Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`SEATTLE DIVISION
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`PUYALLUP TRIBE OF INDIANS,
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`Plaintiff,
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`vs.
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`ELECTRON HYDRO, LLC; THOM A. FISCHER; )
`TOLLHOUSE ENERGY COMPANY,
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`Defendants.
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`__________________________________________)
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`No. 2:20-CV-1864
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`COMPLAINT
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`1.
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`Plaintiff Puyallup Tribe of Indians (“Puyallup Tribe”) files suit against
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`Defendants Electron Hydro LLC, Thom A. Fischer, and Tollhouse Energy Company
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`(“Electron”), to challenge operations of the Electron hydroelectric project (“Project”) on the
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`Puyallup River in Washington. By maintaining, operating, and renovating the Project,
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`Electron has unlawfully taken, and continues to unlawfully take, Chinook salmon, steelhead
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`trout, and bull trout, which are listed as threatened with extinction under the Endangered
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`Species Act (“ESA”).
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`COMPLAINT – PAGE 1
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 2 of 13
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`JURISDICTION
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`2.
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`This Court has jurisdiction pursuant to the citizen suit provision of the ESA, 16
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`U.S.C. § 1540, and because this case involves a federal question. 28 U.S.C. § 1331. On
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`October 1, 2020, the Puyallup Tribe gave Electron notice of its intent to sue under the ESA.
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`More than 60 days have elapsed since Electron received this notice. The Puyallup Tribe seeks
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`relief authorized by the ESA and the Declaratory Judgment Act. 16 U.S.C. § 1540; 28 U.S.C.
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`§§ 2201-02.
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`3.
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`Venue is proper in this Court pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28
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`U.S.C. § 1391(e). Seattle is the appropriate division within this district for this suit. LCR 3(d).
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`Defendants Electron Hydro, LLC, Thom A. Fischer, and Tollhouse Energy Company reside
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`in Whatcom County. Two active cases exist in this division related to the Project: American
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`Whitewater v. Electron Hydro, LLC, No. 2:16-cv-00047-JCC (W.D. Wash.), and United
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`States of America v. Electro Hydro, LLC, No. 2:20-cv-1746-RAJ (W.D. Wash.).
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`4.
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`A present and actual controversy exists between the parties to this action.
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`PARTIES
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`5.
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`Plaintiff Puyallup Tribe of Indians is a federally recognized Indian Tribe with
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`its Reservation located in Tacoma, Washington. The Tribe’s Reservation includes the
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`Puyallup River, and the Tribe owns the bed and banks of the Puyallup River within its
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`reservation and downstream of the Electron Facility. The Tribe and its members have, for
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`time immemorial, fished the waters of the Puyallup River, the Puyallup River Watershed, and
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`Commencement Bay and the Tribe’s treaty fishing rights are protected under the Medicine
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`Creek Treaty and confirmed by the Puyallup Tribe of Indians Settlement Act of 1989. These
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`Treaty Fishing rights, which are essential to the Tribe and its members existence and culture,
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`have been irreversibly impacted by the Electron Hydro’s actions and violations of the
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`Endangered Species Act as identified herein.
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`6.
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`Defendant Electron Hydro, LLC is a limited liability corporation registered in
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`the State of Washington. Electron Hydro, LLC owns the Project. Electron Hydro, LLC is
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`COMPLAINT – PAGE 2
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 3 of 13
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`responsible for operations of the Project. Electron Hydro, LLC is a joint venture owned by
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`Electron Management, LLC and by Electron Holdings, Inc. Electron Management, LLC is
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`owned primarily by Thom A. Fischer.
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`7.
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`Defendant Thom A. Fischer formed or helped form Electron Hydro, LLC.
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`Thom A. Fischer supervises, manages, or directs staff at the Project. Thom A. Fischer
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`supervises, manages, or directs operations of the Project. Thom A. Fischer has decided or
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`directed when the control gate on the intake to the flume is shut to prevent water from
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`entering the flume, or opened to allow it. Thom A. Fischer has decided or directed when the
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`forebay at the Project is drained. Thom A. Fischer has applied for permits to perform the
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`Diversion Repair and Spillway Replacement Project. Thom A. Fischer decided or directed
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`other elements of the Project, such as components of the Diversion Repair and Spillway
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`Replacement Project.
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`8.
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`Defendant Tollhouse Energy Company is owned by Thom A. Fischer.
