Case 1:21-cv-00257-JDL Document 59 Filed 02/24/22 Page 1 of 22 PageID #: 1393
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MAINE
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`) 1:21-cv-00257-JDL
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`ATLANTIC SALMON
`FEDERATION U.S., et al.,
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`Plaintiffs,
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`v.
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`MERIMIL LIMITED
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`PARTNERSHIP, et al.,
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`Defendants.
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`ORDER ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
`This citizen suit brought under the Endangered Species Act (“ESA”) targets
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`the operation of four hydroelectric dams on Maine’s Kennebec River that allegedly
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`interfere with the migration of Atlantic salmon. Plaintiffs Atlantic Salmon
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`Federation U.S., Conservation Law Foundation, Maine Rivers, and the Natural
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`Resources Council of Maine initiated this case on September 9, 2021 (ECF No. 1) on
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`behalf of their members. The Defendants—the licensees or manager of one or more
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`of the four dams at issue—are Merimil Limited Partnership, Hydro-Kennebec LLC,
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`Brookfield White Pine Hydro LLC, Brookfield Power US Asset Management LLC,
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`and Brookfield Renewable US.1
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`The Plaintiffs contend that the Defendants are unlawfully “taking” Atlantic
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`salmon in the Kennebec River in violation of the ESA, and, on October 21, 2021, the
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` 1 Defendant Merimil Limited Partnership is the licensee for one of the dams, Lockwood Project.
`Defendant Hydro-Kennebec LLC is the licensee for another, Hydro-Kennebec Project. Defendant
`Brookfield White Pine Hydro LLC is the licensee for the final two dams, Shawmut and Weston
`Projects. Defendant Brookfield Power US Asset Management LLC is involved in the management of
`the four dams. The Plaintiffs allege that Brookfield Renewable US owns and operates the dams, but
`the Defendants claim that this is a moniker referring to a group of companies, not a legal entity.
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`Plaintiffs moved for a preliminary injunction (ECF No. 10). Under the ESA, “take”
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`means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
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`to attempt to engage in any such conduct.” 16 U.S.C.A. § 1532(19) (West 2022). The
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`Plaintiffs seek a preliminary injunction that would require the Defendants to operate
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`the dams differently when the salmon are migrating in order to minimize take,
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`particularly the take of Atlantic salmon by the dams’ turbines, unless and until the
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`Defendants gain the governmental approvals needed to lawfully take the salmon. For
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`the reasons that follow, I deny the Plaintiffs’ motion.
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`I begin by (A) providing the necessary background information regarding the
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`I. BACKGROUND
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`migration patterns and the endangered status of the Gulf of Maine Distinct
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`Population Segment of Atlantic salmon, and then address (B) the history of the
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`Defendants’ authority to incidentally take Atlantic salmon at the four dams and (C)
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`the preliminary injunctive relief sought by the Plaintiffs.
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`A.
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`Atlantic Salmon
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`Atlantic salmon hatch in fresh water, migrate to the ocean, and return to their
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`natal rivers to spawn. Atlantic salmon can restart their migratory loop after
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`spawning, by swimming back to the ocean. A young salmon migrating to the ocean
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`is a “smolt,” and post-spawn adults completing that same journey are “kelts.” From
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`April 1 to June 30, smolts and kelts both migrate downstream. From May 1 to
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`November 10, adult salmon migrate upstream. From October 15 to December 31,
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`kelts migrate downstream.
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`The ESA empowers the National Marine Fisheries Service (“NMFS”) to protect
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`not only species, 16 U.S.C.A. § 1533(a) (West 2022), but also “distinct population
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`segment[s]” of vertebrate species, 16 U.S.C.A. § 1532(16): groups of animals that are
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`discrete and significant in relation to the species, Policy Regarding the Recognition
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`of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61
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`Fed. Reg. 4722, 4725 (Feb. 7, 1996). When NMFS finds that a distinct population
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`segment is in danger of extinction throughout all or a significant portion of its
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`geographic range, the agency may list it as “endangered.” 16 U.S.C.A. §§ 1532(6),
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`1533(a). If NMFS classifies a species or a distinct population segment as endangered,
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`the ESA’s prohibition against “take” springs into effect. Id. § 1538(a)(1)(B), (C) (West
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`2022). That prohibition is at the center of this lawsuit. As already noted, “take”
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`includes “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”
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`Id. § 1532(19). The second item on that list, harm, includes “significant habitat
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`modification or degradation which actually kills or injures fish or wildlife by
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`significantly impairing essential behavioral patterns, including, breeding, spawning,
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`rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102 (2021).
