56 F.4th 1179
9th Cir.2022Background
- Gorge Dam (part of the Skagit River Hydroelectric Project) operates under a 1995 FERC license that incorporated settlement agreements addressing fisheries; FERC did not impose a fishway requirement in that license.
- The Sauk‑Suiattle Tribe (a party/intervenor in the relicensing) sued the City of Seattle in Washington state court seeking declaratory and injunctive relief, alleging the dam’s operation without fishways violates the 1848/1853 Congressional Acts, the Supremacy Clause, the Washington Constitution, and state common law.
- Seattle removed to federal court; the district court denied remand (finding a substantial federal question) but later dismissed the complaint for lack of subject‑matter jurisdiction under the Federal Power Act (FPA) § 313(b) because review of FERC licensing decisions is exclusive in the federal courts of appeals.
- The Ninth Circuit affirmed: (1) removal proper because the Tribe’s claims necessarily raise substantial federal questions; (2) the district court lacked jurisdiction under § 313(b) because the Tribe’s claims were, in substance, an attack on the FERC license; (3) dismissal (rather than remand) was proper under the court’s futility exception to 28 U.S.C. § 1447(c).
- Separate concurrences: Judge Fletcher concurred in the result but emphasized that absent the futility doctrine the correct remedy would be remand; Judge Bennett (joined by Murguia and Fletcher) concurred in the outcome but urged en banc reconsideration and abandonment of the futility exception to § 1447(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was proper under § 1441 because the complaint raises a federal question | Tribe: suit is a state declaratory action; federal issues are incidental and do not create federal‑question jurisdiction | Seattle: Tribe’s claims necessarily depend on federal law (Congressional Acts/Supremacy Clause) and thus present a substantial federal question | Removal proper — complaint necessarily raises a substantial federal question (Franchise Tax Bd./Gunn factors satisfied) |
| Whether district court properly exercised supplemental jurisdiction over state claims | Tribe: state claims are primary and belong in state court | Seattle: state claims derive from same nucleus of operative fact and may be heard under § 1367 | Supplemental jurisdiction proper — state claims arise from same controversy |
| Whether § 313(b) of the FPA bars district‑court review and vests exclusive jurisdiction in courts of appeals | Tribe: characterizes claims as independent state/federal claims not seeking review of FERC order; did not seek rehearing/appeal to court of appeals | Seattle: substance of suit attacks an element of the FERC license (no fishway); § 313(b) forecloses district‑court review | District court lacked jurisdiction under § 313(b); Tribe’s suit is in substance an objection to the FERC order and must be brought, if at all, in the courts of appeals |
| Whether the district court must remand under 28 U.S.C. § 1447(c) or may dismiss as futile | Tribe: § 1447(c) is mandatory — lack of jurisdiction requires remand to state court | Seattle: remand would be futile because state courts lack jurisdiction for same reason; dismissal conserves resources | Dismissal affirmed under Ninth Circuit’s futility exception to § 1447(c), though concurring opinions urge reconsideration of that exception |
Key Cases Cited
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) (interpreting FPA § 313(b) to provide exclusive, complete judicial-review scheme for FERC orders)
- Franchise Tax Bd. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1 (1983) (well‑pleaded complaint rule and substantial federal‑question doctrine)
- Gunn v. Minton, 568 U.S. 251 (2013) (four‑part test for substantial federal question jurisdiction)
- California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908 (9th Cir. 1989) (§ 313(b) bars district‑court challenges that in substance attack FERC licensing orders)
- Hornish v. King County, 899 F.3d 680 (9th Cir. 2018) (federal‑question jurisdiction over state declaratory claims where resolution requires interpreting federal statute)
- International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72 (1991) (discussing § 1447(c) and noting the statute’s plain text requiring remand where jurisdiction is lacking)
- Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 1991) (adopting a narrow futility exception to § 1447(c))
- Polo v. Innoventions Int’l, LLC, 833 F.3d 1193 (9th Cir. 2016) (acknowledging questions about the futility exception but applying it)
- Global Rescue Jets, LLC v. Kaiser Found. Health Plan, Inc., 30 F.4th 905 (9th Cir. 2022) (applied futility exception and affirmed dismissal rather than remand)
- First Iowa Hydro‑Electric Cooperative v. Federal Power Commission, 328 U.S. 152 (1946) (noting federal interest in regulation of FERC‑licensed projects)