Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 1 of 58
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`No. 22-35000
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`_________________________________________________________________
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`SAUK-SUIATTLE INDIAN TRIBE,
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`Plaintiff-Appellant,
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`v.
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`CITYOF SEATTLE and SEATTLE CITY LIGHT,
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`Defendant – Appellee,
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`_________________________________________________________________
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`On Appeal from the United States District Court for the Western District of
`Washington
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`________________________
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`APPELLANT’S OPENING BRIEF
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` ________________________
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`Jack Warren Fiander
`Towtnuk Law Offices, Ltd.
`Sacred Ground Legal Services, Inc.
`5808A Summitview Avenue, # 93
`Yakima, WA 98908
`(509) 969-4436
`towtnuklaw@msn.com
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`No. 22-35000
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`_________________________________________________________________
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`SAUK-SUIATTLE INDIAN TRIBE,
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`Plaintiff-Appellant,
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`v.
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`CITYOF SEATTLE and SEATTLE CITY LIGHT,
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`Defendant – Appellee,
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`_________________________________________________________________
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`On Appeal from the United States District Court for the Western District of
`Washington
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`________________________
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`APPELLANT’S OPENING BRIEF
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` ________________________
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`Jack Warren Fiander
`Towtnuk Law Offices, Ltd.
`Sacred Ground Legal Services, Inc.
`5808A Summitview Avenue, # 93
`Yakima, WA 98908
`(509) 969-4436
`towtnuklaw@msn.com
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`
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 2 of 58
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`Table of Contents
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`Introduction…………………………………………………………….. 1
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`Jurisdiction……………………………………………………………... 1
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`Assignments of Error…………………………………………………… 1
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`Factual Background ……………………………………………………. 1
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`Historical basis for appellant’s claims………………………………….. 3
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` Standard of Review……………………………………………………. 5
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`Summary of Argument………………………………………………… 5
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`Argument………………………………………………………………. 6
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`Plaintiff’s state court complaint was not properly
`removable as it asserts claims purely arising under state
`law and does not conflict with Congress’ intent embodied
`in the plain text of the Federal Power Act………………….. 6
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`Resolution of plaintiff’s state-based claims by the state
`court is not “exclusively” subject to federal jurisdiction, as
`the Federal Power Act’s savings clause expressly
`precludes complete federal
`preemption…………………………………………………. 9
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`Although adjudication of Plaintiff’s complaint may
`involve federal questions raised as a defense, the claims
`raised in the complaint are based upon state law and state
`constitutional provisions which merely incorporate by
`reference federal laws…………………………………….. 21
`
`The district court’s determination that Plaintiff’s common
`law claims and claim of Nuisance involve a question
`foreclosed by federal law or that it involves a federal
`question is without merit. That respondents’ possess a
`license to generate hydropower does not vitiate the
`applicability of Washington common law………………… 25
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 3 of 58
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`The district court erred in mischaracterizing the basis of
`plaintiff’s claims. That certain territorial acts for Oregon
`and Washington were repealed in 1873 and 1933
`respectively have no bearing on
`this case, since
`Washington had by then already incorporated their
`provisions as matters of Washington state law. Plaintiff’s
`claims do not arise directly under now repealed federal
`law, rather, the claims are based upon the incorporation by
`reference of then-existing federal law into state law………. 29
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`Appellant’s assertion of a common law claim does not
`constitute a “collateral attack on respondent’s license”..….. 34
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`The 1995 Settlement Agreement the district court relied
`on to dismiss plaintiff’s complaint does not preclude
`appellant’s Claims………………………………………… 37
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`The doctrine of primary jurisdiction is inapplicable to
`this cause………………………………………………….. 40
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`The claims raised in plaintiff’s complaint are not
`preempted by the Federal Power Act nor exclusively
`subject to determination by the Federal Energy Regulatory