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`NMFS has listed the Gulf of Maine Distinct Population Segment of Atlantic
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`salmon (the “GOM DPS”) as endangered, which includes those Atlantic salmon
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`originating from the Gulf of Maine. Id. § 224.101 (2021). Historically, hundreds of
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`thousands of GOM DPS adults returned annually to Maine’s Kennebec River to
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`spawn. By 2009, abundance levels of Atlantic salmon within the GOM DPS had
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`diminished by several orders of magnitude. Determination of Endangered Status for
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`the Gulf of Maine Distinct Population Segment of Atlantic Salmon, 74 Fed. Reg.
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`29344, 29349 (June 19, 2009). In 2021, adults returning to the Kennebec River
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`represented less than 4% of GOM DPS returns.
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`According to NMFS, dams are a leading cause “of both historical declines and
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`contemporary low abundance of the GOM DPS of Atlantic salmon.” Id. at 29366.
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`Dams “directly kill and injure a significant number of salmon on both upstream and
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`downstream migrations”; “directly limit access to otherwise suitable habitat”; and
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`“degrade the productive capacity of habitats upstream by inundating formerly free-
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`flowing rivers, reducing water quality, and changing fish communities.” Id. at 29367.
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`Other threats to Atlantic salmon include land use practices that have reduced habitat
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`complexity, loss of habitat connectivity in part from road crossings, a reduction in
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`water flows due to consumption, water pollution, poaching and incidental capture,
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`predation, starvation, disease, parasites, abiotic ocean conditions, the depletion of
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`coevolved fish species, and competition from invasive species. Id. at 29367-76.
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`B.
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`The Dams
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`The Defendants own and operate the four hydroelectric dams at issue:
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`Lockwood Project, Hydro-Kennebec Project, Shawmut Project, and Weston Project.
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`The dams are located on the Kennebec River at river miles 63, 64, 70, and 83,
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`respectively. At Lockwood Project, the first dam that in-migrating Atlantic salmon
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`encounter on the Kennebec, the Defendants trap in-migrating adults in Lockwood’s
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`“fish lift” so that the Maine Department of Marine Resources can capture them and
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`then drive them in a truck to the Sandy River, a tributary of the Kennebec located
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`upstream of the four dams, where the salmon spawn. With respect to downstream
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`migration, Atlantic salmon utilize various routes through, over, and around the four
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`dams, including through the turbines. To be clear, in-migrating adults interact with
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`only Lockwood Project before they are trucked to the Sandy River above the four dams
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`and thus do not encounter the other three dams during their upstream migration,
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`but out-migrating smolts and kelts must pass all four dams on their journey to the
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`ocean. This case involves the alleged take of Atlantic salmon migrating both
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`upstream and downstream.
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`Until recently, the Defendants were authorized to incidentally take GOM DPS
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`Atlantic salmon through the operation of these dams, notwithstanding the take
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`prohibition that applies to endangered distinct population segments. That incidental
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`take authority was the product of “consultation,” a process under the ESA by which
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`NMFS reviews federal agencies’ proposed actions, including the granting of permits,
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`to “insure that any action authorized, funded, or carried out by such agency . . . is not
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`likely to jeopardize the continued existence of any endangered species.” 16 U.S.C.A.
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`§ 1536(a)(2) (West 2022). Consultation culminates in a “biological opinion”
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`containing NMFS’s conclusion as to whether an agency action would jeopardize the
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`continued existence of endangered species. See id. § 1536(b). If an agency action is
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`not likely to do so but will nonetheless incidentally take members of a protected
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`species with reasonable certainty, the biological opinion must include an “incidental
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`take statement”: a prediction of the incidental take that the proposed action will
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`cause plus “terms and conditions” to “minimize” that take. Id. § 1536(b)(4)(i)-(ii), (iv);
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`50 C.F.R. § 402.14(g)(7), (i) (2021). Compliance with those terms and conditions
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`provides a government agency or permittee (such as a dam operator) with authority
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`to incidentally take the protected species. 16 U.S.C.A. § 1536(o)(2); Bennett v. Spear,
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`520 U.S. 154, 170 (1997).