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`Tollhouse Energy Company is developing hydroelectric projects in the states of Washington
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`and Montana. Tollhouse Energy Company owns part of Valtec Power, LLC. Valtec Power,
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`LLC owns Black Creek hydroelectric project. Black Creek hydroelectric project is affiliated
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`with Electron Hydro, LLC. Thom A. Fischer uses or has used a Tollhouse Energy Company
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`email for work associated with the Project. Thom A. Fischer uses or had used a Tollhouse
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`Energy Company email to correspond with the Washington Department of Fish and Wildlife
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`about obtaining a Hydraulic Project Approval permit.
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`FACTS
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`9.
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`The Puyallup River originates on Mount Rainier in the Cascade Mountains in
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`Washington. The Puyallup River flows approximately 65 miles to Commencement Bay in
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`Puget Sound. The Puyallup River watershed forms the third largest tributary to Puget Sound.
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`The Puyallup River watershed encompasses approximately 665,000 acres (approximately
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`1000 square miles).
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`COMPLAINT – PAGE 3
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 4 of 13
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`10.
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`Nine native salmonid species inhabit the Puyallup River watershed. These
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`species include Chinook salmon, coho salmon, chum salmon, pink salmon, sockeye salmon,
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`steelhead trout, bull trout, and cutthroat trout. Certain of these salmonids are important prey
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`for orcas in Puget Sound.
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`11.
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`Historically, the Puyallup River and its tributaries supported approximately
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`42,000 Chinook salmon (Oncorhynchus tshawytscha). In 1999, the National Marine Fisheries
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`Service (“NMFS”) listed Chinook salmon in Puget Sound, including in the Puyallup River, as
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`threatened with extinction under the ESA. In 2007, NMFS adopted a Recovery Plan for
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`Chinook. As of 2007, escapement of Chinook in the Puyallup River watershed (including
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`early/spring returns to the White River) was estimated to be 1,300 fish.
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`12.
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`Adult Chinook salmon migrate up the Puyallup River generally from June
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`through October. Adult Chinook salmon in the Puyallup River spawn generally in September.
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`Adult Chinook salmon in the Puyallup River spawn upstream of the Project. Chinook salmon
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`in the Puyallup River emerge from redds generally in February. Chinook salmon in the
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`Puyallup River outmigrate generally in April through June. Chinook salmon are present at the
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`Project site at least from April through October.
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`13.
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`Historically, the Puyallup River and its tributaries supported approximately
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`6,000 steelhead trout (Oncorhynchus mykiss). In 2007, NMFS listed steelhead trout in Puget
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`Sound, including in the Puyallup River, as threatened with extinction under the ESA. The
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`current steelhead population in the Puyallup River watershed is approximately 1,500 adults.
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`14.
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`Anadromous steelhead trout migrate up the Puyallup River generally in March
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`through May. Steelhead trout in the Puyallup River spawn generally in April through June.
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`Steelhead trout in the Puyallup River spawn upstream of the Project. Steelhead trout in the
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`Puyallup River emerge from redds generally in June through August. Steelhead trout in the
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`Puyallup River rear in the river generally for two years. Steelhead trout in the Puyallup River
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`may rear in the river for up to seven years. Steelhead trout are present in the Puyallup River
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`throughout the year. Steelhead trout migrate through parts of the Puyallup River throughout
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`COMPLAINT – PAGE 4
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 5 of 13
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`the year. Steelhead trout are present at the Project site throughout the year. Anadromous
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`steelhead trout in the Puyallup River outmigrate throughout the year, with peak out-migration
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`occurring from March to July.
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`15.
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`Historically, the Puyallup River and its tributaries supported bull trout
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`(Salvelinus confluentus). In 1999, the U.S. Fish and Wildlife Service (“FWS”) listed
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`populations of bull trout in the Coastal/Puget Sound region in Washington, including in the
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`Puyallup River, as threatened with extinction under the ESA. In the Coastal/Puget Sound
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`region, the Puyallup River is one of eight “core areas” for bull trout. Bull trout populations in
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`the Puyallup River include anadromous, fluvial, and resident populations. Bull trout in the
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`Puyallup River are the southernmost, anadromous bull trout population in the Coastal
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`Recovery Unit. Maintaining the bull trout population in the Puyallup is critical to maintaining
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`the overall distribution of migratory bull trout in the Recovery Unit.
