This Blog Post was authored by Omar Khodor, a summer associate.

On June 23, 2021, the Ninth Circuit, in directing the lower court to dismiss a citizen’s suit claim under the Clean Water Act (“CWA”), held that the CWA did not abrogate tribal sovereign immunity. Deschutes River All. v. Portland Gen. Elec. Co., No. 18-35867, 2021 WL 2559477 (9th Cir. June 23, 2021). To abrogate a Tribe’s sovereign immunity, the Ninth Circuit explained that a statute must convey “perfect confidence” that Congress intended to abrogate tribal sovereign immunity. Id. at 14. It further found that the CWA does not unequivocally do so because Section 1365 – a section explicitly dealing with United States and governmental sovereign immunity – does not mention tribal sovereign immunity. Id. at 15-16. Rather, Section 1365 states 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. Although Section 1362(5) of the CWA goes on to define “any person” as a municipality (among other things), and Section 1362(4) further defines a “municipality” as including an “Indian Tribe or an authorized Indian Tribal organization,” the court determined that Congress had not clearly intended to abrogate tribal sovereign immunity because Tribes are not included in Section 1365. Deschutes River All., 2021 WL 2559477 at *15-16.

In 1951, Portland General Electric (PGE) was licensed for fifty years to construct and maintain three dams on the Deschutes River in Oregon. Id. at 9-10. In 1980, the license was amended to include the Confederated Tribes of Warm Springs (“Tribe”) as a joint licensee to construct facilities for power generation. Id. Upon the expiration of the license in 2001, both PGE and the Tribe cooperatively applied for a new license. Id. As part of a settlement with concerned stakeholders, PGE and the Tribe implemented a system that draws water at the surface and bottom of a lake to accommodate the passage of fish and to satisfy downstream water standards. Id.

The Deschutes River Alliance (“DRA”), a nonprofit founded to protect the Deschutes River, brought suit against PGE on August 12, 2016 in the District Court of Oregon, claiming that the water withdrawal system failed to comply with discharge requirements under Section 401 of the CWA. Id. at 11. PGE moved to dismiss the suit because the Tribe was not joined and was a required party under Rule 19. Id.; Fed. R. Civ. P. 19. The District Court for the District of Oregon denied the motion, finding that although the Tribe’s joinder was required, joinder was feasible because the CWA had abrogated the Tribe’s sovereign immunity under Sections 1362(4) and 1362(5). Id. at 16. Consequently, the DRA amended its complaint to include the Tribe as a codefendant with PGE. Id. at 11. Ultimately, however, the district court held that PGE and the Tribe’s operation of the dams did not violate discharge requirements under the CWA. Id. at 11.

The Ninth Circuit reversed the district court’s holding as to joinder, reasoning that the CWA did not abrogate tribal sovereign immunity because Section 1365 of the CWA, which specifically waives the sovereign immunity of the United States and other governmental instrumentalities within the Eleventh Amendment, did not explicitly mention Tribes. Id. at 15-16. The Court analogized tribal sovereign immunity to State sovereign immunity, noting that States are also defined as “persons” under Sections 1362(4) and 1362(5); however, States are nonetheless protected from unconsented suit within the bounds of the Eleventh Amendment – as stated in Section 1365(ii). Id. Similarly, the court reasoned that the CWA does not abrogate tribal sovereign immunity simply because Section 1365 defines a Tribe as a “person.” Id. Even though States and Tribes are defined as a “person” under the CWA, States and Tribes still have sovereign immunity and protection from unconsented suit. Id.

The Court agreed with the lower court that the Tribe was a required defendant under Rule 19 because it has an interest in the dams as a co-owner and co-operator. Id. at 21. Yet, based on its determination that the CWA does not abrogate triable sovereign immunity, the Court overruled the district court and held that joinder was infeasible. Id. Lastly, the court dismissed DRA’s suit, reasoning that the case could not proceed and fairly represent the Tribe’s sovereign interests of self governance and fishing rights in the Deschutes River Basin. Id. at 22. Because the suit was dismissed for failure to join the indispensable Tribe, the court did not decide whether PGE and the Tribe’s water withdrawal system was in violation of the CWA. Id. at 22-23.

In a separate opinion, Judge Carlos T. Bea agreed that the CWA does not expressly abrogate tribal sovereign immunity. Id. at 23. Judge Bea, however, disagreed with the majority’s use of the CWA’s legislative history to decipher whether the CWA abrogated tribal sovereign immunity. Id. Instead, he would have implemented the expression unius est exclusio alterius doctrine, which is a method of statutory interpretation that presumes omitted “persons, things, or manners of operation” are excluded when a statute contains an enumerated list. Id. Judge Bea noted that the citizen-suit provision of the CWA expressly qualified the sovereign immunity of the United States and other governmental entities. Id. Thus, the omission of Tribes in the citizen-suit provision necessarily does not abridge tribal sovereign immunity. Id.

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