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`The Defendants received such incidental take authority pursuant to biological
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`opinions issued by NMFS in 2012 (for Hydro-Kennebec), 2013 (for Lockwood,
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`Shawmut, and Weston), and 2017 (extending authority for Hydro-Kennebec). The
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`agency actions that NMFS analyzed in the 2012 and 2013 biological opinions were
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`proposals by the Federal Energy Regulatory Commission (“FERC”) to amend the
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`dams’ licenses to require additional conservation measures. The 2017 biological
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`opinion studied the effects of allowing Hydro-Kennebec Project to temporarily
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`continue operating under the amended FERC license that NMFS examined in the
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`2012 biological opinion after that opinion expired on December 31, 2016. In each
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`instance, NMFS concluded that the license amendments and the extension would not
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`jeopardize the continued existence of the GOM DPS of Atlantic salmon and issued
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`incidental take statements predicting and authorizing certain levels of take.
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`However, the biological opinions and incidental take statements expired on December
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`31, 2019, terminating the Defendants’ authority to incidentally take GOM DPS
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`Atlantic salmon.
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`The Defendants are actively seeking to renew their incidental take authority.
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`In December 2021, FERC initiated consultation with NMFS for a suite of five
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`proposed actions: amending the licenses of the four dams and relicensing Shawmut
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`Project (in advance of the 2022 expiration date for Shawmut’s current FERC license).
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`The proposed amendments address the conservation efforts FERC will require as
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`conditions for the continued operation of the dams. In essence, NMFS is evaluating
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`whether FERC’s proposed conditions will avoid jeopardizing the continued existence
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`of the GOM DPS and other species, whether additional requirements are also
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`necessary, or whether no set of take-minimization measures would allow the dams to
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`continue operating without risking extinction. See 16 U.S.C.A. § 1536(b)(3)(A).
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`NMFS has advised FERC that it will prepare a single biological opinion for the five
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`proposed actions. Although the biological opinion is due on April 15, 2022, NMFS
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`has informed FERC that an extension may be necessary due to the complexity of the
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`consultation.
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`The Defendants assert that, in addition to working to secure NMFS’s issuance
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`of a new incidental take statement, they have taken the following measures to
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`address the expiration of their incidental take authority:
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`• Defendant Merimil Limited Partnership obtained incidental take authority
`through a different provision of the ESA in April 2021 for Lockwood
`Project’s trap-sort-and-truck facility for in-migrating adults. This authority
`was not granted through consultation but rather under 50 C.F.R.
`§ 17.21(c)(3)(i) (2021), which authorizes NMFS to designate agents to take
`endangered wildlife (e.g., to collect them) when necessary to aid sick,
`injured, or orphaned individuals.
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` During the downstream smolt migration in May through early June 2021,
`the Defendants, working with NMFS, shut down Lockwood, Hydro-
`Kennebec, and Shawmut Projects. Weston Project was not similarly shut
`down because NMFS had advised that the survival rate of smolts through
`the turbines is higher than the survival rate going over the spillway.
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` •
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`Preliminary Injunctive Relief Sought by the Plaintiffs
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`C.
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`The Plaintiffs filed this lawsuit pursuant to the ESA’s citizen suit provision,
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`seeking injunctive and declaratory relief. See 16 U.S.C.A. § 1540(g)(1) (West 2022).
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`The Plaintiffs’ Motion for a Preliminary Injunction does not seek the removal of the
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`dams; it instead seeks to impose limitations on the Defendants’ operations unless and
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`until the Defendants regain their incidental take authority:
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`• At Lockwood Project, the Plaintiffs ask the Court to order the Defendants
`to run downstream passage facilities at maximum discharge and to shut
`down the turbines from April 1 to June 30 and October 15 to December 31,
`i.e., when downstream migration is happening. The Plaintiffs specify,
`however, that Lockwood’s turbines should run during daylight hours when
`downstream migration overlaps with upstream migration (May 1 to June
`30 and October 15 to November 10). According to the Plaintiffs, shutting
`down Lockwood’s turbines causes increased flow at Lockwood’s bypass
`channel, which may lure in-migrating adults away from the fish lift.