`Commission……………………………………………….. 41
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`Principles of Comity militate in favor of the Court
`abstaining from entertaining respondents’ motion to
`dismiss, as resolution of the issues raised therein are best
`resolved by the State court, in determining the
`applicability of the State’s own laws………………………. 44
`
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`CONCLUSION………………………………………………………. 46
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`Certificate of Service………………………………………………… 48
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`Certificate of Compliance……………………………………………. 49
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`Statement of Related Cases………………………………………….. 50
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`Appendix…………………………………………………………….. 51
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 4 of 58
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`Cases:
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`Table of Authorities
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`Alabama v. Shelton, 535 U.S. 654 (2002)…………………………… 8
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`ARCO Envtl. Remediation, L.L.C. v. Dep’t of
`Health & Envtl. Quality of Mont., 213 F.3d 1108 (9th Cir. 2000)…… 8
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`Ashcroft v. Iqbal, 556 U.S. 662 (2009)………………………………. 22
`
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`Astiana v. Hain Celestial Group, Inc., 783 F.3d 753 (9th Cir. 2015)… 38
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`Beneficial Nat'l Bank v. Anderson, 531 U.S. 1 (2003)………………. 9
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`Bernhard v. Whitney National Bank, 523 F. 3d 546 (5th Cir. 2008)…. 10
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`Boatright v. Bookman, 1 Rice 447 (S.C. Ct. App. 1839)……………. 27
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`Boyle v. United Techs. Corp., 487 U.S. 500 (1988)………………… 41
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`Bruskland v. Oak Theater, 42 Wn. 2d 346 (1953)…………………… 36
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`Cal. Save Our Streams Council, Inc. v. Yuetter, 887 F.2d 908
`(9th Cir. 1989)……………………………………………………….. 34
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`Carrington v. City of Tacoma 276 F. Supp. 3d 1035
`(W.D. Wash. 2017)………………………………………………….. 24
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`Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)…………………… 8
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`Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992)………………… 16
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`City of Oakland v. BP, No. 18-16663 (Aug. 12, 2020)……………… 6
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 5 of 58
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`City of Tacoma v. State, 121 Wash. 448 (1922)…………………….. 40
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`City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958)…….. 37
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`Commonwealth v. Chapin, 22 Mass. (5 Pick.) 199, 207 (1827)…….. 4
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`Cost Management Services v. Washington Nat. Gas, 99 F.3d 937
`(9th Cir. 1996)…………………………………………………………. 38
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`Ervin v. JP Morgan Chase Bank NA, No. GLR-13-2080,
`2014 WL 4052895 (D. Md. Aug. 13, 2014)…………………………… 11
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`Fla. Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963)………… 15n
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`Gully v. First National Bank in Meridian, 299 U.S. 109 (1936)………. 46
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`Hamilton v. Marquis of Donegall, 3 Ridgeway’s Parl Cases 267
`(Ire. 1795)……………………………………………………………… 29
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`Hart v. Bayer Corp., 199 F. 3d 239 (5th Cir. 2000)…………………… 6
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`Hart v. Hill, 1 Whart. 124, 137 (Pa. 1836)……………………………. 4
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`Hines v. Davidowitz, 312 U.S. 52 (1941)…………………………….. 15n
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`Holyoke Co. v. Lyman, 82 U.S. 500 (1872)………………………….. 27
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`Hortonville Joint Sch. Dist. No. I v. Hortonville Educ. Ass'n,
`426 U.S. 482 (1976)…………………………………………………... 8
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`Maryland Public Service Commission v. Talen Energy Marketing
`LLC (U.S. Supreme Ct. No. 14-614), April 9, 2016)………………… 18-19
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`Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)………………………… 14
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`Menominee Tribe v. United States, 391 U.S. 404 (1968)…………….. 20
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 6 of 58
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`Middlesex County Ethics Committee v. Garden State Bar Ass'n,
`457 U.S. 423 (1982)…………………………………………………... 45
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`Murphy v. NCAA, 138 S. Ct. 1461 (2018)…………………………… 45
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`Palacios v. IndyMac Bank, FSB, No. CV 09-04601
`2009 WL 3838274 4 (C.D. Cal. Nov. 13, 2009)……………………… 11
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`Parker v. People, 111 Ill. 581 (1884)…………………………………. 26
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`Perkins v. Johnson, 551 F. Supp. 2d 1246 (D. Colo. 2008)………….. 11
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`Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)……………………….. 15
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`PUD 1 of Jefferson Cty. v. Washington Dep’t of Ecology,
`511 U.S. 700 (1994)…………………………………………………. 40
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`Puyallup Tribe v. Department of Game, 414 U.S. 44 (1973)……….. 41
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`Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963)………………… 15
