A federal trial over access to a five-acre portion along the shore of Willamette Falls came to a close on May 6. Central to the trial is a ceremonial fishing platform built in 2018 on the rocky shores at the base of the falls owned by the Confederated Tribes of Grand Ronde. Though oral arguments from both sides were heard, ending this multi-year trial, a written decision won’t come out for another 30 to 90 days, according to U.S. District Judge Michael H. Simon.
“The record is clear. This condemnation was arbitrary and executed in bad faith. And PGE’s condemnation should not be allowed to move forward,” Grand Ronde attorney Kimberly D’Aquila argued during closing statements on May 6.
“There is no bad faith or arbitrariness in considering the views of other Native American tribes,” Erick Haynie, attorney representing PGE, responded in his closing argument.
PGE owns and operates a hydroelectric plant at the falls. The second biggest waterfall by volume in the United States, Willamette Falls is largely obscured by industry and only visible from a far-off viewing platform on the Oregon City side of the falls. The Willamette Falls Hydroelectric Project circles and sits on the West Linn side of the falls, and the old Blue Heron Paper Mill blocks access on the Oregon City side. Though the Willamette Falls Trust is working on a public access area on the west side and Grand Ronde owns the old paper mill on the east side, no matter which side of the falls they’re still hard to access.
In 2022, the utility filed a federal action against the Oregon Department of State Lands after it granted Grand Ronde a permit to erect a seasonal fishing platform on a rock formation at the base of the falls. The trial began on April 21, with witnesses called forth all week.
Inside the courthouse, lawyers representing Grand Ronde and those representing Portland General Electric (PGE) debated the legality of PGE’s attempt to take control over a horseshoe-shaped property surrounding the base of the falls that both PGE and the State of Oregon have claimed ownership of. PGE is attempting to do this by condemning the property.
Condemning property is more common when a government takes private property for public purposes. It is less common for private companies to take public land. PGE argues that the reason for this is safety concerns related to the operation of the hydroelectric dam.
“[I would like] to remind the court that the issues about why PGE is moving forward with this condemnation are not just about safety in and around the fishing platform,” Haynie said in his closing argument on May 6.
“It’s regulatory compliance on historical preservation. It’s regulatory compliance on things like the lamprey migration and stranding,” Haynie continued. Stranding is when the lamprey or fish get stuck in the rocks somewhere, away from the flow of the river. “If PGE doesn’t own those areas, it is at risk of being in violation of article five [of its Federal Energy Regulatory Commission licensing requirements, known as FERC], which requires it to own or control to be able to use.”
Many of PGE’s attorney’s arguments centered on the need to own and control the property for safety reasons.
“Condemnation under the Federal Power Act must serve a genuine project purpose. It can’t be for business pressures. It can’t be for inter tribal politics, and it can’t be to silence a state approved use,” D’Aquila said on May 6, arguing that the condemnation action is not based on a genuine safety and FERC compliance concern.
If PGE wins the lawsuit, the utility would have ownership of most of the falls and would be in charge of access to all fishing and lamprey harvesting areas. If successful, PGE maintains that it will work to create a perpetual cultural practices easement at the falls. If approved, this change would create access for ceremonial harvest of salmon, steelhead and lamprey to Grand Ronde and at least four other Native nations with historic, cultural ties to the falls. PGE says that up to six Native nations would be allowed to build ceremonial fishing platforms at the easement.
Siletz, as amicus curiae in this case, believes that the easement could help resolve some of the conflict at the falls.
“[PGE] had no idea of the hornet’s nest they had walked into when they got into this, when the platform issue came up,” argued Lee Ann Easton, attorney for Siletz, during closing arguments. “All due respect, they didn’t know the difference between Yakama out there gathering lamprey under a treaty right, versus Grand Ronde out there with the state permit to gather lamprey.”
The other four Native nations include the Confederated Tribes and Bands of Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs and the Confederated Tribes of Siletz Indians — all of which have taken issue with Grand Ronde’s current fishing platform as well, arguing that it denies equal access to fishing rights there.
