Friends of Merrymeeting Bay, et al v. Hydro Kennebec, LLC, et al

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; Norman H. Stahl, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [13-1220, 13-1750].

Case: 13-1220

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Date Filed: 07/14/2014

Entry ID: 5838181

United States Court of Appeals
For the First Circuit
No. 13-1220
FRIENDS OF MERRYMEETING BAY and ENVIRONMENT MAINE,
Plaintiffs, Appellants,
v.
HYDRO KENNEBEC, LLC and BROOKFIELD POWER US ASSET MANAGEMENT,
LLC,
Defendants, Appellees.

No. 13-1750
FRIENDS OF MERRYMEETING BAY and ENVIRONMENT MAINE,
Plaintiffs, Appellants,
v.
MERIMIL LIMITED PARTNERSHIP, FPL ENERGY MAINE HYDRO, LLC, and
BROOKFIELD RENEWABLE SERVICES MAINE, LLC,
Defendants, Appellees,
NEXTERA ENERGY RESOURCES, LLC and NEXTERA ENERGY MAINE OPERATING
SERVICES, LLC,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]

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Entry ID: 5838181

Before
Thompson, Stahl, and Kayatta,
Circuit Judges.

Charles C. Caldart, with whom Joshua R. Kratka, Bruce M.
Merrill, David A. Nicholas, and National Environmental Law Center
were on brief, for Appellants.
Mark Stancil, with whom Donald A. Carr, Aileen Meyer, and
Pillsbury Winthrop Shaw Pittman LLP were on brief, for Appellees.

July 14, 2014

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STAHL, Circuit Judge.
of

Merrymeeting

Bay

and

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Entry ID: 5838181

Two conservation groups, Friends

Environment

Maine

(collectively,

"Plaintiffs"), brought two citizen enforcement suits containing
claims
§§

under

1531–1544,

the
and

Endangered
the

Clean

Species

Act

("ESA"),

16

U.S.C.

Water

Act

("CWA"),

33

U.S.C.

§§ 1251–1387, against Hydro Kennebec, LLC, Brookfield Power US
Asset Management, LLC, Merimil Limited Partnership, FPL Energy
Maine Hydro, LLC, and Brookfield Renewable Services Maine, LLC.
(collectively "Defendants"),1 who operate four hydroelectric dams
("Dams") on the Kennebec River. The district court entered summary
judgment in favor of Defendants as to the CWA claims in both cases
below, and Plaintiffs appeal those rulings.2

For the following

reasons, we vacate and remand.

1

The two lawsuits below (case numbers 11-cv-35 and 11-cv-38)
have been consolidated on appeal. Case number 11-cv-38 included
additional defendants NextEra Energy Resources, LLC and NextEra
Energy Maine Operating Services, LLC, but they are not parties to
the appeal.
2

In both district court cases, the ESA claim was Count I and
the CWA claim was Count II. In case number 11-cv-35, the district
court granted Defendants' motion to dismiss Count I. Friends of
Merrymeeting Bay v. Brookfield Power US Asset Mgmt., No. 11-cv-35GZS, 2013 WL 145506, at *2–4 (D. Me. Jan. 14, 2013).
In case
number 11-cv-38, the district court denied Defendants' motion for
summary judgment as to Count I. Friends of Merrymeeting Bay v.
NextEra Energy Res., LLC, No. 11-cv-38-GZS, 2013 WL 145733, at *2–4
(D. Me. Jan. 14, 2013). In the present appeal, Plaintiffs only
challenge the district court's rulings as to Count II, the CWA
claim.
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I.

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Background

The facts of this case are set forth in detail in the
district

court's

opinions.

Friends

of

Merrymeeting

Bay

v.

Brookfield Power US Asset Mgmt., No. 11-cv-35-GZS, 2013 WL 145506,
at *2–4 (D. Me. Jan. 14, 2013);3 Friends of Merrymeeting Bay v.
NextEra Energy Res., LLC, No. 11-cv-38-GZS, 2013 WL 145733, at *2–4
(D. Me. Jan. 14, 2013).

We briefly reiterate them here only as

necessary to provide context for the issues on appeal.
The crux of the matter is that certain endangered species
of fish, including Atlantic salmon, pass through Defendants' Dams
when they migrate down the Kennebec River to the sea.

