Tribe condemns PGE effort at Willamette Falls

(Editor's note: This story was updated on Monday, April 11.)

By Dean Rhodes

Smoke Signals editor

The Confederated Tribes of Grand Ronde reacted negatively to a Friday, April 8, move by Portland General Electric to condemn property in and around its Federal Energy Regulatory Commission boundary at Willamette Falls, which includes a contested five-acre strip upon which the Tribe constructed a temporary ceremonial fishing platform in October 2018.

The lawsuit was filed in U.S. District Court in Portland and seeks to use PGE's condemnation authority under the Federal Power Act to acquire the Oregon Department of State Land's interest in the property.

Tribal Communications Director Sara Thompson said the company’s move is “nothing more than PGE trying to steal one of Oregon’s gems from the public trust” and added that Oregon’s natural wonders, including Willamette Falls, belong to all Oregonians.

“PGE’s only concern is protecting their business relationships with these Tribes at the expense of Grand Ronde’s ability to exercise a legally authorized ceremonial fishery from a temporary platform at Willamette Falls,” Thompson said in an e-mail distributed on Friday, April 8. “They are trying to circumvent a state process under a false narrative surrounding ‘safety’ and their claims that they have made every reasonable attempt to resolve this issue are simply not true.”

Thompson is also the Grand Ronde Tribe’s only female fisher at the falls.

PGE is seeking to condemn the land “to safely and securely operate our hydroelectric project consistent with our FERC license obligations.” PGE has operated a hydroelectric facility at the falls for more than 100 years.

“Ownership and control of the property, including the inherent right through ownership to control persons seeking to access the property, are required for PGE to meet its obligations of the FERC license,” the lawsuit says.

The Federal Energy Regulatory Commission is an independent agency that regulates the interstate transmission of natural gas, oil and electricity, as well as hydropower projects like the one at Willamette Falls.

The condemnation move brings back the contentious events that occurred four years ago when the Tribe sought a temporary ceremonial fishing platform at Willamette Falls and competing claims by PGE and the Oregon Division of State Lands were made concerning ownership of the property.

In 2016, the Oregon Department of Fish and Wildlife granted the Grand Ronde Tribe a permit to catch 15 salmon annually at Willamette Falls for ceremonial purposes. In 2018, PGE allowed the Tribe access to the falls from the West Linn side of the river for ceremonies and to scout out possible fishing platform locations, but revoked that access on Sept. 21 after the state granted the Tribe a permit to erect a fishing platform on the contested property.

The Tribe was then forced to ferry materials to construct the platform across the Willamette River from the Oregon City side. The platform was completed on Oct. 23, 2018.

PGE then filed an appeal with the state Land Use Board regarding the Tribe’s fishing platform site because the city of West Linn did not regulate the structure, but the Land Use Board dismissed the appeal in April 2019.

On July 28, 2021, PGE’s Board of Directors approved a resolution that the company would pursue acquiring all of the state’s rights, title and interest in the contested property.

According to the lawsuit, PGE offered the Department of State Lands $150,000 for the agency’s claimed right to the property in January, but the state did not accept the offer.

Previously, Grand Ronde Tribal Attorney Rob Greene said that an extensive study was conducted by a Department of State Lands consultant who found that the area on which the Tribe installed platform footings belonged to the state of Oregon.

Although the Tribe’s ceremonial fishing was interrupted by the COVID-19 pandemic, the original plans were to install the platform annually at the start of the fishing season in May and remove it at the end of the season in late July.

Dave Robertson, a PGE public affairs vice president, said in a statement posted on the company’s website that PGE has tried the administrative law process and judicially assisted mediation to resolve the dispute and that a recent ruling from an administrative law judge “made clear the long road ahead to final resolution.”

That ruling, issued on April 1 by Office of Administrative Hearings Senior Administrative Law Judge Joe Allen, stated that PGE, the Division of State Lands and Grand Ronde Tribe all demonstrated disputes to genuine issues of material fact relevant to resolution of all the issues in the contested case, so therefore all requests for summary determination were denied.

“That’s why we are moving forward with condemnation as the best legal tool available to expediently resolve issues essential to our operations,” Robertson said.

PGE also posted comments from Siletz Tribal Chairwoman Delores Pigsley, Warm Springs Tribal Chairman Ray Tsumpti and Yakama Tribal Chairman Delano Saluskin that supported the company’s efforts to resolve the land dispute and were critical of the Grand Ronde Tribe for withdrawing from the mediation process.

“Unfortunately, the Grand Ronde Tribes stepped away from those discussions some time ago, and it recently blocked a proposal supported by all the other Tribes, PGE and the Department of State Lands to engage in new talks to resolve the ownership dispute,” Tsumpti said. “We support PGE’s action to move forward now, secure its property, and its ongoing efforts to facilitate a safe and equitable way for all Tribes to have everlasting access to the site.”

Thompson said the Grand Ronde Tribe entered into mediation in good faith and even after the mediation time period expired, it continue to engage in informal settlement talks.

“However, after more than a year of no real progress, the Tribe felt it was necessary to get back to a formal dispute resolution process,” she said.

Robertson added in his posted statement that PGE recognizes the “immense importance” of Willamette Falls for Pacific Northwest Tribes, which is why the company requested establishing a perpetual cultural practices easement with FERC to “facilitate safe and equitable” access for Tribes to engage in traditional cultural practices consistent with the FERC requirements.

However, Tribal Council Chairwoman Cheryle A. Kennedy has said that the Grand Ronde Tribe has supremacy as gatekeepers of the falls over other Oregon Tribes because the Clowewalla band of Tumwaters were year-round residents at the fishery.

Should PGE be successful in condemning the five-acre strip and stopping Grand Ronde Tribal members from fishing ceremonially, the 23-acre Blue Heron property acquired in August 2019 will not be a suitable backup fishing site, Thompson said.

“Fish traveling through that area tend to travel through the mainstream river channel and not along the bank,” she said. “Even if we could build a platform at Blue Heron, it wouldn’t catch fish.”

The Division of State Lands did not respond to Smoke Signals with a comment regarding PGE’s lawsuit. The notice of condemnation gives the state 21 days to respond.

“We anticipate talking with DSL sometime in the next couple of weeks,” Thompson added.