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Friends of Merrymeeting Bay v. Hydro Kennebec, LLC

United States Court of Appeals, First Circuit

July 14, 2014

FRIENDS OF MERRYMEETING BAY and ENVIRONMENT MAINE, Plaintiffs, Appellants,
v.
HYDRO KENNEBEC, LLC and BROOKFIELD POWER U.S. ASSET MANAGEMENT, LLC, Defendants, Appellees. FRIENDS OF MERRYMEETING BAY and ENVIRONMENT MAINE, Plaintiffs, Appellants,
v.
MERIMIL LIMITED PARTNERSHIP, FPL ENERGY MAINE HYDRO, LLC, and BROOKFIELD RENEWABLE SERVICES MAINE, LLC, Defendants, Appellees, NEXTERA ENERGY RESOURCES, LLC and NEXTERA ENERGY MAINE OPERATING SERVICES, LLC, Defendants

Page 31

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. George Z. Singal, U.S. District Judge.

Charles C. Caldart, with whom Joshua R. Kratka, Bruce M. Merrill, David A. Nicholas, and National Environmental Law Center were on brief, for Appellants.

Mark Stancil, with whom Donald A. Carr, Aileen Meyer, and Pillsbury Winthrop Shaw Pittman LLP were on brief, for Appellees.

Before Thompson, Stahl, and Kayatta, Circuit Judges. KAYATTA, Circuit Judge, Dissenting.

OPINION

Page 32

STAHL, Circuit Judge.

Two conservation groups, Friends of Merrymeeting Bay and Environment Maine (collectively, " Plaintiffs" ), brought two citizen enforcement suits containing claims under the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531-1544, and the Clean Water Act (" CWA" ), 33 U.S.C. § § 1251-1387, against Hydro Kennebec, LLC, Brookfield Power U.S. Asset Management, LLC, Merimil Limited Partnership, FPL Energy Maine Hydro, LLC, and Brookfield Renewable Services Maine, LLC. (collectively " Defendants" ),[1] who operate four hydroelectric dams (" Dams" ) on the Kennebec River. The district court entered summary judgment in favor of Defendants as to the CWA claims in both cases below, and Plaintiffs appeal those rulings.[2] For the following reasons, we vacate and remand.

I. Background

The facts of this case are set forth in detail in the district court's opinions. Friends of Merrymeeting Bay v. Brookfield Power U.S. Asset Mgmt., No. 11-cv-35-GZS, 2013 WL 145506, at *2-4 (D. Me. Jan. 14, 2013); [3] Friends of Merrymeeting Bay v. NextEra Energy Res., LLC, No. 11-cv-38-GZS, 2013 WL 145733, at *2-4 (D. Me. Jan. 14, 2013) . We briefly reiterate them here only as necessary to provide context for the issues on appeal.

The crux of the matter is that certain endangered species of fish, including Atlantic salmon, pass through Defendants' Dams when they migrate down the Kennebec River to the sea. Each Dam operates under the terms of water-quality certifications issued by the state of Maine pursuant to Section 401 of the CWA, 33 U.S.C. § 1341. All of the Dam's certifications incorporate the provisions of the Kennebec Hydro Developers Group Settlement Agreement (" Settlement Agreement" ), which Defendants (among other operators of hydroelectric projects) entered into in

Page 33

1998 with various federal and state agencies (" Agencies" ).

The Settlement Agreement allows for two basic methods of downstream fish passage, either through the turbines of the Dams or around the turbines by various bypass methods. It further provides that:

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 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 or delayed).

After entering into the Settlement Agreement, Defendants, in consultation with the Agencies, constructed diversionary facilities to take the fish around the turbines at all four of the Dams.

Plaintiffs filed a two-count complaint in each case on January 31, 2011, alleging that endangered fish continue to pass through the Dams' turbines despite the construction of the diversionary facilities, resulting in injury and death to some of the fish. Plaintiffs claimed in Count I that the fish casualties amounted to an illegal " taking" of an endangered species in violation of the ESA. In Count II, Plaintiffs argued that Defendants are in violation of their water-quality certifications, and thus the CWA, because they have not conducted the " site-specific quantitative studies" (" Studies" ) that are required if Defendants desire passage of the fish through the turbines. According to Plaintiffs, evidence in the record shows that Defendants' diversionary facilities are ineffective, and that Defendants know they are ineffective, which raises a question of fact about whether Defendants desire at least some of the fish to pass through the turbines.

The district court entered summary judgment in favor of Defendants on Count II in both cases. We find that the district court erred by entering judgment in favor of Defendants without properly considering the record as a whole in the light most favorable to Plaintiffs. We therefore vacate and remand for further proceedings consistent with this opinion.

II. Analysis

We review the district court's summary judgment decision de novo. Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 69 (1st Cir. 2014). The dispositive issue with respect to the CWA claim is a question that is straightforward to pose but not particularly easy to answer: do the Defendants " desire to achieve" passage of the endangered fish through the turbines? If so, Defendants must conduct the Studies in order to remain compliant with the terms of the Settlement Agreement.

The district court decided as a preliminary matter that the relevant language in the Settlement Agreement is unambiguous. Friends of Merrymeeting Bay, 2013 WL 145733, at *14.[4] It interpreted the word " desire" according to its commonly understood meaning -- " to want" -- equivalent to a party's subjective intent. Id. The district court then categorically rejected Plaintiffs' evidence related to: (1) whether fish were in fact passing through the turbines; (2) and whether Defendants knew fish were passing through the turbines. On the grounds that " [k]nowledge does not equate to desire," the district court held that Plaintiffs' evidence related to those

Page 34

two topics was " not germane to the [c]ourt's inquiry." Id. Reviewing the portion of the record that remained, the district court concluded that the " evidence . . . on summary judgment reveals that Defendants do not desire to pass [endangered fish] through the turbines." Id.

We agree that the language of the Settlement Agreement is not ambiguous, and that the common meaning of the word " desire," corresponding to a party's subjective intent, should apply. Questions of intent in the context of contract interpretation often arise when the language of a contract is ambiguous and we must determine the parties' intended meaning. That is not the question here. Instead, the unambiguous contractual language in this case presents a factual question regarding the subjective intent underlying Defendants' conduct pursuant to the contract.

This type of question does not appear to arise frequently in contract disputes. Questions of the intent underlying a party's conduct are more common in other contexts, such as employment discrimination suits. We have not found another case specifically analogous to this one, where a party's subjective ...


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