Each Dam

operates under the terms of water-quality certifications issued by
the state of Maine pursuant to Section 401 of the CWA, 33 U.S.C.
§ 1341. All of the Dam's certifications incorporate the provisions
of

the

Kennebec

Hydro

Developers

Group

Settlement

Agreement

("Settlement Agreement"), which Defendants (among other operators
of hydroelectric projects) entered into in 1998 with various
federal and state agencies ("Agencies").
The Settlement Agreement allows for two basic methods of
downstream fish passage, either through the turbines of the Dams or

3

In case number 11-cv-35, the district court issued two
orders on the same day. The first order, cited above, recounts the
facts of the case and rules on Defendants' motion to dismiss. The
second order granted summary judgment for Defendants as to Count
II.
Friends of Merrymeeting Bay v. Brookfield Power US Asset
Mgmt., No. 11-cv-35-GZS, 2013 WL 145580, at *4 (D. Me. Jan. 14,
2013). It is the second order from which Plaintiffs appeal.
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around the turbines by various bypass methods. It further provides
that:
to the extent that licensee desires to achieve interim
downstream passage of out-migrating adult Atlantic salmon
and/or adult shad by means of passage through turbine(s),
licensee must first demonstrate, through site-specific
qualitative
studies
designed
and
conducted
in
consultation with the resource agencies, that passage
through turbine(s) will not result in significant injury
and/or mortality (immediate or delayed).
After

entering

into

the

Settlement

Agreement,

Defendants,

in

consultation with the Agencies, constructed diversionary facilities
to take the fish around the turbines at all four of the Dams.
Plaintiffs filed a two-count complaint in each case on
January 31, 2011, alleging that endangered fish continue to pass
through

the

Dams'

turbines

despite

the

construction

of

the

diversionary facilities, resulting in injury and death to some of
the fish.

Plaintiffs claimed in Count I that the fish casualties

amounted to an illegal "taking" of an endangered species in
violation

of

the

ESA.

In

Count

II,

Plaintiffs

argued

that

Defendants are in violation of their water-quality certifications,
and thus the CWA, because they have not conducted the "sitespecific quantitative studies" ("Studies") that are required if
Defendants
According

desire
to

passage

Plaintiffs,

of

the

evidence

fish
in

through
the

the

record

turbines.

shows

that

Defendants' diversionary facilities are ineffective, and that
Defendants know they are ineffective, which raises a question of

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fact about whether Defendants desire at least some of the fish to
pass through the turbines.
The district court entered summary judgment in favor of
Defendants on Count II in both cases.

We find that the district

court erred by entering judgment in favor of Defendants without
properly considering the record as a whole in the light most
favorable to Plaintiffs.

We therefore vacate and remand for

further proceedings consistent with this opinion.
II.

Analysis

We review the district court's summary judgment decision
de novo.

Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 69 (1st

Cir. 2014). The dispositive issue with respect to the CWA claim is
a question that is straightforward to pose but not particularly
easy to answer:

do the Defendants "desire to achieve" passage of

the endangered fish through the turbines?

If so, Defendants must

conduct the Studies in order to remain compliant with the terms of
the Settlement Agreement.
The district court decided as a preliminary matter that
the relevant language in the Settlement Agreement is unambiguous.
Friends

of

Merrymeeting

Bay,

2013

WL

145733,

at

*14.4

It

interpreted the word "desire" according to its commonly understood
meaning — "to want" – equivalent to a party's subjective intent.

4

Although there are two district court opinions below, the
analysis of the CWA claim in each is identical.
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The district court then categorically rejected Plaintiffs'

evidence related to: (1) whether fish were in fact passing through
the turbines; (2) and whether Defendants knew fish were passing
through the turbines.
equate

to

desire,"

On the grounds that "[k]nowledge does not
the

district

court

held

that

Plaintiffs'

evidence related to those two topics was "not germane to the
[c]ourt's inquiry."

Id.

Reviewing the portion of the record that

remained, the district court concluded that the "evidence . . . on
summary judgment reveals that Defendants do not desire to pass
[endangered fish] through the turbines."

Id.

We agree that the language of the Settlement Agreement is
not ambiguous, and that the common meaning of the word "desire,"
corresponding to a party's subjective intent, should apply.
Questions of intent in the context of contract interpretation often
arise when the language of a contract is ambiguous and we must
determine the parties' intended meaning.
here.

That is not the question

Instead, the unambiguous contractual language in this case

presents

a

factual

question

regarding

the

subjective

intent

underlying Defendants' conduct pursuant to the contract.
This type of question does not appear to arise frequently
in contract disputes. Questions of the intent underlying a party's
conduct are more common in other contexts, such as employment
discrimination suits.

We have not found another case specifically

analogous to this one, where a party's subjective desire for a

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particular

outcome

triggers

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the

Date Filed: 07/14/2014

application

of

a

Entry ID: 5838181

contractual

provision.
Nevertheless, certain principles apply when a district
court resolves questions about a party's underlying intent at the
summary
context.

judgment

stage,

regardless

of

the

specific

doctrinal

We have held that courts should "use special caution in

granting summary judgment as to intent. Intent is often proved by
inference, after all, and on a motion for summary judgment, all
reasonable inferences must be drawn in favor of the nonmoving
party."

Daniels v. Agin, 736 F.3d 70, 83 (1st Cir. 2013).

But

even when "elusive concepts such as motive or intent are at issue,
summary judgment is appropriate if the nonmoving party rests merely
upon conclusory allegations, improbable inferences, and unsupported
speculation."

Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)

(internal quotation mark omitted).
In determining whether Plaintiffs introduced sufficient
evidence to survive summary judgment, the district court "examines
the entire record in the light most flattering to the nonmovant and
indulg[es] all reasonable inferences in that party's favor." Cadle
Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997) (internal quotation
marks omitted).

This review of the record is limited, however, to

evidence that "would be admissible or usable at trial." Asociacion
de Periodistas de Puerto Rico v. Mueller, 680 F.3d 70, 78 (1st Cir.
2012) (internal quotation marks omitted).

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When the district court

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held that Plaintiffs' evidence regarding Defendants' knowledge and
the bypass measures' effectiveness was "not germane to [its]
inquiry,"

it decided in effect that the proffered evidence was

irrelevant

and

therefore

outside

of

the

scope

of

evidence available for review on summary judgment.

admissible
That is the

point at which the district court erred.
While the district court was correct that it should not
substitute "knowledge" for "desire" in

the Settlement Agreement,

it does not follow that evidence of Defendants' knowledge and the
effectiveness of the diversion systems is necessarily irrelevant.
As a general matter, if we want to figure out what parties desire
to achieve in a given situation, it makes sense to look at what
they know about the situation, what steps they are taking, what
results they are actually achieving, and how they respond to those
results.

As Plaintiffs point out, we considered this type of

evidence to help determine a party's subjective intent in United
States v. General Electric Co., albeit in a different doctrinal
context. 670 F.3d 377, 387–88 (1st Cir. 2012)

(evaluating the

defendant's knowledge and conduct to decide whether the defendant
had the requisite intent to find "arranger liability" under a
different environmental statute).
Defendants maintain, however, that facts related to their
knowledge

and

the

effectiveness

of

the

bypass

systems

are

irrelevant in the context of this particular Settlement Agreement.

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According to Defendants, the Settlement Agreement contemplates two
methods of downstream passage, bypass or through the turbines, and
the fact that Defendants installed diversionary structures is
sufficient on its own to preclude a finding that they desired
passage through the turbines:

"Because the plain terms of the

Agreement establish two basic methodologies (bypass or turbine
passage) – and because subjective intent is the critical element –
a signatory that has chosen to install diversionary structures does
not 'desire to achieve' interim turbine passage."
Thus, according to Defendants, we should assess their
"desire" from the vantage point of a fork in the road — at a
certain point in time, they could choose to go either down the path
of turbine passage or down the path of the bypass method.

Once

they chose the bypass method by installing interim diversionary
facilities, no matter how ineffective they may turn out to be,
there is no longer any possibility that they might desire turbine
passage — that was the road not taken.

A hypothetical dam owner

operating under the Settlement Agreement could install interim
diversionary facilities that it suspected would be ninety-nine
percent ineffective, and ninety-nine percent of the endangered fish
may continue to pass through the turbines with the full knowledge
of the dam owner. In Defendants' view these circumstance could not
lead a jury to infer that the owner desired passage through the
turbines because of the owner's decision to install diversionary

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facilities in the first place.

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We do not think that such a result

is consistent with the language of the Settlement Agreement as a
whole.
The Settlement Agreement does more than offer Defendants
a binary choice between two methods of downstream passage; it also
imposes

obligations

to

study

the

effectiveness

over

time

of

whatever interim downstream passage facilities it may choose to
implement

and

to

efficiency goals.

make

good

faith

efforts

to

reach

certain

Thus, it seeks to fulfill its stated purpose of

restoring endangered fish populations through an ongoing series of
assessments

and,

if

necessary,

facilities and operations.

modifications

to

the

Dams'

It also specifically contemplates the

possibility that Defendants might desire downstream passage through
the turbines in the event that interim bypass facilities prove
ineffective.
Reading the Settlement Agreement as a whole, it makes
more sense to assess Defendants' desire in the context of the
continuous efforts required by the Settlement Agreement, rather
than in reference to a single decision Defendants make at one
particular point in time.
that

the

installation

This broader context belies the notion
of

diversionary

facilities

is

alone

sufficient to determine Defendants' desire regarding downstream
passage and opens the door to evidence regarding the extent to

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which the facilities actually work and what Defendants know about
it.
Defendants

point

out,

however,

that

nothing

in

the

Settlement Agreement requires that interim diversion facilities be
completely effective.

In other words, there is no basis for

holding Defendants to a strict liability standard by which any
failure to prevent passage through the turbines, however trivial,
triggers the obligation to conduct the Studies.

Defendants argue

that the consideration of evidence regarding the effectiveness of
bypass

methods

would

effectively

impose

a

strict

liability

standard.
Defendants are correct that the Settlement Agreement does
not require complete effectiveness.

To be clear, the Agreement

does not require Defendants to achieve any particular objectively
measurable level of effectiveness, and neither should the court.
But that does not mean effectiveness is irrelevant.

Rather, it is

one of the pieces of information forming the background against
which the court or the fact finder can determine what Defendants
desire.

