ATLANTIC SALMON FEDERATION US v. MERIMIL LIMITED PARTNERSHIP

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

ATLANTIC SALMON )

FEDERATION U.S., et al., )

)

Plaintiffs, )

)

v. ) 1:21-cv-00257-JDL

)

MERIMIL LIMITED )

PARTNERSHIP, et al., )

)

Defendants. )

ORDER ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

This citizen suit brought under the Endangered Species Act (“ESA”) targets

the operation of four hydroelectric dams on Maine’s Kennebec River that allegedly

interfere with the migration of Atlantic salmon. Plaintiffs Atlantic Salmon

Federation U.S., Conservation Law Foundation, Maine Rivers, and the Natural

Resources Council of Maine initiated this case on September 9, 2021 (ECF No. 1) on

behalf of their members. The Defendants—the licensees or manager of one or more

of the four dams at issue—are Merimil Limited Partnership, Hydro-Kennebec LLC,

Brookfield White Pine Hydro LLC, Brookfield Power US Asset Management LLC,

and Brookfield Renewable US.1

The Plaintiffs contend that the Defendants are unlawfully “taking” Atlantic

salmon in the Kennebec River in violation of the ESA, and, on October 21, 2021, the

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

Plaintiffs moved for a preliminary injunction (ECF No. 10). Under the ESA, “take”

means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or

to attempt to engage in any such conduct.” 16 U.S.C.A. § 1532(19) (West 2022). The

Plaintiffs seek a preliminary injunction that would require the Defendants to operate

the dams differently when the salmon are migrating in order to minimize take,

particularly the take of Atlantic salmon by the dams’ turbines, unless and until the

Defendants gain the governmental approvals needed to lawfully take the salmon. For

the reasons that follow, I deny the Plaintiffs’ motion.

I. BACKGROUND

I begin by (A) providing the necessary background information regarding the

migration patterns and the endangered status of the Gulf of Maine Distinct

Population Segment of Atlantic salmon, and then address (B) the history of the

Defendants’ authority to incidentally take Atlantic salmon at the four dams and (C)

the preliminary injunctive relief sought by the Plaintiffs.

A. Atlantic Salmon

Atlantic salmon hatch in fresh water, migrate to the ocean, and return to their

natal rivers to spawn. Atlantic salmon can restart their migratory loop after

spawning, by swimming back to the ocean. A young salmon migrating to the ocean

is a “smolt,” and post-spawn adults completing that same journey are “kelts.” From

April 1 to June 30, smolts and kelts both migrate downstream. From May 1 to

November 10, adult salmon migrate upstream. From October 15 to December 31,

kelts migrate downstream.

The ESA empowers the National Marine Fisheries Service (“NMFS”) to protect

not only species, 16 U.S.C.A. § 1533(a) (West 2022), but also “distinct population

segment[s]” of vertebrate species, 16 U.S.C.A. § 1532(16): groups of animals that are

discrete and significant in relation to the species, Policy Regarding the Recognition

of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61

Fed. Reg. 4722, 4725 (Feb. 7, 1996). When NMFS finds that a distinct population

segment is in danger of extinction throughout all or a significant portion of its

geographic range, the agency may list it as “endangered.” 16 U.S.C.A. §§ 1532(6),

1533(a). If NMFS classifies a species or a distinct population segment as endangered,

the ESA’s prohibition against “take” springs into effect. Id. § 1538(a)(1)(B), (C) (West

2022). That prohibition is at the center of this lawsuit. As already noted, “take”

includes “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”

Id. § 1532(19). The second item on that list, harm, includes “significant habitat

modification or degradation which actually kills or injures fish or wildlife by

significantly impairing essential behavioral patterns, including, breeding, spawning,

rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102 (2021).

