SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUK-SUIATTLE INDIAN No. 22-35000
TRIBE,
D.C. No. 2:21-cv-
Plaintiff-Appellant, 01014-BJR
v.
OPINION
CITY OF SEATTLE; SEATTLE
CITY LIGHT, a subdivision of
the City of Seattle,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted October 7, 2022
Seattle, Washington
Filed December 30, 2022
Before: Mary H. Murguia, Chief Judge, and William A.
Fletcher and Mark J. Bennett, Circuit Judges.
2 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
Per Curiam Opinion;
Concurrence by Judge W. Fletcher;
Concurrence by Judge Bennett
SUMMARY *
Federal Power Act / Removal
The panel affirmed the district court’s denial of the Sauk-
Suiattle Indian Tribe’s motion to remand to state court and
the district court’s dismissal, for lack of subject matter
jurisdiction under the Federal Power Act, of the Tribe’s
action alleging that the City of Seattle’s operation of the
Gorge Dam without fish passage facilities, or fishways,
violated certain federal and state laws.
The Gorge Dam is one of three dams that make up the
Skagit River Hydroelectric Project. The Federal Energy
Regulatory Commission issued an order granting Seattle a
new license to operate the Project. The order contained no
fishway requirement.
The Tribe sought (1) a declaration that the Gorge Dam
violates the 1848 Act establishing the Oregon Territory and
the 1853 Act establishing the Washington Territory
(“Congressional Acts”), the Supremacy Cluse of the United
States Constitution, and the Washington State Constitution;
(2) an injunction that either prohibits Seattle from
maintaining the Gorge Dam in its present condition or
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 3
requires Seattle to provide a fishway; and (3) other “just and
equitable” relief.
The panel affirmed the district court’s order denying the
Tribe’s motion to remand the action to state court. The panel
held that the City properly removed the action to federal
court under 28 U.S.C. § 1441(a) because the Tribe’s right to
relief depended on resolution of a substantial question of
federal law. Applying a four-part test, the panel concluded
that the Tribe’s complaint necessarily raised federal issues
because it expressly invoked federal laws, and it was
uncontested that the federal issues were disputed. The
question whether the Supremacy Clause and Congressional
Acts governed Seattle’s operation of the FERC-licensed
Project implicated the federal government’s strong interest
in national regulation, and thus the issue was a substantial
one. Finally, exercising jurisdiction would not disturb any
congressionally approved balance of federal and state
judicial responsibilities.
The panel also affirmed the district court’s dismissal for
lack of subject matter jurisdiction because the Tribe’s
complaint was subject to section 313(b) of the Federal Power
Act, which vests exclusive jurisdiction in the federal courts
of appeals over all objections to FERC orders by a party to a
FERC proceeding. The panel concluded that the Tribe’s
complaint did not expressly challenge the FERC order
granting Seattle a new license to operate the Project, but the
gravamen of the complaint, that the Gorge Dam must have
fishways, was a direct attack on FERC’s decision that no
fishways were required.
The panel held that the district court properly dismissed
the action. 28 U.S.C. § 1447(c) provides: “If at any time
before final judgment it appears that the district court lacks
4 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
subject matter jurisdiction, the case shall be remanded [to
state court].” The panel concluded that it was bound by the
court’s precedent establishing a futility exception to §
1447(c). The panel concluded that the futility exception
applied because there was absolute certainty that the state
court would dismiss the action following remand for the
same reason that the district court lacked
jurisdiction: section 313(b) of the Federal Power Act vested
the federal courts of appeals with exclusive jurisdiction over
the Tribe’s action.
Judge W. Fletcher concurred in the result but did not
concur fully in the reasoning of the majority’s per curiam
opinion. He wrote that the question was not whether the
district court was correct in its initial denial of the Tribe’s
motion to remand, but rather whether the district court was
correct in its ultimate dismissal for lack of subject matter
jurisdiction. Judge W. Fletcher wrote that, absent the futility
exception, once the district court correctly concluded that it
did not have original subject matter jurisdiction, the required
course would have been for the district court to remand the
suit to the state court as improperly removed. Judge W.
Fletcher agreed with Judge Bennett both that dismissal was
proper under the futility exception, and that the exception is
based on a misinterpretation of the relevant statute.
Concurring, Judge Bennett, joined by Chief Judge
Murguia and Judge W. Fletcher, wrote that the court’s
precedent required the panel to apply the futility exception
to 28 U.S.C. § 1447(c)’s remand requirement. Judge
Bennett wrote that the futility exception does not comport
with § 1447(c)’s plain text, and, in the appropriate case, the
court should reconsider the futility exception en banc and
abandon it.
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 5
COUNSEL
Jack Warren Fiander (argued), Towtnuk Law Offices LTD,
Yakima, Washington, for Plaintiff-Appellant.
Kari L. Vander Stoep (argued), Elizabeth Thomas, and
Christina A. Elles, K&L Gates LLP, Seattle, Washington,
for Defendants-Appellees.