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`• At Hydro-Kennebec, the Plaintiffs ask the Court to order the shutdown of
`the turbines from April 1 to June 30 and October 15 to December 31, and
`to run downstream-passage facilities at maximum discharge, “followed by
`the gated spillway and the units.” ECF No. 10-2 ¶ 10(C)(i).
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`• At Shawmut, the Plaintiffs ask that the Defendants be required to shut
`down the turbines for the same dates, and to “operate the surface spill and
`the Tainter gates at maximum discharge, followed by spill and finally the
`units.” Id. ¶ 10(B)(i).
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`• At Weston, the Plaintiffs ask for an order to fully open the sluice bypass “as
`the first point of downstream passage for both kelts and smolts.” Id.
`¶ 10(A)(i). The Plaintiffs further specify additional water outlets at Weston
`that should be prioritized differently for kelts versus smolts.
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`II. LEGAL ANALYSIS
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`I analyze the Plaintiffs’ motion in keeping with the four criteria governing
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`preliminary injunctive relief: “A plaintiff seeking a preliminary injunction must
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`establish that he is likely to succeed on the merits, that he is likely to suffer
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`irreparable harm in the absence of preliminary relief, that the balance of equities tips
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`in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def.
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`Council, Inc., 555 U.S. 7, 20 (2008). “The party seeking the preliminary injunction
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`bears the burden of establishing that these four factors weigh in its favor.” Esso
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`Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
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`Before I turn to the factors, I note that the Plaintiffs’ motion seeks more than
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`“a run-of-the-mill prohibitory preliminary injunction” targeting the dams’ turbines.
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`Man Against Xtinction v. Comm’r of Me. Dep’t of Marine Res., 478 F. Supp. 3d 67, 71
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`(D. Me. 2020). By asking the Court to order the Defendants to prioritize different
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`water outlets at the dams at varying times, the Plaintiffs also “ask[] for mandatory
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`preliminary injunctive relief, which requires affirmative action by the non-moving
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`party in advance of trial.” Id. “Because a mandatory preliminary injunction alters
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`rather than preserves the status quo, it normally should be granted only in those
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`circumstances when the exigencies of the situation demand such relief.” Id. (quoting
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`Braintree Lab’ys, Inc. v. Citigroup Glob. Mkts. Inc., 622 F.3d 36, 41 (1st Cir. 2010)).
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`“Those exigencies are still measured according to the same four-factor test . . . .” Id.
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`A.
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`Likelihood of Success on the Merits
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`The Plaintiffs allege that the Defendants are taking and will continue to take
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`Atlantic salmon without authorization, a violation of 16 U.S.C.A. § 1538(a)(1)(B).
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`Here, the Plaintiffs allege five types of take: harm, harassment, killing, wounding,
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`and trapping. See id. § 1532(19). Because the Plaintiffs can succeed on the merits by
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`proving any of those theories, it will suffice here to evaluate their likelihood of
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`showing that the Defendants “harm” Atlantic salmon. “Harm” is defined as “an act
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`which actually kills or injures fish or wildlife,” including “significant habitat
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`modification or degradation which actually kills or injures fish or wildlife by
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`significantly impairing essential behavioral patterns, including, breeding, spawning,
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`rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102. As that definition
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`indicates, to prove a harm-based take “there must be actual injury to the listed
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`species,” not “a numerical probability of harm.” Am. Bald Eagle v. Bhatti, 9 F.3d 163,
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`165-66 (1st Cir. 1993).
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`With respect to harm to out-migrating salmon, the Plaintiffs allege that the
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`Defendants’ own studies, when properly understood, show that the dams kill over
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`40% of out-migrating smolts. Regarding upstream migration, the Plaintiffs allege
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`that Lockwood Project harms salmon by blocking their migration, which forces
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`returning adults that fail to swim into the fish lift to never spawn or to spawn in
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`subpar habitat below Lockwood, and by delaying the migration of other adults, which
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`requires them to expend their limited energy stores and increases their vulnerability
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`to predators and parasites. The Plaintiffs also argue that the dams degrade the
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`Kennebec River in ways that kill or injure Atlantic salmon by significantly impairing
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`breeding, spawning, rearing, migrating, feeding, or sheltering. Finally, the Plaintiffs
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`allege that periodic maintenance activities at Lockwood harm Atlantic salmon.
