Benjamin RIGGS; Laurence Ehrhardt; and Rhode Island Manufacturers Association, Plaintiffs, Appellants, v. Margaret CURRAN, Paul Roberti, and Herbert Desimone, Jr., in their official capacity as members of the Rhode Island Public Utilities Commission; Narragansett Electric Company, Inc., d/b/a National Grid; and Deepwater Wind Block Island, LLC, Defendants, Appellees.
No. 16-2083
United States Court of Appeals, First Circuit.
July 10, 2017
Though the defendant‘s reckless actions occurred at sea and not on land, his case is much the same as Flores-Flores. The defendant overloaded the yola with more people than it safely could carry, set out late in the day in rough seas, and provided nothing in the way of safety equipment. Any one of these conditions would have been hazardous; the combination was lethal. We hold, therefore, that the district court did not err at all—let alone clearly err—in finding a causal connection between the defendant‘s actions and Yvon‘s death.
Nor did the district court err when it found reasonably foreseeable that the defendant‘s actions “could create the sort of dangerous circumstances” likely to result in death. Zaldivar, 615 F.3d at 1351; see De La Cruz-García, 842 F.3d at 3. It requires little imagination to foresee that setting out on a small and overloaded boat in stormy seas and with night approaching is an invitation to disaster. Here, the defendant accepted just such an invitation, and he certainly could have foreseen the sort of calamity that eventually transpired. The court below recognized that the defendant had turned a blind eye to obvious danger and, thus, found it reasonably foreseeable that the yola would “capsize in the middle of the sea, with unpredictable weather conditions, and in the dark of night.” Similarly, the court found reasonably foreseeable that the passengers would panic, render the yola unstable, and wind up getting hurt without the customary safety equipment. Last—but not least—the court concluded that it must have been foreseeable to the defendant that the Coast Guard would try to prevent the yola from reaching the United States, especially since the defendant knew that his conduct was illegal.
In the end, we take no view of whether or to what extent section
III. CONCLUSION
We need go no further. For the reasons elucidated above, the defendant‘s sentence is
Affirmed.
Benjamin RIGGS; Laurence Ehrhardt; and Rhode Island Manufacturers Association, Plaintiffs, Appellants,
v.
Margaret CURRAN, Paul Roberti, and Herbert Desimone, Jr., in their official capacity as members of the Rhode Island Public Utilities Commission;
change in later editions of the Guidelines Manual (including the November 2015 edition, which was in effect when the defendant was sentenced). Since nothing turns on this renumbering, Flores-Flores is on-point authority with respect to the question before us.
No. 16-2083
United States Court of Appeals, First Circuit.
July 10, 2017
Gerald J. Petros, with whom Adam M. Ramos and Hinckley, Allen & Snyder LLP, Providence, RI, were on brief, for appellee Deepwater Wind Block Island, LLC.
Leo J. Wold, Assistant Attorney General, Department of Attorney General, was on brief, for appellees Curran, Roberti, and Desimone, Jr.
Michael J. Fitzpatrick, with whom Day Pitney LLP, Boston, MA, was on brief, for appellee Narragansett Electric Company, Inc.
Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
TORRUELLA, Circuit Judge.
Benjamin Riggs, Laurence Ehrhardt, and the Rhode Island Manufacturers Association (collectively, “Plaintiffs“) challenge the development of an offshore wind farm (the “Wind Farm“) near Block Island, Rhode Island. The district court dismissed Plaintiffs’ claims, ruling that they were barred by Rhode Island‘s three-year personal injury statute of limitations. We affirm.
I. BACKGROUND
A. Factual Background
In 2009, the Narragansett Electric Company, d/b/a National Grid (“National Grid“) entered into a power purchase agreement with Deepwater Wind Block Island, LLC (“Deepwater“), pursuant to a Rhode Island statute seeking to facilitate the development of a “newly developed renewable energy resources project of ten (10) megawatts or less” near Block Island.
On December 10, 2009, National Grid submitted the agreement for approval to the Rhode Island Public Utilities Commission (the “PUC“), which, on March 30, 2010, rejected the application because it was not commercially reasonable. The PUC found, among other things, that ratepayers would pay above-market rates for the entire twenty-year period and that the project offered poor value when measured against other renewable-energy projects.