We do not expect the district court to look at evidence of

effectiveness in isolation and draw conclusions therefrom.
significance

lies

in

relation

to

all

of

the

other

Its

relevant

background information. For example, to return to our hypothetical
dam

owner,

assuming

the

record

showed

that

the

diversionary

facilities were less than fully effective, the district court could

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still grant summary judgment in concluding that the dam owner did
not desire passage through the turbines based on other information,
such as good faith efforts to ameliorate problems with the bypass
method. The important point is that it would reach that conclusion
based on all of the relevant evidence.

Following this approach,

the consideration of evidence related to the effectiveness of the
bypass methods does not impose strict liability.
Defendants also make much of the fact that the Agencies
that are signatories to the Settlement Agreement have never sought
to enforce those provisions requiring Defendants to conduct the
Studies.

According to Defendants, the absence of enforcement by

the Agencies demonstrates conclusively that Defendants do not
desire passage of the fish through the turbines, because "[t]he
parties to an agreement know best what they meant."

Reed & Reed,

Inc. v. Weeks Marine, Inc., 431 F.3d 384, 388 (1st Cir. 2005)
(internal quotation marks omitted).
It is true, as Defendants argue, that the conduct of the
parties to an agreement often informs the court's interpretation of
the agreement.
issues.
case.

Id.

But this argument conflates two separate

We are not concerned with contract interpretation in this
The district court and the parties all agree on the

unambiguous meaning of the term "desire"; in the context of the
Settlement Agreement it refers to Defendants' subjective intent.

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Instead, we are faced with a factual question about what
Defendants actually desired. Of course, the Agencies' conduct will
be part of the overall context in which the court can evaluate that
question.

But the focus of that inquiry must be on the Defendants

themselves.
settle

a

The conduct of the Agencies does not conclusively
factual

question

regarding

Defendants'

subjective

intentions.
Moreover, the idea that a lack of agency enforcement
necessarily

implies

compliance

with

the

CWA

places

an

undue

restriction on the statutory provision for citizen suits.

The

language of that provision is broad; it allows citizens to bring
suits "against any person . . . who is alleged to be in violation"
of the CWA.

33 U.S.C. § 1365(a)(1).

Citizens may sue an agency

itself "where there is alleged a failure of the Administrator to
perform

any

act

or

duty

under

this

chapter

which

is

not

discretionary with the Administrator." § 1365(a)(2). On the other
hand, the statute prohibits citizen suits "if the Administrator or
State has commenced and is diligently prosecuting [an] action . . .
to require compliance" with the CWA.

§ 1365(b)(1)(B).

On the record before us, there is no basis for a suit
against

the

Agencies

themselves

for

failure

to

perform

non-

discretionary duties under section 1365(a)(2). Neither is there any
active agency enforcement that would prohibit a citizen suit under

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section 1365(b)(1)(B).

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Rather, what we have here is a claim that

there is a lack of discretionary enforcement.
The statute does not explicitly address this situation.
But if courts dismiss citizen suits on the grounds that a lack of
discretionary

enforcement

necessarily

implies

a

defendant's

compliance with the CWA, then citizen suits will only be able to go
forward when there is a failure of mandatory agency action; i.e.,
when the plaintiff can sue the agency itself.

We do not read the

provisions of section 1365(a)(1), however, as limited to only those
situations where section 1365(a)(2) applies.

Section 1365(a)(2)

expands upon section 1365(a)(1) by adding an additional basis for
a citizen suit; it is not a restriction.
We
discretionary

think

there

enforcement

is

a

may

better

indicate

approach.

A

either

defendant's

a

lack

of

compliance with the statute or a failure by the agency to rein in
a non-compliant defendant.

A court must look at the facts of the

particular case; it cannot draw a conclusion solely from the fact
of a lack of discretionary enforcement.

Here, the Agencies'

conduct should be considered as part of the whole record, but not
dispositive in itself.
That point is where our fundamental disagreement with the
dissent arises. According to the dissent, we are ignoring the fact
that the Agreement provides a process by which the signatories
address any problems with effectiveness, so we should not be

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involved.

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But in focusing narrowly on the role of the agencies

within the Agreement, the dissent ignores the basic fact that the
Agreement has been incorporated into the statutory framework of the
CWA. And in the CWA, Congress specifically provided for citizen
suits. Therefore, the courts necessarily have a role to play in
assessing

compliance

with

the

statute

alongside

that

of

the

agencies.
Accordingly,

a

court

can

make

an

independent

determination, from the facts on the record as a whole, about
whether Defendants desire passage through the turbines. When a
court makes that determination, for the reasons we have explained,
evidence regarding the Defendants' knowledge and the effectiveness
of their measures will be relevant for the purposes of summary
judgment. If we decide that the parties to the Agreement put
enforcement solely in the hands of the agencies and refuse to look
further, we abdicate our responsibility over the workings of the
statute. The parties to the Agreement cannot negotiate away the
role that Congress intended for the court to play under the statute
when it provided for citizen suits.
We wish to be abundantly clear about the scope of this
opinion. We are reversing the district court's order on the narrow
procedural grounds that it failed to consider all relevant evidence
in the light most favorable to Plaintiffs.