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`Rice v. Sante Fe Elevator Corp., 331 U.S. 218 (1947)……………… 16
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`Ring v. Arizona, 536 U.S. 584 (2002)………………………………. 8n
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`Shaw v. Crawford, 10 Johns. 236 (N.Y. 1813)……………………… 5
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`Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950)…….. 45
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`Murphy v. NCAA, 138 S. Ct. 1461 (2018)…………………………. 45
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`Stoughton v. Baker, 4 Mass. (1 Tyng) 522 (1808)…………………. 4, 25-26
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`State v. Svenson, 104 Wn. 2d 533 (1985)………………………….. 32
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`United States v. Beebe, 127 U.S. 338 (1888)………………………. 39
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 7 of 58
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`United States v. Kirkpatrick, 22 U.S. (9 Wheat.) 720 (1824)……… 39
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`United States v. Thompson, 98 U.S. (8 Otto) 486 (1879)………….. 39
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`Utah Power & Light Co. v. United States, 243 U.S. 389 (1917)…… 39n, 39
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`Vail v. Seaborg, 120 Wash. 126, 130 (1922)……………………….. 37
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`Virginia Uranium, Inc. v. Warren, 587 U.S. _ (2019)……………… 37
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`Weld v. Hornby, (1806) 103 Eng. Rep. 195 (K.B.)………………… 4, 26
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`Williams v. Wilcox, 8 Ad. & E. 315 (1838)………………………… 28
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`Wyeth v. Levine, 555 U.S. 555 (2009)……………………………… 15
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`Statutes:
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`Act of Aug. 14, 1848, § 12, 9 Stat. 328……………………………… 19-20
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`Act of Mar. 2, 1853, § 12, 10 Stat. 177……………………………… 20
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`16 U.S.C. § 797……………………………………………………… 12
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`Federal Power Act, 16 U.S.C. §§ 791a………………………………. 5
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`28 U.S.C. § 1291…………………………………………………….. 1
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`28 U.S.C. § 1331…………………………………………………….. 6, 32
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`28 U.S.C. § 1441…………………………………………………….. 1
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`Clean Air Act, 42 U.S.C. § 7401..…………………………………… 7
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`RCW 4.04.010……………………………………………………….. 7
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 8 of 58
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`RCW 77.15.320……………………………………………………… 34
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`RCW 77.57.030……………………………………………………… 34
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`Other:
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`U.S. Const., Art. VI, Cl. 2…………………………………………… 22
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`Washington State Constitution (Wash. Const. Art. XXVII, § 2)……. 30
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`Washington State Enabling Act (Act of Feb. 22, 1889
`ch. 180, 25 Stat. 676, 684 [§ 24] [1889]……………………………… 29-30
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`Joseph K. Angell, Treatise on the Law of Watercourses
`(5th ed. 1854)………………………………………………………… 27
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`Amy Coney Barrett, Substantive Canons and Faithful Agency
`90 B.U. L. REV. 109 (2010)…………………………………………. 16
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`Joseph Chitty, A Treatise on the Game Laws and on Fisheries
`(2d ed. 1826)………………………………………………………….. 27-28
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`Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) 17
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`John F. Manning, Textualism and the Equity of the Statute
`101 COLUM. L. REV. 124 (2001)…………………………………… 16
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`Antonin Scalia, A Matter of Interpretation: Federal Courts
`and the Law (1997)……………………………………………………. 15
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`Antonin Scalia & Bryan A. Garner, Reading Law:
`The Interpretation of Legal Texts (2012)……………………………… 17
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`Charles Stewart, A Treatise on the Laws of Scotland
`Relating to Rights of Fishing (1869)………………………………….. 28
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 9 of 58
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`Humphrey W. Woolrych, A Treatise of the Law of Waters (1853)…… 28
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`Sandi Zellmer, When Congress Goes Unheard:
`Savings Clauses’ Rocky Judicial Reception,
`Preemption Choice: The Theory, Law, and Reality of Federalism’s
`Core Question (William W. Buzbee, ed., 2009)……………………… 39
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`Cong. Globe, 30th Cong., 1st Sess. 1020 (1848)……………………… 3
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`Fed. R. Civ. P. 12 (b) (6)……………………………………………… 5
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`Magna Carta (1215)…………………………………………………… 26
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 10 of 58
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`Introduction
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`Appellant appeals from a judgment of the district court wherein the court entered an
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`order removing plaintiff’s claims to federal court based upon finding that it had
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`federal question jurisdiction (ER-3) and dismissing its complaint with prejudice
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`based upon lack of jurisdiction (ER-11).
