In arguments before U.S. District Court Judge Michael H. Simon, defending parties in a two-year court case that alleges water quality violations by Portland General Electric due to operations at its dams on the lower Deschutes River continued to argue that the case should be dismissed.

Attorneys for Portland General Electric, the defendant in the case that was brought by plaintiff Deschutes River Alliance in 2016, and the Confederated Tribes of the Warm Springs Reservation, who only recently filed as Amicus Curiae, for the most part argued Wednesday, May 9, that the case must be dismissed because the tribes should have been and weren’t enjoined to the case.

The Tribe, as Amicus Curiae, filed its motion to dismiss March 21 and PGE followed with its motion to dismiss March 23.

Both PGE and the Tribe had argued in their motions 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 without a valid waiver or abrogation from Congress. That would leave PGE to defend the interest of the Tribe, but Tribe attorney Josh Newton said that wouldn’t be possible due to the Tribe’s relationship with the river and the land given to them by an 1855 treaty.

“Their interest is not a sovereign interest, nor was their interest created by a treaty,” he said. “PGE is not a party to the treaty and cannot represent us. This is our homeland.”

He said the Tribe is a necessary and indispensable party to the dispute and the only party on the river that cares about the reintroduction of the anadromous fall chinook run.

DRA originally filed the lawsuit in District Court August 12, 2016, alleging that PGE’s operations of the Pelton Round Butte Complex of Dams have resulted in over 1,000 violations of its Clean Water Act 401 Certification.

Integral to the reintroduction of salmon and steelhead upstream of the dams is the Selective Water Withdrawal Tower, a surface attractor that helps juveniles find their way downstream to the dam where they are trapped, marked and transported to the lower river.

However, DRA says the SWW, which blends surface and bottom water, is also impacting water quality downstream of the complex of dams that form the lake, saying that water quality has declined in the lower Deschutes River since the utility built the $90 million 273-foot tall SWW in Lake Billy Chinook.

“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,” DRA said in its counter to the dismissal motions. “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.”

DRA further alleges that sovereign immunity for the Tribe was abrogated by the Clean Water Act and so the Tribes could represent their own interests in the case. There is nothing in the language of the federal Clean Water Act that would limit the authority of the court to demand a rejoinder, DRA attorney Daniel Galpern said.

“We didn’t sue the Tribes at first due to comity and respect,” Galpern told Simon. “But it is also because PGE is operator of the dams and is responsible for the clean water violations. We think that injunctive relief would not impact the Tribes.”

“If we need to amend our complaint” to join the Tribes, “we would be willing to do so,” Galpern said.

In outlining how he might proceed in making his decision on the dismissal, Simon asked during the oral arguments “does the absent party have an interest and does that absence impede or impair the party to protect its interests? Then I would ask if joining is feasible. Has Congress abrogated sovereign immunity in the case of the Clean Water Act? If that sovereignty is not abrogated, then what happens next?”

PGE attorney Beth Ginsberg said the language in statutes on whether tribes could be enjoined in CWA suits is unclear and that’s because the definition of “person” is unclear. A person can be sued, and among the definitions of person in CWA statutes are states, municipalities, tribes and corporations, but in at least one case, tribes are left out.

“There are different definitions of persons,” Ginsberg said. “It’s not clear if Section 505 of the CWA includes tribes as a person. We’re left wondering, what did Congress think? It has to be expressed unequivocally and it isn’t.”

Newton said it is clear. “Congress clearly had in mind that an action can be taken against the U.S., states and jurisdictions, but not against tribes,” he said.

Ginsburg offered another solution – that the court considers the doctrine of primary jurisdiction, which is a doctrine that applies where a claim can originally be addressed in a court but would be better addressed first by an administrative body. She said DRA has at least two other options and maybe a third before they bring their complaint to District Court.

The first is simply to bring the complaint to the Federal Energy Regulatory Commission, which issued PGE’s license for the Complex.

