Me. Council of the Atl. Salmon Fed'n v. Nat'l Marine Fisheries Serv. of the Nat'l Oceanic & Atmospheric Admin.
| Decision Date | 18 August 2016 |
| Docket Number | 2:15-cv-00261-JAW |
| Citation | 203 F.Supp.3d 58 |
| Parties | MAINE COUNCIL OF THE ATLANTIC SALMON FEDERATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE OF THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, and Brookfield Renewable Services Maine LLC, et al., Defendants. |
| Court | U.S. District Court — District of Maine |
Benjamin N. Donahue, Russell Pierce, Norman, Hanson & Detroy, Portland, ME, Charles O. Verrill, Jr., Charles Owen Verrill, Jr., Attorney at Law, Washington, DC, for Plaintiffs.
Robert P. Williams, U.S. Department of Justice, Matthew W. Morrison, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, John G. Osborn, U.S. Attorney's Office, Jeffrey D. Talbert, Preti, Flaherty LLP, Portland, ME, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
The Federal Power Act (FPA) vests the responsibility for licensing hydroelectric projects on this Country's navigable waterways with the Federal Energy Regulatory Commission (FERC) and, consistent with this authority, FERC licensed four hydroelectric projects on the Kennebec River in Maine. The licensees asked FERC to amend their FPA licenses to incorporate the provisions of the Interim Species Protection Plan (ISPP) for the Gulf of Maine Distinct Population Segment (GOM DPS) of Atlantic salmon, a species found in the Kennebec River and protected under the Endangered Species Act (ESA). In response, FERC consulted with the National Marine Fisheries Service (NMFS) to obtain its biological opinion (BiOp) about the likely impact of the license amendments on the GOM DPS of Atlantic salmon. The NMFS provided FERC with two written BiOps.
The Plaintiffs consist of four conservation organizations whose particular concerns include the survival of the Atlantic salmon and the restoration of traditional migrations of other sea-run species that inhabit the Kennebec River. The Plaintiffs filed a complaint asserting the NMFS biological opinions violated the requirements of section 7 of the ESA by implementing regulations that are arbitrary, capricious, and without any rational basis in making a no-jeopardy/no-adverse modification finding for the dams' impact on Atlantic salmon. The Defendants are the NMFS and the licensees.
The Defendants filed motions to dismiss, asserting, inter alia, that this Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Determining that under the FPA, the Courts of Appeals have exclusive jurisdiction over the matter, the Court grants the Defendants' motion to dismiss.
A. Procedural History
On July 8, 2015, the Plaintiffs—Maine Council of the Atlantic Salmon Federation (MC-ASF), Maine Rivers, the Natural Resources Council of Maine (NRCM), and the Kennebec Valley Chapter of Trout Unlimited (KVTU)—filed a complaint in this Court against the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) (Federal Defendants), as well as Brookfield White Pine Hydro, LLC, Merimil Limited Partnership, Brookfield Renewable Services Maine, LLC, Hydro Kennebec, LLC, and Brookfield Power US Asset Management, LLC (Licensee Defendants). Compl. (ECF No. 1) (Compl. ). The Complaint challenged two BiOps issued by NMFS regarding the licensing of four hydroelectric dams on the Kennebec River in Maine, asserting that NMFS violated the requirements of section 7 of the Endangered Species Act (ESA) by implementing regulations that are arbitrary, capricious, and without any rational basis in making a no-jeopardy/no-adverse modification finding for the dams' impact on Atlantic salmon. Id. at 8. In support of the Complaint the Plaintiffs submitted the two NMFS BiOps at issue, Compl. Attach 1 (2012 BiOp ) and Compl. Attach 2 (2013 BiOp ), as well as the Kennebec Hydro Developers Group Agreement. Compl. Attach 3 (KHDG Agreement ).
On October 13, 2015, the Federal Defendants filed a motion to dismiss the Complaint. Fed. Defs.' Mot. to Dismiss (ECF No. 18) (Fed. Mot. ). On the same day, the Licensee Defendants filed a motion to dismiss the Complaint. Mot. to Dismiss of Defs. Brookfield Renewable Services Maine LLC; Brookfield Power US Asset Management LLC; Brookfield White Pine Hydro LLC; the Merimil Limited Partnership; and Hydro Kennebec LLC (ECF No. 19) (Licensee Mot. ). The Plaintiffs responded on November 17, 2015. Pls.' Resp. in Opp'n to Defs.' Mot. to Dismiss (ECF No. 24) . The Federal Defendants replied on December 15, 2015, Fed. Defs.' Reply in Supp. of its Mot. to Dismiss (ECF No. 27) (Fed. Reply ), as did the Licensee Defendants. Licensee Defs.' Reply to Pls.' Resp. in Opp'n to Mot. to Dismiss (ECF No. 28) (Licensee Reply ).