We express no opinion

on the substantive question of Defendants' compliance with the

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Settlement Agreement, nor have we determined whether Plaintiffs
have offered enough evidence to create an issue of material fact.
That will be for the district court to answer on remand, when it
considers the entire record in accordance with this opinion.
III.

Conclusion

For the foregoing reasons, we VACATE the district court's
rulings and REMAND for further proceedings consistent with this
opinion.

Each side shall bear their own costs.

- Dissenting Opinion Follows –

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KAYATTA, Circuit Judge, Dissenting. The plaintiffs argue
that the district court should have considered evidence that the
defendants' chosen methods of passing fish downstream are less than
fully effective at keeping the fish out of the dam turbines.
Normally, consideration of such an argument would lead us to ask:
What significance does the Agreement assign to evidence that a fish
passage

methodology

effectiveness?
plaintiffs,

chosen

by

an

owner

is

of

questionable

The majority, drawn in by the myopic focus of the

instead

asks

and

answers

a

different,

much

more

abstract, question: Whether a determination of what a person
desires can be informed by evidence of the results of his behavior?
The majority then assigns contractual significance to its answer to
this question by assuming that the Agreement anticipates evidence
of effectiveness serving as a device for continuously reevaluating
what the owners desire.

Because the Agreement clearly anticipates

that evidence of effectiveness will be dealt with very differently,
I respectfully dissent.
The Agreement obliged each dam owner to take interim
steps

to

solutions

protect
were

fish

migrating

devised.

downstream

Specifically,

the

while
owners

permanent
agreed

to

"continue and where needed improve existing interim operational
measures" to reduce entrainment (i.e., the drawing of fish into the
turbines) and to "eliminate significant injury or mortality . . .
to out-migrating species."

Accordingly, each owner agreed to

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"develop" a "plan for interim downstream passage facilities and/or
operational measures to minimize impacts on downstream migrating
fish."5

The Agreement gave great power to the signatory agencies

when it came to the design of the owners' plans: the owners had to
consult with the agencies in preparing their plans, which were
subject to agency approval "with evaluation based on qualitative
observations."

Moreover, if the interim plan involved changes to

the project facilities,6 rather than just operational changes, the
design of any "fish passage . . . facility" had to be approved by
the signatory agencies before being filed with the Federal Energy
Regulatory

Commission

("FERC")

or

the

Maine

Department

of

Environmental Protection.
Importantly, if the plans involved diverting the fish
around the turbines, the Agreement set no required level of
effectiveness.

It did, though, suggest that one hundred percent

5

The available "existing interim operational measures"
varied somewhat between projects; for all four of the projects at
issue on appeal (the Weston, Lockwood, Shawmut, and Hydro-Kennebec
Projects), they included "controlled spills" and "temporary turbine
shutdowns"; for Shawmut, Weston, and Lockwood, they also included
use of sluiceways. For the latter three projects, the Agreement
specified "that fish passage by means of sluiceways and/or
controlled spills [is] the first and preferred approach to interim
downstream fish passage." Hydro-Kennebec had no such term.
6

The Agreement distinguishes between new "facilities"
(evidently, whatever diverts the fish away from the turbines,
including floating booms) and "new diversionary structures." The
Agreement assured Lockwood, Shawmut, and Weston that its terms did
not require "[c]onstruction of new diversionary structures to
achieve success," but Hydro-Kennebec received no such assurance.
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diversion efficiency was not required: the Agreement's stated aim
was to "diminish" entrainment, eliminate "significant" injury or
mortality,

and

"minimize"

qualitative observations."7
was

indifferent

to

the

impacts,

"with

evaluation

based

on

This is not to say that the Agreement
effectiveness

methodologies the owners might develop.

of

whatever

diversion

Any "newly constructed

interim and permanent downstream fish passage facilit[y]" was
subject

to

effectiveness

efficiency goals."

tests

based

Agrmt. § III(F).

on

"targeted

passage

If the new facilities fell

short of those goals, the owners had to undertake good faith
mitigation efforts at the behest of the agencies; if even these
failed, the agencies could seek continued funding from the owners
for alternative programs, including possibly trucking the fish
around the dam.
The Agreement did not actually preclude an owner from
proposing a plan that relied on achieving downstream passage by
running the fish downriver through the turbines.

But if an owner

chose that option (after adult fish were inhabiting the impoundment

7

Indeed, the 1998 amendment to Weston's water quality
certification reads: "Interim Downstream Fish Passage[:] The
applicant shall continue and where needed improve existing interim
operational measures to diminish entrainment, allow downstream
passage, and eliminate significant injury or mortality to
out-migrating anadromous fish, in accordance with the terms of the
[Agreement]."
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above the dam), the owner first had to do quantitative fish-safety
studies.8
The fork in the road thus established was clear:

a

facility owner had to have a plan for downstream passage that could
get approved; if the plan involved only operational modifications
(the preferred approach for three of the dams), evaluation was
based on qualitative observations; if it involved new facilities,
effectiveness studies were necessary (though not until the facility
was in place).

