Maine Council of the Atlantic Salmon Federation v. National Marine Fisheries Service
2017 U.S. App. LEXIS 10143
1st Cir.2017Background
- Brookfield and affiliated power companies sought FERC license modifications for four Kennebec River hydropower dams; the river supports endangered Atlantic salmon.
- Under the Endangered Species Act, NMFS (the Fisheries Service) issued Biological Opinions (BiOps) finding no jeopardy but authorizing incidental take and providing incidental take statements with minimization measures.
- Environmental groups (Maine Council of the Atlantic Salmon Federation et al.) sued NMFS and the power companies in district court under the APA, claiming the BiOps were arbitrary and capricious and violated ESA §7.
- While suit was pending, FERC adopted the BiOps in its orders granting the license modifications; the district court dismissed the APA suit for lack of jurisdiction, citing FPA §825l(b) (exclusive court-of-appeals review of FERC orders).
- One BiOp (Hydro-Kennebec) later expired; the remaining BiOp-based FERC orders were challenged by the appellants in the D.C. Circuit, which the First Circuit said provides the exclusive and adequate forum for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court had jurisdiction to review NMFS BiOps after FERC incorporated them into FERC orders | Plaintiffs: APA review in district court is permissible and necessary to assess NMFS BiOps directly | Defendants: FPA §825l(b) gives exclusive, direct review of FERC orders in courts of appeals, which covers challenges to incorporated BiOps | Held: Dismissal for lack of jurisdiction affirmed; review lies exclusively in courts of appeals under §825l(b) |
| Whether court-of-appeals review is an adequate substitute for district-court APA review of BiOps | Plaintiffs: Court-of-appeals scope is narrower (only FERC’s acceptance), so inadequate | Defendants: Appeals court review includes review of BiOps when incorporated; adequate remedy exists | Held: Adequate; NMFS conceded and the court accepted that the D.C. Circuit can review substantive validity of BiOps as incorporated |
| Whether delay in FERC action made appeals route inadequate (risk of ongoing harm during waiting period) | Plaintiffs: Waiting for FERC (164 to 1,035 days) could allow unlawful take to occur, making appeals forum untimely/inadequate | Defendants: No controlling precedent showing delay here renders appellate review inadequate; FERC has acted and review is now available | Held: Court did not decide the general delay point but found appellate review adequate here because FERC has acted and a petition is pending |
| Mootness / expiration of BiOp | Plaintiffs: Challenge remains timely and necessary | Defendants: Hydro-Kennebec BiOp expired, eliminating live controversy | Held: Hydro-Kennebec challenge is moot; other BiOp challenges are subsumed in FERC orders and belong in court of appeals |
Key Cases Cited
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) (FPA appeal jurisdiction is exclusive and covers issues inherent in the controversy)
- City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) (court of appeals may review matters inherent in FERC orders, supporting broad appellate scope)
- Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv., 637 F.3d 259 (4th Cir. 2011) (BiOp to EPA was reviewable in district court where EPA had not acted)
- U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016) (agency action reviewability where no adequate alternative would force costly compliance or penalties)