Deschutes River Alliance v. Portland General Electric Co., No. 18-35867 (9th Cir. 2021)
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The Ninth Circuit reversed the district court's grant of summary judgment for PGE and the Confederated Tribes of the Warm Springs Reservation of Oregon in a citizen suit brought by DRA, alleging that PGE was operating the Pelton Round Butte Hydroelectric Project (the Project) in violation of the Clean Water Act (CWA).
The panel agreed with the district court that the Tribe was a required party, but disagreed on the question of the Tribe's sovereign immunity. The panel held that the CWA did not abrogate the Tribe's immunity and that the suit should have been dismissed under Federal Rule of Civil Procedure 19. The panel concluded that the inclusion of "an Indian tribe" in the definition of "municipality" (and, in turn, in the definition of "person") does not indicate—let alone clearly indicate—that Congress intended in the CWA to subject tribes to unconsented suits. The panel agreed with the district court that the Tribe is a required party because it has a legally protected interest in the subject of the suit that may be impaired by proceedings conducted in its absence. Therefore, the Tribe's sovereign immunity requires dismissal of this suit, in which DRA challenges the operation of a large hydroelectric project co-owned and co-operated by the Tribe, and located partly on the Tribe's reservation. The panel did not reach the question of whether PGE and the Tribe violated the CWA. The panel remanded with instructions to vacate the judgment and to dismiss the suit for failure to join the Tribe.
Court Description: Fed. R. Civ. P. 19 / Tribal Immunity. The panel reversed the district court’s summary judgment in favor of Portland General Electric (PGE) and the Confederated Tribes of the Warm Springs Reservation of Oregon (the Tribe), and remanded with instructions to vacate the judgment and to dismiss a citizen suit in which Deschutes River Alliance (DRA) alleged that PGE was operating the Pelton Round Butte Hydroelectric Project (the Project) in violation of the Clean Water Act (CWA). PGE and the Tribe co-own and co-operate the Project on the Deschutes River, located partly within the Warm Springs Indian Reservation in Oregon. The district court denied PGE’s motion under Fed. R. Civ. P. 19 to dismiss for failure to join the Tribe as a required party, 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 4 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. violation of the CWA and granted summary judgment in favor of PGE and the Tribe. The panel held that DRA has Article III standing. The panel held that the Tribe did not waive its sovereign immunity to this suit. The panel wrote that the Tribe’s waiver of its immunity when it agreed not to assert sovereign immunity from a suit brought by a party to the Project’s Implementation Agreement does not apply to a suit brought by DRA, which is not a party to the Agreement. The panel held that the CWA did not abrogate the Tribe’s sovereign immunity. The panel wrote that the inclusion of “an Indian tribe” in the definition of “municipality” in 33 U.S.C. § 1362(4) (and, in turn, the definition of “person” in 33 U.S.C. § 1362(5)) does not indicate—let alone clearly indicate—that Congress intended in the CWA to subject tribes to unconsented suits. The panel held that the Tribe is a required party under Fed. R. Civ. P. 19(a)(1)(B)(i) because it has a legally protected interest in the subject of the suit that may be impaired by proceedings conducted in its absence, but that joinder of the Tribe is infeasible because of its Tribal immunity. Noting that PGE and the Tribe have potentially divergent interests, the panel determined under Fed. R. Civ. P. 19(b) that the case cannot proceed in the Tribe’s absence. The panel therefore concluded that DRA’s suit must be dismissed under Rule 19 for failure to join a required party. Dissenting in part and concurring in the judgment, Judge Bea joined the majority in most of its holdings, including that the text of the CWA does not evince Congress’s clear intent DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 5 to abrogate tribal immunity. He wrote that the Opinion’s references to the legislative history of the CWA as additional support for its determination are superfluous and irrelevant. 6 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
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