Ninth Circuit Muddies the Waters of Tribal Sovereign Immunity and the Clean Water Act in Deschutes River Alliance v. Portland GE

Authors

Danielle CliffordFollow

Abstract

Throughout 2011 and 2012, members of the Deschutes River community who fish in the Lower Deschutes River in Oregon noticed a slew of significant changes to their natural environment. The Deschutes River Alliance attributed the changes to the operation of the Pelton Round Butte Hydraulic Project, which is co-owned and operated by Portland General Electric and The Confederated Tribes of the Warm Springs. In July 2016, DRA filed a Clean Water Act lawsuit against them. To rule on the alleged CWA violations, the DRA must first get past the tribal sovereign immunity hurdle. It is long-recognized that American Indian Nations possess sovereign immunity, however, Congress may expressly abrogate immunity or immunity may be waived. The groundbreaking opinion in Deschutes River Alliance v. Portland Gen. Elec. Co. represents the first time a court has held Congress did not abrogate tribal sovereign immunity under the CWA. Despite decisions from sister circuits, the court dismissed the suit before deciding whether a CWA violation occurred. The Ninth Circuit decided to tread lightly to respect both the principle of tribal sovereign immunity and Congress's authority, but ultimately the court's decision creates a free pass for projects on tribal land to pollute the water with no repercussions.

Recommended Citation

Clifford, Danielle (2022) "Ninth Circuit Muddies the Waters of Tribal Sovereign Immunity and the Clean Water Act in Deschutes River Alliance v. Portland GE," Washington Journal of Social & Environmental Justice: Vol. 12: Iss. 2, Article 2.
Available at: https://digitalcommons.law.uw.edu/wjsej/vol12/iss2/2