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`Jurisdiction
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`Plaintiff’s appeal was timely filed and this Circuit possesses jurisdiction over such
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`appeal pursuant to 28 U.S.C. § 1291.
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`Assignments of Error
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`1. The district court erred in removing the cause from the Superior
`Court of the State of Washington for Skagit County. The complaint
`was entirely premised upon claims arising under state law and raised
`no substantial federal questions which might provide the basis for
`removal. The only issue relating to federal law was federal preemption,
`which is properly to be raised as a defense in the state court rather than
`as a basis for removal.
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`2. Neither the Federal Power Act nor the 1986 amendments thereto
`completely preempt the application of state law.
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`3. The District Court erred in concluding that Appellant’s participation
`in a 1995 Federal Energy Regulatory Commission agreement bar
`appellant from initiating its civil action.
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`4. The district court erred in concluding that the Federal Power Act so
`fully occupied the field as to preempt a cause of action for Nuisance.
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`Factual Background
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`As stated in appellant’s complaint in the Superior Court of the State of Washington
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`1
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 11 of 58
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`for Skagit County:
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`This is a Complaint in a Civil action seeking declaratory and
`prospective injunctive relief on grounds that a dam owned by
`respondent blocks the passage of migrating fish and therefore its
`presence and operation
`is contrary
`to
`the Washington State
`Constitution, the governing Congressional Acts preceding formation of
`the State of Washington which placed a servitude upon such dam, and
`binding principles of Common Law.
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`See ER-25. Appellant filed the operative Complaint in the Skagit County Superior
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`Court on June 30, 2021. Appellees removed the complaint to the United States
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`District Court for the Western District of Washington on July 21, 2021 (ER-38).
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`Appellant moved for remand (ER-5) which Defendants opposed. On November 9,
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`2021, this Court ruled that Plaintiff’s Supremacy Clause claim, asserted at ¶¶ 5.B.
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`and 6.B. of its Amended Complaint, raised a Federal Question over which this Court
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`had removal jurisdiction; and that in addition, several of Plaintiff’s claims raised a
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`“disputed, substantial federal issue” requiring interpretation of the 1848 Establishing
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`Act (ER-3). The Court also asserted supplemental jurisdiction over Plaintiff’s
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`remaining state-law claims, concluding they “are so related to claims in the action
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`within such original jurisdiction that they form part of the same case or controversy.”
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`See Order Denying Plaintiff’s Motion for Remand, (ER-3-10) (ECF No. 19 below).
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`On November 17, 2021, the district court entertained argument on appellee’s motion
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`to dismiss plaintiff’s complaint (ER-63) and, on December 2, 2021 the
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`2
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 12 of 58
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`Court entered an order dismissing plaintiff’s complaint on grounds that “this Court
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`Lacks Jurisdiction to Review Plaintiff’s Challenge to the 1995 FERC License and
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`Relicensing Order” (ER-17), notwithstanding that nowhere in appellant’s complaint
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`did it assert claims “challeng[ing] the 1995 FERC License and Relicensing Order”.
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`This appeal followed.