OPINION
PER CURIAM:
The City of Seattle/Seattle City Light 1 (“Seattle”) owns
and operates the Gorge Dam, which is part of the Skagit
River Hydroelectric Project (“Project”). Seattle operates the
Project pursuant to a thirty-year license that was issued by
the Federal Energy Regulatory Commission (“FERC”) in
1995. The Sauk-Suiattle Indian Tribe (“Tribe”) sued Seattle
in Washington state court, alleging that Seattle’s operation
of the Gorge Dam without fish passage facilities
(“fishways”) violates certain federal and state laws. Seattle
removed the case to federal court. The district court denied
the Tribe’s motion to remand, finding that it had jurisdiction
because the Tribe’s complaint raised substantial federal
questions. The district court then granted Seattle’s motion
to dismiss for lack of subject matter jurisdiction under the
Federal Power Act (“FPA”) and dismissed the complaint.
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1
Seattle City Light is not a separate entity from the City of Seattle.
6 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
I
A
The Gorge Dam, located in Newhalem, Washington, is
one of three dams that make up the Project. In 1927, FERC’s
predecessor licensed the Project for fifty years. 2 See Order
Accepting Settlement Agreement, Issuing New License, and
Terminating Proceeding (“FERC Order”), 71 FERC 61159,
61527 n.1 (1995).
Seattle applied for a new license in 1977, id., and FERC
allowed the Tribe, among others, to intervene in the
proceedings, id. at 61528–29. The Tribe and other entities
also engaged in settlement negotiations with Seattle
regarding the Project. Id. at 61527 n.1, 61529. The
negotiations resulted in several settlement agreements
(collectively, “Settlement Agreement”) that “purport[ed] to
resolve all issues related to project operation, fisheries,
wildlife, recreation and aesthetics, erosion control,
archaeological and historic resources, and traditional
cultural properties.” Id. at 61527.
As relevant here, the Settlement Agreement included the
“Fisheries Settlement Agreement,” which the Tribe joined.
Id. at 61529. “The Fisheries Settlement Agreement
incorporate[d] the Anadromous Fish Flow Plan and the
Anadromous and Resident Fish Non-Flow Plan and
establishe[d] Seattle’s obligations relating to fishery
resources affected by the project, including numerous
provisions to protect resident and migratory fish species.”
Id. at 61530. The Settlement Agreement also asked FERC
2For simplicity, we refer to both FERC and its predecessor, the Federal
Power Commission, as “FERC” or “Commission.”
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 7
to dismiss a separate proceeding that FERC had opened to
“examine the effects of the project’s flow regime on the
Skagit River’s fisheries resource.” Id. at 61527.
In 1995, almost twenty years after Seattle submitted its
application for a renewed license, FERC issued an order
granting Seattle a new thirty-year license to operate the
Project (“FERC Order”). 3 Id. at 61527, 61538. The FERC
Order incorporated into the new license all parts of the
Settlement Agreement “over which [FERC had]
jurisdiction” and as requested in the Settlement Agreement,
terminated FERC’s separate proceeding to examine the
Project’s effects on fishery resources. Id. at 61527–28.
The FERC Order also contained a section on “Fish
Passage.” Id. at 61535. In it, FERC explained that neither
the Secretary of Commerce nor the Secretary of the Interior
had prescribed a fishway under 16 U.S.C. § 811. 4 It also
explained that both the Department of Commerce and the
Department of the Interior were parties to the Settlement
Agreement in which they had agreed “that all issues
concerning environmental impacts from relicensing of the
Project, as currently constructed, are satisfactorily resolved
by [the Settlement Agreement].” 5 Id. at 61535 (internal
3
After the license expired in 1977, FERC issued annual licenses
authorizing Seattle to continue Project operations pending disposition of
its application. See FERC Order, 71 FERC ¶ 61159, at 61527 n.1.
4
That section provides in relevant part: “The Commission shall require
the construction, maintenance, and operation by a licensee at its own
expense of . . . such fishways as may be prescribed by the Secretary of
the Interior or the Secretary of Commerce, as appropriate.” 16 U.S.C.
§ 811.
5
As noted, the Tribe was also a party to the Settlement Agreement.
FERC Order, 71 FERC ¶ 61159, at 61528–29.
8 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
quotation marks omitted). Thus, the FERC Order contained
no fishway requirement. FERC did however “reserve[] [its]
authority to require fish passage in the future, should
circumstances warrant.” Id.The Tribe did not seek rehearing or appeal the FERC
Order.
B
In July 2021, the Tribe filed the operative amended
complaint against Seattle in Washington state court, seeking
only declaratory and injunctive relief under Washington’s
Declaratory Judgments Act. The complaint alleged that the
Gorge Dam “blocks the passage of migrating fish” and thus
its “presence and operation” without fishways violates
several laws: the 1848 Act establishing the Oregon Territory
and the 1853 Act establishing the Washington Territory
(“Congressional Acts”); 6 the Supremacy Clause of the
United States Constitution; the Washington State
Constitution, which purportedly incorporates the
Congressional Acts; and Washington nuisance and common
law. The complaint alleged that all these provisions prohibit
dams, like the Gorge Dam, that block fish passage.
The complaint sought (1) a declaration that the Gorge
Dam violates the Washington State Constitution, common
law, and the Supremacy Clause because Seattle is subject to
6
Section 12 of the Oregon Territory Act provided: “That the rivers and
streams of water in said Territory of Oregon in which salmon are found
. . . shall not be obstructed by dams or otherwise, unless such dams or
obstructions are so constructed as to allow salmon to pass freely up and
down such rivers and streams.” According to the Tribe, Section 12 was
later incorporated into the laws of the Territory of Washington via
Section 12 of the Washington Territory Act.
