Case 1:21-cv-00257-JDL Document 62 Filed 03/30/22 Page 1 of 11 PageID #: 1422
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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 DEFENDANTS’ MOTION TO STAY CASE OR EXTEND
`SCHEDULE
`Defendants Merimil Limited Partnership, Hydro-Kennebec LLC, Brookfield
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`White Pine Hydro LLC, and Brookfield Power US Asset Management LLC filed a
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`motion (ECF No. 51) to stay this case until the National Marine Fisheries Service
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`(“NMFS”) issues a biological opinion concerning proposed amendments to the licenses
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`of the four hydroelectric dams at issue in this litigation and the proposed relicensing
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`of one of those same dams. In the alternative, the Defendants request a 60-day
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`extension of the deadlines in the Scheduling Order (ECF No. 46). For reasons that
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`follow, I deny the request to stay the case and grant the request to extend the
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`deadlines.
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`I. BACKGROUND
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`Substantial background about this Endangered Species Act (“ESA”) litigation
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`involving the endangered Gulf of Maine Distinct Population Segment of Atlantic
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`salmon (“Atlantic Salmon”) and the four dams at issue appears in my recent order
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`(ECF No. 59) denying the Motion for a Preliminary Injunction (ECF No. 10) filed by
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`Plaintiffs Atlantic Salmon Federation U.S., Conservation Law Foundation, Maine
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`Rivers, and the Natural Resources Council of Maine. See Atl. Salmon Fed’n U.S. v.
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`Merimil Ltd., 1:21-cv-00257, 2022 WL 558358, at *1-3 (D. Me. Feb. 24, 2022). The
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`following additional facts provide the necessary context for this order.
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`After NMFS initiated its formal consultation in December 2021 on the
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`proposals to amend the licenses at Lockwood Project, Hydro-Kennebec Project,
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`Shawmut Project, and Weston Project and to relicense Shawmut Project, NMFS
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`asked the Federal Energy Regulatory Commission (“FERC”) for a 60-day extension.
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`FERC’s response to NMFS’s extension request is not in the record. If FERC approves
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`the request, the deadline for NMFS’s biological opinion would be extended from April
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`15, 2022 to June 15, 2022. The Defendants would need to consent to any extension
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`beyond June 15. See 50 C.F.R. 402.14(e) (2021).
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`The proposed license amendments that NMFS is studying through the
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`consultation process would require the Defendants to adhere to new species-
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`protection plans at the dams.1 NMFS’s biological opinion about the four license
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`amendments and the relicensing will feed into a second ongoing administrative
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`process: FERC’s preparation of an environmental impact statement, due in February
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`2023, to comprehensively evaluate the environmental consequences of the same
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`proposed actions. See Notice of Intent to Prepare an Environmental Impact
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` 1 To describe just a few elements of the proposed plans, at Lockwood Project, the Defendants would
`need to “construct and operate permanent volitional passage in the Lockwood bypass reach”; at Hydro-
`Kennebec Project, they would need to “relocate the existing bypass entrance and Worthington boom,
`increase the capacity of the downstream bypass to 5 percent of station flow, and install an Alden-style
`weir”; and at Weston Project, they would need to “construct and operate an upstream fish lift adjacent
`to the existing log sluice” and “modify the downstream bypass by adding an upturned lip to the end of
`the sluice to dissipate discharge.” ECF No. 51-7 at 3-5.
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`Statement, 86 Fed. Reg. 67931, 67932 (Nov. 30, 2021). This second administrative
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`process is happening under the National Environmental Policy Act (“NEPA”), which
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`requires federal agencies to “include in every recommendation . . . for . . . major
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`Federal actions significantly affecting the quality of the human environment, a
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`detailed statement” on “the environmental impact of the proposed action” and
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`“alternatives to the proposed action.” 42 U.S.C.A. § 4332(C) (West 2022). The NEPA
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`process will help FERC decide whether the agency wants to pursue license
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`amendments for the four dams and the relicensing of Shawmut in light of the
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`reasonably foreseeable environmental impacts, including but not limited to the
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`consequences for Atlantic Salmon. See 40 C.F.R. § 1508.1(g) (2021); Dep’t of
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`Transp. v. Pub. Citizen, 541 U.S. 752, 754 (2004) (NEPA “ensure[s] both that an
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`agency has information to make its decision and that the public receives information
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`so it might also play a role in the decisionmaking process.”).
