Deschutes River Alliance v. Pge ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESCHUTES RIVER ALLIANCE, an No. 18-35867
Oregon nonprofit corporation,
Plaintiff-Appellant, D.C. No.
3:16-cv-01644-SI
v.
PORTLAND GENERAL ELECTRIC
COMPANY, an Oregon corporation;
CONFEDERATED TRIBES OF THE
WARM SPRINGS RESERVATION OF
OREGON,
Defendants-Appellees.
DESCHUTES RIVER ALLIANCE, an No. 18-35932
Oregon nonprofit corporation,
Plaintiff-Appellee, D.C. No.3:16-cv-
01644-SI
v.
PORTLAND GENERAL ELECTRIC
COMPANY, an Oregon corporation,
Defendant-Appellant,
and
2 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
CONFEDERATED TRIBES OF THE
WARM SPRINGS RESERVATION OF
OREGON,
Defendant.
DESCHUTES RIVER ALLIANCE, an No. 18-35933
Oregon nonprofit corporation,
Plaintiff-Appellee, D.C. No.
3:16-cv-01644-SI
v.
PORTLAND GENERAL ELECTRIC OPINION
COMPANY, an Oregon corporation,
Defendant,
and
CONFEDERATED TRIBES OF THE
WARM SPRINGS RESERVATION OF
OREGON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 7, 2021
Portland, Oregon
Filed June 23, 2021
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 3
Before: William A. Fletcher, Carlos T. Bea, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge W. Fletcher;
Partial Concurrence and Partial Dissent by Judge Bea
SUMMARY*
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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.
COUNSEL
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.
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 7
OPINION
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.
8 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
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,
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 9
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
10 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
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.
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 11
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).
12 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
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 question whether the Project violates the CWA.
A. Article III Standing
The Supreme Court tells us that there are three core
requirements for Article III standing. “The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). PGE
and the Tribe argue that DRA lacks Article III standing
because it has failed to state a judicially redressable claim.
They contend that DRA has not explained what available
relief would improve water quality in the river, and that the
district court is therefore without power to grant effective
relief.
DRA’s arguments are unavailing. To satisfy Article III,
a plaintiff “need only show a substantial likelihood that the
relief sought would redress the injury.” M.S. v. Brown,
902 F.3d 1076, 1083 (9th Cir. 2018) (quotation marks and
citation omitted). DRA seeks an injunction requiring PGE
and the Tribe to comply with their Section 401 certificate,
which it interprets as requiring compliance with particular
water quality criteria. If the district court agreed with DRA’s
argument on the merits, there is a substantial likelihood that
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 13
an injunction requiring defendants meet these criteria would
redress DRA’s alleged injury by improving the water quality
of the lower Deschutes River. See Friends of the Earth, Inc.
v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 185–86 (2000)
(“It can scarcely be doubted that, for a plaintiff who is injured
or faces the threat of future injury due to illegal conduct
ongoing at the time of suit, a sanction that effectively abates
that conduct and prevents its recurrence provides a form of
redress.”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 318
(1982) (reading the CWA “as permitting the exercise of a
court’s equitable discretion . . . to order relief that will
achieve compliance with the Act”). DRA has thus carried its
“relatively modest” burden of demonstrating redressability.
See M.S., 902 F.3d at 1083.
B. Tribal Sovereign Immunity
“Suits against Indian tribes are . . . barred by sovereign
immunity absent a clear waiver by the tribe or congressional
abrogation.” Okla. Tax Comm’n v. Citizen Band Potawatomi
Indian Tribe of Okla., 498 U.S. 505, 509 (1991). The Tribe
and PGE argue that the district court erred in concluding
Congress abrogated tribal immunity in the CWA. DRA
argues that the Tribe waived its sovereign immunity through
the Project’s Implementation Agreement, and that the district
court was correct in holding that the CWA abrogated its
immunity.
We can quickly dispose of DRA’s waiver argument.
DRA did not raise this argument in the district court. The
argument is without merit in any event. “There is a strong
presumption against waiver of tribal sovereign immunity.”
