Case 1:21-cv-00257-JDL Document 10 Filed 10/21/21 Page 1 of 23 PageID #: 54
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
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`ATLANTIC SALMON FEDERATION U.S.,
`CONSERVATION LAW FOUNDATION,
`MAINE RIVERS, and NATURAL RESOURCES
`COUNCIL OF MAINE,
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`Plaintiffs
`
`v.
`
`BROOKFIELD RENEWABLE PARTNERS, L.P.,
`MERIMIL LIMITED PARTNERSHIP,
`HYDRO-KENNEBEC LLC,
`BROOKFIELD WHITE PINE HYDRO LLC,
`BROOKFIELD POWER US ASSET MANAGEMENT
`LLC, and BROOKFIELD POWER US HOLDING
`AMERICA CO.
`
`Defendants
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`Civil Action No. 1:21-cv-00257-JDL
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`PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
`WITH INCORPORATED MEMORANDUM OF LAW
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`[Injunctive Relief Sought – Local Rule 9(b)]
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`NOW COME Plaintiffs Atlantic Salmon Federation U.S., Conservation Law Foundation,
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`Maine Rivers, and the Natural Resources Council of Maine (“Plaintiffs”), by and through
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`undersigned counsel, and pursuant to Rule 65(a) of the Federal Rules of Civil Procedure hereby
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`move for a preliminary injunction. The Plaintiffs bring to the Court’s and the Defendants’
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`attention that the fall downstream migration of the ESA-listed species – the Gulf of Maine
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`Distinct Population Segment (“GOM DPS”) of Atlantic salmon – has begun, as of October 15th,
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`and will continue through the seasonal range of December 31st. See Complaint, ECF No. 1, ¶¶
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`1
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`Case 1:21-cv-00257-JDL Document 10 Filed 10/21/21 Page 2 of 23 PageID #: 55
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`10 & 47; Lusardi Decl. ¶ 9 at p.4. And further, spring outmigration will begin this coming April
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`1, 2022.
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`Id. Each project “takes” migrating salmon, within the definition of “take” under the
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`Endangered Species Act (“ESA”), 16 U.S.C. § 1532(19). The Kennebec River is the migration
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`corridor to the ocean from the Sandy River spawning and rearing habitat area, which is located
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`above the Weston project in Skowhegan. Each project – and the four of them cumulatively –
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`block the migration and result in an array of related impediments and adverse impacts that “take”
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`Atlantic salmon. Lusardi Decl. ¶¶ 8 &10.
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`Each project lacks authorization to “take” salmon under any incidental take permit issued
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`by the National Marine Fisheries Service (“NMFS”) under the ESA. Defendants are therefore in
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`present and ongoing violation of the ESA. 16 U.S.C. § 1538(a)(1)(B). Indeed, Defendants have
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`allowed this noncompliance with the ESA to exist continuously during all upstream and
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`downstream migration seasons since December 31, 2019, when Defendants’ last temporary
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`incidental “take” permit unequivocally expired.1
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`This noncompliance is not a technical failing – Atlantic salmon are on the brink of
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`extinction. Complaint ¶ 49; Lusardi Decl. ¶ 9. The Kennebec River plays a pivotal role in ever
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`achieving survival and recovery of the species. Id.; see Complaint ¶ 50. The numbers within
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`the Kennebec population are precariously low. Id. ¶ 60 (and references therein).
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`1 And Defendants had been on advance notice of the December 31, 2019 expiration date for at least six and a half
`years prior (even seven and a half years considering the 2012 issuance of the Hydro-Kennebec Project’s temporary
`take permit). The take permits were issued with two interim biological opinions of NMFS that had been issued
`following a section 7 consultation (16 U.S.C. § 1536), a consultation that – by way of background – was prompted
`by previous litigation in this Court claiming dam operators’ violations of the ESA, including one common
`Defendant here: Friends of Merrymeeting Bay v. Brookfield Power U.S. Asset Management, LLC, No. 2:11-cv-35-
`GZS, 2013 WL 145506 (January 14, 2013). The 2012 Biological Opinion referenced in the Friends case, 2013 WL
`145506 at *4, is the very same temporary incidental take authorization and interim Biological Opinion at issue here,
`and that by its terms expired on December 31, 2019. This puts Defendants today right back to where they were in
`2012 before the temporary take authorizations had issued – i.e., in violation of section 9 of the ESA for operating the
`projects without take authorization under the Act.