NMFS has listed the Gulf of Maine Distinct Population Segment of Atlantic

salmon (the “GOM DPS”) as endangered, which includes those Atlantic salmon

originating from the Gulf of Maine. Id. § 224.101 (2021). Historically, hundreds of

thousands of GOM DPS adults returned annually to Maine’s Kennebec River to

spawn. By 2009, abundance levels of Atlantic salmon within the GOM DPS had

diminished by several orders of magnitude. Determination of Endangered Status for

the Gulf of Maine Distinct Population Segment of Atlantic Salmon, 74 Fed. Reg.

29344, 29349 (June 19, 2009). In 2021, adults returning to the Kennebec River

represented less than 4% of GOM DPS returns.

According to NMFS, dams are a leading cause “of both historical declines and

contemporary low abundance of the GOM DPS of Atlantic salmon.” Id. at 29366.

Dams “directly kill and injure a significant number of salmon on both upstream and

downstream migrations”; “directly limit access to otherwise suitable habitat”; and

“degrade the productive capacity of habitats upstream by inundating formerly free-

flowing rivers, reducing water quality, and changing fish communities.” Id. at 29367.

Other threats to Atlantic salmon include land use practices that have reduced habitat

complexity, loss of habitat connectivity in part from road crossings, a reduction in

water flows due to consumption, water pollution, poaching and incidental capture,

predation, starvation, disease, parasites, abiotic ocean conditions, the depletion of

coevolved fish species, and competition from invasive species. Id. at 29367-76.

B. The Dams

The Defendants own and operate the four hydroelectric dams at issue:

Lockwood Project, Hydro-Kennebec Project, Shawmut Project, and Weston Project.

The dams are located on the Kennebec River at river miles 63, 64, 70, and 83,

respectively. At Lockwood Project, the first dam that in-migrating Atlantic salmon

encounter on the Kennebec, the Defendants trap in-migrating adults in Lockwood’s

“fish lift” so that the Maine Department of Marine Resources can capture them and

then drive them in a truck to the Sandy River, a tributary of the Kennebec located

upstream of the four dams, where the salmon spawn. With respect to downstream

migration, Atlantic salmon utilize various routes through, over, and around the four

dams, including through the turbines. To be clear, in-migrating adults interact with

only Lockwood Project before they are trucked to the Sandy River above the four dams

and thus do not encounter the other three dams during their upstream migration,

but out-migrating smolts and kelts must pass all four dams on their journey to the

ocean. This case involves the alleged take of Atlantic salmon migrating both

upstream and downstream.

Until recently, the Defendants were authorized to incidentally take GOM DPS

Atlantic salmon through the operation of these dams, notwithstanding the take

prohibition that applies to endangered distinct population segments. That incidental

take authority was the product of “consultation,” a process under the ESA by which

NMFS reviews federal agencies’ proposed actions, including the granting of permits,

to “insure that any action authorized, funded, or carried out by such agency . . . is not

likely to jeopardize the continued existence of any endangered species.” 16 U.S.C.A.

§ 1536(a)(2) (West 2022). Consultation culminates in a “biological opinion”

containing NMFS’s conclusion as to whether an agency action would jeopardize the

continued existence of endangered species. See id. § 1536(b). If an agency action is

not likely to do so but will nonetheless incidentally take members of a protected

species with reasonable certainty, the biological opinion must include an “incidental

take statement”: a prediction of the incidental take that the proposed action will

cause plus “terms and conditions” to “minimize” that take. Id. § 1536(b)(4)(i)-(ii), (iv);

50 C.F.R. § 402.14(g)(7), (i) (2021). Compliance with those terms and conditions

provides a government agency or permittee (such as a dam operator) with authority

to incidentally take the protected species. 16 U.S.C.A. § 1536(o)(2); Bennett v. Spear,

520 U.S. 154, 170 (1997).

The Defendants received such incidental take authority pursuant to biological

opinions issued by NMFS in 2012 (for Hydro-Kennebec), 2013 (for Lockwood,

Shawmut, and Weston), and 2017 (extending authority for Hydro-Kennebec). The

agency actions that NMFS analyzed in the 2012 and 2013 biological opinions were

proposals by the Federal Energy Regulatory Commission (“FERC”) to amend the

dams’ licenses to require additional conservation measures. The 2017 biological

opinion studied the effects of allowing Hydro-Kennebec Project to temporarily

continue operating under the amended FERC license that NMFS examined in the

2012 biological opinion after that opinion expired on December 31, 2016. In each

instance, NMFS concluded that the license amendments and the extension would not

jeopardize the continued existence of the GOM DPS of Atlantic salmon and issued

incidental take statements predicting and authorizing certain levels of take.

