GEORGE Z. SINGAL, District Judge.
Before the Court is Plaintiffs' Motion for Preliminary Injunction (Docket # 7), which was filed on July 25, 2011. The Court held a hearing on August 12, 2011 after receiving expedited briefing. For the reasons that follow, the Court now DENIES the Motion for Preliminary Injunction.
Plaintiffs, as the moving party, bear the burden of persuasion to show: "(1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest." Iantosca v. Step Plan Servs., Inc., 604 F.3d 24, 29 n. 5 (1st Cir.2010) (citation omitted). Likelihood of success on the merits is the "most important part of the preliminary injunction assessment." Jean v. Mass. State Police, 492 F.3d 24, 27 (1st Cir.2007). Even if likelihood of success is low, a court might consider injunctive relief based on a very significant showing of irreparable harm. See Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001) (explaining that the preliminary injunction "process involves engaging in . . . the sliding scale approach; the more likely the plaintiff will succeed on the merits, the less the balance of irreparable harms need favor the plaintiff's position"). However, a showing of irreparable harm must be "grounded on something more than conjecture, surmise, or a party's unsubstantiated fears of what the future may have in store." Charlesbank Equity Fund II v. Blinds to Go, 370 F.3d 151, 162 (1st Cir. 2004). Ultimately, the Court must "bear constantly in mind that an `[i]njunction is an equitable remedy which should not be lightly indulged in, but used sparingly and only in a clear and plain case.'" Saco Def. Sys. Div., Maremont Corp. v. Weinberger, 606 F.Supp. 446, 450 (D.Me.1985) (quoting Plain Dealer Pub. Co. v. Cleveland Typographical Union No. 53, 520 F.2d 1220, 1230 (6th Cir.1975)).
This dispute surrounds a construction project currently underway at the Worumbo Hydropower Project on the Androscoggin River in Lisbon, Maine (the "Worumbo"). The Worumbo is a hydroelectric dam owned and operated by a private company, Miller Hydro Group ("Miller Hydro"), under a Federal Energy Regulatory Commission ("FERC") license issued under the Federal Power Act, 16 U.S.C. § 797(e).
The Worumbo is located in the geographic range and designated critical habitat of the Gulf-Of-Maine Distinct Population Segment ("GOM DPS") of Atlantic salmon, a species listed as endangered under the Endangered Species Act ("ESA") by Defendant National Marine Fisheries Service ("NMFS").
The record provided to the Court indicates that on April 28, 2011 a teleconference was conducted between a representative from Miller Hydro, FERC staff, and Jeff Murphy, a Fishery Biologist and NMFS staffer, regarding the Worumbo and plans for its more than 100-year-old timber crib spillway.
The next day, Miller Hydro sent a letter to Gerald L. Cross, Regional Engineer for FERC's Office of Energy Projects: Division of Dam Safety and Inspections, formally notifying FERC "that Worumbo crib dam has reached the end of its useful life and needs to be replaced now." (Am. Compl. Ex. 1 (Docket # 19-1) at PageID 179 (hereinafter the "Miller Hydro letter").) In this letter, Miller Hydro conceded that it could not predict precisely when, or how, failure would occur, but warned that "it is impossible to guarantee or even provide reasonable assurance that the dam will not fail if construction is delayed to 2012 or beyond." (Id., at 179-80.) As the failure of the dam could present "a hazard risk" to downstream fishermen, recreationists, property and the environment, Miller Hydro wrote that time was of the essence: any such construction project "could only be undertaken during the low water season that normally runs from July through September." (Id., at PageID 179-80.) To this end, Miller Hydro relayed that it had "been in active
On May 2, 2011, B. Peter Yarrington, a Fisheries Biologist with FERC, emailed Mr. Murphy to inform him that he is in receipt of the Miller Hydro letter and that "[i]t seems to have the elements discussed in our [teleconference call last week]." (Am. Compl. Ex. 10 (Docket # 19-10) at PageID 222.) Mr. Yarrington went on to ask whether "there is anything specific I need to write in the letter to you, besides that we agree with the licensee's determination, and that we would like to proceed with emergency consultation?" (Am. Compl. Ex. 10 (Docket # 19-10) at PageID 222.) There is nothing in the record to indicate whether or not Mr. Murphy responded to the specific requests made by Mr. Yarrington in this email.