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`Historical Basis for Plaintiff’s Claims
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`The law of the Oregon Territory, later adopted for the Washington Territory,
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`prohibited obstructing rivers and streams. And under the common law, owners of
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`land adjacent to streams through which migratory fish swam could not inhibit fish
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`passage. Congress recognized the existence of a “valuable fishery” in the Oregon
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`Territory and took steps to ensure that the salmon there would not be “driven out”
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`by obstructions. Cong. Globe, 30th Cong., 1st Sess. 1020 (1848). The Territory’s
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`Organic Act accordingly provided “[t]hat the rivers and streams of water in said
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`Territory of Oregon in which salmon are found * * * shall not be obstructed by dams
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`or otherwise, unless such dams or obstructions are so constructed as to allow salmon
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`to pass freely up and down such rivers and streams.” Act of Aug. 14, 1848, § 12, 9
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`Stat. 328 (emphasis added). That provision was incorporated into the law of the
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`Washington Territory. See Act of Mar. 2, 1853, § 12, 10 Stat. 177.
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`3
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 13 of 58
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`Protection against fishery-depleting obstructions also has deep roots in the
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`Anglo-American legal tradition. British common law authorities recognized that
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`possession of a fishery came with an implied “right” in the free passage of migratory
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`fish. Weld v. Hornby, (1806) 103 Eng. Rep. 195 (K.B.) 199. The erection and use of
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`stone weirs, “through which the fish could not insinuate themselves,” were
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`accordingly considered “as public nusances.” Id. at 198-199. See J.B. Phear, A
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`Treatise on Rights of Water, 29-30 (London 1859) (“[T]he owner of the land * * *
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`cannot do anything which shall sensibly affect the natural supply of fish in the parts
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`of the stream belonging to other proprietors.”). Early American case law adopted the
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`same view, which was understood to be “founded upon that universal principle of
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`every just code of laws, sic utere tuo ut alienum non lœdas,” Commonwealth v.
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`Chapin, 22 Mass. (5 Pick.) 199, 207 (1827), that is, “Use your own property such
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`that you do not injure another’s.” As the Massachusetts Supreme Judicial Court
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`explained, “[t]he value of [a] fishery depends on the shoals of fish that enter the river
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`to pass to the ponds above to cast their spawn: and if none were allowed to pass, the
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`fishery would be of little value.” Stoughton v. Baker, 4 Mass. (1 Tyng) 522, 527
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`(1808). Riparian land owners were thus obligated not to take any affirmative action
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`to substantially inhibit fish migration, an obligation that applied regardless of
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`whether the obstruction was upstream or downstream. See Hart v. Hill, 1 Whart. 124,
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`4
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 14 of 58
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`137 (Pa. 1836) (“The owner of the land * * * must not, even out of fishery season,
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`do any act which will injure or destroy the fishery.”); Shaw v. Crawford, 10 Johns.
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`236, 238 (N.Y. 1813) (per curiam) (“Every owner of a mill-dam on a stream which
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`fish from the ocean annually visit, is bound to provide a convenient passage way for
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`the fish to ascend.”); see also Chapin, supra 22 Mass. (5 Pick.) at 205.
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`Subsequent to removal, appellee moved to dismiss appellant’s complaint and
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`argued that the 1848 Establishing Act is no longer good law, as it was never
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`incorporated into Washington, either when Washington became a territory distinct
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`from Oregon, or upon its statehood. Appellees alternatively argued that even if that
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`law was continued in force in Washington, it was repealed, on any of several possible
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`occasions, both by the State of Washington and by the U.S. Congress. Regarding
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`Plaintiff’s state-law claims, including those brought under Washington nuisance and
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`common law, Appellees argued they were both conflict and field preempted by the
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`Federal Power Act, 16 U.S.C. §§ 791a, et seq., (“FPA”).
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`Review of a decision of a district court dismissing a complaint under Fed. R. Civ.
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`Standard of Review
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`P. 12 (b) (6) is de novo.
