United States District Court, D. Oregon
M. Galpern, Law Office of Daniel M. Galpern, Jonah Sandford,
of Attorneys for Plaintiff.
Michael R. Campbell, Stoel Rives LLP, Beth S. Ginsberg, Stoel
Rives LLP, of Attorneys for Defendant.
E. Marriott, G. Frank Hammod, and Scott J. Kaplan, of
Attorneys for Amicus Oregon Department of Environmental
Newton and Benjamin C. Seiken, Karnopp Petersen LLP, of
Attorneys for Amicus Confederated Tribes of the Warm Springs
Reservation of Oregon.
OPINION AND ORDER
Michael H. Simon, District Judge
Deschutes River Alliance (“DRA”) is a nonprofit
corporation made up of individuals residing throughout Oregon
who use, enjoy, and recreate in the Deschutes River and its
tributaries in the vicinity of the Pelton Round Butte
Hydroelectric Project (“Pelton Project” or
“Project”). Defendant Portland General Electric
Company (“PGE”) is part-owner and part-operator
of the Pelton Project. DRA sues PGE, alleging that its
operation of the Pelton Project violates the Federal Water
Pollution Control Act, 33 U.S.C. § 1251, et
seq. (commonly known as the Clean Water Act
(“CWA”)). DRA's suit arises under Section
505(a)(1) of the CWA, codified at 33 U.S.C. §
1365(a)(1), commonly known as a citizen suit provision. The
Confederated Tribes of the Warm Springs Reservation of Oregon
(the “Tribe”), which consists of three Indian
tribal groups-the Warm Springs, the Wasco, and the
Paiute-serves as amicus curiae in this case. Both PGE and the
Tribe move to dismiss DRA's Complaint under Federal Rule
of Civil Procedure 12(b)(7) for failure to join a necessary
party (i.e., the Tribe) under Rule 19. For the
reasons discussed, the Tribe and PGE's motions are
denied. Because the Court concludes, however, that the Tribe
is a necessary party to this litigation, and that the Clean
Water Act abrogates the Tire's sovereign immunity on
those issues, the Court orders the Tribe formally joined.
Pelton Project consists of three dams on the Deschutes River:
the Round Butte Dam, the Pelton Dam, and the Reregulating
Dam. ECF 73 at 4, ¶ 11. The Pelton Project is situated
in Jefferson County, Oregon, within and adjacent to the Warm
Springs Indian Reservation (the “Reservation”).
ECF 73 at 3, ¶ 6; 93 F.E.R.C. ¶ 61183. Pursuant to
a treaty executed on June 25, 1855 (“1855
Treaty”), between the United States and the Tribes and
Bands of Middle Oregon, the Reservation is reserved for the
exclusive use of, and serves as a permanent homeland to, the
Tribe, which is the legal successor in interest to the Indian
signatories to the 1855 Treaty. ECF 73 at 2-3, ¶¶
1951, the Federal Power Commission (“FPC”),
predecessor to the Federal Energy Regulatory Commission
(“FERC”), issued to PGE a 50-year license for the
Pelton Project, authorizing the construction of the Pelton
and Reregulating Dams. Id. at ¶ 12. In 1960,
the FPC amended the license to authorize PGE to construct the
Round Butte Dam. Id. at ¶ 12. PGE and the Tribe
later filed a joint application with FERC to amend the Pelton
Project license to allow the Tribe to construct power
generation facilities in the Reregulating Dam. Id.
FERC granted this application and in 1980 amended the license
to designate PGE and the Tribe as joint licensees for the
Pelton Project. Id. at ¶ 16.
April 2000, PGE, the Tribe, and the United States Department
of Interior entered into a Long-Term Global Settlement and
Compensation Agreement (“GSA”). Id. at
¶ 20. Through the GSA, the Tribe and PGE established an
Ownership and Operation Agreement for the Pelton and Round
Butte Dams and Generating Facilities (“O&O
Agreement”), which is still in effect. Id. at
¶ 21; Transcript of Oral Argument Proceedings May 9,
2018 (“Transcript”) at 20. The O&O Agreement
designates PGE as the operator of the Pelton and Round Butte
facilities, and of the Reregulating Dam. Transcript at 33.
The Tribe, however, is operator of the generation
facilities at the Reregulating Dam. ECF 73 at ¶ 20;
Transcript at 33. The GSA also obligates PGE to compensate
the Tribe for the Pelton Project's use and occupation of
lands within the Reservation, including by selling the Tribe
up to a 50.01 undivided interest in PGE's Pelton Project
assets over time. ECF 73 at ¶ 20; Portland Gen. Elec.
Co. & the Confederated Tribes of the Warm Springs
Reservation of Oregon, 93 FERC ¶ 61183, 61602 (Nov. 21,
2000). The GSA was approved by FERC and the Oregon Public
Utility Commission and ratified by Congress. See
In Re Portland Gen. Elec. Co., Order No. 00-459,
2000 WL 1504844 (Aug. 22, 2000); 93 F.E.R.C. ¶ 61, 183
(2000); PL 107-102, December 27, 2001, 115 Stat 974.
2001, PGE and the Tribe jointly applied for a new FERC
project license. ECF 73 at ¶ 23. The Tribe and PGE
simultaneously filed applications for water quality
certifications for the Pelton Project, pursuant to CWA
Section 401, with both the Tribe's Water Control Board
(“WCB”) and with Oregon's Department of
Environmental Quality (“DEQ”). Id. In
June 2002, WCB and DEQ issued their respective water quality
certifications. Each certification incorporates a Water
Quality Management and Monitoring Plan (“WQMMP”),
which was intended to provide a coordinated way to apply both
certifications to the Project. Id. at ¶ 24.
in January 2003, PGE and the Tribe participated in a
facilitated Settlement Working Group with various
governmental and non-governmental stakeholders to resolve
issues associated with the relicensing of the Pelton Project.