The Federal Defendants filed a motion to supplement their motion to dismiss on May 24, 2016, Fed. Defs.' Mot. to Suppl. Pending Mot. to Dismiss (ECF No. 29) , as did the Licensee Defendants on May 25, 2016. Licensee Defs.' Unopposed Mot. to Suppl. the R. (ECF No. 30) . On May 26, 2016, the Court granted the motions to supplement the motion to dismiss and to supplement the record and the Court set dates for the Plaintiffs' response and the Federal and Licensee Defendants' replies. Order Granting Mots. to Suppl. Mot. to Dismiss and Granting Mots. to Supp. the Record (ECF No. 31) (Suppl. Order ). The Plaintiffs filed a response on June 15, 2016. Pls.' Resp. to R. Suppl. on Defs.' Mots. to Dismiss (ECF No. 33) . The Federal Defendants and the Licensee Defendants replied on July 6, 2015. Reply to Pls.' Resp. to Fed. Defs. Mot. to Suppl. (ECF No. 35) ; Licensee Defs.' Reply Br. on Mot. to Suppl. the R. (ECF No. 34) .
The Maine Council of the Atlantic Salmon Federation (MC-ASF) is a nonprofit corporation organized under the laws of the state of Maine, dedicated to the conservation, protection and restoration of wild Atlantic salmon and the ecosystems on which their well-being and survival depends. Compl. at 9. MC-ASF represents a dozen different angling, conservation, and educational organizations in the state of Maine, and is comprised of more than 1,000 members, some of whom live in the immediate vicinity of the Lockwood, Hydro-Kennebec, Shawmut and Weston Projects. Id. These individuals enjoy angling and other forms of recreation on the Kennebec River in the vicinity of the projects at issue, and have devoted substantial time, energy, effort, and money to the restoration of Atlantic salmon and other anadromous species to the Kennebec River watershed. Id. ASF was a signatory to the KHDG Agreement and is a member of the Kennebec Coalition, which has a long history of involvement in all aspects of the restoration of the Kennebec watershed. Id.
Maine Rivers is a nonprofit organization, incorporated in the state of Maine with a mission "to protect, restore and enhance the ecological health of Maine's river systems." Id. at 9-10. For more than a decade Maine Rivers has worked to achieve its mission and has shown a strong interest in the recovery of the Kennebec River, most recently through the successful organization of the Maine Rivers Conference on the Kennebec: Restoring Fish for People and Wildlife, a day-long event which brought together more than one hundred people to focus on the restoration of sea-run species. Id. at 10. In addition, many members of Maine Rivers live in the Kennebec River watershed and frequently use the Kennebec and its tributaries for recreational purposes, including canoeing, kayaking and angling. Id.
The Natural Resources Council of Maine (NRCM) is Maine's largest environmental advocacy group with over 16,000 members and supporters, with a mission is "to protect, conserve and restore Maine's environment now and for future generations." Id. NRCM has demonstrated long-standing interest in the recovery of the Kennebec River, as demonstrated by its participation in the Kennebec Coalition and signature to the KHDG Agreement. Id. Members of NRCM use the Kennebec River for recreational, educational and aesthetic pursuits in the vicinity of all the projects subject to the Complaint. Id. Its members have devoted substantial time, energy, effort, and money to the restoration of Atlantic salmon and other anadromous species in Maine, and to the Kennebec River watershed. Id.
The Kennebec Valley Chapter of Trout Unlimited (KVTU) is one of five Maine chapters of Trout Unlimited, a conservation organization whose mission is to conserve, protect and restore North America's cold-water fisheries and their watersheds. Id. KVTU is a member of the Kennebec Coalition, and was a signatory of the KHDG Agreement. Id. at 11. KVTU has been engaged in advocacy for Atlantic salmon and other native species in the Kennebec River for more than 25 years, while its members live in the Kennebec watershed, fish the Kennebec River and its tributaries on a regular basis, and engage in restoration efforts for Atlantic salmon—including annual egg planting efforts in the Sandy River. Id. at 10-11. KVTU has participated in relicensing proceedings relating to every Federal Energy Regulatory Commission (FERC)-licensed dam on the Kennebec River during that time, and has demonstrated a long-standing commitment to recovery of Atlantic salmon and other anadromous species in the Kennebec River and throughout the Gulf of Maine. Id. at 11.
The National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA) is the federal administrative agency assigned with the responsibility to administer and enforce the ESA, with respect to the listed species of Atlantic salmon, by the Secretary of the Department of Commerce pursuant to 16 U.S.C. § 1533(a)(2) and 50 C.F.R. § 402.01(b). Id. at 11-12.
Brookfield White Pine Hydro, LLC owns or controls the Shawmut and Weston Project dams and assets, and on May 1,...
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