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`16.
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`Bull trout are present at the Project site throughout the year. The Project site
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`provides foraging, migration, and overwintering habitat for bull trout. Bull trout in the
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`Puyallup River spawn generally in September. Bull trout in the Puyallup River spawn in
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`reaches of the river upstream of the Project. Bull trout in the Puyallup River emerge from
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`redds generally in March through April. In 2004, the Service issued a draft Recovery Plan for
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`the Coastal/Puget Sound bull trout. The abundance target for bull trout in the Puyallup River
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`is 1,000 adults. Currently, fewer than 100 adult bull trout spawn annually in the upper
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`Puyallup River and its tributaries.
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`17.
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`The Project is located on the Puyallup River in the foothills of Mount Rainier,
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`about 42 miles southeast of Seattle, in Pierce County. Puget Sound Power & Light Company
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`began building the Project in 1902 and completed it in 1904. On November 14, 2014, Puget
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`Sound Energy sold the Project to Electron Hydro, LLC.
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`18.
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`The Project includes a headworks facility at river mile 41.7. Historically, the
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`headworks facility included a timber crib diversion structure that was approximately 200 feet
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`long and spanned the river. The diversion structure slows water for diversion. The purpose of
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`COMPLAINT – PAGE 5
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`

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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 6 of 13
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`the headworks facility is to divert water from the Puyallup River into a flume that carries
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`water downslope to an artificial lake where sediment is dropped from the water by a slowing
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`of the flow, and then to a forebay where water is slowed again until it exits the forebay
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`through penstocks leading to turbines at the powerhouse. At the powerhouse, which is
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`significantly lower than the forebay in elevation, the water has significant force and is forced
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`through the turbines to generate electricity.
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`19.
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`The Puyallup River upstream of the Project conveys sediment. The headworks
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`facility traps sediment. The Puyallup and Mowich Rivers convey approximately 900,000 to 1
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`million tons of sediment annually into Commencement Bay.
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`20.
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`The headworks facility includes an intake immediately upstream of the
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`diversion structure. The intake exists in the water slowed behind the diversion structure. The
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`intake is 52-feet wide and five-feet tall. The intake includes a gate. The gate can be opened or
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`shut. When the gate is open, water flows into a flume. When the gate is shut, water does not
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`flow into a flume.
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`21.
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`The Project includes a flume to transport water downslope to the forebay. The
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`flume is approximately 10.1 miles long. After water enters the flume, it passes over rock
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`chutes. The rock chutes are designed to divert or flush out of the flume bedload such as rocks
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`and cobbles. Flows from the rock chutes return to the river. Flows from the rock chutes attract
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`Chinook salmon. Flows from the rock chutes attract steelhead trout. Flows from the rock
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`chutes attract bull trout. Flows from the rock chutes impede migration of fish.
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`22.
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`After passing over the area of the rock chutes, water in the flume flows to a
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`settling basin. The settling basin is approximately 1,600 feet-long. The purpose of the settling
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`basin is to have sediment settle for removal. No gates or other devices on the flume at the
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`entrance to or from the settling basin prevent water from continuing downslope. Periodically,
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`Electron ceases to divert water at the headworks facility to clean the settling basin. When it
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`cleans the settling basin, Electron does not first seek to trap or net any fish.
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`COMPLAINT – PAGE 6
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`

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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 7 of 13
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`23. Water exiting the settling basin flows into a forebay above the powerhouse.
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`The forebay is approximately 20 acres in size. Water from the forebay flows into five
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`penstocks, and then into a powerhouse. The opening of each penstock is covered by a trash
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`rack of steel bars spaced roughly one inch apart. The powerhouse includes five Pelton wheels
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`each connected to a generator.
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`24.
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`In 1998, facilities were built in the forebay to seek to capture any fish. The
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`purpose of the facilities is to capture fish and transport them into the Puyallup River
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`downstream of the powerhouse. The facilities include a guide net. The guide net remains in
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`place and functions at all times. The facilities include a fish trap. The facilities include a fish
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`holding area. The facilities include an adjustable weir gate. The fish capture facilities in the
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`forebay are automated. The fish capture facilities operate based on water elevation. The fish
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`capture facilities operate when the Project is producing electricity.
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`25.
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`26.
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`Fish captured are in the forebay are transferred downstream.