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 9
the Congressional Acts; (2) an injunction that either
prohibits Seattle from maintaining the Gorge Dam in its
present condition or requires Seattle to provide a fishway;
and (3) other “just and equitable” relief.
C
Seattle timely removed to federal court, and the district
court denied the Tribe’s remand motion. The district court
determined that it had jurisdiction under 28 U.S.C.
§§ 1441(a) and 1331 because the complaint raised
substantial federal questions: whether Seattle’s actions
violate the Congressional Acts and the Supremacy Clause.
The district court also determined that because all the Tribe’s
claims “center on a single, discrete issue: whether [Seattle]
may continue to operate the Gorge Dam in the absence of a
passageway for fish,” it had supplemental jurisdiction over
the remaining state-law claims under 28 U.S.C. § 1367(a).
The district court then granted Seattle’s motion to
dismiss for lack of subject matter jurisdiction. It found that
the complaint was a collateral attack on the FERC Order
because it challenged an issue decided by FERC: whether
Seattle was required to construct Gorge Dam fishways. And
because only a federal court of appeals can review such
challenges under section 313(b) of the FPA, 16 U.S.C.
§ 825l(b), the district court found that it lacked subject
matter jurisdiction and dismissed the complaint.
The Tribe appeals from the district court’s orders
denying remand and granting the motion to dismiss.
Pursuant to this court’s order, the parties have also filed
supplemental briefs on whether it was proper for the district
court to dismiss the action considering 28 U.S.C. § 1447(c),
which provides, in part: “If at any time before final judgment
10 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded [to state court].”
II
We review “issues of subject matter jurisdiction and
denials of motions to remand removed cases de novo.”
Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1315 (9th Cir.
1998). We also review “de novo . . . whether the district
court had supplemental jurisdiction.” Trustees of Constr.
Indus. & Laborers Health & Welfare Tr. v. Desert Valley
Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003).
III
A7
The federal removal statute provides that “any civil
action brought in a State court of which the district courts of
the United States have original jurisdiction . . . may be
removed by the defendant . . . to the district court of the
United States.” 28 U.S.C. § 1441(a). District courts have
original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. Where, as here, state law creates the cause
of action, 8 the action arises under federal law when “a well-
7
Whether the district court correctly determined that removal was proper
and denied the Tribe’s motion to remand is squarely before us, as the
Tribe raises the issue and the parties have fully briefed it. See Greenlaw
v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to
frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present.”).
8
As discussed above, the Tribe’s claims are brought under Washington’s
Declaratory Judgments Act. We have treated such claims as state-law
claims. See Hornish v. King Cnty., 899 F.3d 680, 687–91 (9th Cir. 2018)
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 11
pleaded complaint establishes . . . that the plaintiff’s right to
relief necessarily depends on resolution of a substantial
question of federal law.” Franchise Tax Bd. v. Constr.
Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 27–28 (1983).
A substantial federal question exists when the question is
“(1) necessarily raised, (2) actually disputed, (3) substantial,
and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.”
Gunn v. Minton, 568 U.S. 251, 258 (2013). All four
requirements are met here.
As to the first two requirements, the Tribe’s complaint
necessarily raises federal issues because it expressly invokes
federal laws, and it is uncontested that the federal issues are
disputed. The complaint alleges that the Gorge Dam’s
“presence and operation” violates “the governing
Congressional Acts” and “violates [the Supremacy Clause] .
. . in that the [Congressional Acts] imposed a prior restriction
against such dams.” The complaint also asks for
corresponding declarations that the Gorge Dam’s presence
and operation violate the Congressional Acts and Supremacy
Clause. Indeed, at oral argument before the district court,
the Tribe’s counsel conceded that the suit involved federal
questions: “But clearly [there’s] a federal question, because
the Supremacy Clause, the laws enacting this provision
going back to 1848, were enacted by Congress as a matter of
the supreme law of the nation.”
Turning to the third requirement, “[t]he substantiality
inquiry . . . [looks] to the importance of the issue to the
(treating a claim for declaratory relief under Washington’s Declaratory
Judgments Act as a state-law claim, even when such claim implicated a
federal statute).
12 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
federal system as a whole.” Gunn, 568 U.S. at 260. As
evidenced by the FPA, the federal government has a strong
interest “in maintaining control over [the] engineering,
economic and financial soundness” of FERC-licensed
projects, like the Gorge Dam. First Iowa Hydro-Elec. Co-
op. v. Fed. Power Comm’n, 328 U.S. 152, 172 (1946).
Indeed, the FPA was an effort to “secure enactment of a
complete scheme of national regulation which would
promote the comprehensive development of the water
resources of the Nation.” Id. at 180. Whether the
Supremacy Clause and Congressional Acts govern Seattle’s
operation of the FERC-licensed Project implicates the
federal government’s strong interest in national regulation,
and thus the issue is a substantial one.
The final requirement considers whether exercising
jurisdiction will “disturb[] any congressionally approved
balance of federal and state judicial responsibilities.”
Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg.,
545 U.S. 308, 314 (2005). That Congress intended the
federal government to have comprehensive control over
FERC-licensed projects supports that exercising jurisdiction
will not disrupt “the federal-state balance approved by
Congress.” Gunn, 568 U.S. at 258. And it does not appear
that Washington State has any special responsibility in
determining whether a FERC-licensed operator like Seattle
has violated the Congressional Acts or the Supremacy
Clause. Cf. id. at 264 (explaining that exercising jurisdiction
over malpractice claims would disrupt the balance between
federal and state courts, as states have a special
responsibility in regulating lawyers’ conduct). Thus, this
action can be resolved “in federal court without disrupting
the federal-state balance approved by Congress.” Id. at 258.
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 13
The circumstances here are analogous to those in
Hornish v. King County, 899 F.3d 680 (9th Cir. 2018), in
which we held that the complaint raised a substantial federal
question. Id. at 691. In Hornish, plaintiffs sued in federal
court seeking a declaration under Washington’s Declaratory
Judgments Act that Washington’s King County had acquired
certain limited property rights under the Trails Act. 9 Id. at
689. We analyzed the four substantial-federal-question
requirements and found that they had been met. Plaintiffs’
claim necessarily raised a federal issue because the court
would have to interpret the Trails Act in determining the
scope of King County’s rights. Id. at 689–90. The County’s
rights under the Trails Act were in dispute. Id. at 690. The
federal issue was substantial and would not disrupt the
federal-state balance because, as evidenced by the Trails
Act, “the Government has a strong interest in both
facilitating trail development and preserving established
railroad rights-of-way for future reactivation of rail service,”
and thus “the scope of the Trails Act is ‘an important issue
of federal law that sensibly belongs in a federal court.’” Id.
at 691 (quoting Grable, 545 U.S. at 315). We therefore
concluded that federal jurisdiction was proper. Id.As in Hornish, the Tribe necessarily raises a federal issue
because a court would have to interpret the Congressional
Acts and apply the Supremacy Clause in determining
whether Seattle is violating the Congressional Acts by
operating the Gorge Dam without fishways. The parties
dispute Seattle’s obligations under the Congressional Acts
9
The Trails Act “is the culmination of congressional efforts to preserve
shrinking rail trackage by converting unused rights-of-way to
recreational trails.” Preseault v. I.C.C., 494 U.S. 1, 5 (1990).
14 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
and the applicability of the Supremacy Clause. 10 And
finally, the United States’s strong interest in national
regulation of FERC-licensed projects, as evidenced by the
FPA, supports that the issue of Seattle’s obligations under
the Congressional Acts is an important federal-law issue that
properly belongs in federal court. Thus, the district court
correctly determined that removal was proper based on a
substantial federal question.
The district court also properly exercised supplemental
jurisdiction over the remaining state-law claims because
they “are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy.” 28 U.S.C. § 1367(a). “Nonfederal claims are
part of the same ‘case’ as federal claims when they derive
from a common nucleus of operative fact and are such that a
plaintiff would ordinarily be expected to try them in one
judicial proceeding.” Trustees of Constr. Indus., 333 F.3d at
925 (internal quotation marks and citation omitted). As the
district court correctly pointed out, all the claims “center on
a single, discrete issue: whether [Seattle] may continue to
operate the Gorge Dam in the absence of a passageway for
fish.” Because all the claims rest on the same underlying
facts, the district court properly exercised supplemental
jurisdiction.
Based on the above, we affirm the district court’s order
denying remand.
10
As noted, the Tribe claims that the applicable “Supreme Law[s] of the
nation” are the Congressional Acts. And Seattle argues, among other
things, that the Congressional Acts are not applicable through the
Supremacy Clause because they were repealed by Congress.
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 15
B
We also affirm the district court’s dismissal for lack of
subject matter jurisdiction because the Tribe’s complaint is
subject to section 313(b) of the FPA, which vests exclusive
jurisdiction in the federal courts of appeals over all
objections to FERC orders by a party to a FERC proceeding,
even objections based on state law. 11
Section 313(b) provides:
Any party to a proceeding under this chapter
aggrieved by an order issued by the
Commission in such proceeding may obtain
a review of such order in the United States
11
It is undisputed that the Tribe was a party to the Gorge Dam relicensing
proceedings, as FERC granted the Tribe’s motion to intervene in the
proceedings. See FERC Order, 71 FERC ¶ 61159, at 61528–29; see also
18 C.F.R. § 385.102(c) (“Party means, with respect to a proceeding: . . .
Any person whose intervention in a proceeding is effective under Rule
214[, 18 C.F.R. § 385.214],” which governs what persons may intervene
and thereby become parties in FERC proceedings.). Regardless, we have
held that, under City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320(1958), section 313(b) bars non-parties from challenging a FERC order
in any court:
Section 313 of the [FPA] provides that only “parties”
to Commission proceedings may seek administrative
or judicial review of the Commission’s final orders.
Because section 313 enumerates “the specific,
complete and exclusive mode for judicial review of the
Commission’s orders,” City of Tacoma, 357 U.S. at
336, a non-party to the Commission’s proceedings
may not challenge the Commission’s final
determination in any court.
Cal. Trout v. FERC, 572 F.3d 1003, 1013 (9th Cir. 2009) (citations and
parallel citation omitted).
