Friends of Merrymeeting Bay v. Olsen

• Citation: 839 F.Supp.2d 366
• Decision Date: 16 March 2012
• Docket Number: Civil No. 1:11–cv–00167–NT.
• Parties: FRIENDS OF MERRYMEETING BAY, Douglas H. Watts, and Kathleen McGee, Plaintiffs, v. Norman H. OLSEN, in his official capacity as Commissioner of the Maine Department of Marine Resources, Chandler E. Woodcock, in his official capacity as Commissioner of the Maine Department of Inland Fisheries, Defendants.
• Court: U.S. District Court — District of Maine

839 F.Supp.2d 366

FRIENDS OF MERRYMEETING BAY, Douglas H. Watts, and Kathleen McGee, Plaintiffs,

v.Norman H. OLSEN, in his official capacity as Commissioner of the Maine Department of Marine Resources, Chandler E. Woodcock, in his official capacity as Commissioner of the Maine Department of Inland Fisheries, Defendants.

Civil No. 1:11–cv–00167–NT.

United States District Court, D. Maine.

March 16, 2012.

David A. Nicholas, David A. Nicholas, Esq., Newton, MA, Roger Fleming, Earthjustice, Appleton, ME, for Plaintiffs.

Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

NANCY TORRESEN, District Judge.

INTRODUCTION

Friends of Merrymeeting Bay, Douglas H. Watts, and Kathleen McGee bring suit against Norman H. Olsen, in his official capacity as Commissioner of the Maine Department of Marine Resources and Chandler E. Woodcock, in his official capacity as Commissioner of the Maine Department of Inland Fisheries and Wildlife, alleging that paragraph 2 of the 2008 Alewife Law, 12 M.R.S.A. § 6134(2) (2008) (“Alewife Law”), which blocks alewife passage through the Grand Falls Dam into the St. Croix River watershed, is preempted by the Federal Water Pollution Control Act of 1972, 33 U.S.C. §§ 1251–1387 (2006), known popularly as the Clean Water Act (“CWA”).

Plaintiffs seek a declaratory judgment that the Alewife Law is preempted by the CWA, an injunction prohibiting further implementation of the Alewife Law, and an injunction ordering the removal of existing barriers to alewife passage at the Grand Falls Dam. Defendants have filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted.

Plaintiffs argue in their Sur–Reply that the Court should convert Defendants' Motion to Dismiss into a motion for summary judgment under Federal Rule of Civil Procedure 12(d) because Defendants have introduced matters outside of the pleadings. The Court hereby excludes any matters outside of the Plaintiffs' Complaint for purposes of Defendants' Motion to Dismiss and does not convert Defendants' Motion to Dismiss into a motion for summary judgment.¹

The Court finds that the Plaintiffs have failed to state a claim on which relief may be granted and GRANTS Defendants' Motion to Dismiss. Because the Plaintiffs have failed to state a claim on which relief may be granted, Plaintiffs' Motion for Summary Judgment is hereby DENIED.

LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain“a short and plain statement of the claim showing that the pleader is entitled to relief” and that “each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2) & 8(d)(1). The First Circuit has set forth, consistent with Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the “proper way of handling a motion to dismiss” under Rule 12(b)(6):

Step one: isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements. Step two: take the complaint's well-pled ( i.e. non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief.

Schatz v. Republican State Leadership Committee, 669 F.3d 50, 55 (1st Cir.2012) (citations omitted). “Plausible, of course, means something more than merely possible, and gauging a pleaded situation's plausibility is a ‘context-specific’ job that requires the reviewing court to ‘draw on’ our ‘judicial experience and common sense.’ ” Id. (quoting Iqbal, 129 S.Ct. at 1950.)

FACTUAL BACKGROUND

The Plaintiffs allege the following facts. Alewives, which include both the species of fish commonly known as alewives and blueback herring, are native to Maine waters. First Amended Complaint at ¶ 42. (“Complaint”) (Doc. No. 11). While alewives live at sea, they return to the fresh waters of Maine to spawn. Id. at ¶ 41. Historically, alewives were the most abundant of all the migratory fish that came up Maine's rivers. Id. at ¶ 44. Many species of fish, birds, and mammals eat alewives, and alewives provide cover from birds of prey when endangered Atlantic salmon migrate upstream. Id. at ¶ 43. Alewives are also commercially important as lobster bait. Id. at ¶ 44.

The alewife population declined during the last 200 years as a result of dams, pollution and overfishing. Id. at ¶ 45. In 1915, a dam was constructed on the St. Croix River at Grand Falls. Id. at ¶ 46. In 1964, a fishway was constructed at the Grand Falls Dam, which allowed alewives to pass and resulted in a resurgence of the alewife population. Id. at ¶ 50. Between 1981 and 1987, the number of alewives that returned to the St. Croix watershed to spawn increased from 169,000 to 2,625,000. Id.

