876 F.3d 360
1st Cir.2015Background
- Lowell National Historical Park includes the 1830 Pawtucket Dam, which used a historical wooden flashboard system (flashboards) that were designed to fail under high flows and be manually replaced periodically.
- Boott Hydropower (licensee) proposed replacing the flashboards with a five-foot pneumatic crest gate to address unpredictable flashboard failures that contributed to upstream flooding complaints and operational/safety issues; FERC opened the amendment proceeding and required studies and consultations.
- FERC’s environmental assessment and record evidence (backwater analysis, technical reports) found flashboards failed inconsistently and the pneumatic crest gate would improve flood control, fish passage, power generation, reservoir stability, and worker safety.
- Interior (Secretary of the Interior/NPS) objected, arguing the replacement would have an “adverse effect” on the Park under the Lowell Act and would violate Lowell Park preservation standards (Standards E‑2 and E‑3), insisting no mitigation could cure the alteration.
- After over two years of consultation, FERC imposed aesthetic measures to mimic the flashboards (coloring, straps) and interpretive exhibits and concluded those measures avoided or mitigated any adverse effect; FERC granted the license amendment and denied rehearing.
- The First Circuit reviewed FERC’s administrative record and denied Interior’s petition, holding FERC’s no-adverse-effect determination and consistency with preservation standards were supported by substantial evidence and not arbitrary or capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether replacing flashboards with a pneumatic crest gate causes an "adverse effect" under the Lowell Act | Interior: any action meeting NHPA regulatory definition of "adverse effect" is prohibited by Lowell Act and mitigation cannot cure the statutory bar | FERC/Boott: agency may apply NHPA framework including mitigation/minimization and determine no adverse effect after consultation and aesthetic/interpretive mitigation | Court: FERC’s approach—applying NHPA regs as a whole, using mitigation to reach a no-adverse-effect finding—was permissible and supported by substantial evidence; petition denied |
| Whether Congress intended "adverse effect" to incorporate pre-Lowell NHPA regs such that alteration is categorically barred | Interior: Lowell Act adopted NHPA meaning that any alteration diminishing integrity is forbidden; no room for mitigation | FERC/Boott: statute uses broader term "resources," delegates licensing determination to agency, and NHPA regs expressly provide for avoidance/minimization/mitigation steps | Court: declined to defer to Interior; interpreted statute in context and applied NHPA regs holistically, including mitigation procedures |
| Whether FERC’s factual findings about flashboard failures and benefits of crest gate are supported by substantial evidence | Interior: disputes significance/weight of engineering evidence and historic value of flashboards | FERC/Boott: record (studies, reports) shows flashboards failed unpredictably and crest gate yields flood-control, ecological, safety, and operational benefits | Court: substantial evidence supports FERC’s factual findings; no arbitrary-and-capricious error |
| Whether proposed change violates Lowell Park preservation Standards E‑2 (architectural features) and E‑3 (materials) | Interior: flashboards are historic features/materials; removal violates standards regardless of mitigation | FERC/Boott: flashboards are not original or permanent materials/features; masonry capstone remains; mitigation and exhibits preserve interpretive value | Court: FERC’s conclusions that flashboards were non-original/temporary and that mitigation sufficed are supported by substantial evidence; standards not violated |
Key Cases Cited
- Knott v. FERC, 386 F.3d 368 (1st Cir. 2004) (standard of review for FERC orders under APA)
- Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713 (1st Cir. 1999) (definition of substantial evidence review)
- Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) (agency deference doctrine)
- Salleh v. Christopher, 85 F.3d 689 (D.C. Cir. 1996) (no deference when multiple agencies claim interpretive authority)
- Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (U.S. 1998) (substantial evidence standards and deference to agency findings)
- Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281 (U.S. 1974) (arbitrary-and-capricious review requires consideration of relevant factors)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (U.S. 1971) (scope of judicial review of agency action under APA)