16 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
court of appeals for any circuit wherein the
licensee or public utility to which the order
relates is located or has its principal place of
business, or in the United States Court of
Appeals for the District of Columbia, by
filing in such court, within sixty days after the
order of the Commission upon the
application for rehearing, a written petition
praying that the order of the Commission be
modified or set aside in whole or in part. . . .
Upon the filing of such petition such court
shall have jurisdiction, which upon the filing
of the record with it shall be exclusive, to
affirm, modify, or set aside such order in
whole or in part.
16 U.S.C. § 825l(b) (emphasis added).
In City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320(1958), the Supreme Court interpreted section 313(b) as
vesting exclusive jurisdiction in the courts of appeals over
all objections to FERC orders:
Congress in [Section] 313(b) prescribed the
specific, complete and exclusive mode for
judicial review of the Commission’s orders. .
. . It thereby necessarily precluded de novo
litigation between the parties of all issues
inhering in the controversy, and all other
modes of judicial review. Hence, upon
judicial review of the Commission’s order,
all objections to the order, to the license it
directs to be issued, and to the legal
competence of the licensee to execute its
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 17
terms, must be made in the Court of Appeals
or not at all.
Id. at 336 (emphasis added) (footnote omitted). The Court
did not distinguish between challenges to a FERC order
based on federal law and challenges to a FERC order based
on state law, and the broad language the Court used admits
of none. Moreover, the Court held that section 313(b) barred
the State of Washington from relitigating state-law claims.
Id. at 330, 341 (noting that the state’s cross-complaint
included a claim that the project would interfere with
navigation in violation of a Washington statute and then
holding that the claims in the cross-complaint were barred
under section 313(b)). 12
California Save Our Streams Council, Inc. v. Yeutter,
887 F.2d 908 (9th Cir. 1989), is also on point. There, we
reasoned that “[b]y its express language, the [FPA] provides
exclusive jurisdiction for the Courts of Appeals to review
and make substantive modifications to FERC licensing
orders” and “[g]iven Congress’s careful choice of words,
12
The Tribe argues that Justice Harlan’s concurrence in City of Tacoma
supports that section 313(b) does not apply to state-law claims. 357 U.S.
at 341–42 (Harlan, J., concurring). This argument fails. First, of course,
the argument is based on the separate opinion of one justice, and not the
opinion of the Court. See Pub. Watchdogs v. S. Cal. Edison Co., 984
F.3d 744, 757 n.7 (9th Cir. 2020) (“[C]oncurring opinions have no
binding precedential value . . . .”). It also ignores the Court’s broad
language which draws no distinction between challenges based on
federal law, as opposed to state law. And finally, Justice Harlan’s
suggestion that the FPA does not bar relitigation of state-law issues
conflicts with the Court’s holding that section 313(b) barred Washington
from relitigating state-law claims. See City of Tacoma, 357 U.S. at 341–
42 (Harlan, J. concurring).
18 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
there can be little room for argument over whether the
statutory scheme vests sole jurisdiction over questions
arising under the FERC licenses in the Courts of Appeals.”
Id. at 911. Because section 313(b) “confers exclusive
jurisdiction in the courts of appeals and bars suit in district
court,” id. at 909, we held that the district court lacked
subject matter jurisdiction over plaintiffs’ claims, id. at 912.
In so holding, we rejected plaintiffs’ argument that they
were not attacking the FERC license because their claims
arose under other federal laws, not the FPA. Id. Rather than
accept plaintiffs’ characterization of their challenges, we
determined that we had to look at the essence of plaintiffs’
claims in deciding whether they challenged the FERC
license. Id. We held that the action challenged the FERC
license because “the practical effect of the action in district
court [was] an assault on an important ingredient of the
FERC license.” Id.
In sum, City of Tacoma and California Save Our Streams
establish that the federal courts of appeals have exclusive
jurisdiction under section 313(b) to review all objections to
FERC orders issued under the FPA—including objections
based on state law. See City of Tacoma, 357 U.S. at 336;
Cal. Save Our Streams, 887 F.2d at 911. Further, a plaintiff
cannot avoid section 313(b) through artful pleading; courts
must review the substance of an action in deciding whether
it challenges a FERC order. See Cal. Save Our Streams, 887
F.2d at 911–12.
So we turn back to the substance of the Tribe’s
complaint. The complaint does not expressly challenge the
FERC Order, but the gravamen of the complaint—that the
Gorge Dam must have fishways—is a direct attack on
FERC’s decision that no fishways were required. See FERC
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 19
Order, 71 FERC ¶ 61159, at 61535. The Project’s impact on
fishery resources was a focal point of the relicensing process.
See, e.g., id. at 61530, 61535. FERC specifically considered
whether fishways were required. Id. at 61535. And it
determined that no fishways were required because neither
the Secretary of Commerce nor the Secretary of the Interior
had prescribed a fishway under 16 U.S.C. § 811, and because
the Settlement Agreement, the terms of which were
incorporated into the FERC Order, stated “that all issues
concerning environmental impacts from relicensing of the
Project, as currently constructed, are satisfactorily resolved
by these Agreements.” FERC Order, 71 FERC ¶ 61159, at
61535. Because the Tribe’s action attacks “an important
ingredient of the FERC license,” Cal. Save Our Streams, 887
F.2d at 912, it is subject to section 313(b) and can be brought
only in the court of appeals. 13 Thus, the district court
correctly determined that it lacked subject matter
jurisdiction.
