Tribe to face PGE in court over access to Willamette Falls

 

By Nicole Montesano

Smoke Signals staff writer

The Tribe is set to face Portland General Electric in federal court on Monday, April 21, over the utility company’s effort to condemn and take ownership of 5 acres of public land at Willamette Falls, located between Oregon City and West Linn.

Although the Department of State Lands is the defendant, the Tribe is also arguing opposition, as an intervenor in the lawsuit.

The Tribe says condemnation could mean the end of its fishing platform, where ceremonial fishers have revived the tradition of dipnet fishing for 15 salmon and steelhead per year. Tribal members also fish for lamprey at the base of the falls.

 PGE says it must seize ownership of the property for maintenance and safety reasons, a claim the Tribe disputes.

"The Confederated Tribes of Grand Ronde feels this case is about many things, including justice and the protection of one of Oregon’s most significant landmarks,” Tribal Communications Director Sara Thompson said. “We remain committed to protecting our interests and the public gem that is Willamette Falls. We look forward to presenting our case at trial.”

The Siletz Tribe is siding with PGE, arguing the utility would force Grand Ronde to share its platform. Grand Ronde attorneys say appeasing other Tribes is the real reason for PGE’s condemnation effort, an allegation the utility denies.

Tribal Council Chairwoman Cheryle A. Kennedy said in a declaration to the court that PGE “originally cooperated with Grand Ronde’s efforts to construct a fishing platform at Willamette Falls,” until other Tribes objected.

“During a meeting in June 2018, PGE’s Chief Executive Officer, Maria Pope, informed me that PGE would not support the fishing platform construction due to claims raised by other Tribes with whom PGE has business relationships,” Kennedy said.

_{Tribal member and ceremonial fisher Andrew Freeman takes his turn using a dip net while fishing off the Tribal fishing platform at Willamette Falls in Oregon City in April 2019. The Tribe says Portland General Electric’s effort to condemn 5 acres of public land at Willamette Falls could mean the end of its fishing platform, where ceremonial fishers have revived the tradition of dip net fishing for 15 salmon and steelhead per year. (Smoke Signals file photos)}

Willamette Falls is second-largest waterfall in the U.S.

At 1,500 feet long, with a 42-foot drop, Willamette Falls is the second-largest waterfall, by volume, in the United States, and the largest in the Pacific Northwest. It forms a tight curve in the center of the Willamette River, but according to the World Waterfall Database, “prior to the development of the Oregon City area, it is thought the falls may have spanned as much as 2,500 feet across.”

Although it has been described as a national treasure, the falls is surrounded by industrial buildings and have been difficult to view for the last century.

The falls have been important to Indigenous people since time immemorial as an ideal site for fishing for salmon and steelhead, and for catching lamprey.

“The falls were home to Grand Ronde’s ancestors from the Charcowah village of the Clowewalla (Willamette band of Tumwaters) and the Kosh-huk-shix Village of Clackamas people who managed a fishery there,” Kennedy said in her declaration. “Following the Willamette Valley Treaty, members of the aforementioned Tribes and bands were forcibly removed from Willamette Falls and relocated to the Grand Ronde Reservation.”

Willamette Falls, where the Oregon Trail ended, also proved important to settlers arriving in the 1800s. In 1889, the Willamette Falls Electric Company built a hydroelectric dam there, today run by Portland General Electric, which was formed in 1892. The settlers saw a useful resource in the falls, which were soon surrounded by industrial buildings.

In 2018, the Tribe obtained a permit from the state to construct a temporary fishing platform to catch 15 ceremonial salmon annually. PGE appealed the permit. Initially, the utility granted permission for Tribal members to cross its land to the platform construction site. However, it later revoked permission and threatened trespassing charges. Tribal members now use a more dangerous route, taking jet boats over the rapids to avoid PGE’s property.

Tribal member and ceremonial fisher Jade Unger said he was one of the first Tribal members to go through training offered by the Tribe’s Natural Resources Department to learn to fish safely from the platform.

“It’s not something that any of us really grew up with; maybe a few people in the Tribe, but a very few,” Unger said. “So, I was very excited about that, to restore our historical practice. I’m Whitewater Chinook; so that’s in my heritage, my history. … Having an opportunity to help restore part of that past and be a part of that is just an honor.”

Unger noted that the Tribe uses modern safety precautions, rather than precisely recreating history.

“We have way more safety gear than was traditionally used,” he said. “We’re required to wear life jackets and helmets and to be tied off … I don’t feel that it’s inherently dangerous. It’s not like it would have been on wooden planks that were probably slippery.”

There is a learning curve to dip netting, Unger explained.

“It’s hard; it’s physically taxing; there’s a lot of pressure you have to hold against the net to keep it stable,” he said. “There’s techniques to it, how you hold the net.”

