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NW Fishletter #382, June 4, 2018
 Clarifying Briefs Filed In Pelton Round Butte Case
Both plaintiffs and defendants filed briefs May 16 in Oregon's U.S. District Court attempting to clarify whether tribal sovereign immunity is waived in citizen suits allowed by the Clean Water Act, as District Judge Michael Simon continues to weigh whether to dismiss Deschutes River Alliance (DRA) v. Portland General Electric Company (PGE).
Simon invited a legislative history from both sides on May 9, after hearing oral arguments on motions to dismiss the case, filed by both PGE and the Confederated Tribes of Warm Springs.
DRA filed the lawsuit in 2016, alleging clean water violations from the Pelton Round Butte hydro project's selective water withdrawal tower, built in 2010 to aid fish passage.
Warm Springs joined with PGE as a friend of the court, claiming sovereign immunity. The tribe says it has substantial interests as co-owner of the project. Both have argued in previous filings that they are in compliance with their water quality permits, which require them to balance the downstream water temperature, pH and dissolved oxygen targets with new fish passage mandates. They say any disputes over water quality should be resolved by the Federal Energy Regulatory Commission or a special committee set up by FERC to resolve disputes.
A new joint brief by PGE and the Warm Springs says DRA's entire argument hinges on a definition of municipality in the Clean Water Act that includes tribes, and notes there were no discussions or mentions of tribes during conference, Senate or House reports.
"Plaintiffs understate the high bar required to find a waiver of tribal sovereign immunity," the brief says. "Congressional intent to abrogate must be unmistakably clear and cannot be inferred. Absent such express intent, tribes retain their sovereign rights."
The alliance, however, says that while they found nothing in the legislative record related directly to whether Congress intended to abrogate tribal immunity, the Clean Water Act only expressly excludes states from citizen complaints, due to states rights in the 11th Amendment of the U.S. Constitution.
"Several courts have found that this language represents clear Congressional abrogation of tribal sovereign immunity with respect not only to the CWA but also, by virtue of identical language, with respect to the Safe Drinking Water Act and the Resource Conservation and Recovery Act," the DRA brief says. -K.C. Mehaffey
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