But if the owner wanted to avoid the cost and

effort entailed in a diversion methodology, and instead achieve
fish passage to the agencies' satisfaction by running the adult
fish through the turbines, it first had to do a quantitative study
of whether turbine passage was safe.
There is no doubt about what the owners decided to do:
they acceded to the agencies' preference and sought to achieve fish
passage by use of existing and upgraded diversionary measures.

8

The defendants likely conceded in their answer to the
complaint that adult salmon inhabit the impoundment above
Hydro-Kennebec. The district court assumed that the habitation
requirement was met for all dams, and I do likewise for present
purposes.
The rules are different for juvenile fish.
At Lockwood,
Shawmut, and Weston, if passing juvenile salmon and shad downstream
by the preferred methods (sluiceways or spills) is not
"successful", then to the extent that the owners want to satisfy
their obligations under the Agreement by choosing to send the fish
through the turbines, site-specific qualitative survival studies
are needed. (The requirement for site-specific qualitative studies
at Hydro-Kennebec has no defined relationship to the "success[]" of
other methods, as no preferred method is named.)
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Specifically, as called for by the Agreement, the owners worked
with

the

agencies

significant
measures.

to

develop

cost--operational

and

implement--sometimes

modifications

and

at

diversionary

The central changes have hardly been wink-and-nods.

As

an example, here is a description of the plan submitted by Hydro
Kennebec in 2006:
[T]he interim downstream fish passage facility consists
of a 10-foot-deep, 160-foot-long angled fish guidance
boom in the project forebay leading to a 4-foot-wide by
8-foot deep gated slot cut into an existing concrete wall
located between the turbine intakes and the bascule gates
adjacent to the spillway. The boom is suspended from the
surface by [sic] series of floating barrels and is cabled
to lead ballast on the bottom, with each end attached to
an existing concrete wall.
The slot contains a
downward-opening steel slide gate that is capable of
passing about four percent of the project turbine flows,
or a maximum of about 300 [cubic feet per second]. The
gate discharges into an existing plunge pool that drains
into the project tailrace.
The

Maine

Department

of

determined

that

plan

requirement

in

this

Environmental

Protection

"satisfactorily

Hydro-Kennebec's

water

expressly

address[ed]"

quality

the

certification

(incorporated from the Agreement) that operational measures to
ensure

downstream

fish

passage

be

improved.

The

Department

conditioned its approval, though, on Hydro-Kennebec's proposing and
conducting an effectiveness study in 2007 and, consistent with the
Agreement, "in the event that it is revealed that certain interim
downstream measures are needed to avoid significant downstream
turbine injury and/or mortality . . . consult[ing] with the

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resource

agencies

and

Page: 23

agree[ing]

Date Filed: 07/14/2014

to

undertake

Entry ID: 5838181

cost-effective

measures designed to minimize mortality at the site."
With their proposed operational and diversion plans
approved, no owner ever chose to assume the obligation to justify
the

essentially

"do-nothing"

plan

of

relying

pass-through as its fish passage methodology.9
sought

approval

of

any

plan

relying

on

on

turbine

And since no owner
successful

turbine

pass-through to allow adult salmon or shad to travel downstream,
none were required to do a pre-approval quantitative mortality
study.
The agencies, it seems, have subsequently monitored
performance, in some instances securing substantial modifications.
For example, after the Hydro-Kennebec's interim fish bypass was
built in 2006, the plunge pool was deepened on agency request. And
of

the

three

dams

for

which

the

Agreement

specified

that

operational modifications were the preferred method of achieving
downstream passage, two have now installed fish-diversion booms.
It is fair to say that one cannot reasonably read the
Agreement and the record and find that the owners, upon first
presenting

their

plans

to

achieve

9

downstream

passage

by

Evidently, "[a]s part of the . . . Accord and prior to the
listing of Atlantic Salmon [as endangered], turbine passage had
previously been approved as a downstream passage route for juvenile
fish, based on observation studies indicating no significant injury
or mortality." We are concerned here, however, only with adult
fish.
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diversionary measures, "desired" to achieve anything other than
what they were obviously proposing.

In other words, it is clear

that no owner, in proposing its fish passage methodology for agency
approval, sought to convince the agencies that simply running the
fish through the turbine would do the trick.

And as I read the

majority's opinion, my colleagues do not actually dispute this
conclusion.

Rather, they bring their focus forward in time beyond

the "vantage point of [the] fork in the road" when the owners first
sought approval for their plans.