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`The Defendants counter that the Plaintiffs’ proof is insufficient because the
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`Plaintiffs have failed to submit any evidence showing that the Defendants’ conduct
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`has caused actual harm to Atlantic salmon. The Defendants cite Man Against
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`Xtinction, which reiterates the First Circuit’s statement that harm must be “actual,”
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`as opposed to “a numerical probability.” 478 F. Supp. 3d at 71 (quoting Am. Bald
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`Eagle, 9 F.3d at 165). The Defendants contend that the Plaintiffs’ proof fails because
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`the Plaintiffs’ experts rely only on statistical models and inaccurate interpretations
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`of data that are insufficient to demonstrate actual harm.
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`Contrary to the Defendants’ argument, both sides’ expert witness declarations
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`suggest that the dams are causing actual harm to Atlantic salmon. The Defendants’
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`expert witness declaration from Drew Trested, a fisheries biologist, supports a finding
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`of actual harm to out-migrating smolts. In his declaration, Dr. Trested asserts that
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`the Defendants conducted field experiments with smolts from 2012 to 2015 at the
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`four dams to empirically observe the paths that smolts took through, over, and around
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`each dam and to measure the survival rate for each route. Dr. Trested states that at
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`Lockwood Project, 25.0% of smolts went through the downstream bypass with a 98.5%
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`survival rate; 6.6% went through turbines 1-6 with a 98.8% survival rate; 7.7% went
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`through turbine 7 with a 90.6% survival rate; and 57.0% passed via spill with a
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`100.0% survival rate. The Trested Declaration contains similar data for the other
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`three dams. Dr. Trested estimates whole-station survival rates for smolts by
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`combining the survival rates of the various routes at each dam with the percentage
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`of smolts that used each route: 98.6% at Lockwood, 94.7% at Hydro-Kennebec, 93.5%
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`at Shawmut, and 95.0% at Weston. According to the Trested Declaration, “each
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`Project-specific value was representative of losses due to attempts at physical passage
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`through or around the projects,” “correct[ed] for background or natural mortality (e.g,
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`from predation).” ECF No. 10-2 ¶ 7. Multiplying the whole-station survival rates of
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`each dam “result[s] in a cumulative passage survival of 83.0% for smolts passing
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`downstream at Weston, Shawmut, Hydro Kennebec and Lockwood.”2 Id.
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` 2 Similarly, the Defendants’ memorandum in opposition to the Plaintiffs’ Motion for Preliminary
`Injunction concedes that the dams have killed out-migrating smolts, while disputing the Plaintiffs’
`exact figures. The Defendants argue that the Plaintiffs’ mortality estimate at Weston Project is
`inaccurate because, “[w]hen properly adjusted to account for background mortality, whole station
`mortality rates at Weston were 4.3% and 0.3% during 2013 and 2015.” ECF No. 19 at 12.
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`The Plaintiffs also rely in part on the Defendants’ studies. They contend that
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`the Trested Declaration’s estimated 83% survival rate for smolts passing through the
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`four dams omits delayed mortality (e.g., due to injury) and environmentally mediated
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`takes (e.g., due to increased predation from the slower river velocity). The Plaintiffs
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`also insist that the Defendants understate the deaths observed in the empirical
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`studies because the Defendants should be counting the salmon that did not pass a
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`dam within 24 hours as mortalities. ECF No. 33-2 at 2 (Supplemental Declaration of
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`Donald Pugh) (“The whole station mortality estimates I presented for the Weston
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`Project . . . of 9% to 11% and 14% to 34%[] are the range of three years’ direct
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`calculations from Brookfield’s own 2013, 2014 and 2015 downstream study reports
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`for S1 survival (immediate survival passing dam) and S2 survival (immediate
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`survival with fish not passing in 24 hours considered mortalities).”). That may
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`explain the Plaintiffs’ estimate of a 40% mortality for smolts across the four dams,
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`but the precise basis for this estimate is not clear from the record.
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`The expert witness declarations submitted by both sides support the
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`conclusion that the Defendants are currently taking out-migrating GOM DPS
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`Atlantic salmon by harming them without the authorization required by the ESA.
