PORTLAND, Ore. (CN) - On the second day of its trial against the state and a tribe over its bid to seize property rights to one of the largest waterfalls in the country, an Oregon power company argued it had long believed it was always the rightful owner of five acres of disputed land. 

Portland General Electric sued the state in an attempt to condemn and take ownership of five acres of land along the rocky shores of Willamette Falls, a 42-foot waterfall between West Linn and Oregon City just south of Portland. 

The power company operates a hydroelectric facility - the Sullivan Plant - on the west bank of the Willamette River that has been in operation since 1895. 

In 2018, the Oregon Department of State Lands granted the Confederated Tribes of the Grand Ronde Community of Oregon a registration to install a fishing platform along the rocky outcrop of the falls. Grand Ronde and other tribes in the region have fished at the falls since time immemorial. 

According to Mark Lindley, a 22-year PGE employee and the company's real estate principal, the state's decision caught the power company off guard. 

"It was the first time the state asserted any property interest in the property," Lindley said. 

Up until then, the power company said that it had largely been under the belief it owned the property in its entirety. Lindley said the registration was a "real wake-up call."

"What was the basis for that belief?" asked U.S. District Judge Michael H. Simon, a Barack Obama appointee. Lindley explained that the state and the power company had gone back and forth on different aspects of property ownership terms.

"It was one of those issues that never rose to the level of having to go to war on it," Lindley said. 

Lindley testified that neither Grand Ronde nor the Oregon Department of State Lands collaborated with the electric utility before issuing the registration. For the power company, the state granting of third-party property rights within the Federal Energy Regulatory Commission boundary meant PGE had to contend with new safety concerns and premises liability issues. 

However, Grand Ronde challenged the power company's claim that the state had not exercised its jurisdiction previously, pointing to the state Department of Fish and Wildlife.

"Hasn't the state been actively asserting jurisdiction every year when it opens the lamprey season?" asked Kimberly D'Aquila, attorney with Grand Ronde's tribal attorney's office.

Lindley conceded, but later clarified that the jurisdiction in that example was limited exclusively to fishing rights rather than property rights.  

Plus, Lindley noted, the state hadn't granted any party the right to build structures before, and the power company had concerns about being left out of the loop and what decisions might come as a surprise in the future. 

"It's an ultimate control issue," Lindley said. 

Grand Ronde pointed to a map the power company supplied to obtain its Federal Energy Regulatory Commission license in 2005 that showed the contested area as state-owned. It also pointed to a map a PGE internal surveyor made just days before Grand Ronde received its registration from the state, again showing the proposed platform area as falling within state-owned land. 

Lindley explained that the power company's internal records weren't clear on ownership and never had to be because there hadn't been a reason to figure it out until in recent years.

"As crazy as it sounds, it had not risen to the level of needing to figure out who owns what piece of dirt," Lindley said. "There was never an active dispute."

Plus, the geography of the area - a rocky shore of an active waterfall impacted by changing water levels and currents - makes it all the more challenging to parse. 

After the state Fish and Wildlife Commission adopted an administrative rule allowing Grand Ronde to harvest a certain number of steelhead and salmon from the falls for ceremonial purposes, Grand Ronde applied for a lease from the Oregon Department of State Lands to allow it to construct a fishing platform at the falls.

The power company submitted a comment suggesting a safety plan be implemented for ceremonial fishers, but didn't raise any concerns about property ownership, D'Aquila pointed out.

Then, in 2018, the Department of State Lands issued Grand Ronde a registration allowing it to use a portion of the falls for a fishing platform. 

The power company appealed Grand Ronde's registration, as did four other tribes in the region. The other tribes' concerns, according to Lindley, came down to a difference in opinion about traditional methods of fishing, how the platforms were assembled, equal access to fishing, whether the state should be involved and issues of treaty rights.

After unsuccessfully trying to mediate for two years, the power company was granted permission to seek condemnation of the contested property from its board in July 2021, two months after submitting a request for a Perpetual Cultural Practices Easement from the Federal Energy Regulatory Commission. 

The easement would have authorized federally recognized tribes to access the area for ceremonial fishing.

The advantage to this, Lindley testified, is it would allow the power company to implement safety procedures and keep tabs on who is accessing the area.

"All these things involved that would help alleviate PGE concerns," Lindley said.

The Federal Energy Regulatory Commission rejected the application since the state asserted ownership of the easement land. 

While PGE's board encouraged it to settle the issue, it still authorized the power company to file the lawsuit to resolve the title issue. In the following months, both the Confederated Tribes and Bands of the Yakama Nation and the Confederated Tribes of Siletz Indians sent letters to the power company urging it to pursue litigation to resolve the property issue. 

PGE had also earlier been in talks with Grand Ronde to lease the area on both sides of the falls for a fishing platform, but suspended those discussions after there had been "concerns raised that we needed to make sure we fully understand," Lindley testified.

Grand Ronde accused the power company of pausing the deal out of concern about not upsetting its business relationship with the Confederated Tribes of Warm Springs, and pointed to an email from a PGE employee recognizing that there could be impacts to the relationship.

The trial is slated to conclude on Thursday, and the outcome could have lasting implications for public land rights, tribal sovereignty and control over one of the state's most iconic natural landmarks. 

Source: Courthouse News Service