Portland General Electric and the Confederated Tribes of the Warm Springs Reservation of Oregon each filed briefs Sept. 28 describing why the 9th U.S. Circuit Court of Appeals should remand an appeal by the Deschutes River Alliance back to U.S. District Court in Oregon for dismissal.
The alliance is asking the court to overturn a lower court ruling that allows PGE and the Warm Springs tribe to take into consideration all water quality criteria and fish passage goals when operating a selective water-withdrawal tower below the Pelton Round Butte hydroelectric project, which PGE and Warm Springs operate jointly.
The alliance claims the project repeatedly violates water quality standards for temperature, pH and dissolved oxygen. It appealed a U.S. District Court ruling in 2018 that dam operators are working toward achieving the standards outlined in their water quality certification.
In addition to arguing the lower court properly ruled the project is in compliance with its water quality certification, the tribe and PGE argued the tribe has sovereign immunity and cannot be sued nor compelled to join the action. "Tribal sovereign immunity is the baseline position, and to abrogate such immunity, there must be clear evidence that Congress actually considered the issue and unequivocally chose abrogation," the tribe's brief stated.
Both briefs also claim the alliance has not offered a remedy to address the alleged violations. "The Alliance brought this lawsuit to vindicate its claimed interest in the fish and water quality of the Deschutes River. But it has repeatedly refused to explain what judicial remedy would vindicate that interest," PGE's brief stated.
On Oct. 5, several tribes and groups filed amicus briefs in support of PGE and Warm Springs. They include Idaho Power, which supports PGE and the district court ruling that "a mere exceedance of numeric water quality criteria, standing alone, does not constitute a Clean Water Act violation in this context."
The National Congress of American Indians, Crow Tribe of Indians, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community and Navajo Nation filed an amicus brief in support of Warm Springs. They joined to support the argument that tribes are immune to the lawsuit. "This significant issue implicates the very basis of federal Indian law," the brief stated.