Demontiney v. United States ex rel. Dep’t of Interior, Bureau
of Indian Affs., 255 F.3d 801, 811 (9th Cir. 2001). DRA
14 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
argues that the Tribe waived its immunity when it agreed not
to assert sovereign immunity from a suit brought by a party
to the Project’s Implementation Agreement. DRA is not a
party to the Agreement, and the Tribe’s waiver does not apply
to a suit brought by a non-party.
DRA’s abrogation argument is more serious, though it
ultimately fails. “[T]o abrogate immunity, Congress must
unequivocally express that purpose. That rule of construction
reflects an enduring principle of Indian law: Although
Congress has plenary authority over tribes, courts will not
lightly assume that Congress in fact intends to undermine
Indian self-government.” Michigan v. Bay Mills Indian
Cmty., 572 U.S. 782, 790 (2014) (quotation marks,
alterations, and citations omitted). “[A] proper respect both
for tribal sovereignty itself and for the plenary authority of
Congress in this area cautions that we tread lightly in the
absence of clear indications of legislative intent.” Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 60 (1978). We must
be able to say with “perfect confidence that Congress meant
to abrogate . . . sovereign immunity.” Daniel, 891 F.3d
at 774 (quotation marks omitted); see Dellmuth v. Muth,
491 U.S. 223, 231 (1989) (“[T]he salient point in our view is
that it cannot be said with perfect confidence that Congress in
fact intended . . . to abrogate sovereign immunity, and
imperfect confidence will not suffice. . . .”).
The text of the CWA does not provide the required
“perfect confidence.” See id. Section 1365—the citizen-suit
provision—provides that “any citizen may commence a civil
action on his own behalf . . . 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).” 33 U.S.C. 1365(a)
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 15
(emphasis added). Section 1365 is the only section of the
CWA dealing explicitly with sovereign immunity. Section
1365 makes no mention of Indian tribes or tribal immunity.
Clause (i) explicitly waives the United States’s sovereign
immunity. Clause (ii) does not mention States specifically.
Instead, it uses the umbrella term “any other [i.e., non-
federal] governmental instrumentality or agency,” allowing
suit against such entities only “to the extent permitted by the
eleventh amendment.” States themselves are, of course,
protected by the Eleventh Amendment (or, to be precise, by
the sovereign immunity principle for which the Amendment
stands). See Alden v. Maine, 527 U.S. 706 (1999). State
entities such as state hospitals are also protected by the
Amendment. See Pennhurst State Sch. and Hosp. v.
Halderman, 465 U.S. 89 (1984). Non-state entities such as
counties are not protected by the Amendment. See Lincoln
Cnty. v. Luning, 133 U.S. 529 (1890).
Section 1362(5) defines a “person,” as “an individual,
corporation, partnership, association, State, municipality,
commission, or political subdivision of a State, or any
interstate body.” Id. § 1362(5) (emphasis added). Section
1362(4), in turn, defines a “municipality” 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.
16 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
Id. § 1362(4) (emphasis added).
DRA argues, and the district court agreed, that the
reference to “an Indian tribe” in § 1362(4) is sufficient to
abrogate tribal immunity because § 1365 provides that a
citizen may commence an action “against any person”;
“person” is defined in § 1362(5) to include “municipality”;
and “municipality” is defined in § 1362(4) to include “an
Indian tribe.” The presence of “an Indian tribe” in § 1362(4),
however, can hardly be said to be a clear and unequivocal
expression of Congressional intent to abrogate when
Congress expressly dealt with sovereign immunity in 1365,
but failed to mention tribes in that section.
Indian tribes and States are both “persons” within the
meaning of § 1365(a), given the definitional chains in
§ 1362(4) and (5). But it does not follow that unconsenting
Indian tribes and States are subject to citizen suits under the
CWA. We have already concluded as much for States. See
Nat’l Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420,
423 (9th Cir. 1996); see also Burnette v. Carothers, 192 F.3d
52, 57 (2d Cir. 1999). There is little reason to conclude to the
contrary for Indian tribes. Because Indian tribes and States
both may waive their sovereign immunity and thus consent to
suit under the CWA, the inclusion of Indian tribes and States
in the definition of “person” is not meaningless. See, e.g.,
C & L Enter., Inc. v. Citizens Band Potawatomi Tribe of
Okla., 532 U.S. 411, 423 (2001) (tribal waiver); Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 670 (1999) (state waiver).
