Lawsuit Update: Another Victory as Court Again Allows DRA Lawsuit to Move Forward

2016 DRA WATER QUALITY REPORT-FINAL 4-10-17

Photo by Rick Hafele

The DRA has won another victory in our ongoing Clean Water Act lawsuit against Portland General Electric. Another request from PGE to dismiss the case has been denied. The decision allows this important lawsuit to continue to move forward.

DRA brought this suit in August 2016, to enforce water quality requirements at the Pelton Round Butte Hydroelectric Project (More background on the suit can be found here and here). In March, PGE and PGE’s co-owner (as a 33 1/3% partner) at the Project, the Confederated Tribes of the Warm Springs Reservation of Oregon (CTWS), filed motions to dismiss the case. They argued that CTWS is a necessary party to the case, but could not be joined as a defendant because CTWS, as a tribal entity, is immune from legal liability under the Clean Water Act. As a result, PGE and CTWS argued that the entire case should be dismissed.

Last week Judge Michael Simon of the Federal District of Oregon determined that the case should proceed. This is great news, as it brings us one step closer to ensuring that DRA’s claims will finally be heard in court.

One result of the Court’s most recent order is that CTWS will now enter the case as a defendant. DRA had elected to sue only PGE, and not CTWS, believing that the heaviest burden of responsibility for the Project’s water quality violations lies with PGE as the primary Project operator. However, both CTWS and PGE argued that the lawsuit could not proceed without CTWS, and Judge Simon has ordered that CTWS be made a formal defendant in the case.

This is the third time in total that DRA has defeated PGE attempts to have this case dismissed. Last year, DRA secured an important victory for clean water advocates everywhere, when Judge Simon determined, contrary to PGE’s arguments, that citizen groups like DRA have the authority to enforce critical water quality requirements at hydroelectric projects. PGE then asked the Ninth Circuit Court of Appeals to review Judge Simon’s decision, which in the face of DRA’s opposition the Ninth Circuit declined to do.

And now, PGE has filed a third motion to dismiss the suit, arguing that Judge Simon should decline to hear the case because the Federal Energy Regulatory Commission (FERC) and state agencies are proper venues for DRA to bring its claims, but not the courts. DRA has fully briefed that issue and will argue it, along with the legal merits of the case, in federal court on July 17.

DRA’s Clean Water Act enforcement case is a critical part of DRA’s advocacy efforts to restore cooler, cleaner water to the lower Deschutes River. As always, this work wouldn’t be possible without your tremendous support. Keep an eye on the DRA blog and social media for further updates on this important case.

Deschutes River Alliance: Cooler, cleaner H2O for the lower Deschutes River. 

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