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`2
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`Defendants have not taken adequate measures to reduce “takes” to the fullest extent
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`possible, which would include immediately shutting down the turbines at three of the projects for
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`the length of the downstream migration season, and operating at maximum capacity a sluice-
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`passage facility at the problematic fourth Weston Project site. Pugh Decl. ¶ 10; Lusardi Decl. ¶
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`11. These measures should be undertaken until and unless Defendants comply with the ESA by
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`reacquiring valid incidental take authorization, if indeed such authorization can ever issue.
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`Plaintiffs rely upon the uncontroverted material facts of this matter, together with the
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`expert opinions set forth in the declarations under oath of Donald H. Pugh Jr. and Robert A.
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`Lusardi, and the exhibits attached to both declarations.2
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`Plaintiffs therefore respectfully request that this Court grant this preliminary injunction to
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`decree that Defendants shall immediately undertake the measures of turbine shutdowns at
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`Shawmut, Hydro-Kennebec, and Lockwood (and, at Lockwood, according to the sunset-to-
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`sunrise schedule for the window of time coinciding with complications in upstream migration
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`“take”), while continuing operations at maximum flows of each bypass facility at Shawmut,
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`Hydro-Kennebec, and Lockwood (Pugh Decl. ¶ 10.A.i–C.i; Lusardi Decl. ¶ 11.A.i–C.i); and to
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`immediately undertake the measures prioritizing the sluice bypass facility at Weston, with
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`opening gates or operating units as options as set forth in the Pugh and Lusardi declarations.
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`Pugh Decl. ¶ 10.D.i; Lusardi Decl. ¶ 11.D.i. This will reduce the percentage of takes caused by
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`project operations and habitat degradation caused by the projects, under current conditions and
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`status of project operations. Pugh Decl. ¶ 10; Lusardi Decl. ¶ 11.
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`2 As noted in his declaration Don Pugh is an expert in fish passage, formerly with S.O. Conte Anadromous Fish
`Research Laboratory, with more than 20 years of experience, study, and expertise in analyzing fish passage at
`hydroelectric projects. Pugh Decl. ¶ 1. Dr. Rob Lusardi is an aquatic research ecologist and applied conservation
`biologist at the Center for Watershed Sciences, and Adjunct Faculty in the Department of Wildlife, Fish, and
`Conservation Biology at the University of California, Davis, with more than 15 years of experience, study, and
`expertise in analyzing the adverse impacts of hydroelectric projects on diadromous fish species. Lusardi Decl. ¶ 1.
`3
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`MEMORANDUM OF LAW
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`I.
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`RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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`Defendants act as operators and/or licensees of four hydropower projects on the
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`Kennebec River. See Complaint, ECF No. 1, ¶¶ 1-3, 19-25. These four hydropower projects
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`are: (1) the Lockwood Project, located at river mile 63, the first dam/hydroproject on the main
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`stem of the Kennebec River, along the site originally known as Ticonic Falls; (2) the Hydro-
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`Kennebec Project, located at river mile 64, the second dam/hydroproject on the main stem of the
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`Kennebec River; (3) the Shawmut Project, located at river mile 70, the third dam/hydroproject on
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`the main stem of the Kennebec River; and (4) the Weston Project, located at river mile 83, the
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`fourth dam/hydroproject on the main stem of the Kennebec River. Id. ¶ 3. The lower Kennebec
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`River watershed, where the four projects are located, is completely within designated critical
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`habitat for the migrating GOM DPS of Atlantic salmon, the listed species in issue.3 The
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`combination of these four hydropower projects on the Kennebec River totally blocks Atlantic
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`salmon access to the critical spawning and rearing habitat in the Sandy River area, located
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`upstream from the four projects. Id. ¶ 9; Lusardi Decl. ¶ 10. The existence and operations of
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`each project and each impoundment in issue are entirely within the designated critical habitat of
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`the GOM DPS of Atlantic salmon, and adversely impact that critical habitat, resulting in
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`unauthorized “takes” by death, injury, delayed mortality or harm by “significantly impair[ing]
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`essential behavioral patterns including, breeding, spawning, rearing, migrating, feeding or
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`sheltering.” 50 C.F.R. § 222.102; 16 U.S.C. §§ 1532(19) & 1538(a). Id. ¶¶ 5-6, 10; Lusardi
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`Decl. ¶ 10.
