Posted on June 23, 2021 by Beth S. Ginsberg
On June 23, 2021, the Ninth Circuit in Deschutes River All. v. Portland Gen. Elec. became the first court in the country to hold that Congress did not clearly and unambiguously waive tribal sovereign immunity under the Clean Water Act. In a groundbreaking decision dismissing a citizen suit against Portland General Electric and the Confederated Tribes of the Warm Spring Reservation of Oregon brought by the Deschutes River Alliance seeking to enforce compliance with a section 401 water quality certification for the Pelton Round Butte Hydroelectric Project co-owned by the Tribe and PGE, the Court found that the CWA did not abrogate the Tribe’s immunity and that the suit should have been dismissed under Rule 19 because the Tribe was an indispensable party to suit. [Full disclosure- the author was one of the attorneys that represented PGE in this case.]
In dismissing the case, the Deschutes River Court explained that it must be able to say with “perfect confidence” that Congress meant to abrogate sovereign immunity and held that the “text of the CWA does not provide that required “perfect confidence.” Analyzing CWA section 1365, the only section of the Act that deals explicitly with sovereign immunity, the Court emphasized the text of that section makes no mention of Indian tribes or tribal immunity, while explicitly waiving the United States’ sovereign immunity and allowing suit against “any other governmental instrumentality or agency to the extent permitted by the eleventh immunity.” The Court explained that while 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, and although section 1362(4), in turn, defines a “municipality” to include, inter alia, an Indian tribe or an authorized Indian tribal organization,” the “presence of “an Indian tribe” in §1362(4) “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.” Slip op. at 16.
The Deschutes River Court had no trouble dismissing holdings by other Circuits finding tribal sovereign immunity waivers under other environmental statutes. For example in Blue Legs v. United States Bureau of Indian Affairs, the Eighth Circuit held that Congress clearly abrogated tribal immunity under section 6972(a)(1)(A) of the Resource Conservation and Recovery Act, which similarly allows citizens to bring suit against “any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment), and which similarly defines “person” under section 6903(15), 13(A) to include “an Indian tribe or authorized tribal organization.” The Deschutes River Court found that the Eight Circuit’s analysis “was relatively brief” and failed to consider the significance of the absence of tribes from the citizen-suit provision where sovereign immunity was explicitly addressed: “we are not convinced that the Eight Circuit in Blue Legs reached the correct decision in holding that RCRA abrogates tribal sovereign immunity.” Evaluating and comparing relevant legislative history of the two statutes, the Ninth Circuit found that while the legislative history of RCRA expressed concern with the hazards created by garbage dumps on Indian reservations, the legislative history of the CWA contains no comparable concern. Instead, “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.”
The Ninth Circuit similarly dismissed the Tenth Circuit’s holding in Osage Tribal Council ex rel. Osage Tribe of Indians v. United States Dep’t of Labor, finding a tribal immunity waiver under the Safe Drinking water Act, explaining that unlike the citizen suit provision in the CWA, 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 tribal immunity, there is more reason to think the SDWA abrogates tribal sovereign immunity than does the CWA.” Stay tuned; this decision may not be the last word on this issue. This landmark ruling is the sort of decision that the Supreme Court may be interested in, especially given the Circuit split in the Blue Legs decision and the similarity of the text of the CWA and RCRA on this issue.