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`Summary of Argument
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`The district court erred in removing the cause from the Superior Court of the
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`5
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 15 of 58
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`State of Washington for Skagit County. The complaint was entirely premised upon
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`claims arising under state law and raised no federal questions which might provide
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`the basis for removal. The only issue relating to federal law was federal preemption,
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`which is properly to be raised as a defense in the state court rather than as a basis for
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`removal. Neither the Federal Power Act, the 1986 amendments thereto, nor a 1995
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`settlement agreement preempt the application of state law. The district court erred
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`in concluding that the Federal Power Act so fully occupied the field as to preempt a
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`state-law based cause of action for Nuisance.
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`Argument
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`1. Plaintiff’s state court complaint was not properly removable as it
`asserts claims purely arising under state law and does not conflict
`with Congress’ intent embodied in the plain text of the Federal
`Power Act.
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`The district court has removal jurisdiction in any case where it has original
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`jurisdiction. 28 U.S.C. § 1441 (a). The district court has original federal question
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`jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of
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`the United States." 28 U.S.C. § 1331. However, the fact that federal law may
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`provide a defense to a state claim is insufficient to establish federal question
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`jurisdiction. See, e.g., Hart v. Bayer Corp., 199 F. 3d 239, 244 (5th Cir. 2000). In
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`this Circuit, City of Oakland v. BP, No. 18-16663 (Aug. 12, 2020), is instructive.
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`There, two cities sued five energy companies in state court asserting claims of the
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`6
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 16 of 58
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`common law tort of Nuisance. The cause was removed to federal court. Although
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`removal is appropriate where the claims in a complaint are capable of being resolved
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`in federal court without disrupting the federal-state balance approved by Congress
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`(Amended Slip Opinion at 18), the panel concluded that the “well-pleaded
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`complaint” rule precluded removal because plaintiffs’ state court complaint failed to
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`raise a substantial federal question. The panel buttressed its decision by also
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`concluding that the state law claim was not completely preempted by the Clean Air
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`Act. Id., at pp. 24-25.
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`In this case, appellant’s claims stated in its Complaint fail to raise a substantial
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`federal question and, considering the allegations of the Complaint as a whole rather
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`than considering paragraphs in isolation, arise solely under Washington state law,
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`i.e., claims that the Washington State Constitution and laws prohibit construction of
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`dams within Washington which block fish passage, and claims that Washington’s
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`“reception statute” adopting common law as the law of the State also prohibits such
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`blockages. As such, plaintiff’s complaint, which the respondent seeks to remove,
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`purely involves only questions of state law. As a matter of federalism, principles of
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`comity require that questions arising under state law should be resolved in the first
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`instance by state courts. Even the United States Supreme Court has held that the
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`Court is generally "bound to accept the interpretation of [the State's] law by the
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`7
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 17 of 58
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`highest court of the State." Hortonville Joint Sch. Dist. No. I v. Hortonville Educ.
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`Ass'n, 426 U.S. 482, 488 (1976), quoted with approval in Alabama v. Shelton, 535
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`U.S. 654, 674 (2002).1 By allowing removal of this action from the Skagit County
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`Superior Court to the United States District Court, the district court essentially
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`commandeered the case such that the state court was left without the opportunity to
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`interpret the state’s own constitution and laws.
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`In this Circuit, because federal removal jurisdiction “depends solely on the
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`plaintiff’s claims for relief and not on anticipated defenses to those claims,” ARCO
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`Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont., 213 F.3d
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`1108, 1113 (9th Cir. 2000), “a case may not be removed to federal court on the basis
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`of a federal defense, including the defense of preemption, even if the defense is
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`anticipated in the plaintiff’s complaint, and even if both parties concede that the
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`federal defense is the only question truly at issue,” Caterpillar Inc. v. Williams, 482
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`U.S. 386, 393 (1987). Therefore, as the “master of the claim,” the plaintiff can
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`generally “avoid federal jurisdiction by exclusive reliance on state law.” Id. at 392.
`
`It is apparent from the district court’s December 2, 2021 Order that federal
`
`8
`
`
`
`1 In Ring v. Arizona, involving the state law allocation of functions between judge
`and jury, the Supreme Court without the slightest hesitation abandoned its prior
`construction of an Arizona death penalty law on the basis of a subsequent state supreme
`court opinion stating that the Court's initial understanding was in error: "[W]e recogniz[e]
`that the Arizona court's construction of the State's own law is authoritative.” 536 U.S. 584,
`603 (2002).