“These four tribes, deeply connected to the waters and traditions of the region, unequivocally support PGE’s efforts to accommodate Indigenous cultural practices in the area of its hydroelectric facility at Willamette Falls,” reads a joint statement the Yakama, Umatilla, Warm Springs and Siletz nations submitted the week before the trial began. “This support is not given lightly. We acknowledge that this arises from a genuine commitment by PGE to honor tribal sovereignty and facilitate access for traditional activities for all tribes connected to the Falls, including fishing and ceremonial gatherings, at this site that holds immeasurable spiritual value for our peoples.”
Trial thus far
A few dozen citizens of the Confederated Tribes of Grand Ronde gathered in Lownsdale Square outside the Mark O. Hatfield U.S. Courthouse in downtown Portland on April 21. Hand drumming and singing filled the air, and people held signs with messages such as, “PGE v. Time Immemorial,” and “Portland General Electric = Corporate Colonialism.”
“Our traditional fishing platforms establish, or re-establish, that connection with our ancestors who fished at Willamette Falls from platforms that they constructed,” said Kathleen George, a councilwoman for Grand Ronde, standing outside the courthouse. “So it’s particularly heartbreaking to hear that PGE is not supportive of our platform, and apparently, through this condemnation, hopes to prevent it.”
Over five days, PGE and Grand Ronde lawyers called forward witnesses, including PGE employees, Grand Ronde fishers and the Grand Ronde Chairwoman, Cheryle Kennedy.
PGE argues that it needs the contested property at the falls to comply with its FERC license that allows the dam to operate. The license requires PGE to control all the property necessary to operate the power plant. Under that federal authority, PGE has the right to secure lands necessary for the maintenance and operation of the hydroelectric plant.
PGE employees explained the need to access the contested property for FERC licensing requirements that include managing the dangers that come with operating a hydroelectric plant that regulates the flow of the river at the falls, arguing the utility should have control over who can access the fishing areas.
“PGE wanted an exclusive right to possession of the property, but we also indicated that we wanted advanced permission to be able to grant Native American tribes the right to use property as PGE saw fit,” Mark Lindley, senior real estate principal for PGE, testified.
Safety was a major topic of discussion throughout the week of witness testimony, as PGE brought forward concerns including sudden increases in waterfall flow and large pieces of debris coming over the falls.
Ceremonial fishers from Grand Ronde took the stand and answered questions about the safety precautions they took when using the ceremonial fishing platform.
Kelly Dirksen, Fish and Wildlife Program Manager for Grande Ronde, described the extensive safety precautions and trainings required to be a ceremonial fisher. Those include a swim test, a swift water certification and annual drills to practice rescue protocols. He said each boat is also equipped with gear including a first aid kit, a hypothermia kit and a rope rescue bag. Each fisher is also issued their own life vest, proper shoes and swift water helmet, he said.
Grand Ronde also argued that those safety concerns were never raised during the annual lamprey harvest at the falls.
During the trial, Grand Ronde Chairwoman Kennedy claimed PGE representatives cited concerns from other Native nations for PGE’s opposition.
Rodney Brown, a former PGE board member who voted to pursue condemnation, testified that the board did discuss disagreements among Native nations at the falls but that the decision to pursue condemnation was based on safety issues and FERC compliance concerns.
“For safety and FERC license reasons, we felt like we were the ones that needed to make that decision [of who has access to the falls],” Brown testified.
Willamette Falls
The Willamette Falls have served as a gathering site of ceremony and an important fishing and lamprey harvesting location for Native nations in the region since time immemorial.
PGE has operated a hydroelectric project generating electricity on the west side of the falls for over 100 years. The first attempts to harness the hydroelectric power at the falls reportedly occurred in the 1830s following the founding of Oregon City by John McLoughlin and other white settlers.
With colonization came industry, resulting in access to the falls being hindered for well over a century.
It is on that west side of the falls that the Willamette Falls Trust, an organization based in Oregon City, is working with the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of Siletz Indians, the Confederated Tribes of the Umatilla Indian Reservation and the Confederated Tribes of Warm Springs, on a large scale cultural use and public access project.