The fish are used ceremonially, Unger said, including for the important First Fish ceremony held every summer.

“The first fish is taken back to Grand Ronde and eaten that day, and the bones and anything that isn’t eaten is returned to the river,” he said.

The other 14 fish are served at Tribal events throughout the year.

Unger said he also catches lamprey, an eel-like fish that in pre-contact times supplied much-needed fat to Indigenous diets.

“That’s a pretty cool experience,” he said. “You go where the rapids end, and tie your boats up, and then make your way across the rocks to where the lamprey are climbing up the rocks.”

Many people grab hold of the fish wearing cotton gloves, but Unger said he and a cousin “invented, or more likely rediscovered, a new technique … ‘cause if you go in the water and reach in, they just freak out and all start writhing, and let go and then the water washes them away, so we just put a net out, and they wash right into the net.”

In 2019, the Tribe purchased the 23-acre site containing the former Blue Heron Paper Mill, renamed tumwata village in honor of its location next to the falls. The Tribe is in the process of demolition and cleanup of extensive environmental hazards. Its vision calls for restoring “long-lost natural basalt landscape and water channels,” and the riparian habitat, as well as providing “access to the falls for members of the Tribe and the general public.”

PGE resolution declared it needs ownership of the land

In 2021, the PGE board of directors passed a resolution declaring the utility needs to own the 5 acres surrounding the falls. It offered the Department of State Lands $150,000 for the property. When the offer was refused, PGE filed a condemnation lawsuit in federal court in 2022.

In court documents, PGE says the 5 acres “are necessary to meet a number of requirements under PGE’s FERC (Federal Energy Regulatory Commission) license. The requirements relate generally to public safety and regulatory compliance.”

It said those include identifying and salvaging fish according to its management plan, constructing and operating lamprey passage ramps, maintaining the fish ladder, maintaining and operating the Abernathy Channel, managing the dam and “managing and controlling public safety.”

The Tribe noted the Federal Power Administration first licensed the project in 1960, and the Federal Energy Regulatory Commission issued a new license in 2005.

 “At the time PGE’s license was issued, the falls were already regularly accessed by Native American Tribes for cultural purposes, specifically for lamprey harvesting,” Assistant Tribal Attorney Kimberly D’Aquila wrote. “The practice has been authorized under rules set by the Oregon Department of Fish and Wildlife for almost 30 years. PGE asserts that the acquisition is necessary for maintenance and operation of its project, which has been in operation for over a century.”

The Tribe believes PGE’s lawsuit has nothing to do with maintenance or safety.

“Grand Ronde maintains that PGE’s true objective is to secure fee title to the defendant property in order to void the registration, which is opposed by a few other Tribes, including those with whom PGE has significant business relationships,” D’Aquila wrote. “…PGE intends to provide its own easement to Tribes that do not wish to seek a waterway authorization or fishing rule from the state of Oregon. The evidence will show that PGE is misusing its condemnation authority under the FPA (Federal Power Act) by employing it as a substitute for a quiet title action.”

That violates federal law, D’Aquila noted.

“PGE’s Board adopted the resolution authorizing this condemnation … after 15 minutes of discussion” and “without considering any evidence that demonstrated a safety or operational necessity for acquiring full ownership of the condemnation property,” she wrote. “None of the materials or information presented at the July 28, 2021, board meeting addressed safety or operational concerns related to the property, nor will there be any credible evidence indicating that these issues were raised in prior board meetings.”

PGE attorney Erick Haynie wrote that “PGE … cannot act ‘arbitrarily, capriciously, or in bad faith’ when exercising its condemnation authority to secure control over lands demonstrably needed to facilitate safe hydroelectric operations and comply with its regulatory obligations.”

Siletz sides with PGE

The Siletz Tribe joined PGE’s suit as a “friend of the court,” after Federal Judge Michael Simon denied the Tribe’s request to join as an intervenor.

 “The Siletz Tribe believes that the placement of Grand Ronde’s fishing platform … places Siletz fishers and gatherers in increased danger in exercising their treaty fishing and gathering rights,” the Tribe wrote in a brief to the court. “The areas where fish and lampreys can be caught and gathered in reasonable numbers at Willamette Falls are extremely limited, and each area has substantial safety and danger concerns.”

It continues, “PGE proposed a reasonable permanent cultural practices easement that will allow all affected Tribes to exercise cultural practices at Willamette Falls on an equal basis…Grand Ronde rejected that option and continues to assert exclusive access at Willamette Falls and to deny other Tribes any rights to access the falls.”

Thompson dismissed those complaints as invalid.

“Grand Ronde utilized a state permitting process to build a temporary fishing platform at Willamette Falls that is installed and removed each year for harvest of 15 ceremonial salmon,” she said. “There is no exclusivity to that process. This same process is available for any and all Tribes to utilize in the same manner.”