The resurgence of alewives led to concern among people who fish for smallmouth bass that the increase in alewives was causing a decrease in smallmouth bass in Spednick Lake, located in the St. Croix watershed. Id. at ¶ 51. As a result, in 1995, the Maine legislature passed “An Act to Stop the Alewives Restoration Program in the St. Croix River,” P.L. 1995, ch. 48, § 1 (emergency, effective April 27, 1995) without public comment. Complaint at ¶ 52. The 1995 Alewife Law stated that “the commissioner and the Commissioner of Inland Fisheries and Wildlife shall ensure that fishways on the Woodland Dam and the Grand Falls Dam, both located on the St. Croix River, are configured or operated in a manner that prevents the passage of alewives.” P.L.1995, ch. 48 § 1. In compliance with the 1995 Alewife Law, the owner of the Grand Falls Dam installed a “stop log” to block access to the Grand Falls Dam fishway during the months when alewives migrate upstream. Complaint at ¶ 53.

The restriction of access to their spawning ground caused by the 1995 Alewife Law resulted in a “precipitous” decline in the alewife population in the St. Croix River. Id. at ¶ 54. Studies conducted in the 1990s, however, concluded that alewivesdo not have a negative impact on the smallmouth bass population. Id. at ¶¶ 55–56. In April of 2008, the 1995 Alewife Law was amended by “An Act to Restore Diadromous Fish in the St. Croix River,” P.L. 2008, ch. 587, § 1 (emergency, effective April 9, 2008), which stated:

This section governs the passage of alewives on the Woodland Dam and the Grand Falls Dam located on the St. Croix River.

1. Woodland Dam. By May 1, 2008, the commissioner and the Commissioner of Inland Fisheries and Wildlife shall ensure that the fishway on the Woodland Dam is configured or operated in a manner that allows the passage of alewives.

2. Grand Falls Dam. The commissioner and the Commissioner of Inland Fisheries and Wildlife shall ensure that the fishway on the Grand Falls Dam is configured or operated in a manner that prevents the passage of alewives.

P.L. 2008, ch. 587, § 1 (codified as amended at 12 M.R.S.A. § 6134 (Supp.2011)).

As a result of the current Alewife Law and the blocked fishway at the Grand Falls Dam, alewives cannot access 98 percent of their spawning and nursery habitat in the St. Croix River basin and the alewife population in the St. Croix River is greatly depleted. Complaint at ¶¶ 60, 3.

STATUTORY BACKGROUND

I. The Clean Water Act

Congress enacted the CWA to “restore and maintain the chemical, physical and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The CWA also seeks to attain “water quality which provides for the protection and propagation of fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a)(2). The CWA's statutory structure requires the Environmental Protection Agency (“EPA”) and state governments to work together to meet the CWA's goals. See e.g.33 U.S.C. § 1251(b).

A. Water Quality Standards

Under the CWA, states are responsible for establishing water quality standards for all of their water bodies. 33 U.S.C. § 1313(a)(1)-(3); 40 C.F.R. § 131.4 (2011). The EPA's duty is to review each state's standards, and either approve the standards, disapprove the standards, or promulgate its own standards if necessary. 40 C.F.R. §§ 131.5(a)-(b). Any water quality standard must include the designated uses of the waters and water quality criteria sufficient to protect the designated uses. 40 C.F.R. § 131.6.

[W]ater quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish and wildlife and for recreation in and on the water....

40 C.F.R. § 131.2; see33 U.S.C. § 1313(c)(2)(A).

The water bodies involved in the instant case have been classified by the State of Maine as Class A, B, and GPA. 38 M.R.S.A. § 467(13) (Pamph. 2011). Those classes all require the water to be suitable as a habitat for fish and other aquatic life.²Class A and GPA water must be “natural,” which is defined as “living in, or as if in, a state of nature not measurably affected by human activity.” 38 M.S.R.A. § 466(9) (2001). Class B requires that the habitat be “unimpaired,” which is defined as “without a diminished capacity to support aquatic life.” 38 M.R.S.A. § 466(11).

B. Revision of Water Quality Standards

When a state revises an existing water quality standard or adopts a new standard, the state must submit the revised or new standard to the EPA. 33 U.S.C. § 1313(c)(2)(A). The revised or new standard must state the designated uses of the navigable waters involved and provide the water quality criteria for the waters involved based upon the designated uses. “Revised standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes....” Id. Pursuant to the CWA and its implementing regulations, the Maine legislature has established a water classification system that vests sole authority in the...