The Confederated Tribes of Grand Ronde were initially involved with Willamette Falls Trust as well as the Willamette Falls Legacy Project, but withdrew from the Trust in 2021 and the project in 2022.
On the east side of the falls, Grand Ronde owns a 23-acre site, the former Blue Heron Paper Company, that they bought in 2019. The nation plans to transform the site into tumwata village, which will be home to nearly a dozen new buildings, including offices, retail space, residential buildings, and a hotel overlooking Willamette Falls.
Grand Ronde argues against a “corporation taking control over Oregon gem”
Although PGE has committed to creating a perpetual cultural practices easement, after applying again through FERC, Grand Ronde argues that the company is attempting to remove all access from the nation. Citizens of Grand Ronde handed out one-pagers during the rally at lunch on the first day of trial titled “Corporation Taking Control Over Oregon Gem.” The paper outlines what’s at stake from Grand Ronde’s perspective.
“Condemnation could ultimately lead to PGE gaining control of public land – land that is part of an Oregon treasure that should belong to everyone,” the page reads. “This is an attempt to steal one of Oregon’s natural wonders from the public trust.”
This lawsuit is about more than an impact on public use, as lawyers from both sides focused on arguments about the fishing platform erected by Grand Ronde through a permit from the Oregon Department of State Lands.
Grand Ronde’s sole fishing platform has caused discomfort to the other four nations with ancestral ties to the falls. Some have argued that Grand Ronde sees themselves as the only Native nation with ties to the falls.
On the fourth day of the trial, Grand Ronde Chairwoman Kennedy took the witness stand. She described historic ties to the falls and the importance of ceremonial fishing for the Grand Ronde.
“That’s where our villages were,” Kennedy said.
Kimberly D’Aquila, attorney with Grand Ronde’s tribal attorney’s office, asked the chairwoman about her response to statements about Grand Ronde wanting exclusive rights at the falls.
“We as the Grand Ronde people have never said that. I have ultimately invited other tribes to our platform to fish with us,” Kennedy said. “Looking at the comments that are made, those are my people, that’s my tribe, that’s where we lived for thousands of years. But to say that we have exclusive rights to fish there, I have never said that.”
Grand Ronde councilwoman Kathleen George detailed this further with Underscore + ICT.
“So many tribes fish at Willamette falls,” Grand Ronde councilwoman George said. “Grand Ronde has never claimed that we have an exclusive fishery, and we know that different tribes are going to continue to fish there into the future.”
“From our perspective, tribes, many tribes, fishing at the falls is never going to be enhanced by a private property owner being the sole voice to decide who gets to fish, being able to forbid people tribal or non tribal from approaching the falls or fishing,” George continued. “That brings all that decision making into one private property owner’s hands, and that’s not going to enhance fishing opportunities for anyone.”
PGE supported by other Native nations
But their past actions say differently, according to Robert Kentta, citizen of the Confederated Tribes of Siletz Indians, who believes that Grand Ronde continues to promote a narrative that they are the only Native nation with historic ties to Willamette Falls. Kentta is also the tribal council treasurer and the Siletz delegate on the board of directors for the Willamette Falls Trust.
Though Grand Ronde has denied this claim, Kentta pointed to their actions with their fishing platform without consultation or consideration of the other nations with ties to the area, and their purchase of the 23-acre Blue Heron Paper Mill site in 2019 after withdrawing from the Willamette Falls Trust, which is working on a public access project across the river on the West Linn side.
Yakama, Warm Springs, Umatilla and Siletz, along with Nimiipuu, all have reserved treaty rights at Willamette Falls, meaning they set their own fisheries regulations that apply to citizens of their nations fishing and harvesting at the falls.
Grand Ronde also harvests lamprey and salmon at the falls, and at their fishing platform on the contested property, through an agreement with the state of Oregon.
Kentta is concerned that since Grand Ronde’s signing an agreement with the state for fishing rights at the falls and the building of the fishing platform, that Grand Ronde believes other Native nations should do the same.
