Maine Council of the Atlantic, et al v. National Marine Fisheries, et al

Filing

OPINION issued by William J. Kayatta , Jr., Appellate Judge; David H. Souter,* Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Published. * Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. [16-2155]

Case: 16-2155

Document: 00117164288

Page: 1

Date Filed: 06/07/2017

Entry ID: 6097694

United States Court of Appeals
For the First Circuit
No. 16-2155
MAINE COUNCIL OF THE ATLANTIC SALMON FEDERATION; NATURAL
RESOURCES COUNCIL OF MAINE; KENNEBEC VALLEY CHAPTER OF TROUT
UNLIMITED; and MAINE RIVERS,
Plaintiffs, Appellants,
v.
NATIONAL MARINE FISHERIES SERVICE (NOAA FISHERIES); BROOKFIELD
RENEWABLE SERVICES MAINE, LLC; BROOKFIELD POWER U.S. ASSET
MANAGEMENT, LLC; BROOKFIELD WHITE PINE HYDRO, LLC; MERIMIL
LIMITED PARTNERSHIP; and HYDRO-KENNEBEC, LLC,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Kayatta, Circuit Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy,
LLC, and Charles Owen Verrill, Jr., were on brief, for
appellants.
Kevin W. McArdle, Attorney, U.S. Dep't of Justice, Env't &
Natural Resources Div., with whom Ellen J. Durkee and Robert P.
Williams, Attorneys, U.S. Dep't of Justice, Env't & Natural
*

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.

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Document: 00117164288

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Entry ID: 6097694

Resources Div.; John C. Cruden, Assistant Attorney General; and
John P. Almeida, Attorney Advisor, U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, were on brief,
for appellee National Marine Fisheries Service.
Matthew W. Morrison, with whom Pillsbury Winthrop Shaw
Pittman LLP was on brief, for appellees Brookfield Renewable
Services Maine, LLC; Brookfield Power U.S. Asset Management,
LLC;
Brookfield
White
Pine
Hydro,
LLC;
Merimil
Limited
Partnership; and Hydro-Kennebec LLC.

June 7, 2017

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SOUTER, Associate Justice.

Entry ID: 6097694

This appeal is from the

district court's dismissal for lack of jurisdiction of an action
brought

by

Procedure
opinions
(FERC)

the

Act

Plaintiff-Appellants

(APA).

issued

by

the

to

They
the

sought

Federal

National

Marine

under

the

review

of

Administrative
biological

Regulatory

Energy

two

Commission

Service1

evaluating

Fisheries

requested modifications of licenses to operate hydropower dams.
We affirm.
I.
Defendant-Appellees
Renewable

Services

Management,

LLC;

Maine,

power

LLC;

Brookfield

companies

Brookfield

White

Pine

(Brookfield

Power

Hydro,

U.S.
LLC;

Asset
Merimil

Limited Partnership; and Hydro-Kennebec, LLC) sought to modify
the terms of existing licenses to operate four hydropower dams
on the Kennebec River in Maine, which are subject to licensing
by FERC, acting under the Federal Power Act, 16 U.S.C. § 791a et
seq.

Because the river is a traditional waterway for spawning

Atlantic salmon, a protected species under the terms of the
Endangered Species Act, FERC was required to obtain biological
opinions (called BiOps) from the Fisheries Service, on whether
operating

the

dams

under

the

proposed

license

modifications

would jeopardize survival of the salmon species or degrade its
1

The National Marine Fisheries Service has been renamed NOAA
Fisheries.
We follow the parties' lead and use the former
title, which applied when the biological opinions were issued.
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Case: 16-2155

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environment.

See

16

Page: 4

U.S.C.

§ 402.14(a), (g), (h).

Date Filed: 06/07/2017

§ 1536(a)(2),

(b)(3);

Entry ID: 6097694

50

C.F.R.

The Fisheries Service found no jeopardy

to the species from the proposed modifications and no threat of
degradation.

It did, however, find that the changes proposed

would result in the incidental "taking" of individual fish among
the

protected

(prohibiting
§ 1532(19)

population.
the

"take"

(defining

See
of

"take"

an
to

16

U.S.C.

§ 1538(a)(1)(B)

endangered

include

species);

"harm"

and

id.

"kill").

Consequently, it issued an "incidental take statement," setting
forth measures to minimize the take and providing a safe harbor
for those (including FERC and its employees) who act in accord
with such measures and whose actions might otherwise violate the
Endangered Species Act.

See id. § 1536(b)(4), (o)(2); 50 C.F.R.

