A decision from the District of Maine issued late last week said that the plaintiffs fell short of qualifying for preliminary injunctive relief in the Endangered Species Act (ESA) suit. Judge Jon D. Levy found that although the environmental organizations demonstrated a likelihood of success on the merits of their unlawful “take” claim, they did not show that altering operation of the dams would actually help the endangered Gulf of Maine Atlantic salmon.
The lawsuit, filed last September by a trio of environmental groups, argues that the defendants, the licensees or managers of the four dams at issue, are unlawfully “taking” or harming Atlantic salmon in the Kennebec River in violation of the ESA. The defendants are Merimil Limited Partnership, Hydro-Kennebec LLC, Brookfield White Pine Hydro LLC, and Brookfield Power US Asset Management LLC.
In October, the plaintiffs, Atlantic Salmon Federation U.S., Conservation Law Foundation, Maine Rivers, and the Natural Resources Council of Maine, moved for a preliminary injunction ordering the defendants to alter the way they operate the dams unless and until they regain their incidental take authority, which expired in 2019. Federal authorities are currently deciding whether to reissue the dams’ take permits.
Judge Levy found that the plaintiffs met their burden of proving a likelihood of success on the merits of their ESA claim, namely that the defendants’ dams are causing actual harm to Atlantic salmon. In support of this conclusion, the court pointed to evidence submitted by both parties’ experts as to both in and out-migrating fish.
However, the plaintiffs fell short of showing that absent the requested relief, the fish would suffer irreparable harm. The court said it could not simply take the expert witnesses’ opinions at face value. Unsupported by data as to how the proposed modifications would provide more than negligible benefit, the court declined to find for the plaintiffs on this point.
Finally, Judge Levy weighed the balance of equities and the public interest factors, noting that both heavily favor protecting the imperiled species and preserving biodiversity. However, and, because of its previous irreparable harm finding, the court said it could not greenlight the plaintiffs’ request.
The plaintiffs are represented by Norman, Hanson & DeTroy LLC, Verrill Advocacy LLC, and Conservation Law Foundation.
The defendants are represented by Preti Flaherty Beliveau & Pachios LLP and Pillsbury Winthrop Shaw Pittman LLP.
