A federal lawsuit over a Native fishing platform at one of Oregon’s greatest waterfalls is going to trial, a federal judge ruled Friday.

The suit, brought by Portland General Electric against the Oregon Department of State Lands in 2022, in which the Confederated Tribes of Grand Ronde has intervened as a defendant, could have broader consequences for several Oregon tribes that have been aligning on either side of the roaring waters of Willamette Falls.

PGE is trying to stop the Grand Ronde tribe from erecting a seasonal fishing platform on the rocks below the waterfall, a practice the utility says is unsafe, by leveraging federal authority to condemn five acres of land at Willamette Falls. Maps submitted to the court show that the move would give PGE control of the entire rocky area from which tribal members could fish.

The Grand Ronde tribe, which in 2018 received a permit for the fishing platform from the Oregon Department of State Lands, argues that the suit is an attempt by the utility company to interfere in intertribal conflict. In their arguments to the court, the Grand Ronde tribe’s lawyers have accused PGE of siding with a group of four other tribes that have ties to Willamette Falls and that have publicly decried the Grand Ronde fishing platform for years.

That includes the Confederated Tribes of Warm Springs, with which PGE jointly owns the Round Butte Dam in Madras — a business relationship that lawyers for the Grand Ronde tribe have pointed to in their arguments that the utility is acting in bad faith.

U.S. District Judge Michael Simon sided largely with the Grand Ronde tribe in his decision to deny PGE summary judgment on most of its claims, concluding that there is enough evidence to question the utility’s motives.

A trial date is currently set for April 21.

In a statement released Monday, PGE said it looks forward to resolving the dispute through the trial process.

“Although disappointed, PGE stands beside our decision to proceed with condemnation, which was made in support of our federal licensing obligations to maintain safety and operations in the area of the waterfall just below our hydroelectric dam,” a PGE spokesperson said.

The Confederated Tribes of Grand Ronde said it remains committed to protecting its interests at Willamette Falls, and will continue to make its case at the trial in April.

“The Confederated Tribes of Grand Ronde respects the Court’s decision and appreciates the careful consideration of the issues presented in this case,” Stacia Hernandez, chief of staff for the tribe, said in a written statement Monday.

While the primary question is whether PGE or Oregon has the right to determine who gets to access the waterfall, the suit has larger implications.

PGE has argued that Grand Ronde’s platform fishing at Willamette Falls is unsafe and could interfere with its operations, and is now trying to utilize eminent domain authority to condemn five acres of land at the base of the falls — authority it says it has under the Federal Power Act with its permit to run the hydroelectric plant.

However, the utility says its plan is not to disallow platform fishing, but to ultimately ask the federal government to allow a “perpetual cultural practice easement” that multiple tribes could use under safe conditions.

“For years, PGE has attempted to facilitate equitable access to Willamette Falls by all federally recognized Northwest tribes for cultural practices, including ceremonial fishing,” PGE lawyers argued in a motion to the court.

Kristen Sheeran, vice president of policy and resource planning for PGE, classified the suit as a way to settle land ownership at the waterfall to advance the proposed cultural easement with the federal government, which denied the utility’s previous application due to the ongoing dispute.

While an agreement is in place with the Confederated Tribes of Siletz Indians, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of Warm Springs, and the Confederated Tribes and Bands of the Yakama Nation, talks with Grand Ronde “have not been successful in reaching a consensus or agreement” the utility said, a stalemate that resulted in the condemnation suit.

Grand Ronde said it has no issues with other tribes fishing at Willamette Falls and invites the others to apply for a platform permit as well. The tribe has instead characterized the lawsuit as a land grab that affects all Oregonians, while its lawyers accuse PGE of being disingenuous, using safety issues as an excuse to intervene against Grand Ronde’s permit on behalf of the other tribes.

“A private company condemning a public asset of the Willamette River seems like a relatively drastic step to take when the offered cause of safety doesn’t make any sense,” Kathleen George, a Grand Ronde tribal council member, said in December. “We have been fishing, as have other tribes, at Willamette Falls for an incredibly long time, and it has never been necessary to condemn Willamette Falls.”

At the heart of the Grand Ronde case is the question: why now?

The waterfall, a fishing and gathering place for Indigenous people for untold generations, has spent the last 150 years in the hands of private industry and government agencies. At the end of the 19th century, as paper mills established themselves on both sides of the river, PGE, then known as the Willamette Falls Electric Company, built the T.W. Sullivan Hydroelectric Plant that it still operates today.

While tribes have long been allowed to harvest lamprey, an eel-like fish that clings to the rocks below Willamette Falls, fishing has largely been prohibited at the waterfall, despite several of the tribes’ treaties that allow them to fish at “usual and accustomed fishing places.”

In 1994, Yakama Nation struck a deal with the state to catch salmon from platforms at the waterfall, though the small number of salmon left fishermen expressing disappointment. In 2016, the Grand Ronde tribe received permission to catch 15 salmon from a platform for ceremonial purposes, setting off the chain of events that led to the lawsuit.

According to court filings, the Grand Ronde tribe spent 2017 negotiating with both PGE and the Oregon Department of State Lands to erect a fishing platform on the rocks below the falls. In 2018, the state agency approved the application, later upholding the agreement over the objections of other tribes.

Leaders of the other tribes have expressed concern that Grand Ronde’s actions — including its 2019 purchase of the old Blue Heron paper mill site for its eventual tumwata village development — are giving it an unfair foothold at Willamette Falls, and accuse the tribe of spurning intertribal collaboration at the important cultural site.

PGE, which had paused its negotiations for a Grand Ronde fishing platform amid objections from the other tribes, appealed the state’s permit. In 2019, a federal judge sent the utility and tribe into mediation over the issue, but those talks fell apart in 2021, leading to the condemnation suit the following year.

In its motion for summary judgement this fall, PGE contended that the land in question is located directly within its area of operations for the hydroelectric plant, giving it the right to manage and control access, negating the need for a trial.

Grand Ronde argued that the five-acre swath of land, most of the rocky area within the horseshoe-shaped waterfall, is outside the boundaries of the power plant, and is not clearly necessary for PGE’s operations.

The Oregon Department of State Lands, meanwhile, has simply sought to clarify who owns which parts of Willamette Falls. In a short response to PGE’s complaint, state lawyers did not dispute the utility’s power of eminent domain, but simply asked the court to “clearly delineate the boundaries of any future ownership,” however the case turns out.

A representative from the state department declined to comment about the case.

George, the Grand Ronde tribal council member, called the state’s response “disappointing” in an interview. She said the tribe, which had its federal status terminated in 1954 and restored in 1983, still feels discriminated against, especially as it attempts to rejuvenate cultural practices at Willamette Falls.

“The healing that has come to our tribe in being able to bring our fishers back to the falls, to harvest a few salmon to bring back to our community and share, that has brought tremendous healing to our people,” George said. “Why is it we have a private corporation who seems to be doing anything it can to stop Grand Ronde tribal people from fishing at Willamette Falls?”

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