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NW Fishletter #383, July 2, 2018

[8] Federal Judge Finds Warm Springs Tribe Can Be Sued In Deschutes River Case

A federal judge has found the Confederated Tribes of the Warm Springs Reservation is a necessary party in a lawsuit alleging water quality violations have occurred below the Pelton Round Butte hydro project on the Deschutes River, and is not protected by sovereign immunity under the Clean Water Act (CWA).

The June 11 opinion and ruling by U.S. District Judge Michael Simon in Deschutes River Alliance v. Portland General Electric Company denied motions by Warm Springs and PGE to dismiss the case under the Warm Springs' tribal sovereignty argument and ordered the tribe be joined as a defendant. DRA, which initially named only PGE in the lawsuit, has since amended its complaint to include the tribe.

In the lawsuit, filed last year, the Alliance claims PGE has routinely violated the Clean Water Act by exceeding water quality standards for temperature, pH and dissolved oxygen in the Deschutes River. PGE says its operations are consistent with its water quality certification, which also balances new fish passage operations.

In his ruling, Simon found the tribe has a legally protected interest in the case as a co-licensee in the Pelton Round Butte hydro project, holding an ownership interest and serving as operator of the generation at the Reregulating Dam. He also found the tribe has unique interests in the effects on surrounding natural resources, which are reserved through treaty rights.

On the issue of tribal sovereignty, Simon quoted prior case law: "Federally recognized Indian tribes enjoy sovereign immunity from suit, and may not be sued absent an express and unequivocal waiver of immunity by the tribe or abrogation of tribal immunity by Congress." He concluded that "Congress has made a clear and unequivocal waiver of tribal sovereign immunity" for citizen lawsuits under the Clean Water Act, citing previous federal court rulings.

The judge has not yet ruled whether to dismiss the case based on jurisdictional grounds. In a separate motion for dismissal, PGE is arguing that the Alliance's complaints would be more appropriately decided by the Oregon Department of Environmental Quality; by a fish committee set up under the 2005 relicensing of the Pelton Round Butte hydro project to resolve implementation issues, including water quality; or ultimately by FERC. The fish committee includes representatives of state and federal agencies and nonprofit groups, but not the Deschutes River Alliance.

In its motion for dismissal on jurisdictional grounds, PGE claims FERC is the more appropriate forum to resolve the case because the project's Clean Water Act certification is included in the FERC license, which created the committee to resolve these kinds of claims. "FERC intended the committee to have a pivotal role," the motion says, because "the project was going to be adaptively managed to balance competing environmental objectives that include water quality and fish passage."

In a May 30 response, the Alliance says these arguments are without merit, and conflict with extensive case law that finds the primary jurisdiction doctrine is not applicable to citizen suits under the CWA, which was specifically set up to allow courts to ensure direct compliance. DRA also says the clean water issues are not too complex for a judge to resolve.

"PGE has asked the court to compel DRA to relinquish its right to prosecute a CWA citizen suit to halt PGE's violations of its 401 water quality requirements, and instead to put its claims in the hands of entities without the expertise or procedural protections to ensure a proper and appropriate resolution," the group's response says. "Such a ruling would be contrary to Congress' clear intent as provided in the CWA."

Simon will hear arguments on that motion for dismissal on July 17, along with motions by both sides for summary judgment. -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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