`
`
`
`
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 18 of 58
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`preemption was the only question truly at issue:
`
`[T]he question that Plaintiff has raised here—whether Defendants
`should be required to construct a fishway—is not merely tangentially
`or coincidentally related to the operation of the dam; it is one that
`Congress explicitly directed FERC to consider in the licensing of
`hydroelectric projects[.]
`
`
`ER 21 (Order, Dec. 2, 2021, p. 1). According to the District Court, since “neither
`
`the Department of the Interior nor the Department of Commerce, as authorized under
`
`16 U.S.C. §811, prescribed as a condition of relicensing the construction of a
`
`fishway at Gorge Dam…to enable the passage of migrating fish”, appellant, since it
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`was a party to a Fisheries Settlement Agreement in the 1975-1995 FERC relicensing
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`proceeding, was bound by it.
`
`2. Resolution of plaintiff’s state-based claims by the state court is not
`“exclusively” subject to federal jurisdiction, as the Federal Power
`Act’s savings clause expressly precludes complete federal
`preemption.
`
`
`As to whether plaintiff’s complaint should have been removed from the state
`
`court because the claims asserted in it are completely federally preempted and
`
`exclusively subject to federal jurisdiction, the United States Supreme Court has
`
`identified only three federal statutes that completely preempt the application of state
`
`law: (1) Section 301 of the Labor-Management Relations Act; (2) Section 502 of the
`
`9
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`
`
`
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 19 of 58
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`Employee Retirement Income Security Act of 1974; and (3) the usury provisions of
`
`the National Bank Act. Beneficial Nat'l Bank v. Anderson, 531 U.S. 1 (2003). The
`
`Federal Power Act is not among them.
`
`The Supreme Court has identified two general ways in which federal law can
`
`preempt state law. First, federal law can expressly preempt state law when a federal
`
`statute or regulation contains explicit preemptive language. Second, federal law can
`
`impliedly preempt state law when Congress’s preemptive intent is implicit in the
`
`relevant federal law’s structure and purpose.
`
`Many federal statutes contain provisions that purport to restrict their
`
`preemptive effect. These “savings clauses” make clear that federal law does not
`
`preempt certain categories of state law, reflecting Congress’s recognition of the need
`
`for states to “fill a regulatory void” or “enhance protection for affected communities”
`
`through supplementary regulation. Sandi Zellmer, When Congress Goes Unheard:
`
`Savings Clauses’ Rocky Judicial Reception, in Preemption Choice: The Theory,
`
`Law, and Reality of Federalism’s Core Question 144, 146 (William W. Buzbee, ed.,
`
`2009). Some courts and commentators have labeled these clauses “anti-preemption
`
`provisions.” While the case law on anti-preemption provisions is not well-
`
`developed, some courts have addressed such provisions in the context of defendants’
`
` attempts to remove state law actions to federal court.
`
`10
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`
`
`
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 20 of 58
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`Specifically, certain courts have relied on anti-preemption provisions to reject
`
`removal arguments premised on the theory that federal law “completely” preempts
`
`state laws concerning the relevant subject. In Bernhard v. Whitney National Bank,
`
`523 F.3d 546 (5th Cir. 2008), for example, the U.S. Court of Appeals for the Fifth
`
`Circuit relied on an anti-preemption provision in the Electronic Funds Transfer Act
`
`to reject a defendant-bank’s attempt to remove state law claims involving
`
`unauthorized funds transfers to federal court. 523 F.3d 546, 548. A number of
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`federal district courts have also adopted similar interpretations of other anti-
`
`preemption provisions. See Ervin v. JP Morgan Chase Bank NA, No. GLR-13-2080,
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`2014 WL 4052895 at *3 (D. Md. Aug. 13, 2014); Palacios v. IndyMac Bank, FSB,
`
`No. CV 09-04601, 2009 WL 3838274 at *4 (C.D. Cal. Nov. 13, 2009); Perkins v.