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`3 74 Fed. Reg. 29344 (June 19, 2009) (ESA listing); 74 Fed. Reg. 29,300 (Designation of Critical Habitat for
`Atlantic Salmon (Salmo salar) Gulf of Maine Distinct Population Segment) (June 19, 2009).
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`4
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`Case 1:21-cv-00257-JDL Document 10 Filed 10/21/21 Page 5 of 23 PageID #: 58
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`Each hydropower project is operating without authorization for each incidental “take” of
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`the listed species. 16 U.S.C. § 1538(a)(1)(B). Id. ¶ 4. While it is impossible to eliminate all
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`incidental takes at each project or over all four projects collectively in the near term, and while
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`incidental “takes” will continue under any scenario for so long as the projects exist in operation
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`in the Kennebec watershed (and the species remains listed as endangered), the measures urged
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`by the Plaintiffs in this motion are the only adequate remedy to reduce to the fullest extent
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`possible the ESA violations of incidental take at each project and by the four projects
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`collectively, under the current circumstances. Lusardi Decl. ¶¶ 8 & 12; Pugh Decl. ¶¶ 8 & 11.
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`A.
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`Atlantic Salmon Life Cycle
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`The seasonal migration periods in issue are April 1 through June 30, and October 15
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`through December 31 (the latter period involving post-spawn adults returning to the ocean as
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`potential repeat spawners or kelts). Lusardi Decl. ¶ 9. The full upstream migration season is
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`May 1 through November 10. Id. ¶ 9 at p.3. The GOM DPS Atlantic salmon life cycle in issue
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`is detailed in the Complaint and contained in the Lusardi Declaration. Lusardi Decl. ¶ 9;
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`Complaint, ECF No. 1, ¶¶ 39-50.
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`Atlantic salmon are anadromous fish, spending most of their adult life in the ocean but
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`returning to freshwater to spawn. Lusardi Decl. ¶ 9. Atlantic salmon’s life history includes
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`spawning and rearing in rivers and extensive feeding migrations during their marine phase. Id.
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`During their life cycle, Atlantic salmon go through several distinct phases that are identified by
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`specific changes in behavior, physiology, morphology, and habitat requirements.
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`Id. Adult
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`Atlantic salmon return to the rivers from the ocean and migrate to their natal stream to spawn; a
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`small percentage (1-2%) of returning adults in Maine will stray to a new river.
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`Id. Adults
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`ascend rivers within the GOM DPS beginning in spring, and the ascent of adult salmon continues
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`5
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`into fall. Id. Although spawning does not occur until late fall, the majority of Atlantic salmon in
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`Maine enter freshwater between May and mid-July. Id.
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`Atlantic salmon are repeat seasonal spawners.
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`Id.
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`In the fall, female Atlantic salmon
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`select sites for spawning in rivers, and a single female may create several redds (nests) before
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`depositing all her eggs.
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`Id. After spawning, Atlantic salmon may either return to the sea
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`immediately or remain in freshwater until the following spring before returning to the sea.
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`Id.
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`Embryos develop in redds, hatching in late March or April. Id. Newly hatched salmon, referred
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`to as larval fry, alevin, or sac fry, remain in the redd for approximately six weeks (depending on
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`water temperature) after hatching and are nourished by their yolk sac. Id. Survival from the egg
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`to fry stage in Maine is estimated to range from 15 to 35%.
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`Id. When salmon fry reach
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`approximately 4 cm in length, young salmon – termed “parr” – remain in the river for 2 to 3
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`years before undergoing “smoltification,” the process of physiological changes that parr undergo
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`in order to transition from a freshwater environment to a saltwater marine environment. Id. In
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`Maine, the vast majority of naturally reared parr (90% or more) remain in freshwater for two
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`years with the balance remaining for either one or three years. Id.