§ 402.14(i).
The BiOps, with their incidental take statements, drew
immediate objection from the Plaintiff-Appellants environmental
organizations participating in the licensing proceedings (Maine
Council

of

the

Atlantic

Salmon

Federation,

Natural

Resources

Council of Maine, Kennebec Valley Chapter of Trout Unlimited,
and

Maine

district

Rivers).

court

action

They

challenged

against

the

the

statements

Fisheries

Service

in
and

this
the

power companies, brought under the provisions of Section 10 of
the

APA,

5

U.S.C. §§ 701-706,

claiming

that

the

BiOps

were

arbitrary and capricious agency actions, id. § 706(2)(A), which
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violated Section 7 of the Endangered Species Act, 16 U.S.C.
§ 1536.

While the case was pending, FERC granted the license

modifications by orders adopting the terms of the BiOps.
district

court

then

dismissed

the

case

for

lack

of

The

subject

matter jurisdiction, relying on section 313(b) of the Federal
Power

Act,

16

U.S.C.

§ 825l(b),

which

vests

jurisdiction

appeals from such FERC orders in the courts of appeals.2

of

This

appeal followed, as did the Appellants' filing for review of the
FERC

orders

in

the

United

States

Court

of

Appeals

for

the

District of Columbia.
We agree with the district court that time and events
have eliminated whatever claims of district court jurisdiction
to review the BiOps the Appellants might have raised, whether
sound or not, when this action was filed.
2

So far as the appeal

Section 825l(b) provides, in relevant part:
Any party to a proceeding under this chapter aggrieved
by an order issued by [FERC] in such proceeding may
obtain a review of such order in the United States
Court of Appeals for any circuit wherein the licensee
or public utility to which the order relates is
located or has its principal place of business, or in
the United States Court of Appeals for the District of
Columbia, by filing in such court, within sixty days
after the order of [FERC] upon the application for
rehearing, a written petition praying that the order
of [FERC] be modified or set aside in whole or in
part. . . . Upon the filing of such petition such
court shall have jurisdiction, which upon the filing
of the record with it shall be exclusive, to affirm,
modify, or set aside such order in whole or in part.

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concerns

the

BiOp

with

Page: 6

respect

Date Filed: 06/07/2017

to

the

Entry ID: 6097694

Hydro-Kennebec

dam

affecting Waterville, Winslow, and Benton, Maine, the action is
moot by virtue of the terms of the BiOp itself, which expired on
December 31, 2016.
dams,

FERC's

As for the BiOp addressing the other three

decision

to

modify

the

licenses

by

terms

that

incorporated that BiOp changed the relevant facts as alleged
when the district court action was filed.
Once issued, the FERC order was unquestionably subject
to

the

Federal

Power

Act's

provision

for

direct

appellate

jurisdiction of the courts of appeals, 16 U.S.C. § 825l(b).

The

Supreme Court has made it clear that the jurisdiction provided
by § 825l(b) is "exclusive," not only to review the terms of the
specific

FERC

controversy."

order,

but

over

any

issue

"inhering

in

the

City of Tacoma v. Taxpayers of Tacoma, 357 U.S.

320, 336 (1958).

Thus, the United States Court of Appeals for

the District of Columbia, where the Appellants have filed their
petition for review of FERC's orders, has exclusive jurisdiction
over the attacks on the BiOps, on two separate and independently
sufficient grounds: as it was free to do, FERC incorporated the
BiOps in its own orders, and the BiOps were by any measure
"inher[ent]" in the statutory process for consideration of the
license modifications.

The Appellants accordingly have nowhere

else to go but to the courts of appeals, where they are afforded

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the opportunity to litigate just what they claimed in their
attempt to proceed in the district court.
The

Appellants

try

to

avoid

this

conclusion

pressing two arguments, neither of which avails them.

by

They say,

first, that the scope of appeal under § 825l(b) is narrower than
the review that would be afforded on a district court action
under the APA: that the reach of the court of appeals goes only
as far as considering whether FERC was arbitrary or capricious
in accepting the BiOps as recommended by the Fisheries Service,
whereas in review under the APA the district court could examine
the BiOps directly for arbitrariness or capriciousness on the
part of the Fisheries Service in issuing them.

The former, they

say, is not an "adequate" counterpart of the latter.
U.S.C.

§ 703

judicial

(providing

review

is

the

that

"[t]he

special

form

statutory

of

See 5

proceeding

review

for

proceeding

relevant to the subject matter in a court specified by statute,"
so

long

as

that

specified

review

proceeding

is

not

"inadequa[te]"); id. § 704 (authorizing judicial review of final
agency action under the APA where there is "no other adequate
remedy in a court").
The argument for inadequacy fails.

