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

United States Court of Appeals, First Circuit

June 7, 2017

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]

          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 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.

          Before Kayatta, Circuit Judge, Souter, Associate Justice, [*] and Stahl, Circuit Judge.

          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 Service[1] 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 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 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 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 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 against the Appellants' argument, seeing no good reason to read "limited" into the Supreme Court's understanding of "exclusive" jurisdiction. See City of Tacomav.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 Tacomav.Nat'l Marine Fisheries Serv., 383 F.Supp.2d 89, 92-93 (D.D.C. 2005); Idaho Rivers Unitedv.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 ...


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