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`Most smolts enter the sea during May to begin their first ocean migration, during which
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`smolts must contend with changes in salinity, water temperature, pH, dissolved oxygen, pollution
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`levels, and various predator assemblages.
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`Id. The transition of smolts into seawater is usually
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`gradual as they pass through a zone of fresh and saltwater mixing that typically occurs in a
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`river’s estuary.
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`Id. The spring migration of post-smolts out of the coastal environment is
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`generally rapid, within several tidal cycles, and follows a direct route. Id.
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`6
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`B.
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`Atlantic Salmon Habitat
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`The Kennebec River was once the most productive river in Maine, with Atlantic salmon
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`runs in the hundreds of thousands. Id. Today, Atlantic salmon in the United States are on the
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`edge of extinction, including Atlantic salmon in the Kennebec River.
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`Id. Atlantic salmon’s
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`continued existence in the United States depends on further restoration of the Kennebec more
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`than any other river.
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`In 2000, the Gulf of Maine Distinct Population Segment (“GOM DPS”) of Atlantic
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`salmon was first listed as an endangered species under the ESA. 65 Fed. Reg. 69459 (November
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`17, 2000) (determining “that the Gulf of Maine DPS is in danger of extinction throughout its
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`range”). In 2009, that listing was expanded to include Atlantic salmon on the Kennebec,
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`Penobscot, and Androscoggin Rivers. 74 Fed. Reg. 29344 (June 19, 2009).
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`In June of 2009,
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`designation of critical habitat for the GOM DPS of Atlantic salmon became final. 50 C.F.R.
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`§ 226.217; 74 Fed. Reg. 29300 (June 19, 2009). The lower Kennebec River watershed is
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`completely within designated critical habitat for the migrating GOM DPS of Atlantic salmon
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`(id.), and the vast majority of salmon spawning and rearing habitat in the Kennebec River
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`Watershed is located above defendant Brookfield’s four hydropower projects, in the critical
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`habitat recovery units with the Sandy River spawning and rearing area. Lusardi Decl. ¶ 9 at p.5;
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`Complaint, ECF No. 1, ¶ 54.
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`The combination of the four hydropower projects of Lockwood, Hydro-Kennebec,
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`Shawmut, and Weston on the Kennebec River totally blocks Atlantic salmon access to the
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`critical spawning and rearing habitat in the Sandy River area, located upstream from the four
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`dams. Lusardi Decl. ¶¶ 9-10; Complaint, ECF No. 1, ¶ 55. The first dam that returning salmon
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`encounter on passage up the Kennebec River from the Atlantic Ocean is the Lockwood Project,
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`located in Waterville, Maine. Complaint, ECF No. 1, ¶ 63. Immediately upstream of Lockwood
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`are the Hydro-Kennebec Project, the Shawmut Project, and finally the Weston Project in
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`Skowhegan. Id. ¶ 3. These hydroelectric dams on the Kennebec “have eliminated or degraded
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`vast, but
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`to date unquantified, reaches of suitable rearing habitat
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`in the Kennebec .
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`.
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`.
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`watershed[],” and “[a] significant proportion of Atlantic salmon smolts and kelts are injured or
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`killed while passing dams during their downstream migration.” Id. ¶¶ 75 & 68 (quoting 2013
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`NMFS Interim Biological Opinion at 141 & 46).4 See Lusardi Decl ¶¶ 8 &12; Pugh Decl. ¶¶ 8 &
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`11.
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`Without access to the Sandy River spawning and rearing habitat, survival and recovery
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`goals for the GOM DPS of Atlantic salmon will never be met. In 2019, only 56 salmon returned
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`to be trapped at the Lockwood dam. Complaint, ECF No. 1, ¶ 60. In the 2020 migration season,
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`only 51 salmon were captured at the Lockwood fishlift. Id.
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`C.
