United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
AIKEN United States District Judge
Confederated Tribes of the: (1) Umatilla Indian Reservation;
(2) Warm Springs Reservation of Oregon; and (3) Bands of the
Yakima Nation (collectively the "Treaty Tribes"),
move the Court for an order dismissing plaintiff Union
Pacific Railroad's ("UPRR") Complaint (doc. 1)
pursuant to Rule 12(b)(7) for failure to join them as
necessary parties to the action as required by Rule 19,
Treaty Tribes' Joint Mot. Dismiss (doc. 28) 2. For the
following reasons, the Treaty Tribes' Motion to Dismiss
is an interstate railroad operating in twenty-three states.
Pl.'s Mot. for Prelim. Injunction 2 (citing the
Declaration of Luke Baatz in Supp. of Pl.'s Mot. for
Prelim. Injunction ("Baatz Dec!.") ¶ 4).
Plaintiff owns a mainline track that runs within the Columbia
River Gorge in Wasco County and near the City of Mosier,
which "was built more than a century ago."
Pl.'s Compl, ¶ 1. Plaintiff asserts that this
segment of track has become a bottleneck for interstate
freight trains moving through the Gorge area, and it plans to
alleviate this bottleneck by extending and upgrading a second
5.37-mile track adjacent to the existing mainline track. The
extensions and upgrades to that second track, which is
located near the City of Mosier, will cost $42 million, $5.3
million of which has already been spent on permitting,
engineering, and property acquisition. Id. at
¶¶ 1, 23, 26. On November 4, 2016, plaintiff
received a permit from the U.S. Army Corps of Engineers (the
"Corps") authorizing construction of the new track.
Id. at ¶ 35. Plaintiff alleges that defendants,
who hold leadership roles with the Wasco County Board of
Commissioners ("Wasco Board") and the Columbia
River Gorge Commission ("Gorge Commission"),
now "attempting to block this critical infrastructure
improvement through the application of the Wasco County
National Scenic Area Land Use and Development Ordinance (the
"County Ordinance"). Id. at ¶ 1.
plaintiff asserts that although "the permitting process
under the [County Ordinance] as applied to this rail
construction project is preempted by the ICCTA [Interstate
Commerce Commission Termination Act] at 49 U.S.C. §
10501(b) ... in the spirit of cooperation, [it] submitted on
January 9, 2015 an application to Wasco County for
comment." Id. at ¶ 39. In so doing,
plaintiff "expressly reserved the right to invoke ICCTA
preemption." Id. On September 29, 2016, the
Wasco County Planning Commission approved plaintiffs
application, subject to certain conditions. Id. On
November 14, 2016, the Wasco Board reversed the Wasco County
Planning Commission's decision and denied the proposed
rail expansion project because as, the Wasco Board explained,
plaintiffs rail expansion project '"affects treaty
rights.'" Id. at ¶ 41 (citing the
Wasco Board's Order at 10). Plaintiff filed an appeal to
the Gorge Commission. Id. at ¶ 42.
after filing the appeal with the Columbia River Gorge
Commission, plaintiff filed a Complaint (doc. 1) in this
Court. Plaintiff seeks a declaratory order stating that
federal law (ICCTA at 49 U.S.C. § 10501(b)) preempts the
permitting process imposed by the County Ordinance,
id. at ¶¶ 2, 39, and that defendants'
application of the County Ordinance to this rail project
impermissibly burdens interstate commerce in violation of the
Commerce Clause, U.S. Constitution, Art. I, Section 8.
Id. at ¶ 3.
same day plaintiff filed this action, plaintiff also filed a
Motion for Preliminary Injunction (doc. 3) pursuant to Rule
65 and requested an expedited hearing on the Motion.
Plaintiff argues that it must "commence
construction" or "enter into contracts" for
the construction of the project by the contract expiration
date of March 18, 2017, in order to avoid suffering
irreparable harm due to inability to begin construction
before its permit expires. Id. at 2.
January 23, 2017, proposed interveners: (1) Friends of the
Columbia Gorge, Inc. ("Friends"); (2) Columbia
Riverkeeper ("Riverkeeper"); and (3) Oregon
Physicians for Social Responsibility ("Physicians")
(collectively "Gorge Intervenors"), filed a Motion
to Intervene (doc. 16). This Court granted the Motion to
Intervene on February 15, 2017 (doc. 47) after plaintiff
filed a Response (doc. 37) to Gorge Intervenors' Motion,
stating it was unopposed to the Motion.