On June 30, 2010, National Grid submitted a slightly-revised power purchase agreement (the “PPA“) after the Rhode Island General Assembly amended the statutory definition of “commercial reasonableness” applicable to the Wind Farm and directed the PUC to apply this amended standard in reviewing any future application. See
The PUC Order contained no conditions precedent, although the PPA‘s terms allowed Deepwater to subsequently terminate the approved and effective PPA if certain tax credit deadlines in the Internal Revenue Code were not extended, if Deepwater could not secure tax equity financing, or if Deepwater failed to timely receive additional approvals from other government entities, including:
- Approval and a license from the Rhode Island Coastal Resources Management Council;
- Permits under the federal Rivers and Harbors Act and the federal Clean Water Act from the U.S. Army Corps of Engineers;
- A Conformity Determination/Air Emissions Permit and a General Stormwater Permit from the Environmental Protection Agency; and
- Approval from the Rhode Island Department of Transportation, the Rhode Island Natural History Survey, and several municipal entities for laying the cable transmitting power from the Wind Farm to the mainland.
After obtaining the PUC‘s approval, Deepwater applied for and received all required permits by the end of 2014. In 2015, after the project received new financing, construction of the Wind Farm became imminent.1
Throughout this period, the Wind Farm faced numerous challenges. Multiple parties, including members of the Rhode Island Manufacturers Association, intervened in the PUC proceeding. Some parties then challenged the PUC Order on state law grounds in the Rhode Island Supreme Court, and on August 1, 2011, that court affirmed the PUC Order. In re Review of Proposed Town of New Shoreham Project, 19 A.3d 1226 (R.I. 2011).
Thereafter, Benjamin Riggs filed two administrative petitions with the Federal Energy Regulatory Commission (“FERC“) on August 22, 2012 and April 21, 2015, alleging that the PUC Order violated the Federal Power Act (the “FPA“), the Public Utilities Regulatory Policies Act (“PURPA“), and the Supremacy and Commerce Clauses of the U.S. Constitution. On October 18, 2012 and June 18, 2015, FERC issued notices of its intention not to act on the petitions and stated that “Mr. Riggs may himself bring an enforcement action against the Rhode Island Commission in the appropriate court.” 141 F.E.R.C. ¶ 61,172 (2012); 151 F.E.R.C. ¶ 61,222.
B. Procedural History
Plaintiffs are Rhode Island ratepayers who claim that their economic interests will be adversely affected because the PPA will raise their electricity bills. On August 14, 2015, four years and 364 days after the issuance of the PUC Order, Plaintiffs filed this lawsuit against three PUC commissioners, in their official capacities, National Grid, and Deepwater (collectively, “Defendants“) in the United States District Court for the District of Rhode Island, arguing that the PUC Order violated the FPA, PURPA, and the Commerce and Supremacy Clauses of the U.S. Constitution. The
The district court then determined that the clock started to run on Plaintiffs’ claims on August 16, 2010, when the PUC Order was issued. Id. at 340. It rejected Plaintiffs’ arguments that their causes of action accrued only when Defendants obtained all of the permits required by the PPA, when Plaintiffs were first charged higher rates, or after Plaintiffs exhausted all of their administrative remedies. Id. at 342-44.
II. ANALYSIS
We review a district court‘s order granting a motion to dismiss under
A. Rhode Island‘s Three-Year Personal Injury Statute of Limitations Applies to Plaintiffs’ Claims
The parties dispute which statute of limitations applies to this action. The statutes governing Plaintiffs’ causes of action do not contain specific statutes of limitations, so we first must determine whether a general federal statute of limitations applies to any of Plaintiffs’ causes of action. If no general federal statute of limitations applies, the statute of limitations governing Rhode Island‘s most analogous state cause of action applies “if it is not inconsistent with federal law or policy.” Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28, 38 (1st Cir. 2006) (quoting Wilson v. García, 471 U.S. 261, 266-67 (1985)).
Plaintiffs’ constitutional claims, brought under
Rhode Island‘s three-year statute of limitations for personal injury actions also applies to Plaintiffs’ claims under the FPA and PURPA, although Plaintiffs urge us to apply the five-year statute of limitations in
Plaintiffs, however, do not stand in FERC‘s shoes to enforce the FPA or PURPA; they seek to redress their own economic injuries caused by increased electricity rates. Therefore, Rhode Island‘s statute of limitations for personal injury actions, rather than
B. Plaintiffs’ Claims Are Barred by the Applicable Statute of Limitations
Plaintiffs assert that, even under Rhode Island‘s three-year statute of limitations, their claims survive because they did not become ripe for adjudication until late 2014, when Deepwater had received all of the permits necessary to complete the Wind Farm, at the earliest. Defendants, meanwhile, defend the district court‘s ruling that the clock began to run when the PUC Order issued on August 16, 2010.
1. Legal Background
We have previously decided three cases that are particularly relevant to this dispute: City of Fall River v. FERC, 507 F.3d 1 (1st Cir. 2007); Weaver‘s Cove Energy, LLC v. Rhode Island Coastal Resources Management Council, 589 F.3d 458 (1st Cir. 2009); and Town of Barnstable v. O‘Connor, 786 F.3d 130 (1st Cir. 2015).