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`Electron has diverted water from the Puyallup River in order to produce
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`electricity. Electron has diverted Chinook salmon into the intake, flume, and forebay. Electron
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`has diverted steelhead trout into the intake, flume, and forebay. Electron has diverted bull
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`trout into the intake, flume, and forebay.
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`27. When water is diverted from the Puyallup River, different species of fish are
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`diverted into the forebay. Chinook salmon are periodically present in the forebay. Steelhead
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`trout are periodically present in the forebay. Bull trout are periodically present in the forebay.
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`Cutthroat trout are periodically present in the forebay. Coho salmon are periodically present
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`in the forebay. Fish may be present in the forebay for significant periods of time. Bull trout in
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`the forebay prey on Chinook salmon. Bull trout in the forebay prey on steelhead trout.
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`Steelhead trout in the forebay prey on bull trout. Cutthroat trout in the forebay prey on
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`Chinook salmon. Cutthroat trout in the forebay prey on steelhead trout. Cutthroat trout in the
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`forebay prey on bull trout.
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`COMPLAINT – PAGE 7
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 8 of 13
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`28.
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`Periodically, Electron attempts to collect fish in the forebay in order to release
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`them downstream. The collection facilities do not collect all Chinook salmon. The collection
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`facilities do not collect all steelhead trout. The collection facilities do not collect all bull trout.
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`Chinook salmon pass through the trash rack and are entrained in the penstocks or turbines.
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`Steelhead trout pass through the trash rack and are entrained in the penstocks or turbines. Bull
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`trout pass through the trash rack and are entrained in the penstocks or turbines.
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`29.
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`Some Chinook salmon are harmed or die when collected in the forebay. Some
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`Chinook salmon are harmed or die when the guide net is maintained. Some steelhead trout are
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`harmed or die when collected in the forebay. Some steelhead trout are harmed or die when the
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`guide net is maintained. Some bull trout are harmed or die when collected in the forebay.
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`Some bull trout are harmed or die when the guide net is maintained.
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`30.
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`Periodically, Electron ceases to divert water in order to dewater the forebay.
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`Electron dewaters the forebay to remove sediment and debris from the bed of the forebay.
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`Electron dewaters the forebay to remove debris from the debris racks at the entrance to the
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`penstocks. To dewater the forebay, Electron closes the gate in the intake.
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`31.
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`Before Electron dewaters the forebay, it attempts to collect Chinook salmon
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`from the forebay. Before Electron dewaters the forebay, it attempts to collect steelhead trout
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`from the forebay. Before Electron dewaters the forebay, it attempts to collect bull trout from
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`the forebay. Some Chinook salmon are harmed or die when they are collected. Some
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`steelhead trout are harmed or die when they are collected. Some bull trout are harmed or die
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`when they are collected.
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`32.
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`The mean annual flow of the Puyallup River at the headworks facility is 527
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`cubic feet per second (“cfs”). The Project diverts up to 400 cfs. Diverting water decreases
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`flows downstream in a 10.5-mile section of the Puyallup River. This section is called the
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`“bypass reach” or “middle reach.” In the summer, the diversion of water decreases flows in
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`the bypass reach by up to 50%. In the late fall and winter, the diversion of water decreases
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`flows in the bypass reach up to 70%. In spring and early fall, the diversion of water decreases
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`COMPLAINT – PAGE 8
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`

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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 9 of 13
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`flows in the bypass reach up to 90%. In the summer, water temperatures in the bypass reach
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`increase 3.8 degrees Fahrenheit. Minimum flow in the bypass reach is 80 cfs from July 15 to
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`November 15. Minimum flow in the bypass reach is 60 cfs from November 16 to July 14.
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`Reduced flows in the bypass reach degrades habitat for bull trout in the Puyallup River.
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`33.
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`In 1997, Puget Sound Energy and the Puyallup Tribe entered into a Resource
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`Enhancement Agreement.
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`34.
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` Approximately 26 miles of fish habitat exists in the mainstem Puyallup River
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`upstream of the headworks facility. Approximately eight miles of fish habitat exists in
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`tributaries to the Puyallup River upstream of the headworks facility.
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`35. When the headworks facility was built, it did not include facilities that would
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`allow Chinook salmon to migrate above it. When the headworks facility was built, it did not
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`include facilities that would allow steelhead trout to migrate above it. When the headworks
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`facility was built, it did not include facilities that would allow bull trout to migrate above it.
