Friends of Merrymeeting Bay v. Nextera Energy Res., LLC

• Decision Date: 14 January 2013
• Docket Number: Docket no. 2:11-cv-38-GZS
• Parties: FRIENDS OF MERRYMEETING BAY, et al., Plaintiffs, v. NEXTERA ENERGY RESOURCES, LLC, et al., Defendants.
• Court: U.S. District Court — District of Maine

FRIENDS OF MERRYMEETING BAY, et al., Plaintiffs,
v.
NEXTERA ENERGY RESOURCES, LLC, et al., Defendants.

Docket no. 2:11-cv-38-GZS

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Dated: January 14, 2013

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Before the Court are cross-motions for summary judgment filed by Defendants NextEra Energy Resources, LLC, NextEra Energy Maine Operating Services, LLC, FPL Energy Maine Hydro LLC, and the Merimil Limited Partnership (collectively, "Defendants") and Friends of Merrymeeting Bay and Environment Maine (collectively, "Plaintiffs"). As explained herein, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion For Summary Judgment And Incorporated Memorandum Of Law (ECF No. 88) ("Defendants' Motion For Summary Judgment") and DENIES Plaintiffs' Motion For Partial Summary Judgment And Incorporated Memorandum Of Law In Support Of Motion For Partial Summary Judgment (ECF No. 94) ("Plaintiffs' Motion For Partial Summary Judgment").¹

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The Court additionally notes that on December 26, 2012, more than five months after the conclusion of summary judgment briefing, Plaintiffs filed their Supplement To Plaintiffs' Motion For Partial Summary Judgment And To Plaintiffs' Opposition To Defendants' Motion For Summary Judgment and four additional documents (ECF Nos. 128, 129, 130 and 131) (together, "Plaintiffs' Supplement"). The Court hereby STRIKES Plaintiffs' Supplement (ECF Nos. 128, 129, 130 and 131) as belated and improperly filed. ²

I. LEGAL STANDARD

Generally, a party is entitled to summary judgment if, on the record before the Court, it appears "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is "genuine" if "the

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evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A "material fact" is one that has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (citing Anderson, 477 U.S. at 248) (additional citation omitted).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

Once the moving party has made this preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); see also Fed. R. Civ. P. 56(e). "Mere allegations, or conjecture unsupported in the record, are insufficient." Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) ("A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.") (citations omitted). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993)).

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The above-described "standard is not affected by the presence of cross-motions for summary judgment." Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005) (citation omitted). "[T]he court must mull each motion separately, drawing inferences against each movant in turn." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted); see also Alliance of Auto. Mfrs., 430 F.3d at 34 ("[L]ike the district court, we must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party's behoof.").

II. FACTUAL BACKGROUND

This case arises out of the interaction between an endangered species, the Atlantic salmon, and four dams located on two rivers in Maine. Pursuant to Local Rule 56(g), and for the purpose of determining whether summary judgment is appropriate, the parties have stipulated to facts material to the motions before the Court.³ At this point, the Court provides only a limited overview of the dispute, supplementing with additional facts where required later in this Order.

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A. Dams Along The Kennebec River And The Androscoggin River

The Kennebec and Androscoggin Rivers empty into the estuary of the Merrymeeting Bay, located along the coast of Maine. The Lockwood Project, the Shawmut Project and the Weston Project are three hydroelectric projects, or dams, located on the mainstem Kennebec River. The Lockwood Project is the first hydroelectric project upstream of Merrymeeting Bay on the Kennebec River. The Shawmut and Weston Projects are dams located upstream of the Lockwood Project on the Kennebec River. The Brunswick Project is the first hydroelectric project upstream of the Merrymeeting Bay on the Androscoggin River. While four dams are at issue in this case, there are other upstream dams located along these rivers.⁴

The Lockwood Project is owned by Defendant Merimil Limited Partnership, which is also the holder of the license to operate the Lockwood Project from the Federal Energy Regulatory Commission ("FERC"). The Shawmut, Weston and Brunswick Projects are owned by Defendant FPL Energy Maine Hydro LLC, which also holds the FERC licenses to operate those Projects. Defendant NextEra Energy Maine Operating Services, LLC serves as the day-to-day operator for each of the dams at issue in this case.

B. Atlantic Salmon

Atlantic salmon are anadromous, meaning that they are born in fresh water, migrate to the ocean and return to fresh water to spawn. Adult Atlantic salmon return from the ocean to their native rivers and migrate upstream in the Kennebec and Androscoggin Rivers between May and

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October. Smolts⁵ migrate downstream in the Kennebec and Androscoggin Rivers in the spring en route to the ocean.

The Maine Department of Marine Resources ("MDMR") has stocked hatchery Atlantic salmon eggs in the Sandy River, an upstream spawning habitat for Atlantic salmon on the Kennebec River, since 2003 and stocked nearly one million eggs that year. In addition, there has been a limited Atlantic salmon fry stocking program in tributaries of the Androscoggin River upstream of the Brunswick Project.

On June 19, 2009, the National Marine Fisheries Service ("NMFS") and the United States Fish and Wildlife Service ("USFWS") (collectively, the "Services") issued a final rule including the Atlantic salmon populations of the Kennebec, Androscoggin and Penobscot Rivers as part of the Gulf of Maine Distinct Population Segment ("GOM DPS"), thereby formally designating those populations of Atlantic salmon endangered under the Endangered Species Act ("ESA"). That same day, NMFS issued a final rule designating "critical habitat" for the Kennebec, Androscoggin and Penobscot Atlantic salmon. The portions of the Kennebec River where the Lockwood, Shawmut and Weston Projects are located, and the portion of the Androscoggin River where the Brunswick Project is located, are part of the critical habitat designated on June 19, 2009.

C. Downstream and Upstream Passage At The Dams

On the Kennebec River, downstream-migrating Atlantic salmon encounter the Weston, Shawmut and Lockwood Projects, in addition to an additional dam not at issue in this case. On

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the Androscoggin River, Atlantic salmon encounter the Brunswick Project, in addition to other dams not at issue in this case.

Downstream-migrating salmon can pass hydroelectric projects by three basic means: through the turbines, through the fish bypass and via the spill. Each project at issue in this case has multiple turbines of various types. Each project also has a fish bypass. The Lockwood and Weston Projects have guidance booms that operate in conjunction with the fish bypasses at those dams.⁶ However, those guidance booms have not always functioned properly, requiring repairs and replacements at times. (JSF ¶¶ 200-212, 225-230.)

Upstream-migrating salmon on the Kennebec River encounter the Lockwood Project. Near the west bank of the Kennebec at the Lockwood Project is a fish lift. MDMR personnel trap and transport any Atlantic salmon that find the fish lift to the Sandy River, upstream of the Shawmut and Weston Projects. In 2011, 60 adult Atlantic salmon were trapped at the Lockwood Project. Upstream-migrating salmon in the Androscoggin...