Seattle Files Answer to the Ninth Circuit in Gorge Dam Fish Passage Case

On Wednesday, the city of Seattle and Seattle City Light, a subdivision of Seattle, filed an answering brief to the Ninth Circuit Court of Appeals in the case of Sauk-Suiattle Indian Tribe v. City of Seattle

The case was originally filed in the Superior Court of the State of Washington for Skagit County challenging the continued presence and operation of City Light’s Gorge Dam because it does not have fish passage facilities. 

According to the answering brief, the case was appealed to the Ninth Circuit by the Sauk-Suiattle Indian Tribe (Sauk-Suiattle) on December 31, 2021 after the Western District of Washington affirmed Seattle City Light’s motion to dismiss for lack of jurisdiction and denied Sauk-Suiattle’s motion for remand after Seattle removed the case from Washington state court. 

In the tribe’s opening brief, it argued that the district court erred in removing the case to federal court because the complaint was entirely premised upon claims arising under state law and raised no substantial federal questions which might provide the basis for removal. Further, the tribe argued that the only issue relating to federal law was federal preemption which is a proper defense but not a basis of removal. Specifically, Sauk-Suiattle argued that the Washington Constitution and the 1848 Establishing Act prohibit the obstruction of rivers and streams by dams unless the dams are constructed with fish passage facilities. 

Conversely, the appellants argue in their answering brief that the district court properly found that Sauk-Suiattle’s claim raises substantial and disputed federal issues sufficient to establish federal jurisdiction. The appellants state that the district court properly found federal jurisdiction because its claim requires interpretation of federal Establishing Acts and the supremacy clause and because Sauk-Suiattle’s nuisance and common law claims necessarily raise substantial and disputed federal issues under the Federal Power Act. 

Further, the appellants argue that the district court properly dismissed Sauk-Suiattle’s claims against Seattle City Light with prejudice because those claims are impermissible collateral attacks on City Light’s 1995 FERC hydropower license to operate the Gorge Dam. The appellants state that the motion to dismiss with prejudice should be affirmed because Sauk-Suiattle’s exclusive avenue for challenging City Light’s operation of the dam was to appeal the 1995 FERC license when it was granted to city lights over 25 years ago. 

The Sauk-Suiattle Indian Tribe is represented by Towtnuk Law Offices, and the appellees are represented by K&L Gates.