However, the biological opinions and incidental take statements expired on December

31, 2019, terminating the Defendants’ authority to incidentally take GOM DPS

Atlantic salmon.

The Defendants are actively seeking to renew their incidental take authority.

In December 2021, FERC initiated consultation with NMFS for a suite of five

proposed actions: amending the licenses of the four dams and relicensing Shawmut

Project (in advance of the 2022 expiration date for Shawmut’s current FERC license).

The proposed amendments address the conservation efforts FERC will require as

conditions for the continued operation of the dams. In essence, NMFS is evaluating

whether FERC’s proposed conditions will avoid jeopardizing the continued existence

of the GOM DPS and other species, whether additional requirements are also

necessary, or whether no set of take-minimization measures would allow the dams to

continue operating without risking extinction. See 16 U.S.C.A. § 1536(b)(3)(A).

NMFS has advised FERC that it will prepare a single biological opinion for the five

proposed actions. Although the biological opinion is due on April 15, 2022, NMFS

has informed FERC that an extension may be necessary due to the complexity of the

consultation.

The Defendants assert that, in addition to working to secure NMFS’s issuance

of a new incidental take statement, they have taken the following measures to

address the expiration of their incidental take authority:

• 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.

• 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.

C. Preliminary Injunctive Relief Sought by the Plaintiffs

The Plaintiffs filed this lawsuit pursuant to the ESA’s citizen suit provision,

seeking injunctive and declaratory relief. See 16 U.S.C.A. § 1540(g)(1) (West 2022).

The Plaintiffs’ Motion for a Preliminary Injunction does not seek the removal of the

dams; it instead seeks to impose limitations on the Defendants’ operations unless and

until the Defendants regain their incidental take authority:

• 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.

• 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).

• 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).

• 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.

II. LEGAL ANALYSIS

I analyze the Plaintiffs’ motion in keeping with the four criteria governing

preliminary injunctive relief: “A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities tips

in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008). “The party seeking the preliminary injunction

bears the burden of establishing that these four factors weigh in its favor.” Esso

Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).

Before I turn to the factors, I note that the Plaintiffs’ motion seeks more than

“a run-of-the-mill prohibitory preliminary injunction” targeting the dams’ turbines.

Man Against Xtinction v. Comm’r of Me. Dep’t of Marine Res., 478 F. Supp. 3d 67, 71

(D. Me. 2020). By asking the Court to order the Defendants to prioritize different

water outlets at the dams at varying times, the Plaintiffs also “ask[] for mandatory

preliminary injunctive relief, which requires affirmative action by the non-moving

party in advance of trial.” Id. “Because a mandatory preliminary injunction alters

rather than preserves the status quo, it normally should be granted only in those

circumstances when the exigencies of the situation demand such relief.” Id. (quoting

Braintree Lab’ys, Inc. v. Citigroup Glob. Mkts. Inc., 622 F.3d 36, 41 (1st Cir. 2010)).

“Those exigencies are still measured according to the same four-factor test . . . .” Id.

A. Likelihood of Success on the Merits

The Plaintiffs allege that the Defendants are taking and will continue to take

Atlantic salmon without authorization, a violation of 16 U.S.C.A. § 1538(a)(1)(B).