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`When NMFS agreed to initiate formal consultation, the agency advised FERC
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`that the Defendants’ authority to incidentally take Atlantic Salmon pursuant to any
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`incidental take statement that may appear in the forthcoming biological opinion “will
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`not be effective unless and until FERC requires compliance with any [of the incidental
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`take statement’s] Reasonable and Prudent Measures and Terms and Conditions
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`through enforceable terms in the amendment of licenses and/or the issuance of a new
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`or subsequent license.” ECF No. 51-12 at 3. And, according to NMFS, “FERC cannot
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`proceed with any licensing decision or the amendment of existing licenses until the
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`conclusion of its responsibilities under the National Environmental Policy Act.” ECF
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`No. 60-1 at 2. NMFS has also informed FERC that, “[s]hould one or more of your
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`proposed actions change because of your findings in the [environmental impact
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`statement], it is likely that we will need to reinitiate ESA consultation to consider the
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`effects of the modified action(s).” ECF No. 51-12 at 2-3.
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`II. STAY REQUEST
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`The Defendants first argue that I should stay this case pursuant to the primary
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`jurisdiction doctrine. “The doctrine of primary jurisdiction is a prudential doctrine
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`developed by the federal courts to promote accurate decisionmaking and regulatory
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`consistency in areas of agency expertise.” Ass’n of Int’l Auto. Mfrs., Inc. v. Comm’r,
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`Mass. Dep’t of Env’t Prot., 196 F.3d 302, 304 (1st Cir. 1999). “[I]f a court concludes
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`that an issue raised in an action before the court is within the primary jurisdiction of
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`an agency, the court will defer any decision in the action before it until the agency
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`has addressed the issue that is within [the agency’s] primary jurisdiction.” Id.
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`(quoting 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise
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`271 (3d ed. 1994)).
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`“[T]here is ‘no fixed formula’ for applying the primary jurisdiction doctrine
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`. . . .” Conservation L. Found., Inc. v. Exxon Mobil Corp., 3 F.4th 61, 72 (1st Cir. 2021)
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`(alteration omitted) (quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 64
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`(1956)). Nevertheless, the First Circuit has “recognized three principal factors that
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`guide whether to defer a matter to an agency: ‘(1) whether the agency determination
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`lies at the heart of the task assigned the agency by Congress; (2) whether agency
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`expertise is required to unravel intricate, technical facts; and (3) whether, though
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`perhaps not determinative, the agency determination would materially aid the
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`court.’” Id. (alterations omitted) (quoting Massachusetts v. Blackstone Valley Elec.
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`Co., 67 F.3d 981, 992 (1st Cir. 1995)). “[T]he third [Blackstone] factor can outweigh
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`the other factors, and sometimes greatly so.” Id. at 73. “After considering the
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`Blackstone factors, we balance them ‘against the potential for delay inherent in the
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`decision to refer an issue to an administrative agency.’” Id. at 74 (quoting Am. Auto.
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`Mfrs. Ass’n v. Mass. Dep’t of Env’t Prot., 163 F.3d 74, 81 (1st Cir. 1998)).
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`The Defendants assert that the three Blackstone factors favor a stay until
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`NMFS issues the biological opinion. The Defendants also argue that a stay pursuant
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`to the primary jurisdiction doctrine is especially appropriate because the issuance of
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`the biological opinion may moot this case. More specifically, the Defendants reason
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`that the Plaintiffs’ claims are predicated on the Defendants’ lack of incidental take
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`authority and that the issuance of a biological opinion with a new incidental take
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`statement would cure that deficiency, if the taking complies with the statement’s
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`terms and conditions. Finally, the Defendants argue that the Plaintiffs’ interests
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`would not be harmed by the requested stay because the next migration season for
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`Atlantic Salmon will not begin until April 1, 2022, so the overlap between the stay
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`and migration season would be short. The Defendants also state their intention to
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`take voluntary steps during the upcoming migration season to protect out-migrating
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`Atlantic Salmon.
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`The Plaintiffs respond that the primary jurisdiction doctrine does not call for
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`a stay here because this litigation is about the ongoing unauthorized take of Atlantic
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`Salmon, not the specific terms governing the Defendants’ incidental take permit. As
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`such, waiting for NMFS to unravel the intricate and technical facts that pertain to
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`the terms of a future incidental take statement would not materially aid my decision-
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`making. Additionally, the Plaintiffs predict that NMFS and FERC will agree to
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`extend the deadline for the biological opinion, which would extend the length of the
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`requested stay. Finally, the Plaintiffs argue that they and Atlantic Salmon are
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`prejudiced every day that unauthorized take continues to occur.
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`Turning to the Blackstone factors, the first two point toward deference. First,
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`NMFS is tasked with determining whether amending the licenses and relicensing
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`Shawmut—which would incorporate the new species-protection plans into the dams’
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`licenses—would result in incidental take, whether that incidental take would
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`jeopardize the continued existence of Atlantic Salmon, and what measures would
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`minimize take. Atl. Salmon, 2022 WL 558358, at *2-3. Second, these are highly
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`technical matters requiring agency expertise. However, on these facts, those first two
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`Blackstone factors are strongly outweighed by the third—whether the biological
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`opinion would materially aid the resolution of this action—because there are
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`substantial differences between the questions at the heart of this litigation and the
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`answers that NMFS will provide in the forthcoming biological opinion.