C
We next consider whether the district court properly
dismissed the action given 28 U.S.C. § 1447(c), which, as
noted, provides: “If at any time before final judgment it
appears that the district court lacks subject matter
13
Section 313(b) would also bar the Tribe from seeking review of the
FERC Order in this court. To seek review in this court, the Tribe had to
(1) apply for rehearing with FERC within thirty days after May 16, 1995
(the issuance date of the FERC Order), and (2) file a petition with this
court within sixty days after FERC’s order on the application for
rehearing. See 16 U.S.C. § 825l(a)–(b).
20 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
jurisdiction, the case shall be remanded [to state court].” 14
Section 1447(c) states that a district court shall remand a
removed case when it concludes that it lacks subject matter
jurisdiction. But our precedent recognizes a futility
exception to that requirement. “A narrow ‘futility’
exception to this general [remand] rule permits the district
court to dismiss an action rather than remand it if there is
‘absolute certainty’ that the state court would dismiss the
action following remand.” Glob. Rescue Jets, LLC v. Kaiser
Found. Health Plan, Inc., 30 F.4th 905, 920 n.6 (9th Cir.
2022) (quoting Polo v. Innoventions Int’l, LLC, 833 F.3d
1193, 1197–98 (9th Cir. 2016)). 15
14
Seattle argues that § 1447(c) is inapplicable because Federal Rule of
Civil Procedure 12(h)(3) controls when, as here, a case is validly
removed, and the court later determines that it lacks subject matter
jurisdiction on a basis different from the one that supported removal.
Rule 12(h)(3) provides: “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” Fed. R.
Civ. P. 12(h)(3). We need not and do not address Seattle’s argument
regarding the apparent conflict between § 1447(c) and Rule 12(h)(3),
because as explained below, we agree with Seattle’s alternative
argument that even if § 1447(c) applies, dismissal was appropriate.
Thus, for purposes of our opinion, we assume that § 1447(c) applies.
15
We first recognized the futility exception in Bell v. City of Kellogg,
922 F.2d 1418 (9th Cir. 1991):
Where the remand to state court would be futile,
however, the desire to have state courts resolve state
law issues is lacking. We do not believe
Congress intended to ignore the interest of efficient
use of judicial resources.
Because we are certain that a remand to state court
would be futile, no comity concerns are involved.
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 21
We have also observed that whether the futility
exception remains good law is an open question given
International Primate Protection League v. Administrators
of Tulane Educational Fund, 500 U.S. 72 (1991), in which
the Supreme Court did not reject the exception outright but
noted “the literal words of § 1447(c), which, on their face,
give no discretion to dismiss rather than remand an action.”
Polo, 833 F.3d at 1197–98 (quoting Int’l Primate, 500 U.S.
at 89). But in Polo, we declined to find that the exception
had been overruled. Id. And just this year in Global Rescue
Jets, we applied the exception and held that the district court
had properly dismissed the action based on futility. 30 F.4th
at 920 & n.6. Our precedent thus continues to recognize the
futility exception.
As a three-judge panel we are compelled to apply the
futility exception unless it is “clearly irreconcilable with the
reasoning or theory of intervening higher authority.” Miller
v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). But
the Tribe has not argued that the futility exception has been
overruled, and we decline to consider the issue sua sponte.16
District court resolution of the entire case prevents any
further waste of valuable judicial time and resources.
The district court correctly denied the motion to
remand and dismissed the state claims.
Id. at 1424–25. In Polo, we referred to the futility exception as the “Bell
rule.” 833 F.3d at 1197.
16
The Tribe has also failed to argue, and thus we do not consider,
whether our case law on the futility exception is conflicting. See
Albingia Versicherungs A.G. v. Schenker Int’l Inc., 344 F.3d 931, 938
(9th Cir. 2003) (“[S]ection 1447(c) means that if it is discovered at any
time in the litigation that there is no federal jurisdiction, a removed case
22 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
See Polo, 833 F.3d at 1198 (declining to consider sua sponte
whether the futility exception had been overruled because
plaintiff failed to make the argument). We are therefore
bound by our precedent and must decide whether remand
would be futile.
Remand here would be futile. A state court would lack
jurisdiction for the same reason the district court lacked
jurisdiction: section 313(b) of the FPA vests the federal
courts of appeals with exclusive jurisdiction over the Tribe’s
action. Thus, “there is ‘absolute certainty’ that the state
court would dismiss the action following remand,” Global
Rescue Jets, 30 F.4th at 920 n.6 (quoting Polo, 833 F.3d at
1198).
IV
The district court correctly declined to remand because
the complaint raises substantial federal questions. It also
properly determined that it lacked subject matter jurisdiction
under section 313(b) of the FPA, which vests exclusive
jurisdiction in the federal courts of appeals. Finally, it was
proper for the district court to dismiss the case under the
futility exception to § 1447(c)’s remand requirement.
