SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE, ET AL, No. 22-35000 (9th Cir. 2022)
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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.
The Ninth Circuit affirmed the district court’s denial of the SaukSuiattle Indian Tribe’s motion to remand to state court and the district court’s dismissal. 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. Section 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 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.
Court Description: 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 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 3 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 4 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 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. SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 5
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