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`Expiration of Defendants’ Take Authorization
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`Up to December 31, 2019 – the date of expiration of all take permits – there had been in
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`effect
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`for
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`the Defendants’ hydropower projects
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`interim,
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`time-limited incidental
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`take
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`authorizations, including terms and conditions that were set forth in these incidental take
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`statements of the respective interim biological opinions of July 19, 2013 and September 17,
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`2012. These take authorizations had been a previous result of NMFS’s consultation under
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`section 7 of the ESA (16 U.S.C. § 1536(a)(2) & (b)) with the Federal Energy Regulatory
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`Commission, concerning the effects of proposed approval of applications to amend the licenses
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`4 Interim Biological Opinion of the U.S. Department of Commerce, National Oceanic and Atmospheric
`Administration’s National Marine Fisheries Service (“NMFS”) “Endangered Species Act Section 7 Formal
`Consultation for the Lockwood (2574), Shawmut (2322), Weston (2325), Brunswick (2284), and Lewiston Falls
`(2302) Projects,” NOAA Fisheries Greater Atlantic Region Reference No. NER-2013-9613, at section 2.1.1 (July
`19, 2013) (hereafter “2013 Interim BiOp) at 141. As explained further herein, Defendants allowed this 2013 Interim
`BiOp to expire on December 31, 2019, and have not secured a new one with any incidental take permits.
`8
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`for the construction of new upstream fishways at each of the projects, as well as the
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`incorporation of an Interim Species Protection Plan (ISPP) for the GOM DPS of Atlantic salmon
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`at each of the projects, which would also govern downstream passage.5
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`Since the expiration of take authorizations at all four projects on December 31, 2019,
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`Brookfield has continued to operate all four projects, and those operations of each project have
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`violated section 9 of the ESA (16 U.S.C. § 1538) by causing the unauthorized “take” of
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`individual GOM DPS of Atlantic salmon attempting to migrate upstream at the Lockwood
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`Project, and by causing the unauthorized “take” of individual GOM DPS of Atlantic Salmon
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`attempting to migrate downstream at the Weston Project and at all of the remaining three
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`projects downstream from the Weston Project. Complaint, ECF No. 1, ¶ 82; Lusardi Decl ¶¶ 8 &
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`12; Pugh Decl. ¶¶ 8 & 11.
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`The ongoing incidental take of one or more individuals of the listed species of Atlantic
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`salmon – take that is “incidental to, and not the purpose of, the carrying out of an otherwise
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`lawful activity” – violates the ESA without take authorization.
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`16 U.S.C. §§ 1538-1539.
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`Defendants have not restored any lapse in take authorization or obtained incidental take permits
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`under sections 1536(b)(4) or 1539 of the ESA.
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`D.
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`“Take” of Atlantic Salmon from the Operation of the Four Hydropower Projects
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`Incidental “take” of Atlantic salmon caused by Defendants’ operation of the four
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`hydropower projects on the Kennebec River occurs at various areas of the riverine environment
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`5 2013 Interim BiOp. at sections 1 & 10; Biological Opinion of the U.S. Department of Commerce,
`National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NMFS”)
`“Endangered Species Act Section 7 Formal Consultation for the Hydro-Kennebec Project (FERC No.
`2611) (September 17, 2012); ” NOAA Fisheries Greater Atlantic Region Reference No. NER-2012-01860
`(September 17, 2012) at section 2.1 (hereafter “2012 Interim BiOp”) at sections 1.0 and 10.0.
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`9
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`and in various ways. See generally Lusardi Decl ¶¶ 8 &12 (with Exhibit B); Pugh Decl. ¶¶ 8-9
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`& 11.
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`For purposes of this motion, upstream migration “take” currently occurs at the Lockwood
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`Project only – but would occur at the remaining three upstream dams in the four-dam gauntlet
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`which Atlantic salmon (and other coevolved fish species) would face on their upstream
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`migration, even assuming passage at Lockwood. Complaint, ECF No. 1, ¶¶ 62-67; Lusardi Decl.
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`¶ 11.D; Pugh Decl. ¶ 10.D. The fish lift at this dam has never worked well since its installation
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`in 2006,6 and Defendants have failed to improve it. Complaint, ECF No. 1, ¶ 64. Salmon
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`captured at the fish lift at Lockwood are currently transported by MDMR for release to the Sandy
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`River spawning and rearing habitat area upriver from the fourth dam, Weston in Skowhegan. Id.