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`Because Plaintiffs seek declaratory and injunctive relief related to the alleged
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`ongoing and unauthorized take of Atlantic Salmon by the four dams, the Plaintiffs’
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`claim depends on whether the dams, as they currently exist and operate, take
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`Atlantic Salmon; whether the dams threaten more than a negligible harm to Atlantic
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`Salmon as a whole; and whether the Plaintiffs’ proposed injunctive relief would
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`provide more than a negligible benefit to Atlantic Salmon as a whole. Id. at *4, *7-8.
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`Thus, there are at least three key distinctions between my inquiry and NMFS’s.
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`First, the Court will examine the effects of the dams’ current operations, while NMFS
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`is examining the effects of amending the dams’ licenses to establish a new-and-
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`improved operating regime. Second, the Court will examine whether the dams are
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`causing more than a negligible harm to Atlantic Salmon as a whole, including to
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`recovery, while NMFS is examining whether the proposed amendments and
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`relicensing will jeopardize the continued existence of Atlantic Salmon, which is
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`effectively a question of extinction. See 50 C.F.R. § 402.02 (2021) (defining “jeopardize
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`the continued existence of” to mean appreciably reducing the likelihood of both
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`survival and recovery). Third, the Court will examine whether the Plaintiffs’
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`proposed injunctive relief will create a non-negligible benefit for Atlantic Salmon as
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`a whole, while NMFS is examining how to minimize take incidental to the five
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`proposed actions. These differences distinguish this case from others in which courts
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`had reason to believe that the issuance of a biological opinion would simplify their
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`work. See, e.g., Wild Fish Conservancy v. Irving, No. 2:14-CV-0306, 2015 WL
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`11117847, at *5 (E.D. Wash. Apr. 26, 2015). Although it is possible that NMFS’s
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`analysis could touch on the topics that I must address, that possibility is pure
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`speculation—as is whether such analysis by NMFS would materially aid my work.
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`The First Circuit recently provided guidance on how to apply the Blackstone
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`factors when the issues to be addressed by the court and the agency are distinct.
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`Conservation L. Found., 3 F.4th at 72-74. In Conservation Law Foundation, the
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`plaintiff challenged the defendant’s compliance with a Clean Water Act permit, and
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`the district court granted the defendant’s request for a stay until the Environmental
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`Protection Agency (“EPA”) addressed the defendant’s application for a new permit.
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`Id. at 65-66. Reversing the district court, the First Circuit concluded that the third
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`Blackstone factor was “especially salient” in part because “[w]hether and on what
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`terms EPA issues the [new] permit . . . seems to us largely irrelevant to whether [the
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`defendant] has violated the conditions of the permit currently in effect.” Id. at 73.
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`Although there was some chance that the agency’s analysis of the new permit would
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`help the district court, the First Circuit deemed this possibility “wholly speculative”
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`and not enough to “‘materially’ help the district court.” Id. at 73-74.
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`The same is true here. NMFS’s analysis of a proposal to transition the dams
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`to a more salmon-protective operating regime has little bearing on my analysis of
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`what harms are caused by the status quo and whether anything should be done about
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`those harms between now and the date that the Defendants, if successful in the
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`administrative process, restore their incidental take authority. As such, there is little
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`justification to wait for NMFS to issue the biological opinion, and the risk that my
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`own analysis would conflict with the agency’s, while possible, is not substantial.
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`Moving on to the balancing of the Blackstone factors against the potential for
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`delay, “[s]ince the Blackstone factors do not weigh in favor of the stay . . . , any
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`potential delay only furthers [the] view that the stay [is] unjustified.” Id. at 74-75.
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`Regardless of how long the stay would overlap with the next migration season,
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`staying this case until April, June, or later would freeze the discovery process and
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`thus prejudice the Plaintiffs by delaying their remedy, if they are due one, for however
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`many months it takes NMFS to issue the biological opinion. Although the Defendants
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`state that they will take precautionary measures to protect Atlantic Salmon at the
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`dams during the upcoming migration season, there is no record evidence of how
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`effective these measures were last year or how effective they will be this year. Also,
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`delay is counter to my conclusion, on the preliminary-injunction record, that the
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`Plaintiffs are likely to succeed on the merits of their unauthorized-take claim.2 See
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`Atl. Salmon, 2022 WL 558358, at *5-6.
