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NW Fishletter #388, Dec. 3, 2018

[9] Group Appeals Dismissal Of Lawsuit Against PGE

The Deschutes River Alliance has filed an appeal in the 9th U.S. Circuit Court of Appeals, hoping to revive its lawsuit that claims Portland General Electric and the Confederated Tribes of the Warm Springs Reservation of Oregon are violating a water quality permit for the Pelton Round Butte hydroelectric project.

U.S. District Court Judge Michael Simon dismissed the case in U.S. District Court in Oregon on Aug. 3, ruling that the project is operating within conditions of its water quality certification.

"Essentially, we are asking the court to review Judge Simon's decision on summary judgment. We disagree with his ruling, and will be making that case for the 9th Circuit," Jonah Sandford, the Alliance's executive director and staff attorney, told NW Fishletter.

Sandford declined to talk about specific issues that the Alliance seeks to overturn in the appeal. "Ultimately for us, we believe it's really critical that the project comply with water quality standards. These are standards that were developed for the explicit purpose of protecting water quality in the lower Deschutes," he said.

PGE and the Warm Springs tribe filed separate cross-appeals "protectively," to be considered only if the appeals court reverses Simon's ruling. PGE's cross-appeal and the Warm Springs' cross-appeal both raise issue with a District Court ruling denying their June 11 motion to dismiss the case for failing to join a necessary party. PGE's cross-appeal also raises the District Court's March 27, 2017, ruling denying PGE's motion to dismiss due to lack of jurisdiction.

The court ultimately dismissed the lawsuit, in which the Alliance claimed that PGE and the Warm Springs routinely violated the Clean Water Act by exceeding water quality standards for temperature, pH and dissolved oxygen. PGE and the tribes successfully countered that the operations are consistent with the project's water quality certification, and must be balanced with new fish passage requirements.

The Alliance must file its opening brief in the appeal by Jan. 25, 2019, and replies from PGE and the Warm Springs are due Feb. 25, 2019. -K.C. Mehaffey

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