Deschutes River Alliance v. Portland Gen. Elec. Co.

1 F.4th 1153

DESCHUTES RIVER ALLIANCE, an Oregon nonprofit corporation, Plaintiff-Appellant,

v.PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation; Confederated Tribes of the Warm Springs Reservation of Oregon, Defendants-Appellees.

Deschutes River Alliance, an Oregon nonprofit corporation, Plaintiff-Appellee,

v.Portland General Electric Company, an Oregon corporation, Defendant-Appellant,andConfederated Tribes of the Warm Springs Reservation of Oregon, Defendant.

Deschutes River Alliance, an Oregon nonprofit corporation, Plaintiff-Appellee,

v.Portland General Electric Company, an Oregon corporation, Defendant,andConfederated Tribes of the Warm Springs Reservation of Oregon, Defendant-Appellant.

No. 18-35867

No. 18-35932

No. 18-35933

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2021 Portland, Oregon

Filed June 23, 2021

Daniel M. Galpern (argued), Law Office of Daniel M. Galpern, Eugene, Oregon; J. Douglas Quirke, Oregon Clean Water Action Project, Eugene, Oregon; for Plaintiff-Appellant/Cross-Appellee.

Josh Newton (argued), Karnopp Petersen LLP, Bend, Oregon, for Defendants-Appellees/Cross-Appellants Confederated Tribes of the Warm Springs Reservation of Oregon.

Misha Tseytlin (argued) and Kevin M. LeRoy, Troutman Pepper Hamilton Sanders LLP, Chicago, Illinois; Beth S. Ginsberg, Stoel Rives LLP, Seattle, Washington; James R. George, Portland General Electric Co., Portland, Oregon; for Defendants-Appellees/Cross-Appellants Portland General Electric Company.

Jennifer H. Weddle and Kyle R. Montour, Greenberg Traurig LLP, Denver, Colorado; Derrick Beetso, National Congress of American Indians, Washington, D.C.; Hon. Doreen McPaul, Navajo Nation Attorney General; Paul Spruhan, Assistant Attorney General; Navajo Nation Department of Justice, Window Rock, Arizona; for Amici Curiae National Congress of American Indians, Crow Tribe of Indians, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, and Navajo Nation.

Richard M. Glick, P. Andrew McStay Jr., and Alicia J. LeDuc, Davis Wright Tremaine LLP, Portland, Oregon, for Amicus Curiae Idaho Power Company.

Before: William A. Fletcher, Carlos T. Bea, and Michelle T. Friedland, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Bea

W. FLETCHER, Circuit Judge:

Portland General Electric ("PGE") and the Confederated Tribes of the Warm Springs Reservation of Oregon (the "Tribe") co-own and co-operate the Pelton Round Butte Hydroelectric Project (the "Project") on the Deschutes River, located partly within the Warm Springs Indian Reservation in Oregon. Deschutes River Alliance ("DRA") filed a citizen suit against PGE alleging that PGE was operating the Project in violation of the Clean Water Act ("CWA"). See 33 U.S.C. § 1365.

PGE moved under Federal Rule of Civil Procedure 19 to dismiss for failure to join the Tribe as a required party. The district court denied the motion, holding that the Tribe was a required party but feasible to join because the CWA had abrogated the Tribe's sovereign immunity. DRA filed an amended complaint joining the Tribe as an additional defendant. The district court held that the Project was not in violation of the CWA and granted summary judgment in favor of PGE and the Tribe.

We agree with the district court that the Tribe was a required party, but we disagree on the question of the Tribe's sovereign immunity. We hold that the CWA did not abrogate the Tribe's immunity and that the suit should have been dismissed under Rule 19. We therefore do not reach the question whether PGE and the Tribe violated the CWA. We remand with instructions to vacate the judgment and dismiss the suit.

I. Background

A. The Clean Water Act

The Clean Water Act was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The CWA makes it unlawful for any person to discharge any pollutant into navigable waters except as authorized by the Act. Id. § 1311.

Under Section 401 of the CWA, an applicant for a federal license to engage in activity that may result in a discharge of a pollutant must obtain a water quality certification from the relevant State or interstate agency "that any such discharge will comply with the applicable provisions" of the Act. Id. § 1341(a)(1). A Section 401 certification, or "certificate," attests that the activity will comply with the applicable laws, including State water quality standards and "any other appropriate requirement of State law set forth in such certification." Id. § 1341(a)(1), (d). The certificate's requirements become conditions of the federal license or permit. Id. § 1341(d).