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`at ¶ 58. The significance of the Lockwood fish lift in relation to the current motion is that the
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`operations of the fish lift – with what few salmon return to encounter Lockwood in the upstream
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`migration season from May 1 through November 10 – must be coordinated with the turbine
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`shutdown for downstream migration in this same window of time, when there is movement both
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`upstream and downstream. Lusardi Decl. ¶ 11.D.; Pugh Decl. ¶ 10.D.
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`Downstream outmigration of Atlantic salmon also suffers incidental “take.” Lusardi
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`Decl. ¶¶ 8 & 12 (and see Exhibit B attached thereto); Pugh Decl. ¶¶ 8-9, 11. A high percentage
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`of outmigrating smolts die trying to return to the ocean due to Defendants’ projects and the
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`impoundments they create. Id.; Complaint, ECF No. 1, ¶¶ 61, 69-70. A significant percentage
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`6 In a recent filing to the Federal Energy Regulatory Commission (FERC), the Maine Department of Marine
`Resources (MDMR) stated that, “[f]ish passage failures at the Lockwood Project provide a cautionary tale as
`unexpectedly poor performance has left hundreds of returning endangered Atlantic salmon to die or spawn in subpar
`habitats below the project.” Complaint, ECF No. 1, ¶ 64 & n.18. Similarly, NMFS stated in a 2018 letter to
`Brookfield that: “1) The Lockwood facility demonstrates poor upstream passage efficiency for Atlantic salmon; 2)
`Atlantic salmon are highly attracted to the ‘bypass’ reach of the Lockwood facility; and 3) the Lockwood facility
`imposes a significant delay upon the upstream migration of Atlantic salmon. Although the study did not address the
`facility’s upstream passage effect on other species, it is reasonable to assume that other diadromous species
`experience similar effects.” Id. ¶ 65 & n.19.
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`of outmigrating kelts – which make up a biologically unique and significant part of the
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`population as potential “repeat-spawners” – are also injured or die. Exhibit B, Lusardi Decl. ¶¶ 8
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`& 12; Pugh Decl. ¶¶ 9 & 11. And, “[i]n addition to direct mortality sustained by Atlantic salmon
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`at hydroelectric projects, Atlantic salmon in the Kennebec [River] will also sustain delayed
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`mortality as a result of repeated passage events at multiple hydroelectric projects.”7 Complaint,
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`ECF No. 1, ¶¶ 69-71.8
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`There are other incidental “take” occurrences resulting from the Defendants’ four
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`hydroproject operations – beyond struggles or inability to pass the projects, and the death,
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`delayed mortality, or direct injuries arising from those struggles or failures to pass. The known
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`passage failures at the projects to pass other co-evolved species, like American shad, has a direct
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`correlation to Atlantic salmon increased mortality in the critical habitat area. The depletion of
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`“cover” species, which reduce predation on Atlantic salmon, is an adverse modification of
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`critical habitat, and the projects’ successive failures to pass these other species increases the
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`percentage of takes during both in- and out-migrations.9 Furthermore, the existing operations of
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`the hydroprojects result in four impoundments – impounded waters created by the damming of
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`the river at the four projects. In the aggregate, these impoundments cover a substantial
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`percentage (85%) of the river from the Lockwood Project upstream to the upper end of the
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`Weston Project impoundment, and it has long been recognized that these areas of the riverine
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`7 2013 Interim BiOp at 49.
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`8 In addition to Brookfield’s own salmon smolt mortality studies, yielding calculations that over 40% of the
`outmigrating smolts die trying to return to the ocean due to Brookfield’s dams and the impoundments they create, in
`recent correspondence to FERC, NMFS explains that “[t]he total mortality associated with passage through a dam
`system can be represented by a conceptual equation: mortality in the impoundment + direct mortality + indirect
`mortality that occurs in the river + latent mortality in the estuary and marine environment = total dam-related
`mortality.” NMFS letter to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission) (August 26,
`2021) (bold emphasis added); FERC Accession No. 20210826-5106. Complaint, ECF No. 1, ¶ 69.