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`36.
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`Beginning in 1997, the Puyallup Tribe planted Chinook salmon into
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`acclimation ponds upriver from the Project. In 2000, Puget Sound Energy built a fish ladder
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`on the right (east) side of the river opposite of the intake. The river thalweg is on the right
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`(east) side of the river. The ladder can function as both a pool/weir system and a roughened
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`channel. To function properly, the ladder must remain connected to the river above and below
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`the headworks facility. To function properly, flows through the ladder must range between 10
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`and 52 cfs. To function properly, flows through the ladder must enable fish to stage before
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`entering the ladder, and allow fish to jump into the ladder.
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`37.
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`The fish ladder enabled upstream fish passage at the headworks facility for the
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`first time since the headworks facility was built. Chinook salmon use the ladder and migrate
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`upstream of the headworks facility, and spawn upstream. Steelhead trout use the ladder and
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`migrate upstream of the headworks facility, and spawn upstream. Bull trout use the ladder and
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`migrate upstream of the headworks facility, and spawn upstream.
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`COMPLAINT – PAGE 9
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
`
`

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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 10 of 13
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`38.
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`Electron has sought to renovate the Project. In a phase 1, Electron proposed to
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`repair the wooden crib diversion structure and replace the then-existing spillway. Electron
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`proposed to replace the spillway with a 70-feet wide rubber bladder spillway. A purpose of
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`the bladder is to enable Electron to pass sediment loads. A purpose of the bladder is to enable
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`Electron to better control flows into the intake. In phase 1, Electron proposed to install
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`approximately 985 feet of bank protection along the left (west) bank. In phase 1, Electron
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`proposed to place concrete of varying depth in front of the intake structure to allow for
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`installation of a trash rack and other facilities.
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`39.
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`The U.S. Army Corps of Engineers authorized certain aspects of Electron’s
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`proposed work. Pierce County authorized certain aspects of Electron’s proposed work.
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`40.
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`In 2020, Electron began some proposed work. Electron built a coffer dam and
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`diverted the Puyallup River to the right (east). Electron lined the diversion channel with
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`approximately 2,400 square yards of artificial turf. Some artificial turf tore. Some artificial
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`turf was released into the Puyallup River. Approximately six cubic yards of rubber pellets
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`from artificial turf were released or deposited into the Puyallup River. Amounts of the rubber
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`pellets remain in the Puyallup River. The amounts of rubber pellets are toxic to fish or other
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`aquatic life in the Puyallup River.
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`41.
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`In 2020, Electron placed concrete on the left (west) bank of the river upstream
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`of the headworks facility. Electron placed concrete on the left (west) bank of the river
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`downstream of the headworks facility. Electron placed concrete near the intake to build a
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`trash rack.
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`42.
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`In 2020, Electron removed the spillway portion of the wooden diversion
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`structure. In 2020, Electron did not replace the removed portion with a rubber bladder
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`spillway. In 2020, Electron built a rock dam where the removed portion of the spillway had
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`existed. The rock dam entrains downstream migrating adult fish. The rock dam entrains
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`downstream migrating smolts. The rock dam creates attraction flows and impede upstream
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`migration of fish. The rock dam prevents upstream migration of fish.
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`COMPLAINT – PAGE 10
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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`

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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 11 of 13
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`43.
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`The diversion of the river in 2020 created higher water velocities at the base of
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`the fish ladder than historically existed. The diversion of the river scoured the area at the base
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`of the fish ladder. The scouring of the river increased the distance from the river to the bottom
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`step of the fish ladder. The river velocities and increased distance to the bottom step rendered
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`the fish ladder inoperable to fish passage. During 2020, the fish ladder was rendered
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`impassable to Chinook salmon. During 2020, the fish ladder was rendered impassable to
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`steelhead trout. During 2020, the fish ladder was rendered impassable to bull trout. Because
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`the fish ladder was rendered impassable for a period of time, most of the run of adult Chinook
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`salmon returning to spawning areas above the headworks facility in 2020 was lost.
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`44.
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`On July 29, 2020, Electron dewatered the forebay. A fish biologist for the
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`Washington Department of Fish and Wildlife was present when the forebay was dewatered.