On May 4, 2011, however, Mr. Cross sent a letter on behalf of FERC to Mr. Murphy, to which he attached the Miller Hydro letter. (See Am. Compl. Ex. 1 (Docket # 19-1) at PageID 177-78 (hereinafter the "FERC letter").) In this letter, Mr. Cross notes that the "April 29, 2011 letter from the dam owner conveys the sense of urgency for replacing the existing timber crib spillway with a concrete gravity structure as soon as possible," and states expressly that "FERC concurs with the urgency expressed by the owner, and as such, believes that the spillway should be replaced during the construction season this summer." (Id., at PageID 177.) Thus, based on its related assessment that "[a] failure of the Worumbo Dam would result in significant environmental consequences and could also produce serious public safety consequences and property damage," FERC was writing this letter to NMFS to "request[] formal consultation under the [ESA] using the emergency consultation procedures specified in NMFS's joint regulations at 50 C.F.R. 402.05." (Id., at PageID 177-78.)
In a May 9, 2011 email to Mr. Yarrington, Mr. Murphy accepted FERC's May 4, 2011 request for emergency consultation. Specifically, Mr. Murphy writes: "Given the emergency nature of the repairs, NMFS can confirm that emergency consultation procedures outlined under 50 C.F.R. § 402.05 are appropriate for this situation." (Am. Compl. Ex. 10 at PageID 222.) Mr. Murphy goes on to state that
On July 12, 2011, FERC's New York Regional Engineer issued a construction authorization order ("FERC Order") to its licensee, Miller Hydro.
The only evidence before the Court regarding the potential impact of the ongoing project to this listed species comes through the testimony and affidavit of Mr. Murphy, whom the Court finds to be credible and qualified. As explained by Mr. Murphy, Atlantic salmon spends most of its adult life in the ocean but returns to freshwater to reproduce. Adults ascend the rivers within the GOM DPS beginning in the spring and continuing through the late fall. Thus, if the instream repair work on the Worumbo occurs in late July through mid-October 2011, the only life stage of salmon that could likely occur near Worumbo are the adults returning to the Androscoggin to spawn in the fall. (Id., ¶ 17.) The Androscoggin River—where the Worumbo is located—typically accounts for fewer than 1% of annual adult returns. (Id., ¶ 10.) This year, forty-five adults have returned to the Androscoggin. Id.,
Miller Hydro has implemented mitigation measures recommended by NMFS to protect Atlantic salmon both during construction and post-construction, including installing sediment curtains, which are impermeable barriers to protect listed salmon by trapping sediment flows, and altering the proposed spillway configuration and rubber dam section to facilitate the safe downstream passage of salmon. (See id. ¶¶ 14-19.) Miller Hydro has also agreed to use Best Management Practices during construction in an effort to minimize effects to any salmon potentially occurring in the action area, and is coordinating with downstream dam owners to verify that few Atlantic salmon are present in the action area. (Id., at ¶¶ 14, 16.) In accordance with these Best Practices, starting on July 18, 2011, Miller Hydro has submitted daily monitoring reports to NMFS detailing construction and environmental monitoring efforts at the project, including daily monitoring of sediment levels in an effort to ensure that the effects of sedimentation are low.
As of the date of the hearing, no significant impacts to Atlantic salmon have been reported. Sediment levels have generally remained low during construction, and none of the episodic events of elevated sediment levels have appeared to impact the two Atlantic salmon that were known to be in the action area during construction. Daily reports have also not documented any dead, injured or stranded Atlantic salmon. (Id., at ¶ 19.)
In this case, Plaintiffs assert that NMFS violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), when it arbitrarily and capriciously agreed to utilize emergency consultation procedures on the Worumbo project pursuant to FERC's request. As explained in Plaintiffs' Motion for Preliminary Injunction, "Plaintiffs do not seek, if a true emergency exists, to prevent the removal of the aging section of the [Worumbo] dam (or taking measures to reduce hydraulic pressure on that section), they do seek an order that will allow for completion of full ESA consultation prior to construction work on any replacement of the dam."
In the Court's assessment, there are two issues that prevent the Court finding that Plaintiffs' have the requisite substantial likelihood of success on its claim that NMFS has violated 5 U.S.C. § 706(2)(A). First, Plaintiffs are unlikely to establish that the emergency consultation that has occurred to date qualifies as a "final agency action" by NMFS. Second, assuming for the moment that the ongoing use of 50 C.F.R. § 402.05 is a final agency action, Plaintiffs are unlikely to establish that NMFS acted arbitrarily and capriciously.