AFFIRMED.
must be remanded to the state court rather than dismissed.”), opinion
amended and superseded on other grounds on denial of reh’g, 350 F.3d
916 (9th Cir. 2003); Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,
1257–58 (9th Cir. 1997) (stating that “[s]ection 1447(c) is mandatory,
not discretionary” and citing with approval a Seventh Circuit case
rejecting a futility exception).
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 23
W. FLETCHER, Circuit Judge, concurring in the result:
I concur in the result but do not concur fully in the
reasoning of the majority’s per curiam opinion.
The opinion accurately recounts that the Tribe brought
suit in state court, contending that Seattle’s operation of the
Gorge Dam without a fishway violated federal and state law.
Defendant Seattle removed the case to district court under
28 U.S.C. § 1441. The district court initially denied a motion
to remand, concluding that a federal question had been
sufficiently alleged in the complaint to support original
federal question jurisdiction in that court. The district court
later dismissed the suit for lack of subject matter jurisdiction,
concluding that the suit challenged a licensing decision by
the Federal Energy Regulatory Commission (“FERC”). The
district court correctly held that federal court subject matter
jurisdiction over such a challenge lies exclusively in the
courts of appeals. See 16 U.S.C. § 825l(b).
The question before us is not whether the district court
was correct in its initial denial of the Tribe’s motion to
remand. If that were the question, the per curiam opinion’s
discussion at pp. 10–14 would be relevant. However, that is
not the question. The question, rather, is whether the district
court was correct in its ultimate dismissal for lack of subject
matter jurisdiction.
Once it became clear to the district court that the Tribe’s
suit is a challenge to a FERC order, over which courts of
appeals have exclusive subject matter jurisdiction, the
district court correctly concluded that it did not have original
subject matter jurisdiction. Absent the so-called “futility
exception” (about which more in a moment), the required
course would have been for the district court to remand the
suit to the state court as improperly removed. This is true
24 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
even though the district court’s lack of subject matter
jurisdiction had not been immediately apparent. See 28
U.S.C. § 1447(c) (second sentence) (“If at any time before
final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”).
The basic removal statute is clear that removal to the
district court is proper only for cases over which the district
court has original jurisdiction. See id. § 1441(a) (“[A]ny
civil action brought in a State court of which the district
courts of the United States have original jurisdiction[] may
be removed . . . to the district court of the United States for
the district . . . embracing the place where such action is
pending.” (emphasis added)). Because the district court did
not have original subject matter jurisdiction over the suit,
removal was improper and remand was required.
Arguing against remand in its briefing to our court,
Seattle omitted the language italicized above when it
paraphrased § 1441(a), thereby suggesting, incorrectly, that
removal to district court is proper if any federal court would
have subject matter jurisdiction. See Red Brief at 10–11
(“‘Removal presents a question of subject matter
jurisdiction, which is reviewed de novo.’ This Court may
affirm a court’s decision to deny a motion to remand ‘on any
basis supported by the record.’ A defendant may remove a
case filed in state court to federal court over which a federal
court would have jurisdiction. 28 U.S.C. § 1441(c).”
(emphasis added) (citations omitted)).
The only thing that saves this case from remand is our
court’s “futility exception,” which allows a district court to
dismiss rather than remand when it is obvious that the state
court will have to dismiss the suit once it is remanded. I
agree with my colleague Judge Bennett both that dismissal
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 25
in this case was proper under our futility exception, and that
the exception is based on a misinterpretation of the relevant
statute.
BENNETT, Circuit Judge, joined by MURGUIA, Chief
Judge, and FLETCHER, Circuit Judge, concurring:
Our precedent requires us to apply the futility exception
to 28 U.S.C. § 1447(c)’s remand requirement, so I concur in
our per curiam opinion. I write separately because the
futility exception does not comport with § 1447(c)’s plain
text. I believe that in the appropriate case, our court should
reconsider the futility exception en banc and abandon it.
“[O]ur inquiry begins with the statutory text,
and ends there as well if the text is unambiguous.” In re
Stevens, 15 F.4th 1214, 1217 (9th Cir. 2021) (quoting
BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004)
(plurality opinion)). Section 1447 is entitled, “Procedure
after removal generally,” and subsection (c) provides, in
relevant part: “If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the
case shall be remanded.” The statute is plain and
unambiguous. Indeed, it could be neither simpler nor more
straightforward. It covers all periods from removal to final
judgment. And it requires a district court to remand a case
to the state court from which the case was removed upon
finding that it lacks subject matter jurisdiction.
The plain text admits of no exceptions, futility or
otherwise. See Int’l Primate Prot. League v. Adm’rs of
Tulane Educ. Fund, 500 U.S. 72, 89 (1991) (“[T]he literal
words of § 1447(c), which, on their face, give no discretion
26 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
to dismiss rather than remand an action.” (ellipsis omitted)
(quoting Maine Ass’n of Interdependent Neighborhoods v.
Comm’r, Maine Dep’t of Hum. Servs., 876 F.2d 1051, 1054
(1st Cir. 1989)). 1 The plain text ends our inquiry; there is no
such thing as a futility exception to the statutory remand
requirement.
Our cases recognizing the futility exception have never
even attempted to reconcile the exception with the statutory
text. We adopted the exception in Bell v. City of Kellogg,
922 F.2d 1418 (9th Cir. 1991). In Bell, we created the
exception because “[w]e d[id] not believe Congress intended
to ignore the interest of efficient use of judicial resources.”