Id. at ¶ 25. The Settlement Working Group
produced a Settlement Agreement Concerning the Relicensing of
the Pelton Round Butte Hydroelectric Project FERC Project
2030 (“Relicensing Settlement Agreement”).
Id.; ECF 73-7.
2004, the Tribe and PGE submitted the Relicensing Settlement
Agreement to FERC for approval, along with an Offer of
Settlement and Joint Explanatory Statement and Request for
Technical Conference (“Explanatory Statement”).
ECF 75-2. On June 21, 2005, FERC approved the settlement and
issued a new license to PGE and the Tribe as joint licensees
of the Pelton Project for a 50-year period. (“2005
License”). 111 FERC ¶ 61, 450 (2005). The 2005
License incorporates most of the proposed license articles
contained in the Relicensing Settlement Agreement, and the
DEQ water quality certification. Id.
the original license term, the Pelton Project did not meet
all of the water quality standards in the Deschutes River
immediately below the Pelton Project dams. ECF 73 at ¶
24. At the time of the relicensing negotiations, the Project
withdrew and discharged water from the bottom of the
reservoir only, which resulted in the project exceeding water
quality standards for temperature, pH, and dissolved oxygen.
ECF 75-2 at 4-5. The Project, from the beginning, also had
issues with fish passage. The dams created a total barrier to
migration by resident and anadromous fish in the Deschutes
River, preventing anadromous and resident salmonids from
reaching historical spawning and rearing areas. ECF 75-2 at
4. By 1973, fish passage was abandoned in favor of a fish
hatchery, a result that has had a profound effect on the
Tribe. ECF 73 at ¶ 26. Under the 2005 License, the Tribe
and PGE were required to (1) reintroduce anadromous fish runs
upstream of the Pelton Project that were extirpated as a
result of construction and operation of the project; and (2)
reduce the Pelton Project's contribution to water quality
problems on the Lower Deschutes River. ECF 75-3. A key
feature of the Relicensing Settlement Agreement, made a part
of the 2005 License, is a Fish Passage Plan. ECF 73 at ¶
the 2005 License, the main way in which the Project would
move toward improving both fish passage and water quality was
by construction of a selective water withdrawal facility
(“SWW”) at the Round Butte Dam intake tower.
Id. at ¶ 34. The SWW has been in operation
since 2009. Id. at ¶ 35. The SWW is designed to
allow water withdrawal from both the warmer surface water and
the cooler bottom water, which both helps to meet temperature
and water quality goals and standards and to allow fish
passage. ECF 75-3. As a result of the SWW, anadromous fish
are now passing both upstream and downstream through the
2005 License also establishes Implementation Committees-a
component of the Relicensing Settlement Agreement-including a
Fish Committee. Id. at ¶ 31. The Fish Committee
consists of PGE and the Tribe as well as several other
stakeholders. The Fish Committee oversees implementation of
the Fish Passage Plan. ECF 75-2 at 16. FERC intended the Fish
Committee “to have a pivotal role in the administration
of a large variety of post-licensing activities, including
changes in protection and enhancement measures on behalf of
fish and wildlife, water quality, and recreation.” ECF
75-1 at 7.
brings this action under the citizen suit provision of the
Clean Water Act, alleging ongoing violations of the Pelton
Project's CWA § 401 Certification from DEQ, which is
a condition of the 2005 License. Specifically, DRA alleges
that PGE has violated the following conditions of the DEQ
Water Quality Certification: (1) Condition E.1, requiring
that the facility be operated in accordance with the pH
Management Plan contained in the WQMMP; (2) Condition C.1,
requiring that the SWW facility be operated in accordance
with the Temperature Management Plan; and (3) Condition S,
which requires that no wastes be discharged and no activities
conducted that would violate state water quality standards.
The Tribe and PGE both move to dismiss under Rule 12(b)(7)
for failure to join the Tribe, a party that the Tribe and PGE
argue is necessary under Rule 19.
Whether the Tribe Properly Can Move to Dismiss
argues first that neither the Tribe nor PGE is authorized
under the Federal Rules of Civil Procedure to bring a
12(b)(7) motion at this time. DRA argues that the Tribe,
which is not a party to this case, may not bring such a
motion under Rule 12(b)(7), which provides that “a
party may assert” a 12(b)(7) defense.
Fed.R.Civ.P. 12(b)(7). The Tribe suggests in response that it
is a type of party, although it does not have
“full party status.” The Tribe argues that,
because Rule 12(b)(7) does not limit the types of
parties that may assert a 12(b)(7) defense, it does not
clearly proscribe the Tribe from bringing such a motion. The
Tribe also argues that Rule 12 should, for practical
purposes, be construed to permit an amicus curiae party to
file a Rule 12(b)(7) motion.
Rule 12, only a party may make a Rule 12(b)(7)
motion to dismiss. “An amicus curiae is not a party to
litigation.” Miller-Wohl Co. v. Comm'r of Labor
& Indus. State of Mont., 694 F.2d 203, 204 (9th Cir.
1982) (responding to amici curiae's contention
“that their extensive participation [in a case had]
made them parties to th[e] litigation”). The basis of
the Tribe's motion is that the Tribe was not joined
as a party to this case. The Tribe's motion to
dismiss is therefore denied. Nonetheless, PGE, the defendant
in this case, has made its own motion to dismiss pursuant to
Rules 12(b)(7) and 19, and has joined in the Tribe's
motion to dismiss. The Court therefore considers PGE's
motion to dismiss, with the benefit of the Tribe's
arguments as amicus curiae.
Whether PGE's ...