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Deschutes River Alliance Counters Motions To Dismiss Clean Water Case
Posted on Friday, April 13, 2018 (PST)

By an agreement with its co-owner, the Confederated Tribes of the Warm Springs Reservation, Portland General Electric is the legal operator of the Pelton Round Butte Complex of hydroelectric projects on the Deschutes River and for that reason is the only defendant that needs to be involved in a two-year case in U.S. District Court, alleges a recent court filing by the Deschutes River Alliance.


PGE moved March 23 to dismiss the case first brought to the court nearly two years ago when DRA charged the company with clean water act violations resulting from its operations at the dams in Central Oregon. It was PGE’s second motion to dismiss the case. This time, the Tribe filed March 21, also asking for a dismissal.


In its first motion to dismiss the case, PGE said that a citizen lawsuit is not permissible. That motion was denied by both Judge Michael H. Simon and the U.S. Court of Appeals for the Ninth Circuit Court.


In the latest motion to dismiss, filed March 23, PGE said that it cannot in all conscience proceed without its co-owner also being a party to or joining the proceedings, but it also argued that the Tribe has sovereign immunity and cannot be compelled to join the lawsuit.


“These motions come nearly 20 months after Plaintiff Deschutes River Alliance filed this Clean Water Act citizen suit, and 18 months after PGE filed its first motion to dismiss …,” DRA complained in its April 4 consolidated response brief to PGE and the Tribe’s dismissal motions.


DRA originally filed the lawsuit in District Court August 12, 2016, alleging that PGE’s operations of the dams have resulted in over 1,000 violations under the Clean Water Act.


“The subject of this case is whether PGE is operating the Pelton Round Butte Hydroelectric Project (“the Project”) in violation of the Project’s Clean Water Act Section 401 Certification,” DRA’s filing says. “PGE is the designated Operator of the Project, and in that role is responsible not only for operating and maintaining the Project but for compliance with all applicable laws, permits, and licenses. As such, it is the appropriate defendant in this case, and the Tribe is not a required party under Rule 19 because the interests of the Tribe in the subject of this litigation will be adequately represented by PGE.”


Both PGE and the Tribe had argued in their motions to dismiss that the Tribe is a “necessary and indispensable party which, as a result of its sovereign immunity, cannot be joined to this suit” and so DRA’s case should be dismissed.


They also argued that, with sovereign immunity, the Tribe cannot be compelled to join the case:


“The Tribe possesses sovereign immunity, meaning that it cannot be compelled to join this action absent a valid waiver or Congressional abrogation of the Tribe’s sovereign immunity,” the Tribe wrote in its March 21 motion to dismiss. “There is no waiver or abrogation that would apply to DRA’s action against PGE. Thus, it is not feasible to join the Tribe.”


Continuing the court case without the Tribe, it continued, “will substantially prejudice the Tribe” given the “Tribe’s substantial interests that relate to the subject of this action….There is no practical way to shape relief in a manner that would lessen that prejudice and still leave an adequate remedy for DRA.”


However, DRA argues in its April 4 brief that “even if the Tribe were a required party, the motions should be denied because it is feasible to join the Tribe in this case, as Congress has expressly abrogated tribal immunity under the Clean Water Act. And even if this were not so, equity and good conscience weigh heavily toward allowing the case to proceed among the existing parties.”


Moreover, DRA says in its reply brief, the Tribe had already filed an unopposed motion “’to appear as amicus curiae in all aspects of [the] case,’” “’in order to protect its proprietary, sovereign, and treaty-reserved rights and interests.’”


“Now, the Tribe attempts to move … to dismiss the case for DRA’s alleged failure to join it as a required party ….”


Reviewing the history of the Pelton Round Butte project, DRA says that PGE was originally the sole licensee, obtaining its federal license to operate the project in 1951. However, in 2000, PGE entered into a “Long-Term Global Settlement and Compensation Agreement with the Tribe” and the Tribe became a one-third owner with the option to purchase a greater stake in the future.


That Long-Term agreement, DRA says, “identifies PGE as the ‘Operator’ of the Project. In that role, PGE is obligated, among other duties, to ‘operate and maintain the Project’ and to ‘take any and all actions necessary or appropriate to comply with such Applicable Laws, orders, permits and licenses, now or hereafter in effect.’”


DRA concludes that the two motions to dismiss – one by PGE and the second by the Tribe – should be denied. Both parties, DRA says, fail to establish the elements needed for their defense under federal statute, saying:


First: Tribe is not required to be joined in the present case because its interests will be adequately represented by PGE.


Second: Even if the court determines that the Tribe is required to be joined, the court could join the Tribe to the action, as the Tribe does not enjoy sovereign immunity from enforcement under the CWA.


Third: Even if the court determines that the Tribe is required to be joined but that it’s not feasible, the court should nonetheless decline to dismiss the case because the factors provided in Rule 19(b) weigh strongly in favor of proceeding among the existing parties.


Federal Rule of Civil Procedure 19(b) says that when a joinder – in this case the Tribe joining DRA’s lawsuit as a defendant – “the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.”


One of the four factors for the court to consider is “(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder” In light of this rule, DRA says that if its lawsuit is dismissed, it would not have “an adequate remedy for PGE’s Clean Water Act violations….”


Finally, in its March 23 brief, PGE said that DRA should take the case up with the Federal Energy Regulatory Commission, which holds the dams’ license to operate. However, DRA says that FERC has no jurisdiction over Clean Water Act violations, which is what this case is about.


Also see:


--CBB, April 6, 2018, “PGE, Warm Springs Tribe Move To Dismiss Deschutes River Clean Water Case,”


--CBB, March 16, 2018, “Briefing Arguments Begin In District Court On Deschutes River Clean Water Case,”


--CBB, March 3, 2018, “Judge Changes Court Schedule To Allow For Deschutes River Spill Consideration,”


-- CBB, February 23, 2018, “Deschutes River Alliance Seeks New Court Schedule To Allow For Spill Request At Pelton-Round Butte,”


--CBB, January 19, 2018, “Parties Agree To Court Schedule In Deschutes River Flow, Water Temperature Case,”


--CBB, August 25, 2017, “Ninth Circuit Declines PGE Request On Deschutes River Case, Lawsuit Continues In Lower Court,”


--CBB, June 2, 2017, “Portland General/Deschutes River Alliance Dispute Over Lower Deschutes Goes To Ninth Circuit,”


--CBB, May 5, 2017, “PGE Again Asks District Court to Move Deschutes Clean Water/Salmon Reintroduction Case To Ninth,”


--CBB, April 14, 2017, “PGE Seeks Appeal In Ninth Circuit On Deschutes Clean Water/Salmon Reintroduction Case,”


--CBB, April 7, 2017, “Judge Denies PGE Request To Dismiss Deschutes Clean Water Lawsuit Related To Salmon Reintroduction,”


-- CBB, February 10, 2017, “States Weigh In On Deschutes River Clean Water Case Related To Salmon/Steelhead Re-introduction,”


--CBB, November 4,, 2016, “Portland General Pushing For Dismissal Of Deschutes Water Quality Case; Outlines FERC Process,”


--CBB, August 26, 2016, “Deschutes River Alliance Sues PGE Over Water Quality Issues In Deschutes River; Sockeye Reaching Dam,”


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