"The federal courts ordinarily are empowered to review only an agency's final action." National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (citing 5 U.S.C. § 704). A two-part test is used to determine what constitutes "final agency action" under section 704 of the APA: "[f]irst, [an] action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature," and "second, [an] action must be one by which rights or obligations have been determined, or from which legal consequences will flow," Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotation marks and internal citation omitted).
Clear precedent establishes that a biological opinion ("BiOp") represents final agency action by NMFS. See, e.g., Dow Agrosciences LLC v. NMFS, 637 F.3d 259, 261 (4th Cir.2011). By contrast, Plaintiffs are unlikely to establish that the emergency consultation that has occurred here qualifies as a final agency action by NMFS. The consultation provided by NMFS at this point is "informal" and, by its nature, tentative. 50 C.F.R. § 402.05(a). Likewise, the legal consequences that generally flow from an ESA Section 7 consultation—namely, safe harbor on any takings that might occur—are not yet available. See 16 U.S.C. § 1536(o). On initial review, the Court believes that NMFS' final agency action in the context of the Worumbo will occur when it issues its biological opinion in accordance with 50 C.F.R. § 402.05(b).
Looking to the plain language of the ESA, the statute contemplates that the action agency (in this case, FERC) "shall consult with the Secretary" and "shall, in consultation with and with the assistance
Given the wide discretion afforded to the Secretary under the ESA, the district court in Washington Toxics Coalition found that the "temporal shifting of consultations" that occurs under 50 C.F.R. § 402.05 is consistent with ESA section 7(a)(2). Washington Toxics Coalition, 457 F.Supp.2d at 1181. The district court went on to state: "[T]here is nothing in ESA section 7(a)(2) that prohibits the mere shifting about of consultations." Id., While 50 C.F.R. § 402.05 plainly applies to emergencies, the Secretary is entitled to significant deference in determining what situations qualify for expedited consultation. The text of Section 402.05 provides NMFS with significant discretion to use emergency consultation procedures in a wide variety of circumstances. While the text of Section 402.05 provides examples of emergencies (none of which are applicable to Worumbo), the regulation "leaves some room for interpretation in its use of the word `etc.'" Washington Toxics Coalition, 457 F.Supp.2d at 1194.
In Washington Toxics Coalition, the district court went on to review the language of the ESA Handbook and concluded that an emergency for purposes of an ESA emergency consultation should include an "element of surprise and unexpectedness." Id., at 1195. "As a result, even though `emergencies' under the general consultation regulations may include situations which do not necessarily involve the potential loss of human life, but only of property, such `emergencies' must also be unpredictable or unexpected in some way." Id., Just as it is the responsibility of an action agency to seek consultation, the initial responsibility for determining that an emergency exists and requesting consultation under 50 C.F.R. § 402.05 must rest with the action agency. See also 51 Fed. Reg. 19,926 (June 3, 1986) (noting that under 50 C.F.R. § 402.05 the action agency "must exercise discretion when responding to an emergency as to when to consult with the Service"). Given the time sensitive nature of such requests, it is reasonable to expect that the consulting agency will rely on the representations of the action agency in confirming that emergency consultation is appropriate.
Under this interpretation of 50 C.F.R. § 402.05 and the ESA Handbook, FERC, as the action agency was initially required to determine that the need to replace the Worumbo dam in 2011 was unexpected and that a response was needed before a full ESA consultation could be completed in order to prevent the imminent loss of property. In confirming this determination, it was reasonable for NMFS to rely on the representations in the FERC Letter and the attached Miller Hydro Letter. Thus, NMFS' procedural decision to approve
The heart of Plaintiffs' argument is that full ESA consultation must be completed prior to the construction of a replacement dam. Having fairly acknowledged that dam failure might qualify as an emergency, Plaintiff's argument regarding replacement of the dam actually raises the question of when will the Worumbo "emergency" be "under control"? Under the ESA emergency consultation provisions, FERC is clearly required to initiate formal consultation with NMFS "as soon as practicable after the emergency is under control." 50 C.F.R. § 402.05(b) and ESA Handbook 8.2(b). The regulations clearly do not give NMFS the responsibility or the power to determine when an emergency is "under control."