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`Johnson, 551 F. Supp. 2d 1246, 1255 (D. Colo. 2008).
`
`As to whether the Federal Power Act expressly preempts state law, it does not.
`
`Section 27 of the Act of June 10, 1920 expressly provided that:
`
`Nothing contained in this chapter shall be
`construed as affecting or intending to affect or
`in any way to interfere with the laws of the
`respective States[.]
`
`
`
`Such an exclusionary clause also appears in the 1986 amendments to the Federal
`
`Power Act:
`
`
`
`11
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`
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 21 of 58
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`Sec. 17. Savings Provisions.
`
`(a) In General.—Nothing in this Act shall be construed as authorizing the
`appropriation of water by any Federal, State, or local agency, Indian
`tribes, or any other entity or individual. Nor shall any provision of this
`Act--
`(1) Affect the rights or jurisdiction of the United States, the States, Indian
`tribes, or other entities over waters of any river or stream or over any
`ground water resource;
`(2) Alter, amend, repeal, interpret, modify, or be in conflict with any
`interstate compacts made by the States;
`(3) Alter or establish the respective rights of States, the United States,
`Indian tribes, or any person with respect to any water or water-related
`rights;
`(4) Alter, expand, or create rights to use transmission facilities owned by
`the Federal Government;
`(5) Alter, amend, repeal, interpret, modify, or be in conflict with, the Treaty
`rights or other rights of any Indian tribe;
`(6) Permit the filing of any competing application in any relicensing
`proceeding where the time for filing a competing application expired
`before the enactment of this Act; or
`(7) Modify, supersede, or affect the Pacific Northwest Electric Power
`Planning and Conservation Act.
`
`16 U.S.C. § 797. The Supreme Court has made clear that Congress’s purpose is the
`
`“ultimate touchstone” of its statutory analysis. The Court’s analysis of Congress’s
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`purpose has at times been informed by a canon of statutory construction known as
`
`the “presumption against preemption,” which instructs that federal law should not
`
`be read as preempting state law “unless that was the clear and manifest purpose of
`
`Congress.” Section 3 of the Congress’ 1986 amendments to the Federal Power Act
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`clearly demonstrates a Congressional purpose to protect and enhance fish and
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`wildlife:
`
`
`
`13
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`
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 22 of 58
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`Section 3. Environmental Considerations in Licensing.
`(a) Purposes of License.—Section 4(e) of the Federal Power Act is
`amended by adding the following at the end thereof: “In deciding
`whether to issue any license under this Part for any project, the
`Commission, in addition to the power and development purposes for
`which licenses are issued, shall give equal consideration to the purposes
`of energy conservation, the protection, mitigation of damage to, and
`enhancement of, fish and wildlife (including related spawning grounds
`and habitat), the protection of recreational opportunities, and the
`preservation of other aspects of environmental quality.”
`
`
`
`16 U.S.C. § 797. Consequently, not only does the Federal Power Act expressly not
`
`preempt State laws by virtue of a savings clause, the requirement that dams within
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`Washington not block the passage of fish is entirely consistent and “compatible”
`
`with Congress purposes of enhancing fish and wildlife embodied in that Act.
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`Consequently, remanding the case so that the state court can interpret the State’s
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`own constitution vis-à-vis preserving fish passage creates no irreconcilable conflict
`
`with federal law.
`
`The United States Supreme Court has identified two subcategories of implied
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`preemption: “field preemption” and “conflict preemption.” Field preemption occurs
`
`when a pervasive scheme of federal regulation implicitly precludes supplementary
`
`state regulation, or where states attempt to regulate a field where there is clearly a
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`dominant federal interest. Conflict preemption occurs when simultaneous
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`compliance with both federal and state regulations is impossible (“impossibility
`
`14
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`Case: 22-35000, 03/02/2022, ID: 12384822, DktEntry: 11, Page 23 of 58
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`preemption”), or when state law poses an obstacle to the accomplishment of federal
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`goals (“obstacle preemption”). Given that all of the over 50 hydroelectric dams in
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`Washington licensed by the Federal Energy Regulatory Commission—except one—
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`already have fish p
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