PGE, Tribe make oral arguments in federal court over condemnation efforts

Tribal contingent rallies for Willamette Falls

A contingent from the Confederated Tribes of Grand Ronde gathered in Lownsdale Square in Portland for a rally for Willamette Falls on Wednesday, Dec. 4.

The rally was held in opposition to Portland General Electric’s attempt to condemn 5 acres of public land at Willamette Falls located between Oregon City and West Linn.

“We are here today to stand up for our river,” Tribal Council member Kathleen George said. “We are here today on behalf of the Grand Ronde people, on behalf of the Oregon people, who love Willamette Falls. Grand Ronde people have been here and at the base of the falls since time immemorial.”  

Condemning the land would prevent public access, which would interfere with the Tribe from being able to use the land to fish and gather lamprey.

The Tribe received approval for a waterway structure from the Department of State Lands in 2018 to harvest 15 ceremonial fish per year. The removable platform allows Tribal members to take fish at the culturally appropriate time of year instead of later in the season when water levels are lower and rocks are exposed.

“PGE is attempting to take an Oregon treasure, an Oregon trust resource, part of the Willamette River and Willamette Falls, into private property ownership status,” George said. “This has happened without any public process. It is particularly important to Grand Ronde people because Willamette Falls is one of the only places we where can harvest Pacific lamprey for our Tribal people. We have an agreement with the state of Oregon to harvest ceremonial salmon and steelhead every spring. The falls is the only place the Tribe can do this.”

A press release issued by the Tribe’s Public Affairs Department said that if successful, the condemnation would privatize public land and make is inaccessible to Oregonians.

“Many Oregonians recreate at Willamette Falls and if the land is brought under corporate control, they would no longer be allowed to do that,” the release stated. “It is in the best interest of Oregonians for the state to oppose this lang grab by PGE, instead of willingly handing over public land.”

During the rally there was drumming, singing and prayers. After the rally, Tribal representatives made oral arguments against PGE’s condemnation efforts during a hearing in the Mark O. Hatfield U.S. Courthouse located across from the square. See related story for more information.

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PGE, Tribe make oral arguments in federal court over condemnation efforts

By Danielle Harrison

Smoke Signals editor

PORTLAND -- The Confederated Tribes of Grand Ronde and Portland General Electric attorneys appeared before U.S. District Court Judge Michael H. Simon in a summary judgement hearing at the Mark O. Hatfield U.S. Courthouse on Wednesday, Dec. 4.

Both the Tribe and PGE filed claims for summary judgement, a pretrial motion intended to resolve legal actions where the parties have no issues with any material fact. The judge rules for one party against the opposing party without having to go to trial.

The key issue in the case is PGE’s efforts to take state-owned land at Willamette Falls through the condemnation process, which seeks to make it private. Although the case was initially filed against the Department of State Lands, Simon earlier recognized the Tribe’s legal standing by granting a motion for it to intervene in the case in 2022.

PGE is arguing that it needs to take the land at the falls into private ownership due to safety concerns with Tribal members fishing at the falls.

The Tribe is claiming these concerns are unfounded, as it had previously approved Tribal safety plans at the falls and that the company’s actions are driven by its business interests with another Tribe that opposes Grand Ronde’s removable fishing platform.

There is a long and contentious history between the Tribe and PGE regarding the fishing platform.

The Tribe applied for and received approval for a waterway structure from the Department of State Lands in 2018 to harvest 15 ceremonial fish per year. The platform allows Tribal members to take fish at the culturally appropriate time of year instead of later in the season when water levels are lower and rocks are exposed.

 The removable fishing platform was completed later that year after PGE revoked permission allowing Grand Ronde Tribal members and employees to use its land to access and build the platform from the safer West Linn side of the Willamette River.

Tribal Natural Resources Department employees were then forced to ferry supplies across the Willamette River from the Oregon City side of the falls to the West Linn side.

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.

PGE then filed a lawsuit in U.S. District Court in April 2022 to condemn the 5-acre strip of property in and around its Federal Energy Regulatory Commission boundary at Willamette Falls. The lawsuit 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. According to the lawsuit, PGE offered the state $150,000 for its claimed right to the property, but the state did not accept the offer.

Assistant Tribal Attorney Kim D’Aquila told Simon that PGE’s primary goal is to protect its business interests with the Warm Springs Tribe by way of stopping Grand Ronde from using its fishing platform at Willamette Falls.

“Warm Springs has been very vocal about challenging the Grand Ronde platform,” she said. “It doesn’t see Grand Ronde as having a true treaty right to exercise its cultural practices at the falls. They have called Grand Ronde a non-treaty Tribe. Grand Ronde is a restored Tribe so we are treated differently…The ultimate goal is to stop Grand Ronde from using a fishing platform as there is no guarantee the Tribe would be able to use one under a perpetual cultural easement as it requires consultation with other Tribes.”

Simon said the crux of the matter is whether PGE is trying to do “what is right,” trying to appease a business partner or is genuinely concerned the Tribal conflict would ultimately affect their operations at the falls. Currently, the company produces power for approximately 11,000 homes.

The state of Oregon did not argue their side of the case during the hearing, but instead referred to legal paperwork it had already filed.

Erick J. Haynie, a real estate attorney for Perkins Coie, served as PGE’s counsel.

Simon told him that this, “is the strangest dispute I have seen between PGE and the state,” and asked if the PGE board’s decision to pursue condemnation was made because of business interests with Warm Springs.

“No, there is no evidence of PGE trying to appease a business partner and I’m not aware that went into any of the decision-making process,” Haynie said.

Simon then told him that PGE has good evidence and that the state does as well, and that he wasn’t certain that summary judgement was “the right vehicle.”

“I may need to hear from witnesses and apply the right standard, which is clear and convincing evidence,” he said. “If I get you what you want now, I will be reversed (on appeal) if there is any factual evidence, which I think there is.”

Simon told all parties involved in the case that he expects to issue a decision by the end of the month, and that if a trial were to be held, it would likely be set for April 2025.

Tribal Council member Kathleen George attended the hearing and spoke about it during the Tuesday, Dec. 10, Legislative Action Committee meeting.

“The judge had clearly done a great deal of work and understood all the arguments being made to a very deep degree and asked some very pointed and direct questions of pretty much everyone involved,” she said. “I think that at least, we felt heard by the judge and that was reassuring.”