The second is to participate on the project’s Fish Committee that oversees the implementation of the Fish Passage Plan which guides PGE and the Tribe’s program to reintroduce salmon and steelhead upstream of the dams.

“Either option is entirely inadequate,” Galpern said. “The possibility of an adverse decision from FERC is almost nil and DRA is not a member of the fish committee. We have no reason to believe that the fish committee controls or has made a decision contrary to what PGE has sought.”

A third option could be to participate in a public process by the Oregon Department of Environmental Quality that will modify the project’s water quality certification.

DRA, which to this point had yet to offer a definition of the injunctive relief it sought (what precise remedy it would want to correct the water quality violations), told the court that the full answer to the question of relief would be subject to discovery and expert reports, but generally relief would allow PGE to release surface water from Lake Billy Chinook for several months of the year to aid juvenile migration, but during the rest of the year PGE would release as much cold bottom water as possible and also add more spill at the re-regulation dam, owned by the Tribe, to add dissolved oxygen into downstream reaches. Relief also would include enhanced monitoring both upstream and downstream of the dams, Galpern said.

Any relief, when we hear it from DRA, Newton said, has to acknowledge that fish passage requires year-round operations at the dams and any relief will impact the Tribe.

Simon said he would take the day’s arguments under advisement. In the meantime, he invited PGE to file a brief showing how the doctrine of primary jurisdiction would work in this case within five working days and gave DRA three weeks beyond that to respond.

Also see:

--CBB, April 23, 2018, “Deschutes River Alliance Counters Motions To Dismiss Clean Water Case,” http://www.cbbulletin.com/440511.aspx

--CBB, April 6, 2018, “PGE, Warm Springs Tribe Move To Dismiss Deschutes River Clean Water Case,” http://www.cbbulletin.com/440474.aspx

--CBB, March 16, 2018, “Briefing Arguments Begin In District Court On Deschutes River Clean Water Case,” http://www.cbbulletin.com/440362.aspx

--CBB, March 3, 2018, “Judge Changes Court Schedule To Allow For Deschutes River Spill Consideration,” http://www.cbbulletin.com/440287.aspx

-- CBB, February 23, 2018, “Deschutes River Alliance Seeks New Court Schedule To Allow For Spill Request At Pelton-Round Butte,” http://www.cbbulletin.com/440262.aspx

--CBB, January 19, 2018, “Parties Agree To Court Schedule In Deschutes River Flow, Water Temperature Case,” http://www.cbbulletin.com/440101.aspx

--CBB, August 25, 2017, “Ninth Circuit Declines PGE Request On Deschutes River Case, Lawsuit Continues In Lower Court,” http://www.cbbulletin.com/439469.aspx

--CBB, June 2, 2017, “Portland General/Deschutes River Alliance Dispute Over Lower Deschutes Goes To Ninth Circuit,” http://www.cbbulletin.com/439002.aspx

--CBB, May 5, 2017, “PGE Again Asks District Court to Move Deschutes Clean Water/Salmon Reintroduction Case To Ninth,” http://www.cbbulletin.com/438845.aspx

--CBB, April 14, 2017, “PGE Seeks Appeal In Ninth Circuit On Deschutes Clean Water/Salmon Reintroduction Case,” http://www.cbbulletin.com/438716.aspx

--CBB, April 7, 2017, “Judge Denies PGE Request To Dismiss Deschutes Clean Water Lawsuit Related To Salmon Reintroduction,” http://www.cbbulletin.com/438671.aspx

-- CBB, February 10, 2017, “States Weigh In On Deschutes River Clean Water Case Related To Salmon/Steelhead Re-introduction,” http://www.cbbulletin.com/438307.aspx

--CBB, November 4,, 2016, “Portland General Pushing For Dismissal Of Deschutes Water Quality Case; Outlines FERC Process,” http://www.cbbulletin.com/437916.aspx

--CBB, August 26, 2016, “Deschutes River Alliance Sues PGE Over Water Quality Issues In Deschutes River; Sockeye Reaching Dam,” http://www.cbbulletin.com/437374.aspx