In Fall River, the plaintiffs challenged a FERC order granting conditional approval to an energy company to construct a liquefied natural gas (“LNG“) terminal. 507 F.3d at 3. In its order granting the conditional approval, FERC imposed numerous
Weaver‘s Cove involved the same LNG terminal. 589 F.3d at 465. In that case, a Rhode Island agency raised two “regulatory barriers” to the project. Id. at 461. Whether the energy company could meet the requirements of the conditional FERC approval at issue in Fall River and obtain a necessary approval from the Army Corp of Engineers were potentially contingent on the validity of those barriers. Id. at 465. We determined that the issue was ripe for review. Id. at 468. We distinguished Fall River because, in that case, FERC‘s order was contingent on other conditions, including the decisions of the USCG and the DOI, and so “we could not be sure our opinion would not be advisory.” Id. at 468-69. In Weaver‘s Cove, however, the Rhode Island agency‘s requirements “would cease to be barriers to ultimate approval of the project,” and so our decision would be final even though it “might not secure the project‘s ultimate approval.” Id. at 469.
In Barnstable, the third and final case, the plaintiffs sued commissioners of the Massachusetts Department of Public Utilities (“DPU“), Cape Wind Associates (“Cape Wind“), and NSTAR Electric Company (“NSTAR“). 786 F.3d at 133-34. The plaintiffs alleged that the DPU commissioners violated the Commerce Clause and the Supremacy Clause by approving, and possibly forcing, a power purchase agreement between Cape Wind and NSTAR for power generated by Cape Wind‘s proposed offshore wind project. Id. at 137. The district court dismissed the plaintiffs’ claims, and before we could hear the plaintiffs’ appeal, NSTAR terminated the contract with Cape Wind, although Cape Wind contested the validity of that termination. Id. at 142. After supplemental briefing, we found that the case was ripe, even in light of the recent contract dispute, because the basic question raised by the suit—whether the DPU “unconstitutionally forced NSTAR to enter a contract with Cape Wind“—depended only on “events that ha[d] already occurred.” Id. at 143. Therefore, although the contract dispute between the parties raised the likely possibility that the case would be moot in the future, that possibility did not implicate whether the precise issue currently before the court was ripe for decision. Id. We reiterated that a case is ripe for decision if a holding on the merits would cause the contested agency action to “cease to be barriers to ultimate approval of the project.” Id. (quoting Weaver‘s Cove, 589 F.3d at 468-69).
2. Plaintiffs’ Claims Accrued More Than Three Years Before They Filed Their Complaint
This case is distinguishable from Fall River, on which Plaintiffs rely, for one
This case is more similar to Weaver‘s Cove and Barnstable, where we found the plaintiffs’ claims ripe. Although there were numerous hurdles to completing the Wind Farm when the PUC Order issued, the same was true in those two cases, including similar approvals from other regulatory bodies in Weaver‘s Cove. But, like the regulatory decisions in Weaver‘s Cove, the PUC Order was a discrete, final decision; later decisions by other agencies could not change the PUC Order, unlike FERC‘s conditional order in Fall River. The PUC Order also affected the “ultimate approval of the project,” Weaver‘s Cove, 589 F.3d at 469, because if it was unconstitutional or exceeded the PUC‘s authority, the Wind Farm might never be constructed.
Plaintiffs’ argument that their claims were not ripe because the project could be derailed by future regulatory decisions or a lack of financing is foreclosed by Barnstable. The PUC Order is unrelated to those other potential barriers, and Plaintiffs’ constitutional claims were not affected by the existence of future contingencies. The fact that the project might be derailed implicates mootness, not ripeness. An earlier-filed case could have become moot if the Wind Farm was not completed, but “[i]f we were to find the possibility of future mootness to be the type of contingency that would create a lack of ripeness, we would simply be changing mootness doctrine to signal a lack of jurisdiction not merely when a controversy is moot, but also when it might become moot.” Barnstable, 786 F.3d at 143.
Plaintiffs’ claims thus accrued when the PUC Order became final.5 Because Plaintiffs filed their claims more than three years later, their claims are barred by the applicable three-year statute of limitations.
III. CONCLUSION
For the reasons stated, we affirm the district court‘s judgment. Costs to appellees.
Affirmed.
UNITED STATES of America, Appellee,
v.
Daviel SALINAS-ACEVEDO, Defendant, Appellant.
No. 13-2072
United States Court of Appeals, First Circuit.
Entered: July 11, 2017