The majority reasons that if it

turned out, down the road so to speak, that an approved fish
passage methodology was not effective (to what extent, we are not
told), and the owner continued using that methodology, then a fact
finder could infer that the owner at that point began to desire to
achieve fish passage by turbine pass-through.
The flaw in this reasoning is that it ignores how the
Agreement addresses assessments of the effectiveness of the fish
passage plans that were initially proposed at the fork in the road.
Cf., e.g., Twombly v. AIG Life Ins. Co., 199 F.3d 20, 23 (1st Cir.
1999) (under Maine law, noting that courts must examine the whole
instrument--there, an insurance contract--to ascertain the intent
of the parties and to eliminate possible ambiguity).

As noted

above, all of the plans were evaluated at least qualitatively as
part of the negotiations with the agencies--and their progress was
reported through annual reports, with plans set to be reassessed at

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least by this year.

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Plus, any "newly constructed interim . . .

downstream fish passage facilities" are, once operational, subject
to

effectiveness

goals."

tests

based

Agrmt. § III(F).

on

"targeted

passage

efficiency

Section III(F) further provides:

In the event that effectiveness studies show that passage
at individual projects is less than the targeted passage
efficiency goals, [the] dam owners will make a good faith
effort to achieve these goals through modification of
facilities and/or operations, following consultation with
the resource agencies. In the event that studies show
that, subsequent to said modifications, passage at
individual projects continues to be less than the
targeted efficiency goals, resource agencies may seek
continued funding for trap and truck or other programs,
or other mitigation from [the] dam owners. Any disputes
will be handled through the FERC process.
This language makes clear that:

(1) no changes to new

facilities need be made by the owner unless "targeted passage
efficiency goals" are missed; (2) if goals are missed, then the
next step is not to deem that the owners "desire" the goals to be
missed, but rather to require the owners to make good faith
modification efforts, in consultation with the agencies; (3) if the
modifications fall short in the judgment of the agencies, then the
resource agencies "may seek continued funding for trap and truck or
other programs . . . ."; and (4) any disputes will be resolved
through the FERC process.
process

of

what

seems

to

In short, the Agreement creates a
be

near-constant

interaction

negotiation between the dam owners and the signatory agencies.

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But, says the majority, suppose some fish get through the
booms?

Could not the court then rule that, notwithstanding the

owner's

conceded

desire

at

the

time

it

opted

to

rely

on

diversionary methods to secure agency approval for its plan to pass
fish downstream, the owner later developed a desire to use turbine
passage?

By this logic, if the diversionary method chosen is

discovered to be anything less than one hundred percent effective,
the owner might be found to have developed a "desire" that some
fish go through the turbine.
ignores

and

undercuts

This blindered reading, however,

section

III(F)

as

facilities for downstream fish migration.

applied

to

interim

Read in context, the

language upon which the majority hinges its analysis is plainly
meant to set the terms of owner-agency negotiation by requiring the
owners to conduct safety studies before proposing the turbines as
their chosen method of moving the fish downstream--not to serve as
a pretext for revisiting and re-labeling the owner's choice based
on its effectiveness.

Simply put, given the existence of section

III(F), it makes no sense to claim that the parties buried in
section IV an unstated, standardless procedure for using evidence
of effectiveness in an entirely different manner that trumps the
actual procedures upon which the parties expressly settled.

Cf.

Fishman v. LaSalle Nat. Bank, 247 F.3d 300, 302-03 (1st Cir. 2001)
(in construing an unclearly drafted commercial note, explaining
that

"[i]t

is

centrally

important"

-26-

that

the

prevailing

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interpretation "make[] sense--that is, [carry] out what one might
imagine to be a plausible objective of parties so situated. . . .
Common sense is as much a part of contract interpretation as is the
dictionary or the arsenal of canons.")
Sensing this problem, the majority posits the possibility
that an owner's diversion facility might turn out to be ninety-nine
percent

ineffective (presumably on a sustained basis, even when

maintained in accordance with the plan and approval).

Plaintiffs

of course point to no evidence in the record to show that such is
actually the case. Even if it were so, though, the Agreement would
leave it to the agencies to decide whether to have the owner revise
its method, go to a trap-and-truck program, or do something else.
Of course, if at any point the owner falls back on proposing that
it can satisfy its obligation to "diminish entrainment . . . and
eliminate significant injury or mortality . . . to out-migrating"
fish by sending them through the turbines, then quantitative safety
studies would have to accompany that proposal.

But that would be

because, within the context of plan negotiations with the agencies
(i.e., the context in which the term "desire" is used), the
defendants

actually

requested--to

rely

"desired"--that
on

turbine

is,

passage

to

proposed,
satisfy

chose,
their

or

fish

protection obligations.
I do concede that the majority is not deciding now
whether there is enough evidence to create an issue of material

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fact; it only says that the district court need "consider" the
evidence of effectiveness.

But even this modest requirement must

mean that the majority believes that some amount of evidence of
ineffectiveness could affect the outcome of the case.
Evid.

401(b);

Fed.

R.