“We all assert that we have those rights, all of the CRITFC tribes and Siletz,” Kentta said. “Grand Ronde, once again, is promoting a very anti-tribal stance by saying ‘we signed an agreement with the state. That’s what all the rest of you tribes need to do,’” Kentta said. “That’s very counter to Native and tribal government legal stance on the existence of treaty rights. Those are federally protected rights.”
In a joint statement the Yakama, Umatilla, Warm Springs, and Siletz nations outlined their support of PGE during this trial and in seeking condemnation of the property.
“PGE’s approach to leveraging federal authority to maintain safety, provide better stewardship, and tribal access that considers the interests and needs of all tribes with a history at the Falls demonstrates a level of commitment that contrasts favorably with the perceived alternative of continued state control,” the statement reads. “We see that as a promising step towards righting past wrongs.”
“The narrative surrounding the current issues at Willamette Falls should be one of a corporation that has chosen to listen, to learn, and to act in a manner that honors the rich cultural heritage of all the region’s first peoples,” the statement continues. “It is a story of a bridge being built, one that we hope will inspire others to follow.”
In March 2025, the Confederated Tribes of Siletz Indians also submitted an Amicus Trial Brief, which outlines its support of PGE in this lawsuit and responds to trial briefs filed by the Confederated Tribes of Grand Ronde.
“Grand Ronde’s preemptive seizure of a primary fishing area at Willamette Falls relegates Siletz and the other NW tribes to more marginal and dangerous locations,” the brief states. “It interferes with the other tribes’ treaty right to fish at the location where Grand Ronde has located its fishing platform to the exclusion of other tribes. There was no discussion or consideration of Siletz’s interests in this location before the Grand Ronde Tribe occupied it exclusively.”
Treaty rights at Willamette Falls
During the trial, Mark Lindley, senior real estate principal for PGE, echoed the sentiments of the CRITFC tribes and Siletz.
“My understanding is that tribes that have rights that derive from federal treaties do not feel that it’s appropriate to ask the state for anything because they already have those rights,” Lindley said.
The Columbia River Treaty Tribes — Yakama, Umatilla, Warm Springs and Nimiipuu — harvest lamprey at Willamette Falls under federal law as a treaty protected right.
For these Native nations, engagement with state regulation could diminish their treaty rights, which are held at the same legal standard as the U.S. constitution, which is this country’s highest level of legal authority. The rights expressed within the treaties also are not the full breadth of the rights of Native nations, as any rights not expressed remain “reserved” by each nation through their inherent sovereignty. The U.S. government does not grant these rights, but rather is retained by the nations in an exchange for hunting and fishing rights, healthcare, education and other commitments from the federal government.
The amicus trial brief from Siletz supports this statement.
“The fact that the Grand Ronde Tribe has not established its own federal fishing and harvesting rights at Willamette Falls and has chosen to submit itself to the authority of the State of Oregon does not mean that other tribes must or should do so, or that they should be required to cede their federal treaty rights in favor of state regulation and authority,” the statement reads. “Other tribes refuse to submit to state regulation, and the Siletz Tribe’s position is that condemnation is necessary and appropriate so they can exercise those rights under federal authority, not state authority. Condemnation of the subject parcel is necessary for the other tribes to retain their federal and inherent sovereign harvesting rights.
Though this trial is not about treaty rights to fishing at Willamette Falls, they did appear to be an important part of the conversation.
“I’m not sure condemnation action is the way we’re ever going to resolve these fundamental treaty issues,” Easton said during closing arguments on May 6. “But having clear one party with ownership and having a willingness to coordinate activities, or trying to get us tribes to work together, is a step in the right direction.”
Judge Simon will release his final decision in the next one to three months.
Correction: An earlier version of this story incorrectly spelled Kentta.
Correction: An earlier version of this story stated: “Kentta is concerned that since Grand Ronde’s signing an agreement with the state for fishing rights at the falls and the building of the fishing platform, that Grand Ronde believes other Native nations should do the same, even though those rights were granted when their treaties were signed.” The last part of the sentence was inaccurate and removed to avoid confusion.
Republish our articles for free, online or in print, using our Republishing Guidelines.