We therefore conclude 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
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 17
indicate—that Congress intended in the CWA to subject
tribes to unconsented suits.
DRA points to the district court’s reliance on Blue Legs
v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8th
Cir. 1989), Osage Tribal Council ex rel. Osage Tribe of
Indians v. United States Dep’t of Labor, 187 F.3d 1174 (10th
Cir. 1999), and Miller v. Wright, 705 F.3d 919 (9th Cir.
2013), in support of its argument that the CWA abrogates
tribal immunity. None of these decisions changes our reading
of the CWA.
In Blue Legs, Oglala Sioux tribal members brought suit
against the Environmental Protection Agency, other federal
government agencies, and their own Tribe under the Resource
Conservation and Recovery Act (“RCRA”), complaining of
fourteen dangerous garbage dumps on the Reservation.
867 F.2d 1094, 1095. The Eighth Circuit held that Congress
clearly indicated in RCRA its intent to abrogate tribal
immunity. Id. at 1097. Under RCRA, as under the CWA,
citizens may bring suit “against any person (including (a) the
United States, and (b) any other governmental instrumentality
or agency, to the extent permitted by the eleventh amendment
to the Constitution).” 42 U.S.C. § 6972(a)(1)(A). As in the
CWA, “person” is defined to include municipality, and
municipality is defined in turn to include “an Indian tribe or
authorized tribal organization.” Id. § 6903(15), (13)(A).
Finally, as in the CWA, neither tribes nor tribal immunity are
mentioned in the citizen-suit provision.
The Eighth Circuit’s analysis was relatively brief. It
followed the definitional chain from person to municipality
to tribe, and relied on a House Report that included “specific
examples of harm to be avoided, including Indian children
18 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
playing in dumps on reservations.” Blue Legs, 867 F.2d
at 1097. The court did not consider the significance of the
absence of tribes from the citizen-suit provision where
sovereign immunity was explicitly addressed. Further, the
court cited our decision in State of Washington Dep’t of
Ecology v. E.P.A., 752 F.2d 1465 (9th Cir. 1985), in which
we held that RCRA gives regulatory authority over tribes to
the United States, but does not provide such authority to
states. Blue Legs, 867 F.2d at 1097. In citing that case, the
Eighth Circuit ignored the distinction between federal
regulatory authority over a State or tribe, which does not
implicate sovereign immunity from suit, and an unconsented
suit under federal law against a State or tribe, which does.
See, e.g., Alden, 527 U.S. at 754–55.
We are not convinced that the Eighth Circuit in Blue Legs
reached the correct conclusion in holding that RCRA
abrogates tribal sovereign immunity. See, e.g., Subtitle D
Regulated Facilities; State/Tribal Permit Program
Determination of Adequacy; State/Tribal Implementation
Rule (STIR), 61 Fed. Reg. 2584, 2588 (proposed Jan. 26,
1996, by the Environmental Protection Agency) (“[By
including Indian tribes in the definition of municipalities in
RCRA], Congress apparently intended to make explicit that
Indian Tribes could receive funds and assistance when
available in the same manner as municipal governments. . . .
There is no indication in the legislative history that Congress
intended to abrogate any sovereign Tribal authority by
defining them as ‘municipalities’ under RCRA.”). But even
if the Eighth Circuit reached the correct result, we note a
difference in the legislative histories of RCRA and the CWA.
In support of its reading of RCRA, the Eighth Circuit cited
Congress’s specifically expressed concern with the hazards
created by garbage dumps on Indian reservations. The
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 19
legislative history of the CWA contains no comparable
expressed concern. The likely explanation for inclusion of
Indian tribes in the definition of municipalities in the CWA
is that Congress intended to make tribes eligible for federal
grants, with no thought of subjecting tribes to unconsented
suits. See, e.g., S. Rep. No. 92-414, reprinted in 1972
U.S.C.C.A.N. 3668, 3742 (“The definition of municipalities
is clarified to make clear that public bodies eligible for grants
under this Act includes associations formed under State law
for the purpose of dealing with water problems . . . as well as
operating agencies established and approved under section
209.”).