Civ.

P.

56(a)

(requiring

See Fed. R.
disputes

of

"material" fact). The able district court judge will quite rightly
ask:

effectiveness

by

what

measure,

given

objective standard set out in the Agreement?

that

there

is

no

And toward exactly

what end, in light of section III(F) and the Agreement's overall
commitment

to

resolving

fish-safety

agency-owner negotiations?

concerns

through

ongoing

Suppose, for example, the targeted

passage efficiency goals are met, but a nontrivial number of fish
still evade diversion: can the owners be deemed to desire to use
turbine passage?

Suppose the goals are not met, but the resource

agencies have not opted for mitigation such as a long-term shutdown
pending more quantitative studies;10 should the district court
overrule the agencies' efforts under section III(F), and by what
standard of review?

The majority offers no guidance on these

questions, all of which are reasonably raised by the new version of
the Agreement forged by what the majority reads into the word
"desire."
paddle,

Instead, the majority casts the case adrift without a
further

extending

the

litigation

10

over

fish

passage

Short-term turbine shutdowns are (contrary to the
suggestion of defendants) specifically anticipated in the Agreement
as available interim operational measures.
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methodologies that the parties to the Agreement thought they had
managed to avoid.
By

holding

that

the

District

Court

must

"consider"

effectiveness in order to gauge ongoing "desire" in some abstract
sense, the majority also allows the plaintiffs to do indirectly
what they cannot do directly. I do not dispute that the plaintiffs
could sue under the Clean Water Act for a breach of a term of the
Agreement as incorporated into a water quality certification.
Thus, if the provisions of Section III.F were being breached,
citizens could sue.

Citizen suit or otherwise, however, no court

can rewrite the otherwise lawful manner in which the parties agreed
to address modifying fish passage methodologies based on postimplementation evidence of effectiveness.
Imagine a plaintiff brings suit claiming that the owners
are in violation of the Agreement because X% of the adult salmon
are passing through the turbines.

I would think it clear that no

such claim could survive, because the Agreement plainly sets no
objective

measure

against

which

to

compare

a

facility's

effectiveness, and gives the agencies discretion to approve the
interim downstream passage plans.

And those approvals stand

unchallenged. Now consider the gist of what these plaintiffs say:
"I want a court to find that, because X% of the salmon pass through
the turbine, the owner must desire turbine pass-through as its
method to achieve downstream passage, and therefore the agency

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should not have approved the diversionary plan without first seeing
quantitative fish safety studies."

This is nothing more than a

re-packaged version of the presumably defective hypothetical claim
discussed above.

By deeming evidence of effectiveness "relevant,"

the majority allows the plaintiffs to act as though the term
"desire" both established a de facto tipping point (albeit one to
be guessed at under the totality of the circumstances) and set the
remedy for failing to attain it (when in fact section III(F) serves
that function, at least for new facilities).

Absent some actual

effort by the defendants to propose or rely on turbine passage as
a

way

to

satisfy

their

fish-protection

obligations,

however,

failure to do a quantitative effectiveness study neither violates
the Agreement nor generates a cause of action for the plaintiffs.
For the foregoing reasons, any determination of how the
owners desire to achieve fish passage under the Agreement must be
based on the nature of the plans that they proposed and developed
with

the

agencies.

Any

judgment

about

the

adequacy

and

effectiveness of those plans was one to be made by the agencies in
approving and monitoring those plans, not by the district court
peeking over the agencies' shoulders.

And any disputes concerning

what measures the agencies required to improve effectiveness were
to be handled through the FERC dispute resolution process.
In
regrettably

rejecting
upends

this

this

reasoning,

16-year-old

-30-

the

majority

Agreement,

opinion

ironically

by

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undercutting one of its central purposes:
litigation over fish passage methodologies."

Entry ID: 5838181

"avoid[ing] extensive
Crafted with the aid

of five environmental groups11, the Agreement marked a significant
turning point in the long history of Maine's exploitation of one of
its great rivers.

By facilitating the transfer of the Edwards Dam

to the state, and securing some of the funds for dam removal, it
led to the eventual removal of the Edwards Dam--an event etched in
the memory of most Mainers desiring to see industry, environmental
groups, and regulators work to find a balance that better protects
the state's natural resources. Toward that same end, the Agreement
funded the next phase of a fisheries restoration program for the
Kennebec, and led to the installation of new interim downstream
fish passage facilities at some of the hydroelectric project sites.
I hope that the majority's willingness to read such an Agreement in
a manner that ignores its overall structure will not deter owners
from making other beneficial agreements with state and federal
resource agencies for fear that third parties will flyspeck them
for supposed ambiguities that none of the parties to the agreement
claims exists.

11

The environmental groups, collectively known as the
Kennebec Coalition, were American Rivers, Inc., the Atlantic Salmon
Federation, Kennebec Valley Chapter of Trout Unlimited, the Natural
Resources Council of Maine, and Trout Unlimited.
-31-