Deschutes River Alliance v. Pge

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.