Judge denies PGE, Tribe’s requests for summary judgement

By Nicole Montesano

Smoke Signals staff writer

PORTLAND -- A federal district court judge has denied requests to dismiss a lawsuit brought by Portland General Electric against the state of Oregon and Department of State Lands over 5 acres of land at Willamette Falls, meaning the case will most likely go to trial in the spring.

Trial is scheduled to begin on Monday, April 21, at the Mark O. Hatfield U.S. Courthouse in Portland.

Historically, Willamette Falls, located between Oregon City and West Linn, was  a significant fishing and trading site for Tribes but the Willamette Falls Electric Company built a hydroelectric dam on the site in the late 1800s. It became Portland General Electric in 1891.

 In 2018, the Confederated Tribes of Grand Ronde received approval from the Department of State Lands to build a removable fishing platform at the falls that it uses to harvest 15 ceremonial fish annually, at the culturally appropriate time of year. It also harvests lamprey at the site, and salmon from the shoreline, during times when the river is lower. The Tribe’s platform has been contested by several other Tribes.

In 2021, PGE sought to purchase the property from the Department of State Lands. When that effort failed, it filed a lawsuit against the state in 2022, seeking to take ownership through eminent domain by condemning the property. The Tribe opposes that lawsuit, because it would cut off public access to the falls for fishing.

PGE argues that it must obtain title to the property for safety reasons and that it would grant a “perpetual cultural practices easement to facilitate safe and equitable access for all Tribes with cultural ties to the falls.”

The Tribe has intervened in the lawsuit, claiming that PGE is acting in bad faith and has produced almost no evidence of its alleged safety concerns. It noted to the court that PGE made no effort to acquire the property within 5 years of obtaining its license to produce power at the site in 2005.

 PGE pointed to internal emails from 2017 indicating safety concerns about the fishing platform. The Tribe argued that it’s not safety PGE is concerned about, but rather its business relationship with the Confederated Tribes of Warm Springs, which opposes Grand Ronde’s fishing platform. PGE conceded that relationship was a consideration, but not the primary one, an argument that District Court Judge Michael H. Simon wrote in his judgement was “a nuanced distinction, at best.”

 In December, both the Tribe and PGE requested summary judgement, a decision issued in favor of one party when the judge finds there is no genuine dispute over the facts in a case and therefore no need to go to trial.

However, Simon ruled that neither side had proved its case sufficiently to win outright.  

“The Confederated Tribes of Grand Ronde respects the court’s decision and appreciates the careful consideration of the issues presented in this case,” Tribal Chief of Staff Stacia Hernandez said in a press release. “We remain committed to protecting our interests and the public gem that is Willamette Falls, and we look forward to presenting our case at trial.”