to the FERC (the successor to the FPC) for a renewal of the license, at which point the FERC initiated a multi-year study of the “flow regime” on the river. Finally in 1995, the city, the FERC, and several intervenors — including the Tribe — signed settlement agreements granting a 30-year renewal for the Dam and requiring Seattle City Light to make certain modifications to the dam to reduce impacts on salmon, and to follow a “flow plan” for the river to ensure sufficient water for salmon.
In dismissing the case today, the judge made a few key points:
- The Tribe was a party to the 1995 settlement agreements.
- If the Tribe, who was well aware of the terms of the settlement and relicensing, wanted to appeal, it had plenty of time to do so in the early years and doing so now is “untimely” to say the least.
- The Federal Power Act states that cases such as this one may only be heard by a Court of Appeals, not a district court.
- Since the current license expires in 2025, the Tribe has a forum for raising issues as the city applies to FERC for another license renewal.
The Tribe, while acknowledging that the Court of Appeals is the exclusive forum for lawsuits challenging substantive issues related to FERC-issued licenses, tried to argue that its claims were “collateral” and thus could be heard by another court. The judge flatly rejected that reasoning, observing that if granted the requested injunction would prevent Seattle City Light from operating the Gorge Dam, something which the FERC license explicitly says it may do — and nothing is more “inescapably intertwined” with FERC’s authority than that.
At this point the Tribe has two options: abandon the case and focus on the 2025 relicensing, or re-file the case with the Ninth Circuit Court of Appeals where it will face a similar uphill battle against arguments that its lawsuit is untimely and that as a party to the 1995 settlement it gave up rights to challenge the terms it agreed to. But either way, the next three years of negotiations with FERC over a new license will be hard-fought as the Tribe tries to restore salmon runs upriver on the Skagit.