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Deschutes River Alliance v. Portland General Electric Co.

United States District Court, D. Oregon

June 11, 2018


          Daniel 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.

          Anika E. Marriott, G. Frank Hammod, and Scott J. Kaplan, of Attorneys for Amicus Oregon Department of Environmental Quality.

          Josh Newton and Benjamin C. Seiken, Karnopp Petersen LLP, of Attorneys for Amicus Confederated Tribes of the Warm Springs Reservation of Oregon.


          Michael H. Simon, District Judge

         Plaintiff 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.


         The 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, ¶¶ 4, 6.

         In 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.

         In 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.

         In June 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.

         Beginning 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.

         In July 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.

         During 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 ¶ 30.

         Under 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 Pelton Project.

         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.

         DRA 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.


         A. Procedural Issues

         1. Whether the Tribe Properly Can Move to Dismiss

         DRA 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.

         Under 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.

         2. Whether PGE's ...

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