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`The Defendants’ own studies have found that the four dams took 17% of smolts
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`through losses due to the salmon’s attempts at physical passage. Dr. Trested’s
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`declaration indicates that the Defendants’ studies involved the release of actual
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`smolts above the dams and measured actual deaths. Accordingly, the record contains
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`sound evidence showing actual harm to the protected species. What was true in a
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`prior case concerning three of the four dams at issue in this case is true again: “[T]he
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`Court necessarily finds that Plaintiffs have shown a likelihood of success on
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`establishing a taking” because “the experts do not appear to disagree that some
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`amount of . . . mortality is occurring at each of [the] Projects.” Friends of
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`Merrymeeting Bay v. NextEra Energy Res., LLC, No. 2:11-cv-38, 2013 WL 1835379,
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`at *6 (D. Me. Apr. 30, 2013).
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`Regarding upstream migration, the Defendants do not dispute that the only
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`way for in-migrating adults to pass Lockwood Project is via that dam’s fish lift. The
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`record contains the Defendants’ aforementioned incidental take authorization to
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`operate Lockwood’s trap-sort-and-truck facility (not the entire dam) pursuant to 50
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`C.F.R. § 17.21(c)(3)(i). The authorization in the record, which expired on November
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`15, 2021, does not address returning adults that never enter the fish lift. NMFS’s
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`2013 biological opinion estimated that 60% of in-migrating Atlantic salmon motivated
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`to pass Lockwood Project would fail to enter the fish lift, and the Plaintiffs’ complaint
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`contains recent critiques of the lift’s efficacy from NMFS and Maine’s Department of
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`Marine Resources. Thus, record evidence establishes that it is also likely that the
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`Plaintiffs will succeed on their claim that the Defendants harm and thus take at least
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`some in-migrating salmon by frustrating their spawning migrations.3
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` 3 The Plaintiffs additionally argue that the Defendants are collaterally and judicially estopped from
`denying that they take GOM DPS Atlantic salmon. For the collateral estoppel argument, the Plaintiffs
`contend that the issue of whether the Defendants take Atlantic salmon was already answered in the
`affirmative by Friends of Merrymeeting Bay, 2013 WL 1835379, at *6. But what matters here, in the
`context of the Plaintiffs’ request for forward-looking injunctive relief, is whether the dams are taking
`salmon now and will continue to do so, and those issues were not actually litigated and adjudicated in
`2013.
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` Regarding judicial estoppel, the Plaintiffs argue that the Defendants successfully mooted a prior
`claim by informing another court of the existence of incidental take authority pursuant to a biological
`opinion. See Friends of Merrymeeting Bay v. Brookfield Power U.S. Asset Mgmt., LLC, No. 2:11-cv-35,
`2013 WL 145506, at *4-6 (D. Me. Jan. 14, 2013). However, it is not clearly inconsistent for a party to
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`Having concluded that the Plaintiffs are likely to succeed on the merits of their
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`claim, I turn to consider the other preliminary-injunction criteria.
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`B.
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`Irreparable Harm Absent the Injunctive Relief
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`The second criterion for a preliminary injunction is proof of likely irreparable
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`harm in the absence of the requested preliminary relief. Winter, 555 U.S. at 20.
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`Irreparable harm refers to harm that cannot be adequately redressed by a later
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`permanent injunction or an award of damages. Rio Grande Cmty. Health Ctr., Inc. v.
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`Rullan, 397 F.3d 56, 76 (1st Cir. 2005). “Environmental injury, by its nature, can
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`seldom be adequately remedied by money damages and is often permanent or at least
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`of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,
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`545 (1987). To merit preliminary relief, the irreparable harm must be “likely” absent
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`the requested injunction. Winter, 555 U.S. at 22.
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`The First Circuit has twice addressed how courts should evaluate a plaintiff’s
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`evidence of irreparable harm in the ESA context. In Water Keeper Alliance v. U.S.
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`Department of Defense, the court held that a district court does not abuse its
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`discretion when it finds no irreparable harm “[i]n the absence of a . . . concrete
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`showing of probable deaths . . . and of how these deaths may impact the species.” 271
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`F.3d 21, 34 (1st Cir. 2001). In Animal Welfare Institute v. Martin, the First Circuit
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`rejected the plaintiffs’ argument “that as a matter of law the district court could not
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`inquire into species-level harm during the irreparable harm inquiry because that
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`would conflict with the role Congress has assigned to [agencies] through the
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`assert that it had authority to incidentally take an endangered species and then to assert, years later,
`that the party is not taking the species.