Id. at 1424–25. But we cited no authority that permitted us
to amend the statute to match our belief. And there is none.
We did rely on a First Circuit case, Maine Association,
which we interpreted as “impl[ying] that [the First Circuit]
would be willing to recognize” a futility exception. Id. at
1425 (emphasis added) (citing Maine Ass’n, 876 F.2d at
1054). But the First Circuit declined to adopt a futility
exception, noting that “the literal words of § 1447(c), . . . on
their face, give [the district court] no discretion to dismiss
rather than remand an action.” Maine Ass’n, 876 F.2d at
1054; see also id. (“And, we are unwilling to read such
discretion into the statute, here, because we cannot say with
absolute certainty that remand would prove futile.”). And
indeed, a few months after we decided Bell, the Supreme
Court decided International Primate, in which it relied on
Maine Association to suggest that there are no exceptions to
1
Despite its discussion of the plain text of § 1447(c), the Court did not
decide whether § 1447(c) allowed for a futility exception. Int’l Primate,
500 U.S. at 89.
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 27
§ 1447(c)’s remand requirement. Int’l Primate, 500 U.S. at
88.
In International Primate, the Court did not decide
whether there is a futility exception to § 1447(c)’s remand
rule because it determined that uncertainties “preclude[d] a
finding that a remand would be futile.” Id. at 89. But as
noted above, the Court suggested that no exceptions exist
based on the plain statutory text: “We also take note, as did
the First Circuit [in Maine Association], of ‘the literal words
of § 1447(c), which, on their face, give no discretion to
dismiss rather than remand an action.’ The statute declares
that, where subject matter jurisdiction is lacking, the
removed case ‘shall be remanded.’” Id. (ellipsis and
citations omitted). 2 Thus, International Primate also
supports the proposition that there is no futility exception
under § 1447(c).
Indeed, several circuits have expressly rejected a futility
exception based on International Primate and the plain
language of the statute. See Bromwell v. Mich. Mut. Ins. Co.,
115 F.3d 208, 214 (3d Cir. 1997) (“In light of the express
language of § 1447(c) and the Supreme Court’s reasoning
in International Primate, we hold that when a federal court
has no jurisdiction of a case removed from a state court, it
must remand and not dismiss on the ground of futility.”);
Roach v. W. Va. Reg’l Jail & Corr. Facility Auth., 74 F.3d
46, 49 (4th Cir. 1996) (“[T]he futility of a remand to West
Virginia state court does not provide an exception to the
plain meaning of § 1447(c).” (citing Int’l Primate, 500 U.S.
at 87–89)); Smith v. Wis. Dep’t of Agric., Trade & Consumer
2
Though dicta, we must give the Supreme Court’s statement “due
deference.” United States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996).
28 SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE
Prot., 23 F.3d 1134, 1139 (7th Cir. 1994) (“[T]he Supreme
Court has squarely rejected the argument that there is an
implicit ‘futility exception’ hidden behind the plain meaning
of § 1447(c).” (citing Int’l Primate, 500 U.S. 72)); Univ. of
S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) (“This provision [§ 1447(c)] is mandatory and may
not be disregarded based on speculation about the
proceeding’s futility in state court.” (citing Int’l Primate,
500 U.S. at 87–89)); Coyne v. Am. Tobacco Co., 183 F.3d
488, 496 (6th Cir. 1999) (“[T]he futility of a remand to state
court does not provide an exception to the plain and
unambiguous language of § 1447(c).”); but see Perna v.
Health One Credit Union, 983 F.3d 258, 273 (6th Cir. 2020)
(noting that the Sixth Circuit has dismissed a removed case
“when [its] holding conclusively establishes not just that [it]
lack[s] jurisdiction but also that the state court lacks
jurisdiction as well”).
The Fifth Circuit has joined us in expressly adopting a
futility exception to § 1447(c). See Asarco, Inc. v. Glenara,
Ltd., 912 F.2d 784, 787 (5th Cir. 1990). But the Fifth
Circuit’s case law is as unpersuasive as ours. In Asarco, the
Fifth Circuit declined to remand because it would be “a futile
gesture, wasteful of scarce judicial resources.” Id. But the
court did not even mention § 1447(c). Id. And Asarco was
decided before International Primate. 3
In sum, § 1447(c) is clear: a district court must remand a
removed case when it lacks subject matter jurisdiction.
3
In a more recent unpublished disposition, the Fifth Circuit confirmed
that it recognizes a futility exception. See Boaz Legacy, L.P. v. Roberts,
628 F. App’x 318, 320 & n.10 (5th Cir. 2016). But Boaz, like Asarco,
did not discuss how concerns about wasting judicial resources trump the
clear text of § 1447(c).
SAUK-SUIATTLE INDIAN TRIBE V. CITY OF SEATTLE 29
While there may be valid policy reasons for the futility
exception, “it is not our role to choose what we think is the
best policy outcome and to override the plain meaning of a
statute, apparent anomalies or not.” Guido v. Mount
Lemmon Fire Dist., 859 F.3d 1168, 1175 (9th Cir. 2017),
aff’d, 139 S. Ct. 22 (2018). I therefore encourage our court
to reconsider and abandon the futility exception in an
appropriate case.