Having concluded that Plaintiffs do not have the requisite likelihood of success to warrant injunctive relief, the Court briefly considers the remaining preliminary injunction factors, recognizing that the remaining factors are often deemed "matters of idle curiosity" if likelihood of success is not established. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002).
In short, Plaintiffs have not made shown that the endangered Atlantic salmon will suffer irreparable harm absent the injunctive relief they seek against NMFS. See Animal Welfare Institute v. Martin, 623 F.3d 19, 27 (1st Cir.2010) (noting that a showing of irreparable harm is required in ESA cases). Where, as here, Plaintiffs allege a violation of the procedural requirements of Section 7, the First Circuit makes clear that plaintiffs must "show potential for irreparable harm `apart from the harm that they argue is inherent in a procedural violation of the ESA's consultation
In this case, the record does not reflect any "concrete showing of probable deaths" arising from the ongoing repair work on the Worumbo. Id., In fact, the record reflects that there are currently very few—if any—Atlantic salmon in the area of the Worumbo dam. (See Murphy Decl. (Docket # 22-1) ¶¶ 17, 19-20.) Additionally, the Court has received evidence that most endangered Atlantic salmon currently remain (and appear to favor) areas outside the Androscoggin River.
Likewise, the current record does not establish that the new Worumbo dam specifically will result in the death of Atlantic salmon or negatively impact the species as a whole. Of course, such a record may not exist until after NMFS completes a full ESA consultation on the Worumbo. However, if NMFS determines that the new dam impacts the Atlantic salmon and its critical habitat during the full consultation, NMFS retains the ability to recommend reasonable and prudent alternatives and/or mitigation. Thus, avenues remain open to repair damage that is found later.
Under these circumstances, the record cannot support a finding of irreparable harm.
In fact, the record shows that granting the preliminary injunctive relief requested by Plaintiffs is just as likely to harm the endangered Atlantic salmon. In the Court's assessment, the emergency consultation being provided by NMFS appears to be providing some amount of protection to the listed species and its critical habitat. If the Court were to grant Plaintiffs the injunction they seek, it would have the perverse effect of preventing NMFS from continuing to consult on steps that might minimize harm to the species.
An injunction that simply restrains NMFS from invoking or applying emergency consultation procedures under 50 C.F.R. § 402.05 in connection with the Worumbo dam project would not prevent FERC or Miller Hydro from moving forward with the project. While Plaintiffs assert that FERC would withdraw its authorization for reconstruction of the Worumbo dam if the Court were to order NMFS to stop emergency consultation, Plaintiffs have provided neither evidence nor precedent that support this assertion.
Ultimately, the balance of the harms weighs in favor of denying an injunction.
While the Court does not ignore the significant public interest in preserving the endangered Atlantic salmon, there is no evidence in the current record suggesting that the Worumbo project has in fact caused any taking of the species in violation of the ESA.
In the absence of irreparable harm to an endangered species, the public interest is best served by this Court allowing NMFS to continue providing emergency consultation on the Worumbo project. Assuming for the moment that Plaintiffs are correct that a preliminary injunction in this case would, in fact, result in the stoppage of the Worumbo reconstruction, the Court has been provided with no information as to how stopping that work in the waning days of the low water season would impact the Androscoggin River and its use by the public. In short, it is far from clear that the intended ripple effect of the preliminary injunction requested by Plaintiffs
The Court concludes that Plaintiffs have not established a substantial likelihood of success or the necessary irreparable harm. The Court also determines that in this case the balance of the harms and the public interest weigh in favor of not granting the preliminary injunctive relief sought by Plaintiffs. Having given due consideration to all of the relevant factors, the Court hereby DENIES Plaintiffs' Motion for Preliminary Injunction (Docket # 7).
To the extent that Defendants' Response to the Motion the Preliminary Injunction (Docket # 22) included a motion to dismiss based on lack of subject matter jurisdiction, the Court RESERVES RULING on the motion to dismiss until it can be fully briefed in light of this decision. Therefore, the Clerk is directed to separately docket the Defendant's Motion to Dismiss. On or before September 2, 2011, Plaintiffs shall file a separate response to Defendant's Motion to Dismiss or, alternatively, indicate whether they intend to rely on the responses contained in their Reply (Docket # 25). Defendants may then file a reply memorandum in accordance with District of Maine Local Rule 7(c).
SO ORDERED.