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`Case 1:21-cv-00257-JDL Document 59 Filed 02/24/22 Page 15 of 22 PageID #: 1407
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`[incidental-take-authorization] process.” 623 F.3d 19, 28 (1st Cir. 2010). The court
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`upheld the district court’s “nuanced” approach that recognized that the death of a
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`single animal can qualify as irreparable harm in certain circumstances but not when
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`the single death would have a “negligible impact on the species as a whole.” Animal
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`Welfare Institute, 623 F.3d at 29 (quoting Animal Welfare Inst. v. Martin, 668 F. Supp.
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`2d 254, 261, 264 (D. Me. 2009)). Based on these decisions, irreparable harm means
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`more than negligible harm to a species as a whole or, as in this case, a distinct
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`population segment as a whole.
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`Additionally, because this prong of the injunctive-relief test requires a plaintiff
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`“to demonstrate that irreparable harm [is] likely to occur absent an injunction,” id. at
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`24 (emphasis added), a plaintiff must demonstrate a “‘sufficient causal connection’
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`between the alleged irreparable harm and the activity to be enjoined,” Nat’l Wildlife
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`Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (quoting
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`Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 982 (9th Cir. 2011)); accord Puerto Rico v.
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`OPG Tech., Inc., Civil No. 15-3125, 2016 WL 5724807, *18 (D.P.R. Sept. 6, 2016). In
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`other words, a plaintiff must “show[] that ‘the requested injunction would forestall’
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`the irreparable harm.” Nat’l Wildlife Fed’n, 886 F.3d at 819 (quoting Perfect 10, 653
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`F.3d at 981). “However, a plaintiff ‘need not further show that the action sought to
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`be enjoined is the exclusive cause of the injury.’” Id. (quoting M.R. v. Dreyfus, 697
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`F.3d 706, 728 (9th Cir. 2012)). In this context, a plaintiff must show that a non-
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`negligible harm would likely befall the species or distinct population segment as a
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`whole unless the proposed injunctive relief is granted.
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`The Defendants contend that the Plaintiffs have not shown that the dams
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`harm the GOM DPS as a whole. They also argue that the proposed preliminary
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`injunction would not materially affect the GOM DPS because adults returning to the
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`Kennebec River represent less than 4% of GOM DPS returns; the Plaintiffs misstate
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`the risks turbines present to smolts; and there is insufficient data on harm to out-
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`migrating kelts and the dams have features that mitigate that harm. Moreover, the
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`Defendants assert that annual changes in adult return rates of the GOM DPS to
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`rivers with and without dams correlate and are driven primarily by marine survival
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`conditions and not the dams themselves.
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`The Plaintiffs’ evidence that the requested preliminary injunction would
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`forestall irreparable harm primarily consists of three expert witness declarations.
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`Jonathan Carr, a biologist, warned that “the ongoing harm during upstream and
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`downstream migration seasons from operations of these four lower mainstem
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`hydropower projects on the Kennebec River, if allowed to continue without the full
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`measures proposed by Plaintiffs to reduce or eliminate that harm, does[] and will
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`continue to jeopardize the continued existence of Atlantic salmon in the United States
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`and most certainly will prohibit the recovery of the species in the United States.”
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`ECF No. 33-1 ¶ 11. Robert Lusardi, an aquatic research ecologist and applied
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`conservation biologist, opined that “[t]here are no great options, but at a minimum,
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`we can significantly reduce take by” implementing the proposed injunctive relief.
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`ECF No. 10-1 ¶ 8. Lastly, Donald Pugh, an expert in analyzing fish passage at dams,
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`opined that the Plaintiffs’ plan “will reduce the percentage of takes.” ECF No. 10-2
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`¶ 12. Pugh did not provide an estimate of the reduction in take, but he did state that
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`if the measures he proposed “are not undertaken, ‘take’ of one or more–and likely
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`much more than a few–individual fish at each project is certain to occur in
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`downstream migrations, during both the fall and spring migr