Not only have the

Appellants found no case with reasoning that supports them, but
the cases that have considered the scope of review in a court of
appeals under the special Power Act provision have come down
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against the Appellants' argument, seeing no good reason to read
"limited" into the Supreme Court's understanding of "exclusive"
jurisdiction.

See City of Tacoma v. FERC, 460 F.3d 53, 76 (D.C.

Cir. 2006); Cal. Save Our Streams Council, Inc. v. Yeutter, 887
F.2d 908, 911-12 (9th Cir. 1989); City of Tacoma v. Nat'l Marine
Fisheries Serv., 383 F. Supp. 2d 89, 92-93 (D.D.C. 2005); Idaho
Rivers United v. Foss, 373 F. Supp. 2d 1158, 1161 (D. Idaho
2005).

The first of these cases is, of course, from the court

in which the Appellants have filed their appeal of the FERC
orders.

In any event, their argument is simply precluded here

by the Fisheries Service's agreement that the scope of any court
of

appeals

review

of

the

BiOps

will

be

what

the

APA

would

provide in a district court if the Fisheries Service's BiOps
could

be

challenged

directly

there.

That

agreement

was

unequivocally confirmed in open court by the Fisheries Service's
counsel in arguing this case.3

3

At argument, counsel for the Fisheries Service stated that
"[s]ince the biological opinion was adopted into the FERC order,
it's an inherent part of that order, so in exercising its
jurisdiction over . . . plaintiffs' petition in this case, the
D.C. Circuit can review not only FERC's reliance on the
biological opinion, but the substantive validity of the
biological
opinion
itself."
Oral
Argument
20:15-21:00.
Although the Fisheries Service made clear that its concession
came with the "caveat" that the Fisheries Service might not be
granted intervenor status in the case pending before the United
States Court of Appeals for the District of Columbia, that
condition is no longer of concern, since the request to
intervene has been granted.
See Order, Maine Council of the
Atlantic Salmon Fed. v. FERC, No. 17-1003 (D.C. Cir. Mar. 3,
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The
opportunity

Appellants'

to

challenge

court goes to timing.

Page: 9

second
the

Date Filed: 06/07/2017

argument

BiOps

for

directly

in

Entry ID: 6097694

preserving
the

an

district

To be adequate, an appeal must not only

cover relevant substantive ground, but be available in a timely
fashion, which the Appellants deny that court of appeals review
provides: here, they say, APA review in the district court was
readily invoked, whereas access to the court of appeals had to
wait for the necessary action by FERC, amounting to 164 days
from the date of the BiOp in the case of the Hydro-Kennebec dam,
and 1035 days with respect to the BiOp for the three other dams.
During

those

time

periods,

the

Appellants

contend,

the

incidental take statements could have allowed harm to occur.
But we need not decide whether a sufficiently long, ongoing
delay could render the review provided by § 825l(b) inadequate.
In the present case, FERC has acted and a petition for review is
pending in the United States Court of Appeals for the District
of Columbia.

Not only is review in that court adequate in these

circumstances, it is probably the Appellants' quickest route to
resolving their challenge to the BiOps.
Finally, Appellants contend that their position finds
support in Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv.,
2017) (order granting the Fisheries Service's motion to
intervene); Motion of the Department of Commerce for Leave to
Intervene, Maine Council of the Atlantic Salmon Fed. v. FERC,
No. 17-1003 (D.C. Cir. Feb. 2, 2017) (the Fisheries Service's
unopposed motion to intervene).
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637 F.3d 259 (4th Cir. 2011).

Date Filed: 06/07/2017

Entry ID: 6097694

In Dow, the Fourth Circuit held

that a BiOp issued by the Fisheries Service to the Environmental
Protection Agency was reviewable in district court under the
APA.

Id. at 261.

"[D]eferring judicial review of the [BiOp]

until the EPA acts," the court said, "would not provide the
[plaintiffs] adequate review of the [BiOp]."

Id.

But this case

is not the same, for FERC, unlike the EPA in Dow, has acted on
the BiOps in question, and a petition for review of that action
is

pending

in

the

United

States

Court

of

Appeals

for

the

District of Columbia.4
II.
The

judgment

of

the

district

court

dismissing

this

action for lack of jurisdiction is affirmed.

4

The Supreme Court's decision in U.S. Army Corps of Engineers v.
Hawkes Co., 136 S.Ct. 1807 (2016), is also inapposite. In that
case, there was no reasonable alternative procedure by which the
aggrieved party could seek review of the agency action in
question. If an aggrieved party did not wish to obtain judicial
review by risking civil and criminal penalties for defying the
agency's determination, the proposed alternative, which had not
been invoked, could be "arduous, expensive, and long."
Id. at
1815.
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