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`I am also not persuaded by the Defendants’ mootness argument because I
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`cannot assume that the biological opinion will contain an incidental take statement
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`that would restore the Defendants’ incidental take authority. The biological opinion
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`may not include an incidental take statement if (1) NMFS determines that the
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`proposed actions (the amendments to the licenses and the relicensing) are likely to
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`jeopardize the continued existence of Atlantic Salmon and (2) NMFS cannot develop
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`any so-called “reasonable and prudent alternatives” to the proposed actions that
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`would not also cause jeopardy. See 16 U.S.C.A. § 1536(b)(3)(A), (4) (West 2022);
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`50 C.F.R. § 402.14(h)(2), (i)(1). Thus, there is no guarantee that NMFS’s biological
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`opinion will contain an incidental take statement because the agency may conclude
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`that there is no way to amend the dams’ licenses and to relicense Shawmut without
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`jeopardizing the continued existence of Atlantic Salmon.3
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` 2 In addition, if FERC agrees to extend the deadline for the biological opinion to June, the availability
`of future extensions would be contingent on the consent of the Defendants. As such, the Defendants
`may have the ability to influence how long this litigation is delayed.
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` 3 The Plaintiffs have not responded to the Defendants’ argument that this case would be mooted
`immediately by compliance with the terms and conditions of a new incidental take statement, if such
`a statement appears in the biological opinion. The Defendants concede, however, that they are directly
`contradicting NMFS’s interpretation of the ESA, a statute that the agency administers. As already
`mentioned, NMFS has explicitly advised FERC that the Defendants’ incidental take authority “will
`not be effective unless and until FERC requires compliance with any [of the incidental take
`statement’s] Reasonable and Prudent Measures and Terms and Conditions through enforceable terms
`in the amendment of licenses and/or the issuance of a new or subsequent license.” ECF No. 51-12 at
`3. Because it is unknown at this point whether the biological opinion will contain an incidental take
`statement, I do not decide whether the Defendants or NMFS is correct.
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`For these reasons, I conclude that a stay is not appropriate under the primary
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`jurisdiction doctrine.
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`Finally, the Defendants argue that even if a stay is not justified under the
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`primary jurisdiction doctrine, a stay is appropriate given the “(1) potential prejudice
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`to the non-moving party; (2) hardship and inequity to the moving party without a
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`stay; and, (3) judicial economy.” Good v. Altria Grp., Inc., 624 F. Supp. 2d 132, 134
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`(D. Me. 2009). Such a stay would be incidental to the Court’s inherent power to
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`control its docket. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In addition to
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`the Defendants’ already-mentioned points about the lack of prejudice to the Plaintiffs
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`and the benefits of waiting for the biological opinion to issue, the Defendants add that
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`they would be prejudiced by having to defend this lawsuit while also navigating the
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`administrative process for the biological opinion.
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`I have already concluded that the Plaintiffs would be prejudiced by a stay and
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`that the judicial economy benefits of waiting for NMFS to issue the biological opinion
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`are speculative. Additionally, the burden of having to simultaneously litigate and
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`coordinate with federal agencies is “not . . . particularly onerous.” Wild Fish
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`Conservancy, 2015 WL 11117847, at *4.
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`For these reasons, I conclude that a stay pursuant to my inherent authority
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`would not be equitable.
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`III. EXTENSION REQUEST
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`In the alternative, the Defendants request a 60-day extension of the discovery
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`deadlines set out in the Scheduling Order. They argue that this additional time is
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`necessary for them to respond to the anticipated discovery requests from the
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`Plaintiffs and to give the Defendants sufficient time to identify experts and prepare
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`expert reports. The Plaintiffs respond that the Defendants have failed to explain the
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`necessity of an extension with the detail required under District of Maine Local Rule
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`16.2(e), the Defendants had 60 days’ notice before the Plaintiffs filed this suit, the
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`Defendants can move for an extension later if responding to the Plaintiffs’ discovery
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`requests proves onerous, and the Defendants and their experts are already familiar
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`with the subject matter of this lawsuit. The Defendants counter that their
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`explanation is sufficient, they have not yet retained any experts, and that they had
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`no obligation to jumpstart the discovery process before this case was filed.
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`Given the complexity of the issues in this case, including whether the dams’
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`operations threaten more than a negligible harm to Atlantic Salmon as a whole, I find
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`that a 60-day extension is warranted. Such an extension will promote the accurate
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`resolution of this litigation by giving the parties additional time to prepare expert
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`testimony on the matters that I recently identified as significant in my order denying
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`the Plaintiffs’ request for a preliminary injunction.
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`The Defendants’ Motion to Stay Case or Extend Schedule (ECF No. 51) is
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`IV. CONCLUSION
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`DENIED IN PART with respect to the requested stay and GRANTED IN PART
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`with respect to the requested extension.
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`SO ORDERED.
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`Dated: March 30, 2022
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` /s/ JON D. LEVY
` CHIEF U.S. DISTRICT JUDGE
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