PROTECT OUR LAKES et al v. UNITED STATES ARMY CORPS OF ENGINEERS et al

Filing 31

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT denying 14 Motion for Summary Judgment; granting 16 Motion for Summary Judgment; granting 17 Motion for Summary Judgment By JUDGE JON D. LEVY. (nwd)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PROTECT OUR LAKES, et al.,
Plaintiffs,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,
Defendants .

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) Case No. 1:13-cv-402-JDL
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION
This case surrounds the construction of a large wind farm in Aroostook and
Penobscot counties (the “Oakfield Project”). Before building the project, Evergreen
Wind Power II, LLC and Maine Genlead, LLC (collectively, “Evergreen”) applied for
a permit pursuant to § 404 of the Clean Water Act, 33 U.S.C.A. § 1251 et seq. (the “§
404 permit”). In May 2013, the United States Army Corps of Engineers (“Corps”)
granted Evergreen the § 404 permit, authorizing it to permanently and temporarily
fill certain wetlands and streams during construction of the Oakfield Project.
The plaintiffs in this action, Protect Our Lakes, the Forest Ecology Network,
Donna Davidge, Peter Connelly, Gail Sewall Kennett, Cheryl Connelly, and Candace
Rupley (collectively, “plaintiffs”) are either individuals who live, work, recreate, or
own property in the vicinity of the Oakfield Project, or environmental organizations
whose members do the same. ECF No. 1 at 4-6. In October 2013, they filed their

complaint against the Corps, Lieutenant General Thomas P. Bostick, the Department
of the Interior, Secretary of the Interior Sally Jewell, and Corps project manager
Leeann Neal (collectively, “federal defendants”) alleging that the § 404 permitting
decision violated several environmental statutes. ECF No. 1. The complaint seeks
to vacate the permit. Id. at 14. This court granted Evergreen’s motion to intervene
in the case, ECF No. 12, and the parties have filed cross-motions for summary
judgment, ECF No. 14; ECF No. 16; ECF No. 17. For the reasons discussed below, I
grant the defendants’ motions.
II. FACTUAL BACKGROUND
Because this case involves a challenge to a final administrative action, my
review is limited to the administrative record. See 5 U.S.C.A. § 706; Camp v. Pitts,
411 U.S. 138, 142-43 (1973). I therefore make no findings of fact. However, I
highlight portions of the record below.
The Oakfield Project, which expands upon an earlier proposal that was
permitted but never built, is located in both Aroostook and Penobscot counties. R. 1:
174. It includes 50 wind turbines and an electric substation in the towns of Oakfield
and T4R3 WELS, as well as 59 miles of 115 kilovolt power transmission line that
traverses 12 different towns and townships. Id. The footprint of the project impacts
several wildlife habitats, including those of the Atlantic salmon and the bald eagle.
R. 1:186-189.
In June 2011, Evergreen applied to the Maine Department of Environmental
Protection (“MDEP”) for approval of the Oakfield Project. R 3:14. MDEP issued its
approval in January 2012. R. 1:91-154. The approval considered potential impacts
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to bald eagles, Atlantic salmon, and other species, and determined that the project
would not unreasonably harm wildlife or fisheries. R. 1:116-119.
Concurrently, Evergreen applied for a § 404 permit from the Corps. R. 3:1.
Such a permit is required because construction of the Oakfield Project will involve
the permanent fill of 2.57 acres of wetlands and the temporary fill of 24.3 acres of
streams and wetlands. R. 1:183. The Corps issued a public notice of Evergreen’s
permit application on September 20, 2011, and opened a public comment period. R.
7:109.

As part of the comment period, the National Marine Fisheries Service

(“NMFS”) provided recommendations for permit conditions related to the Oakfield
Project’s potential impacts on Atlantic salmon, which the Corps adopted. R. 7:71,
1:181. The Environmental Protection Agency also responded during the comment
period, indicating that it had no objections to the issuance of a § 404 permit. R. 1:179.
During this period, the Corps also initiated informal consultation with the
United States Fish and Wildlife Service (“USFWS”) regarding potential impacts to
Atlantic salmon and Canada lynx, pursuant to the Endangered Species Act (“ESA”),
16 U.S.C.A. § 1531 et seq. R. 6:497-501. The Corps subsequently determined that
the Oakfield Project was “unlikely to adversely affect” listed species. R. 6:501. The
Corps requested that the USFWS concur in this determination, and the USFWS
issued its letter of concurrence on January 23, 2013. R. 6:14-32.
Additionally, the Corps prepared an environmental impact assessment, and
evaluated the project against the relevant Clean Water Act guidelines. R. 1:174204. Following these internal evaluations, inter-agency consultations, and public

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comment, the Corps concluded that issuing the § 404 permit would comply with
Clean Water Act guidelines and would not be contrary to the public interest. R.
1:203-204. The Corps issued a § 404 permit to Evergreen on May 13, 2013. R. 1:15.
III. DISCUSSION
Because my review is limited to the administrative record, there are no
genuine issues of material fact. See Maine v. Norton, 257 F. Supp. 2d 357, 363 (D.
Me. 2003).

Accordingly, “[s]ummary judgment is an appropriate procedure for

resolving a challenge to a federal agency’s administrative decision[.]” Id. The parties
have cross-motioned for summary judgment on each of the plaintiffs’ claims, namely,
that the Corps violated the Clean Water Act, the Endangered Species Act, the
Migratory Bird Treaty Act, 16 U.S.C.A. § 703 et seq., and the Bald and Golden Eagle
Protection Act, 16 U.S.C.A. § 668 et seq. See ECF No. 14; ECF No. 16; ECF No. 17. I
address the merits of the plaintiffs’ Endangered Species Act and Bald and Golden
Eagle Protection Act arguments.1
A.

Endangered Species Act
Count II of the plaintiffs’ complaint alleges that Evergreen and the Corps are

in violation of the Endangered Species Act. ECF No. 1 at 12. The plaintiffs ask for
summary judgment on their Endangered Species Act claim for two reasons. First,
they argue that it was arbitrary and capricious for the Corps to analyze the potential
for take of Atlantic salmon without complete information. ECF No. 14 at 12-14. In

  Plaintiffs have explicitly abandoned their Migratory Bird Treaty Act claim. ECF No. 14 at 9, n.1.
Moreover, plaintiffs’ summary judgment arguments are silent as to their Clean Water Act claim. See
ECF No. 14; ECF No. 22. At argument on these motions, the plaintiffs clarified that their Clean Water
Act claim has been abandoned, as well.  
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this context, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect” a listed species, or to attempt to do so. See 16 U.S.C.A. § 1532(19).
Second, the plaintiffs argue that it was arbitrary and capricious for the Corps to not
issue an incidental take statement for Atlantic salmon. ECF No. 14 at 14-15.
The relevant legal framework is as follows: The Endangered Species Act
requires federal agencies to review their actions for impacts to listed species. See,
e.g., Water Keeper Alliance v. U.S. Dept. of Defense, 271 F.3d 21, 25 (1st Cir. 2001).
To this end, agencies must consult with the United States Fish and Wildlife Service
or the National Marine Fisheries Service, either formally or informally. Id. Informal
consultation is an optional process that allows the “action agency” and the “consulting
agency” to discuss whether formal consultation is required.2 Id.; 50 C.F.R. § 402.13.
If, after informal consultation, the agency and the relevant service concur that “the
action is not likely to adversely affect listed species,” then “no further action is
necessary.” 50 C.F.R. § 402.13. However, without such a determination, the agencies
must proceed to the more involved process of formal consultation. See 50 C.F.R. §
402.14; Water Keeper Alliance, 271 F.3d at 26. If formal consultation produces a
service opinion that concludes that incidental take of listed species may occur, but
that the agency action is otherwise compliant with the Endangered Species Act, the
consulting service must issue an “incidental take statement” before the action can
move forward. Id.

In the Endangered Species Act context, the “action agency” is the agency planning to undertake a
particular action, and the “consulting agency” is the agency that the action agency is required to
consult with about the action’s potential environmental impact. See Nat’l Wildlife Fed’n v. Nat’l
Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2007).
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In both formal and informal consultations under the Endangered Species Act,
the consulting agency and the action agency are required to “use the best scientific
and commercial data available.” 16 U.S.C.A. § 1536(a)(2). This standard specifically
requires agencies to utilize the best data available, and does not prevent agencies
from acting when such data is incomplete or imperfect. See Water Keeper Alliance,
271 F.3d at 33; Bldg. Indus. Ass’n of Superior California v. Norton, 247 F.3d 1241,
1246-47 (D.C. Cir. 2001). In addition, the standard does not impose an obligation on
agencies to conduct their own research when confronted with incomplete data. See
Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir. 2000).
Because the Endangered Species Act’s citizen-suit provision does not
incorporate a standard for judicial review, courts apply the standards of review set
out in the Administrative Procedure Act, 5 U.S.C.A. § 500 et seq., including that a
court may hold unlawful or set aside agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law[.]” See Water Keeper
Alliance, 271 F.3d at 31; 5 U.S.C.A. § 706.
1. Whether the Corps Consulted the Best Scientific Data Available
While the contours of the plaintiffs’ first argument are somewhat unclear, the
claim appears to center on the best scientific data available standard. ECF No. 14 at
12-14; see 16 U.S.C.A. § 1536(a)(2). Specifically, the plaintiffs challenge the letter of
concurrence issued by the USFWS as part of its informal consultation with the Corps.
ECF No. 14 at 12-14. In the letter, the USFWS wrote that “[i]nformation regarding
the presence or absence of Atlantic salmon is only available for a few of the 37

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streams” that fall in the path of the Oakfield Project’s transmission lines. Plaintiffs
see this statement as an admission by the USFWS “that their information on the
presence or absence of Atlantic salmon . . . is incomplete,” thus rendering the actions
of the Corps and the USFWS arbitrary and capricious. ECF No. 14 at 13.
Before reaching the heart of the plaintiffs’ argument, clarification of the
standard of review is necessary. While most of the plaintiffs’ argument on this point
focuses on the actions of the USFWS, see ECF No. 14 at 12-14, the plaintiffs pleaded
their Endangered Species Act claim only against the Corps, ECF No. 1 at 12. If a
plaintiff challenging agency action under the Endangered Species Act does not make
the relevant consulting agency a party to a claim, then the consulting agency’s actions
may only be considered in questioning whether the action agency was arbitrary and
capricious in relying upon them. See Pyramid Lake Paiute Tribe v. U.S. Dept. of Navy,
898 F.2d 1410, 1415 (9th Cir. 1990). At issue here, then, is whether it was arbitrary
and capricious for the Corps to take the letter of concurrence into account – not
whether the USFWS determinations in the letter were themselves flawed. See City
of Tacoma, Washington v. F.E.R.C., 460 F.3d 53, 75 (D.C. Cir. 2006). The plaintiffs
acknowledged the same at oral argument.
An action agency’s reliance on a consulting agency’s opinion “will satisfy its
obligations under the [Endangered Species] Act if a challenging party can point to no
‘new’ information . . . which challenges the opinion’s conclusions.” Pyramid Lake, 898
F.2d at 1415; see also City of Tacoma, 460 F.3d 53 at 76. Here, the plaintiffs have
failed to identify any scientific data or other new information that conflicts with the

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data cited in the letter of concurrence or runs contrary to its conclusions. See ECF
No. 14 at 12-14. In fact, the plaintiffs’ issue with the salmon habitat models used by
the USFWS is not that they were incorrect, but that they were incomplete. Id.
Because the best scientific data available standard does not require agencies to have
complete information before acting, see supra, this argument is unavailing.
It should also be noted that, faced with an absence of data about the presence
of Atlantic salmon in most of the streams affected by the Oakfield Project’s
transmission lines, the USFWS did not simply assume that Atlantic salmon were
absent. The USFWS considered potential impacts to those streams, as well, noting
that: “there will be no instream work associated with the construction of the . . .
transmission line” and that “sediment and erosion control measures . . . will be used.”
The Corps’ reliance on the USFWS letter of concurrence was neither arbitrary nor
capricious.
2. Whether the Corps or the Fish and Wildlife Service Erred by not
Issuing an Incidental Take Statement
The plaintiffs’ second Endangered Species Act argument is that “since take
‘may occur’” the Corps and the USFWS were required to issue an incidental take
statement and violated the Endangered Species Act by failing to do so. ECF No. 14
at 15. For several reasons, this argument falls short.
First, as noted earlier, the plaintiffs pleaded Count II only against the Corps,
and not against the USFWS. See ECF No. 1 at 12. They therefore have no basis on
which to challenge the non-issuance of an incidental take statement, responsibility
for which lies with the USFWS. See 16 U.S.C.A. § 1536(b)(4) (“the Secretary [of the
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Interior] shall provide the Federal agency . . . a written statement”); 50 C.F.R. §
402.14(g) (listing incidental take statements as a “Service responsibilit[y]”).
Moreover, even if this point had been properly pleaded against the USFWS,
incidental take statements are only required following formal consultation. See 50
C.F.R. § 402.14(g); see also Pacific Shores Subdivision California Water Dist. v. U.S.
Army Corps of Engineers, 538 F. Supp. 2d 242, 247 (D.D.C. 2008). The consultation
here was informal.
Lastly, incidental take statements must only issue “if [incidental] take may
occur.” 50 C.F.R. § 402.14(g)(7). Yet the plaintiffs identify no part of the record
indicating that take of Atlantic salmon is a possibility at the Oakfield Project.
Instead, plaintiffs allege, without support, that take will “inevitably” happen. ECF
No. 14 at 13. They also point to a USFWS statement that “ATV use [at the Oakfield
Project] may not . . . result in take of Atlantic salmon” as an admission on the part of
the USFWS that there is a risk of take. Id. In fact, this statement comes from a
permitting condition of the Oakfield Project prohibiting any ATV use that could cause
take of Atlantic salmon. While there is some logical appeal to the argument that
prophylactic measures would not be necessary if there were truly no risk of take, this
argument alone does not establish that take may occur at the Oakfield Project.
Without identifying evidence in the administrative record that take of Atlantic
salmon may occur, plaintiffs cannot demonstrate that the USFWS violated the
Endangered Species Act by failing to issue an incidental take statement.

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On this point, the plaintiffs complain that the Corps and the USFWS failed to
state explicitly that the Oakfield Project will not result in take, and suggest that this
means take remains a possibility. Id. at 15. This argument misses the point that the
phrase “not likely to adversely affect” is a term of art in inter-agency consultation,
indicating that take will not occur. See U.S. Fish & Wildlife Serv. & Nat’l Marine
Fisheries Serv., Final ESA Section 7 Consultation Handbook xv-xvi (1998), available
at https://www.fws.gov/ENDANGERED/esa-library/pdf/esa_section7_handbook.pdf.
The Corps and the USFWS effectively did state, then, that take of Atlantic salmon
will not occur at the Oakfield Project. I conclude that defendants are entitled to
summary judgment on plaintiffs’ Endangered Species Act claims.
B.

Bald and Golden Eagle Protection Act
The third count of the plaintiffs’ complaint alleges that the Corps violated the

Bald and Golden Eagle Protection Act by permitting the Oakfield Project to move
forward in spite of its potential to result in take of bald eagles. ECF No. 1 at 12-13.
As the plaintiffs concede, ECF No. 1 at 2, the Bald and Golden Eagle Protection Act
does not include a citizen-suit provision. 16 U.S.C.A § 668 et seq.; Friends of the
Boundary Mountains v. U.S. Army Corps of Engineers, 24 F. Supp. 3d 105, 116 (D.
Me. 2014). Instead, plaintiffs ask this court to consider their Bald and Golden Eagle
Protection Act claim as an “appeal[ ] of final agency action under the [Administrative
Procedures Act].” ECF No. 1 at 3. Accordingly, I treat the plaintiffs’ Bald and Golden
Eagle Protection Act claim as an allegation that the Corps’ issuance of the § 404

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permit, in light of the Bald and Golden Eagle Protection Act’s protections, was “not
in accordance with law.” See 5 U.S.C.A. § 706(2)(a).3
The Bald and Golden Eagle Protection Act generally prohibits the take of bald
and golden eagles, providing both civil and criminal penalties. 16 U.S.C.A. § 668.
However, the statute directs that the Secretary of the Interior “may authorize” the
taking of eagles under certain circumstances. 16 U.S.C.A. § 668a. The Code of
Federal Regulations establishes the requirements and conditions for obtaining an
eagle permit, including so-called “programmatic take” permits, which authorize
“unavoidable” take from certain activities that otherwise follow “advanced
conservation practices.” See 50 C.F.R. § 22.1 et seq.
Evergreen represents that it has “begun to consult with USFWS about a
programmatic take permit” for the Oakfield Project.

However, the plaintiffs

challenge the Corps and the USFWS for issuing the § 404 permit without requiring
Evergreen to obtain any eagle take permits. ECF No. 14 at 17. The plaintiffs identify
no authority establishing that the Corps or USFWS were required to issue any eagle
take permits before the § 404 permit issued. What is more, the plaintiffs cannot show
in the administrative record that eagle take has occurred or will occur at the Oakfield
Project, arguing instead that “[i]t is difficult to believe that the [project] . . . will not

The plaintiffs’ complaint might also be fairly read to assert that, in light of the Bald and Golden
Eagle Protection Act, the Corps’ issuance of the § 404 permit was arbitrary and capricious. See ECF
No. 14 at 17. However any allegation that the permitting decision itself was arbitrary and capricious
within the meaning of the Administrative Procedure Act should be tied to a Clean Water Act claim,
not a Bald and Golden Eagle Protection Act one. See Town of Norfolk v. U.S. Army Corps of Engineers,
968 F.2d 1438 (1st Cir. 1992) (reviewing grant of a § 404 permit under the Clean Water Act and
Administrative Procedure Act standards).

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result in any take whatsoever.” ECF No. 14 at 17. On the facts and law presented
by the plaintiffs, and without treating the plaintiffs’ speculation as fact, the Corps
has not violated the Bald and Golden Eagle Protection Act. See Friends of the
Boundary Mountains, 24 F. Supp. 3d at 116 (“Plaintiff . . . cannot pursue an
individual claim based on an alleged ‘violation’ of the BGEPA by the Corps when the
Corps merely acts pursuant to its authority under section 404 of the CWA to issue a
permit”). I therefore conclude that the federal defendants and Evergreen are entitled
to summary judgment on the plaintiffs’ Bald and Golden Eagle Protection Act claim.
IV. CONCLUSION
For the foregoing reasons, the federal defendants’ and Evergreen’s motions for
summary judgment are GRANTED. The plaintiffs’ motion for summary judgment
is DENIED.
SO ORDERED.
Dated: February 20, 2015

/s/ Jon D. Levy_____________
U.S. District Judge

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