In Osage Tribal Council, the Tenth Circuit held that the
enforcement provision for whistleblowers in the Safe
Drinking Water Act (“SDWA”) is “unambiguous,”
establishing that Congress had “unequivocally waived tribal
immunity.” 187 F.3d at 1182. (In a slip of the pen, the Tenth
Circuit mistakenly wrote “waived” rather than “abrogated.”)
Even assuming the Tenth Circuit’s holding was correct,
which we need not decide, the case for abrogation in the
SDWA is stronger than in the CWA. Under the SDWA
enforcement provision, “[a]ny employee who believes that he
has been discharged or otherwise discriminated against by
any person” may file a complaint with the Secretary of Labor.
42 U.S.C. § 300j–9(i)(2)(A). The SDWA then defines
“person” to include “municipality” and “municipality” to
include “an Indian tribe.” Id. § 300f(12), (10). Unlike the
citizen-suit provision in the CWA, however, the enforcement
provision of the SDWA does not mention the sovereign
immunity of the United States or the Eleventh Amendment.
Because the SDWA does not have a provision that deals
specifically with sovereign immunity without mentioning
20 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
tribal immunity, there is more reason to think the SDWA
abrogates tribal sovereign immunity than does the CWA.
In Miller, we held that the federal antitrust laws do not
abrogate tribal sovereign immunity. In the course of our
discussion, we noted and distinguished the decisions Blue
Legs and Osage Tribal Council without explicitly endorsing
their holdings. We wrote only that the antitrust laws do not
“employ the sort of expansive language that we and other
circuits have held to unequivocally abrogate tribal sovereign
immunity.” Miller, 705 F.3d at 926. Our brief reference to
Blue Legs and Osage Tribal Council was only “in passing
without due consideration of the alternatives, [and] done as a
prelude to another legal issue that command[ed] the panel’s
full attention.” United States v. McAdory, 935 F.3d 838, 843
(9th Cir. 2019) (alterations and quotation marks omitted).
The distinction drawn in our discussion in Miller thus does
not require us to conclude that Blue Legs and Osage Tribal
Council were correctly decided.
An intention to abrogate tribal sovereign immunity must
be “unmistakably clear.” Dellmuth, 491 U.S. at 228; Krystal
Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir.
2004) (noting “[i]dentical language is used by courts in
determining whether Congress has abrogated the sovereign
immunity of states” and tribes). We do not have “perfect
confidence” that Congress intended to abrogate the sovereign
immunity of Indian tribes from citizen suits under the CWA.
See Daniel, 891 F.3d at 774. “In the absence here of any
unequivocal expression of contrary legislative intent, . . . suits
against the tribe under the [CWA] are barred by its sovereign
immunity from suit.” Santa Clara Pueblo, 436 U.S. at 59.
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 21
C. Dismissal for Failure to Join a Required Party
Rule 19(a) requires joinder of a party whose presence is
necessary to ensure complete relief among the existing
parties, or to protect a party whose interests would be
impaired or impeded were the action to proceed without that
party. If joinder is not feasible, Rule 19(b) requires dismissal
when the action cannot proceed “in equity and good
conscience” without the required party. Under Rule 19,
“[w]e first determine whether an absent party is a required
party; then whether joinder is feasible; and finally whether
the case can fairly proceed in the party’s absence.” Jamul
Action Comm. v. Simermeyer, 974 F.3d 984, 996 (9th Cir.
2020).
The district court concluded 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. Fed. R. Civ. P. 19(a)(1)(B)(i). We agree with the
district court. A decision that the Project is being operated in
violation of its Section 401 certificate could well impair the
Tribe’s interest as co-owner and co-operator of the Project,
and any relief would risk adversely affecting the Tribe’s
interests.