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`9 74 Fed. Reg. 29,344-01 at 29,374-75 (Determination of Endangered Status for the Gulf of Maine Distinct
`Population Segment of Atlantic Salmon) (June 19, 2009).
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`11
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`environment are deleterious to the recovery of cold water fish species. Complaint, ECF No. 1,
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`¶¶ 74-75.10
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`Outmigrating smolts and kelts may be delayed or hindered by the lack of free-flowing
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`habitat, and alterations in water quality (temperature, lowered dissolved oxygen levels, etc.)
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`hinder their outmigration to a degree that “creates the likelihood of injury . . . by annoying
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`[them] to such an extent as to significantly disrupt normal behavioral patterns . . .” 50 C.F.R. §
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`17.3; see 16 U.S.C. § 1532(19).
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`In short, dams are a man-made degradation of the natural
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`riverine environment. See American Rivers and Alabama Rivers Alliance v. Federal Energy
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`Regulatory Commission, 895 F.3d 32, 46-50 (D.C. Cir. 2018). The existence and operations of
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`the Defendants projects and dams in issue are entirely within the designated critical habitat of the
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`GOM DPS of Atlantic salmon, and adversely impact
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`that critical habitat,
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`resulting in
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`unauthorized “takes” by “significantly disrupt[ing] normal behavioral patterns which include, but
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`are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3; 16 U.S.C. §§ 1538(a).
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`ARGUMENT
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`A.
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`Standard for Preliminary Injunctive Relief in an ESA Case
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`When determining whether to grant a motion for preliminary injunctive relief, “a district
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`court must find the following four elements satisfied: (1) a likelihood of success on the merits,
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`(2) a likelihood of irreparable harm absent interim relief, (3) a balance of equities in the
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`plaintiff's favor, and (4) service of the public interest.” Arborjet, Inc. v. Rainbow Treecare
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`Scientific Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015). Although each factor must be
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`considered, “[t]he sine qua non of this four-part inquiry is likelihood of success on the merits: if
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`the moving party cannot demonstrate that [it] is likely to succeed in [its] quest, the remaining
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`10 See 2013 Interim BiOp at 46.
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`Case 1:21-cv-00257-JDL Document 10 Filed 10/21/21 Page 13 of 23 PageID #: 66
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`factors become matters of idle curiosity.” New Comm Wireless Services, Inc. v. SprintCom, Inc.,
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`287 F.3d 1, 9 (1st Cir. 2002).
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`In the context of the ESA, the First Circuit “has incorporated
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`Congress’s prioritization of listed species’ interests into the third and fourth prongs of the
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`analysis, modifying those factors where appropriate to ‘tip heavily in favor of protected
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`species.’” Animal Welfare Institute v. Martin, 623 F.3d 19, 27 (1st Cir. 2010) (quoting Strahan
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`v. Coxe, 127 F.3d 155, 160 (1st Cir.1997) (alteration omitted)).”
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`“Thus, where violations of the ESA are involved, only the first two prongs of the
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`traditional preliminary injunction analysis are at issue.” American Whitewater v. Electron
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`Hydro, LLC, No. C16-0047-JCC, 2021 WL 2530384 at *2 (W.D. Wash. Jun. 18, 2021).
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`Plaintiffs must “show either a likelihood of success on the merits, or alternatively, the existence
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`of ‘substantial questions’ regarding the merits.” Id. (quoting Audubon Soc. of Portland v. Nat'l
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`Marine Fisheries Serv., 849 F. Supp. 2d 1017, 1033 (D. Or. 2011)). Next, Plaintiffs must
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`demonstrate that “irreparable injury is likely in the absence of an injunction.” Id. (quoting Native
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`Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344, 1348 (D. Mont. 2014) (quoting Winter v.
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`Natural Resources Defense Council, 555 U.S. 7, 20 (2008)) (emphasis in original)).
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`We meet both of these elements, as demonstrated further below.
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`B.
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`Plaintiffs Will Prevail on the Merits (or There Are Substantial Questions).
