FRIENDS OF MERRYMEETING BAY et al v. BROOKFIELD RENEWABLE POWER INC et al

Filing 144

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT granting 106 Motion for Summary Judgment, denying 107 Motion for Summary Judgment. Motions in Limine 100 , 101 , 103 , 104 and 105 are denied as moot By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRIENDS OF MERRYMEETING BAY,
et al.,
Plaintiffs,
v.
BROOKFIELD POWER US ASSET
MANAGEMENT, LLC, et al.,
Defendants.

)
)
)
)
) Docket no. 2:11-cv-35-GZS
)
)
)
)
)
)

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Before the Court are the cross-motions for summary judgment filed by Brookfield Power
US Asset Management, LLC and Hydro Kennebec, LLC (together, the “Defendants”) (ECF No.
106) and Friends of Merrymeeting Bay and Environment Maine (together, the “Plaintiffs”) (ECF
No. 107). Because the Court previously dismissed Count I of Plaintiffs’ Substituted Complaint
(ECF No. 20) as moot (see Order On Renewed Motion To Dismiss, January 14, 2013), only
summary judgment as to Count II of Plaintiffs’ Substituted Complaint remains before the Court.1
As explained herein, the Court GRANTS Defendants’ Motion For Summary Judgment (ECF No.
106) as to Count II and DENIES Plaintiffs’ Motion For Partial Summary Judgment (ECF No.
107) as to Count II.

1

In addition, Plaintiffs and Defendants filed five motions in limine to exclude expert testimony (ECF Nos. 100,
101, 103, 104 and 105). Because those motions were not implicated in the Court’s decision on the present motions
for summary judgment as to Count II of Plaintiffs’ Substituted Complaint (ECF No. 20) or the Renewed Motion To
Dismiss (ECF No. 133), the motions in limine (ECF Nos. 100, 101, 103, 104 and 105) are DENIED AS MOOT.
Also, Defendants requested oral argument related to the motions for summary judgment (ECF No. 140). As the
Court stated in its Order On Renewed Motions To Dismiss, the Court determines that this matter can be decided
without oral argument, and thus DENIES Defendant’s Motion To Hear Oral Argument Pursuant To Local Rule 7(f)
(ECF No. 140).

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 issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “[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
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

2

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)).
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.

DISCUSSION
Both Plaintiffs and Defendants move for summary judgment on Count II of Plaintiffs’

Substituted Complaint (ECF No. 20).2 Count II claims that Defendants, who hold the Federal
Energy Regulatory Commission (“FERC”) license for the Hydro Kennebec hydroelectric dam
(“Hydro Kennebec dam”) located on the Kennebec River, are violating the Clean Water Act by
failing to comply with the water quality certificate for that dam.
The objective of the Clean Water Act (“CWA”) is “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Accordingly,

2

The Court’s discussion of the pending motions assumes familiarity with this Court’s Order On Renewed Motion
To Dismiss. In that Order, the Court granted Defendants’ motion to dismiss Plaintiffs’ Endangered Species Act
claim (Count I) as moot in light of the issuance of an incidental take statement. The Court also denied Defendants’
motion to dismiss Plaintiffs’ claim (Count II) under the Clean Water Act as moot.

3

under the CWA, hydroelectric dams must obtain a state “water quality certification” before they
may obtain a license to operate from FERC. 33 U.S.C. § 1341. The water quality certification
then becomes a condition of the FERC license. Id. §1341(d).
Here, the Hydro Kennebec dam operates subject to the terms and conditions of a water
quality certification originally issued in 1986 by the State of Maine pursuant to Section 401 of
the Clean Water Act (Stipulations Of Fact (ECF No. 95) (“SF”) ¶ 131). That water quality
certificate contains the following provision:
INTERIM DOWNSTREAM FISH PASSAGE: The applicant shall continue and
where needed improve existing operational measures to diminish entrainment,
allow downstream fish passage, and eliminate significant injury to out-migrating
anadromous fish in accordance with the terms of the KHDG [Kennebec Hydro
Developers Group] Settlement Agreement.
(SF ¶ 132.) The KHDG Settlement Agreement, in turn, provides:
To the extent that licensee desires to achieve or continue interim downstream
passage of out-migrating alewife, and /or juvenile Atlantic salmon or shad by
means of passage through turbine(s), licensee must demonstrate, through sitespecific 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 and delayed). In the event that adult shad
and/or adult Atlantic salmon begin to inhabit the impoundment above the . . .
project, and 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
quantitative 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). In no event shall licensee be required to
make this quantitative demonstration for adult shad and adult Atlantic salmon
before May 1, 2006.
(SF ¶ 134.)
Defendants do not contest that the requisite site-specific quantitative studies have not
been performed to show that turbine passage will not result in injury and/or mortality to the fish.
Although Defendants contest whether adult salmon and shad “inhabit” the impoundment