Joinder of the Tribe is infeasible because of its sovereign
immunity. We must therefore determine under Rule 19(b)
whether the case can proceed in the Tribe’s absence. “The
balancing of equitable factors under Rule 19(b) almost always
favors dismissal when a tribe cannot be joined due to tribal
sovereign immunity.” Jamul Action Comm., 974 F.3d at 998;
see Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996)
(“If the necessary party is immune from suit, there may be
very little need for balancing Rule 19(b) factors because
22 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
immunity itself may be viewed as the compelling factor.”
(quotation marks and citation omitted)). “[T]here is a ‘wall
of circuit authority’ in favor of dismissing actions in which a
necessary party cannot be joined due to tribal sovereign
immunity—‘virtually all the cases to consider the question
appear to dismiss under Rule 19, regardless of whether [an
alternative] remedy is available, if the absent parties are
Indian tribes invested with sovereign immunity.’” Dine
Citizens Against Ruining Our Env’t v. Bureau of Indian Affs.,
932 F.3d 843, 857 (9th Cir. 2019) (alteration in original)
(quoting White v. Univ. of Cal., 765 F.3d 1010, 1028 (9th Cir.
2014)).
This case is no exception. DRA argues that PGE could
adequately represent the Tribe were the suit to proceed in its
absence. But PGE and the Tribe, as the district court noted,
have potentially divergent interests. PGE’s interests in this
litigation begin and end with the Project. By contrast, for the
Tribe, the stakes of this litigation extend beyond the fate of
the Project and implicate sovereign interests in self-
governance and the preservation of treaty-based fishing rights
throughout the Deschutes River Basin. Equity and good
conscience thus do not permit DRA’s suit to proceed when
the action involves protected interests of the Tribe that could
be impaired in its absence. We therefore conclude that
DRA’s suit must be dismissed under Rule 19 for failure to
join a required party.
Conclusion
We hold that the CWA did not abrogate the Tribe’s
sovereign immunity. 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-
DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC. 23
operated by the Tribe, and located partly on the Tribe’s
reservation. We reverse the district court’s grant of summary
judgment. We remand with instructions to vacate the entry
of judgment and to dismiss the suit for failure to join the
Tribe.
REVERSED and REMANDED with instructions.
BEA, Circuit Judge, dissenting in part, concurring in
judgment:
I join the majority in most of its holdings, but I believe
the majority is wrong in one regard. On the issue of tribal
immunity, the majority is correct that the text of the Clean
Water Act (“CWA”) does not evince Congress’s clear intent
to abrogate tribal immunity. That reasoning is dispositive,
and is the basis for my concurrence in the judgment on that
point. However, the majority then cites the legislative history
of the CWA as additional support for its determination.
I do not consider legislative history a useful nor proper
means to interpret legislation, or to distinguish the CWA
from other statutes. It is neither “legislative,” because it is
prepared by unelected bureaucrats, and neither enacted nor
presented to the executive, nor “history,” but congealed
propaganda, picked by interested advocates, not by balanced
historians. It is likely not to have even been read by any
legislators. Hirschey v. FERC, 777 F.2d 1, 7–8 n.1 (D.C. Cir.
1985) (Justice Scalia quoting an exchange between Senators
Dole and Armstrong during a floor debate on a tax bill). I
would apply the negative-implication canon expressio unius
est exclusio alterius. “[This doctrine] as applied to statutory
24 DESCHUTES RIVER ALL. V. PORTLAND GEN. ELEC.
interpretation creates a presumption that when a statute
designates certain persons, things, or manners of operation,
all omissions should be understood as exclusions.” Wheeler
v. City of Santa Clara, 894 F.3d 1046, 1054 (9th Cir. 2018)
(internal quotations omitted). The citizen-suit provision of
the CWA, 33 U.S.C. § 1365, deals with the sovereign
immunity of the federal government and of the states of the
union. It makes no mention of the Indian Tribes. Thus, that
provision does not affect the Tribes’ sovereign immunity.
The Opinion’s references to legislative history are
superfluous and irrelevant.