The CWA authorizes citizen suits "against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of [ ] an effluent standard or limitation under this chapter." Id. § 1365(a)(1). An "effluent standard or limitation" includes "a certification under section 1341 of this title." Id. § 1365(f). A "person" is defined as "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." Id. § 1362(5). A "municipality" is defined, in turn, as

a city, town, borough, county, parish, district, association, or other public body created by or pursuant to State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 1288 of this title.

Id. § 1362(4).

B. The Project

The Pelton Round Butte Hydroelectric Project is a system consisting of three dams on the Deschutes River in Oregon. The Round Butte Dam, built in 1964, is the farthest upstream, forming Lake Billy Chinook behind it. Next is the Pelton Dam, forming Lake Simtustus. Farthest downstream is the Reregulating Dam, forming the Pelton Regulating Reservoir.

Part of the Project is within the Warm Springs Indian Reservation. The Reservation is home to the Confederated Tribes of Warm Springs, which include the Wasco, Warm Springs, and Paiute tribes. The Tribe is the legal successor in interest to the Indian signatories of an 1855 treaty reserving the land for their exclusive use.

In 1951, the Federal Power Commission, predecessor to the Federal Energy Regulatory Commission ("FERC"), issued a fifty-year license to PGE for the Project. In 1980, FERC amended the license to allow the Tribe to construct power generation facilities in the Reregulating Dam as a joint licensee.

PGE and the Tribe subsequently filed competing applications for a new license. After entering into a Global Settlement and Compensation Agreement, PGE and the Tribe jointly applied to FERC for a new license in 2001. At the same time, they jointly applied for Section 401 certifications from the Tribe's Water Control Board and Oregon's Department of Environmental Quality ("DEQ"). The certifications were issued the following year. PGE and the Tribe also participated in a Settlement Working Group in order to address concerns of various stakeholders about the Project. Their efforts resulted in a Settlement Agreement, approved by FERC in 2005. A key part of the Settlement Agreement was a Fish Passage Plan designed to facilitate the movement of fish through the Project. FERC issued the new license, incorporating the DEQ water quality certification and most of the provisions of the Settlement Agreement.

Pursuant to the DEQ certification and the Settlement Agreement, a Selective Water Withdrawal facility ("SWW") at Round Butte Dam was completed in 2009.

The SWW draws water from both the surface and bottom of Lake Billy Chinook to meet water quality standards downstream and to facilitate the passage of fish.

C. DRA's Citizen Suit

DRA is a nonprofit advocacy organization established to protect the lower Deschutes River, formed shortly after the SWW began operation. Its members are concerned about the effect of the SWW's operation on water quality in the river.

On August 12, 2016, DRA brought suit against PGE under 33 U.S.C. § 1365, alleging that the Project was in violation of its Section 401 certificate. Defendant PGE moved to dismiss under Rule 19 for failure to join the Tribe as a required party. The Tribe, appearing as amicus, argued in support of the motion. The district court denied the motion, holding that the Tribe was a required party but feasible to be joined because the CWA had abrogated the Tribe's sovereign immunity. DRA then filed an amended complaint joining the Tribe as an additional defendant.

On August 3, 2018, the district court granted PGE and the Tribe's motions for summary judgment, holding that the Project was not violating its Section 401 certificate. DRA appealed, and PGE and the Tribe cross-appealed. We have jurisdiction under 28 U.S.C. § 1291.

II. Standards of Review

"Both Article III standing and sovereign immunity are threshold jurisdictional issues that we review de novo." Daniel v. Nat'l Park Serv. , 891 F.3d 762, 765–66 (9th Cir. 2018).

We generally review a district court's Rule 19 determinations for abuse of discretion. Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California , 547 F.3d 962, 969 (9th Cir. 2008). However, "[t]o the extent that the district court's determination whether a party's interest is impaired involves a question of law, we review de novo." Pit River Home & Agric. Coop. Ass'n v. United States , 30 F.3d 1088, 1098 (9th Cir. 1994).

III. Discussion

PGE and the Tribe argue that DRA lacks Article III standing and that the CWA did not abrogate the Tribe's sovereign immunity. We hold that DRA has Article III standing. We hold further that the CWA did not abrogate the Tribe's sovereign immunity and that the district court should have dismissed DRA's suit under Rule 19. We therefore do not reach the...