Maine Council of the Atlantic Salmon Federation v. National Marine Fisheries Service ( 2017 )

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.
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
SOUTER, Associate Justice. This appeal is from the
district court's dismissal for lack of jurisdiction of an action
brought by the Plaintiff-Appellants under the Administrative
Procedure Act (APA). They sought review of two biological
opinions issued to the Federal Energy Regulatory Commission
(FERC) by the National Marine Fisheries Service1 evaluating
requested modifications of licenses to operate hydropower dams.
We affirm.
I.
Defendant-Appellees power companies (Brookfield
Renewable Services Maine, LLC; Brookfield Power U.S. Asset
Management, LLC; Brookfield White Pine Hydro, LLC; 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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environment. See 16 U.S.C. § 1536(a)(2), (b)(3); 50 C.F.R.
§ 402.14(a), (g), (h). 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 population. See 16 U.S.C. § 1538(a)(1)(B)
(prohibiting the "take" of an endangered species); id.
§ 1532(19) (defining "take" to include "harm" and "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 Rivers). They challenged the statements in this
district court action against the Fisheries Service and 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. The
district court then dismissed the case for lack of subject
matter jurisdiction, relying on section 313(b) of the Federal
Power Act, 16 U.S.C. § 825l(b), which vests jurisdiction of
appeals from such FERC orders in the courts of appeals.2 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. So far as the appeal
2 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 respect to the 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. As for the BiOp addressing the other three
dams, FERC's 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 order, but over any issue "inhering in the
controversy." 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 by
pressing two arguments, neither of which avails them. 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. See 5
U.S.C. § 703 (providing that "[t]he form of proceeding for
judicial review is the special statutory review 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 Appellants' second argument for preserving an
opportunity to challenge the BiOps directly in the district
court goes to timing. 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). 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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