4

upstream of the dam, Defendants concede that the fish may use the impoundment as a migratory
route. (See Defs.’ Opp’n To Pls’ Mot. For Summary J. (ECF No. 113) at 17.) Nonetheless,
assuming that adult salmon and shad do inhabit the impoundment upstream of the dam, the Court
finds that Defendants are not violating the CWA because Defendants do not “desire” to achieve
passage of the fish via the turbines.
Both Plaintiffs and Defendants urge different meanings of the following phrase in the
Agreement: “To the extent licensee desires to achieve interim downstream passage of outmigrating Atlantic salmon and/or adult shad by means of passage through the turbine(s) . . . .”
(SF ¶ 134, emphasis added.) Although Plaintiffs paint this clause as ambiguous and needing of
the Court’s interpretation, the relevant portion -- “to the extent licensee desires” -- is not
ambiguous. See Waltman & Co. v. Leavitt, 722 A.2d 862, 864 (Me. 1999) (“When a contract is
reasonably subject to two or more interpretations, or its meaning is unclear, it is ambiguous.”) It
is what the licensee, the Defendants, desire – or want – that triggers the remainder of the clause’s
requirements. The reasonable interpretation of this clause carries a subjective component. See,
e.g., American Heritage Dictionary 491 (5th ed. 2011) (defining “desire” as “[t]o wish or long
for; want: a reporter who desires an interview; a teen who desires to travel”).

Plaintiffs

challenge that subjective intent is not relevant and that Defendants could simply shut the turbines
down during migration and thereby avoid the need to conduct the studies. This interpretation,
however, ignores the plain language of the Agreement and reads the relevant words out of the
Agreement.

Because the clause is in the Agreement, the Court will give it effect.

See

OfficeMax v. Levesque, 658 F.3d 94, 99 (1st Cir. 2011) (“[A]n interpretation which gives a
reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which

5

leaves a part unreasonable, unlawful, or of no effect.” (quoting Restatement (Second) of
Contracts § 203(a))).
Alternatively, Plaintiffs attempt to substitute “knowledge” or “expectations” for “desire.”
That is, Plaintiffs argue that because Defendants know or expect that some Atlantic salmon
and/or shad may be passing through the turbines, Defendants desire to have the fish pass through
the turbines. Had the parties to the Agreement intended Defendants’ knowledge or expectation
of Atlantic salmon or shad passing through the turbines to trigger the requisite studies, the parties
could have so stated.
The evidence before the Court on summary judgment reveals that Defendants do not
desire to pass Atlantic salmon and/or shad through the turbines. Instead, the Defendants’ desire
is that the fish bypass the turbines. The Hydro Kennebec dam has a fish boom and turbine
bypass route to allow Atlantic salmon and shad to bypass the dam without swimming through the
turbines. (Bernier Dep. (ECF No. 89-7) at 59-60; Letter from Kevin Bernier dated March 5,
2007 (ECF No. 83-4) at 1.) Kevin Bernier, testifying for Defendants, stated that one reason
Defendants installed the fishway in 2006 was to allow salmon to bypass the dam without passing
through the turbines and “[t]o provide [the salmon] with a safe route downstream.” (Bernier Dep
at 59-60.) Moreover, the bypass was installed as an alternative to conducting the requisite
studies, showing that Defendants did not “desire” to pass fish through the turbines. (See id.)
Plaintiffs present evidence that Atlantic salmon and/or shad are in fact passing through the
turbines and Defendants have not taken sufficient steps to prevent that passage. Even assuming
the truth of the evidence, it is not germane to the Court’s inquiry. Knowledge does not equate to
desire. Accordingly, Defendants have demonstrated an absence of evidence to support the CWA

6

claim and Plaintiffs have failed to raise a genuine issue of material fact. Therefore, Defendants
are entitled to summary judgment on Count II.
V.

CONCLUSION
For the reasons explained herein, Defendants’ Motion For Summary Judgment (ECF No.

106) is GRANTED as to Count II. Plaintiffs’ Motion For Partial Summary Judgment (ECF No.
107) is DENIED as to Count II. In addition, the motions in limine (ECF Nos. 100, 101, 103, 104
and 105) are DENIED AS MOOT.
SO ORDERED.
/s/ George Z. Singal
United States District Judge

Dated this 14th day of January, 2013.

7