January 30, 2017, "while expressly reserving their
sovereign immunity, " the Treaty Tribes jointly moved
this Court, pursuant to Rule 12(b)(7), for an order
dismissing this action with prejudice for failure to join
them as parties as Rule 19 requires. Treaty Tribes' Mot.
Dismiss 2. On February 6, 2017, defendants Rod Runyon, the
Commission Chair of the Wasco Board, Steve Kramer and Scott
Hege, Commissioners on the Wasco Board, and Angie Brewer,
Planning Director of the Wasco Board (collectively the
"County defendants") filed a Response (doc. 39) to
The Treaty Tribes' Motion to Dismiss, concurring with the
Treaty Tribes' Motion and "emphasiz[ing] the
federally mandated evaluation of treaty rights undertaken by
Wasco County in its subject decision." Id. at
February 6, 2017, the County defendants filed their response
to the Treaty Tribes' Motion to Dismiss, and defendants
Bowen Blair, Chair of the Gorge Commission, as well as Gorham
Blaine, Dan Erickson, Robert Liberty, Rodger Nichols, and
Antone Minthorn, the Oregon-based Members of the Gorge
Commission (collectively the "Gorge Commissioner
defendants") filed a Response (doc. 40) to the Treaty
Tribes' Motion to Dismiss, concurring with the Treaty
Tribes' Motion and "emphasizing that there exists an
alternative forum in this matter." Id. at 1.
The Court heard oral arguments on the Treaty Tribes'
Joint Motion to Dismiss (doc. 28) on Tuesday, February 21,
2017. See Doc. 38.
Treaty Tribes argue that their Motion to Dismiss should be
granted and the case dismissed with prejudice because: (1)
they are necessary parties under Rule 19 since proceeding
with the action in their absence would impair or impede their
ability to protect their treaty- reserved fishing rights; (2)
their inherent sovereign powers preclude their joinder in
this action; and (3) the case cannot, in equity and good
conscience, proceed without them. Treaty Tribes' Mot.
argues that the Treaty Tribes' Motion should be denied
for three reasons. First, plaintiff argues the Tribes are not
"necessary" parties under Rule 19(a) because: (1)
"they do not have an 'interest' relating to the
subject of [the] action, " which is determining
"who has jurisdiction to regulate the rail construction
project"; (2) "they have not shown that their
ability to protect their interests will be impaired by this
lawsuit" because if plaintiff prevails, "the Tribes
are free to pursue their arguments in the forums designated
by Congress"; and (3) the Corps "has jurisdiction
over this project under the federal Clean Water Act" and
"has a fiduciary duty to take treaty rights into
consideration." Pl.'s Opp'n to Treaty
Tribes' Mot. Dismiss 3.
plaintiff argues that the tribes are not
"indispensable" parties under Rule 19(b), because
"they are not being denied an opportunity to be heard,
" but rather are using "their voluntary absence
from this lawsuit to deprive [plaintiff] of its day in court
on the federal preemption issue." Id. at 4.
plaintiff argues that the Tribes' Motion should be denied
because the "Tribes' asserted interests do not
overcome the public rights [plaintiff] seeks to vindicate in
this action." Id.
Rule of Civil Procedure 12(b)(7) authorizes dismissal of an
action for failure to join a party under Federal Rule of
Civil Procedure 19. In determining whether a party is
required to be joined, Rule 19 imposes a three-step inquiry:
1. Is the absent party necessary (i.e., required to be joined
if feasible) under Rule 19(a)?
2. If so, is it feasible to order that the absent party be
3, If joinder is not feasible, can the case proceed without
the absent party, or is the absent party indispensable such
that the action must be dismissed?
Salt River Project Agr. Imp. & Power Dist. v.
Lee, 672 F.3d 1176, 1197 (9th Cir. 2012) (internal
Rule 19(a): Necessary Party
Rule of Civil Procedure Rule 19(a)(1) states that a party is
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in
the person's absence may:
(i) as a practical matter impair or impeded the person's
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise ...