FRIENDS OF MERRYMEETING BAY et al v. MILLER HYDRO GROUP

Filing 54

ORDER ON RENEWED MOTIONS FOR STAY denying without prejudice 32 Motion to Stay By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRIENDS OF MERRYMEETING BAY,
et al.,
Plaintiffs,
v.
MILLER HYDRO GROUP,
Defendant.

FRIENDS OF MERRYMEETING BAY,
et al.,
Plaintiffs,
v.
TOPSHAM HYDRO PARTNERS
LIMITED PARTNERSHIP,
Defendant.

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) Docket no. 2:11-cv-36-GZS
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) Docket no. 2:11-cv-37-GZS
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ORDER ON RENEWED MOTIONS FOR STAY

Before the Court are Defendant Miller Hydro Group’s Renewed Motion to Stay (Docket
# 32 in 2:11-cv-36-GZS) (“Miller Renewed Motion”) and Defendant Topsham Hydro Partner’s
Renewed Motion to Stay (Docket # 30 in 2:11-cv-37-GZS) (“Topsham Renewed Motion”). This
Court has previously denied requests to stay both of these actions while noting that each
Defendant was free to renew a request for a stay based on “documentation that the ESA
administrative consultation process will result in final agency action by a date certain in the near
future.” (September 9, 2011 Orders (Docket # 17) in 2:11-cv-36-GZS & 2:11-cv-37-GZS.)
In its Renewed Motion, Miller Hydro represents that it is operating under an updated
schedule that “anticipates final agency action under the ESA Section 7 consultation process by

September 2012.” (Miller Renewed Motion at 6.) As Plaintiff points out in its Response, NMFS
and FERC, the two federal agencies that necessarily dictate the timing of any final agency action,
have not made any firm commitment to Miller Hydro’s updated schedule. Likewise, Topsham
Hydro indicates that it, too, is operating under an updated schedule that should conclude with
FERC issuing an amended license for the Pejepscot Project in September 2012. While NMFS
has indicated that the updated schedule is “acceptable,” FERC has made no commitment to
acting in accordance with Topsham Hydro’s updated schedule. (Exs A & B to Hall Decl.
(Docket #s 30-2 & 30-3 in 2:11-cv-37-GZS).)
While the Court certainly appreciates the efforts of both Defendants to expedite agency
action regarding any incidental take associated with their licensed operations, it does not believe
the record submitted in connection with the pending Renewed Motion warrants a stay of this
action. Rather, at this point, it appears that Plaintiff should be allowed to continue with the
discovery process while the administrative process continues. It may be that the outcome of the
administrative proceedings moots some of the relief sought by Plaintiff. However, on the current
record, the Court cannot conclude as a matter of law that Plaintiff’s claims will be mooted
entirely. Thus, at this juncture, it appears a stay will only delay action on these two cases
without ultimately conserving judicial resources.
Therefore, the Court DENIES the Motions for Stay WITHOUT PREJUDICE to the stay
issue being renewed by the Court or any party when and if dispositive motions are filed and/or
these cases are set for trial.

SO ORDERED.
/s/ George Z. Singal
United States District Judge

Dated this 12th day of March, 2012.

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