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`The biologist issued a report of what she witnessed. The biologist estimated “thousands” of
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`fish were killed during dewatering, handling or transport. Chinook salmon were killed during
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`the forebay dewatering, handling, or transport. Steelhead trout were killed during the forebay
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`dewatering, handling, or transport. Bull trout were killed during the forebay dewatering,
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`handling, or transport.
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`45.
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`Electron does not possess a federal permit or other federal authorization[s] that
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`authorizes it to “take” Chinook salmon in maintaining or operating the Project. Electron does
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`not possess a federal permit or other federal authorization[s] that authorizes it to “take”
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`steelhead trout in maintaining or operating the Project. Electron does not possess a federal
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`permit or other federal authorization[s] that authorizes it to “take” bull trout in maintaining or
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`operating the Project.
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`CLAIM FOR RELIEF
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`Count One: Violation of the Endangered Species Act.
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`The Puyallup Tribe realleges all previous paragraphs.
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`Section 9 of the ESA prohibits any person from taking an endangered species.
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`46.
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`47.
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`16 U.S.C. § 1538(a)(1)(B). NMFS extended the take prohibition to Chinook salmon and
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`COMPLAINT – PAGE 11
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
`
`

`

`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 12 of 13
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`steelhead trout as species listed as threatened with extinction. 50 C.F.R. § 223.203(a). FWS
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`extended the take prohibition to bull trout as a species listed as threatened with extinction. 50
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`C.F.R. § 17.31(a). The ESA defines “take” to mean “to harass, harm, pursue, hunt, shoot,
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`wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C.
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`§ 1532(19). The ESA defines a “person” to include “an individual, corporation, partnership,
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`trust association, or any other private entity . . . .” 16 U.S.C. § 1532(13). Electron has
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`violated, is violating, and will continue to violate Section 9 of the ESA, by causing or
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`committing “take” of Chinook salmon, steelhead trout, and bull trout, through its ownership,
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`maintenance, operation, and renovation of the Project.
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`48.
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`The ESA defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound,
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`kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. §
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`1532(19). “Harass” means “an intentional or negligent act or omission which creates the
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`likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt
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`normal behavioral patterns which include, but are not limited to, breeding, feeding, or
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`sheltering.” 50 C.F.R. § 17.3. “Harm” means “an act which actually kills or injures wildlife.
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`Such act may include significant habitat modification or degradation where it actually kills or
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`injures wildlife by significantly impairing essential behavioral patterns, including breeding,
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`feeding or sheltering.” 50 C.F.R. § 17.3. When Electron lined the Puyallup River with
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`artificial turf, and the artificial turf released toxic pellets into the river, Electron harmed and
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`harassed Chinook salmon and steelhead and bull trout.
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`RELIEF REQUESTED
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`1.
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`2.
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`Declare that Electron has violated the ESA as alleged herein;
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`Order Electron to cease diverting water and fish from the Puyallup River in the
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`period before it obtains incidental take permits from NMFS and from FWS;
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`3.
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`Order Electron to obviate take of fish caused by the rock dam and the fish
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`ladder, when rendered inoperable or not properly operated;
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`COMPLAINT – PAGE 12
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
`
`

`

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`ESA;
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`Case 2:20-cv-01864 Document 1 Filed 12/30/20 Page 13 of 13
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`4.
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`Award the Puyallup Tribe its reasonable attorneys’ fees and costs under the
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`5.
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`Grant such other relief as the Court deems necessary and proper.
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`Respectfully submitted this 30th day of December, 2020,
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`THE PUYALLUP TRIBE OF INDIANS
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`By: s/ Lisa AH Anderson
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`By: s/ Samuel J. Stiltner
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`By: s/ Lois Y. Boome
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`Lisa A.H. Anderson, WSBA #27877
`Samuel J. Stiltner, WSBA #7765
`Lois Y. Boome, WSBA #54883
`Law Office of the Puyallup Tribe of Indians
`3009 E. Portland Ave
`Tacoma, WA 98404
`Telephone: (253) 573-7877
`E-mail: Lisa.Anderson@Puyalluptribe-nsn.gov
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` Sam.Stiltner@Puyalluptribe-nsn.gov
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` Lois.Boome@Puyalluptribe-nsn.gov
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`COMPLAINT – PAGE 13
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`LAW OFFICE, PUYALLUP INDIAN TRIBE
`3009 E. PORTLAND AVE.
`TACOMA, WA 98404
`(253) 573-7877
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