On Wednesday, the District of Maine issued an order in the case of Atlantic Salmon Federation Us et al. v. Merimil Limited Partnership et al., granting the environmental group plaintiffs’ request for a 60-day deadline extension and denying the defendants’ motion to stay the case.
The plaintiffs filed the original complaint on September 9, 2021, against the licensees and managers of four dams located on the Kennebec River in Maine; Merimil Limited Partnership, Hydro-Kennebec LLC, Brookfield White Pine Hydro LLC and Brookfield Power US Asset Management LLC. In the lawsuit, the plaintiffs, Atlantic Salmon Federation U.S., Conservation Law Foundation Maine Rivers and the Natural Resources Council of Maine, argue that the four dams at issue are harming Atlantic Salmon populations in the Kennebec River in a manner constituting a taking in violation of the Endangered Species Act (ESA).
Less than two months after filing the complaint, the plaintiffs filed a motion for preliminary injunction on October 21, 2021, requesting that the court order the defendants to alter the way the dams are operated unless they gain incidental take authority by the EPA. However, on February 24, 2022, the District Court of Maine denied the preliminary injunction . In that order, Judge Levy stated that the plaintiffs demonstrated a sufficient likelihood of success on their illegal takings claim under the ESA, but they failed to show that altering the operation of the dam would adequately benefit the Atlantic Salmon population in the Kennebec River.
Litigation proceeded following the court’s denial of the preliminary injunction and on January 10, 2022, the defendants’ filed a motion to stay the case until the National Marine Fisheries Service (NMFS) issues its biological opinion concerning the proposed changes to the four hydroelectric dams at issue. According to the courts order, NMFS initiated a formal consultation on the proposals to amend the licenses of the four dams which would require the defendants to adhere to new species-protection plans at the dams.
The defendants argued that the case should not proceed because the findings of the NMFS consultation will affect the EPA’s findings of the defendants’ dams under the National Environmental Policy Act which in turn affects the Federal Energy Regulatory Commission’s decision about the proposed amendments to the dams’ licenses.
In response, Judge Levy for the District Court of Maine denied the motion to stay finding that the Federal Energy Regulatory Commission’s and EPA’s future requirements and licenses for the dams have little effect on the litigation because the plaintiffs’ claim is about the present and ongoing take of Atlantic Salmon due how the dams currently exist and operate.
In addition to the motion to stay, the court also addressed the defendants’ request for a 60-day extension of the discovery deadlines, granting the motion given the complexity of the issue in the litigation.
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.