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`The ESA was enacted, in part, to provide a “means whereby the ecosystems upon which
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`endangered species and threatened species depend may be conserved ... [and] a program for the
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`conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). Section
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`9 of the ESA makes it unlawful for “any person” to “take” a listed species, including take of
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`“any such species within the United States or the territorial sea of the United States.”
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`Id.
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`§ 1538(a)(1)(B). As defined by the ESA, “take” means “to harass, harm, pursue, hunt, shoot,
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`Case 1:21-cv-00257-JDL Document 10 Filed 10/21/21 Page 14 of 23 PageID #: 67
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`wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
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`Id.
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`§1532(19). The ESA’s legislative history supports “the broadest possible” reading of “take.”
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`Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704-05
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`(1995). “Take” includes direct as well as indirect harm and need not be purposeful. Id. at 704;
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`see also Nat’l Wildlife Fed’n v. Burlington No. R.R., 23 F.3d 1508, 1512 (9th Cir. 1994).
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`“ ‘Harm’ in the definition of ‘take’ in the [ESA] means an act which actually kills or
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`injures fish or wildlife. Such an act may include significant habitat modification or
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`degradation which actually kills or injures fish or wildlife by significantly impairing
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`essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding
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`or sheltering.” 50 C.F.R. § 222.102 (bold emphasis added); see Babbitt v. Sweet Home
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`Chapter, Communities for Great Oregon, 515 U.S. 687, 708 (1995) (upholding interpretation of
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`the term “take” to include significant habitat degradation). Significantly, “listed species need
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`not be harmed to constitute a take, as ‘harm’ is identified as a separate category of take.”
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`American Whitewater v. Electron Hydro, LLC, No. C16-0047-JCC, 2021 WL 2530384 (W.D.
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`Wash. Jun. 18, 2021) (granting preliminary injunction against dam operating without take
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`permits) at n.7. (citing 16 U.S.C. § 1538(a)(1)(B); see Babbitt v. Sweet Home Chapter,
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`Communities for Greater Or., 515 U.S. 687, 699 n.11, 702 (1995) (each category of “take” has
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`a distinct meaning); see also Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 98 (D. Me.
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`2008) (harmlessly trapping a listed species is a take)).
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`A “person” is defined, in relevant part, as “an individual, corporation, partnership, trust,
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`association, or any other private entity.” 16 U.S.C. § 1532(13). Clearly Defendants are subject
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`to the ESA.
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`Case 1:21-cv-00257-JDL Document 10 Filed 10/21/21 Page 15 of 23 PageID #: 68
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`Section 10 of the ESA provides an exception to the take prohibition, allowing the take of
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`a listed species where NMFS, which receives delegated authority from the Secretary of the
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`Department of Commerce, issues a permit authorizing the take. 16 U.S.C. § 1539.11
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`If the
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`“taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity,”
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`such as take associated with construction, development, or operation of an industrial site, the
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`person intending to cause the take must first apply to NMFS for an incidental take permit. Id. §
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`1539(a)(1)(B). To receive a permit, the applicant must submit a habitat conservation plan to
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`NMFS that specifies the “impact which will likely result from such taking” and provides “steps
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`the applicant will take to minimize and mitigate such impacts,” “to the maximum extent
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`practicable,” to ensure the project will not “appreciably reduce the likelihood of the survival and
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`recovery of the species in the wild.” Id. § 1539(a)(2)(A)(i)–(iv), (B). In addition, an applicant
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`must satisfy NMFS that
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`there is adequate funding available to implement
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`the proposed
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`minimization and mitigation measures, alternatives to the planned activities that would minimize
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`or avoid take and why they are not being utilized, id. § 1539(a)(1)(B)(2)(iii), and any other
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`assurances deemed necessary to minimize and avoid take of salmon, id. § 1539(a)(1)(B)(2)(iv).
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`Once an applicant receives an incidental take permit, the applicant is protected from take liability
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`so long as it complies with the minimization and mitigation measures set forth in the habitat
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`conservation plan. But the protection lapses when any incidental take permit expires.
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`The ESA authorizes private enforcement of unpermitted take in violation of the