Here, the Plaintiffs allege five types of take: harm, harassment, killing, wounding,

and trapping. See id. § 1532(19). Because the Plaintiffs can succeed on the merits by

proving any of those theories, it will suffice here to evaluate their likelihood of

showing that the Defendants “harm” Atlantic salmon. “Harm” is defined as “an act

which actually kills or injures fish or wildlife,” including “significant habitat

modification or degradation which actually kills or injures fish or wildlife by

significantly impairing essential behavioral patterns, including, breeding, spawning,

rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102. As that definition

indicates, to prove a harm-based take “there must be actual injury to the listed

species,” not “a numerical probability of harm.” Am. Bald Eagle v. Bhatti, 9 F.3d 163,

165-66 (1st Cir. 1993).

With respect to harm to out-migrating salmon, the Plaintiffs allege that the

Defendants’ own studies, when properly understood, show that the dams kill over

40% of out-migrating smolts. Regarding upstream migration, the Plaintiffs allege

that Lockwood Project harms salmon by blocking their migration, which forces

returning adults that fail to swim into the fish lift to never spawn or to spawn in

subpar habitat below Lockwood, and by delaying the migration of other adults, which

requires them to expend their limited energy stores and increases their vulnerability

to predators and parasites. The Plaintiffs also argue that the dams degrade the

Kennebec River in ways that kill or injure Atlantic salmon by significantly impairing

breeding, spawning, rearing, migrating, feeding, or sheltering. Finally, the Plaintiffs

allege that periodic maintenance activities at Lockwood harm Atlantic salmon.

The Defendants counter that the Plaintiffs’ proof is insufficient because the

Plaintiffs have failed to submit any evidence showing that the Defendants’ conduct

has caused actual harm to Atlantic salmon. The Defendants cite Man Against

Xtinction, which reiterates the First Circuit’s statement that harm must be “actual,”

as opposed to “a numerical probability.” 478 F. Supp. 3d at 71 (quoting Am. Bald

Eagle, 9 F.3d at 165). The Defendants contend that the Plaintiffs’ proof fails because

the Plaintiffs’ experts rely only on statistical models and inaccurate interpretations

of data that are insufficient to demonstrate actual harm.

Contrary to the Defendants’ argument, both sides’ expert witness declarations

suggest that the dams are causing actual harm to Atlantic salmon. The Defendants’

expert witness declaration from Drew Trested, a fisheries biologist, supports a finding

of actual harm to out-migrating smolts. In his declaration, Dr. Trested asserts that

the Defendants conducted field experiments with smolts from 2012 to 2015 at the

four dams to empirically observe the paths that smolts took through, over, and around

each dam and to measure the survival rate for each route. Dr. Trested states that at

Lockwood Project, 25.0% of smolts went through the downstream bypass with a 98.5%

survival rate; 6.6% went through turbines 1-6 with a 98.8% survival rate; 7.7% went

through turbine 7 with a 90.6% survival rate; and 57.0% passed via spill with a

100.0% survival rate. The Trested Declaration contains similar data for the other

three dams. Dr. Trested estimates whole-station survival rates for smolts by

combining the survival rates of the various routes at each dam with the percentage

of smolts that used each route: 98.6% at Lockwood, 94.7% at Hydro-Kennebec, 93.5%

at Shawmut, and 95.0% at Weston. According to the Trested Declaration, “each

Project-specific value was representative of losses due to attempts at physical passage

through or around the projects,” “correct[ed] for background or natural mortality (e.g,

from predation).” ECF No. 10-2 ¶ 7. Multiplying the whole-station survival rates of

each dam “result[s] in a cumulative passage survival of 83.0% for smolts passing

downstream at Weston, Shawmut, Hydro Kennebec and Lockwood.”2 Id.

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

The Plaintiffs also rely in part on the Defendants’ studies. They contend that

the Trested Declaration’s estimated 83% survival rate for smolts passing through the

four dams omits delayed mortality (e.g., due to injury) and environmentally mediated

takes (e.g., due to increased predation from the slower river velocity). The Plaintiffs

also insist that the Defendants understate the deaths observed in the empirical

studies because the Defendants should be counting the salmon that did not pass a

dam within 24 hours as mortalities. ECF No. 33-2 at 2 (Supplemental Declaration of

Donald Pugh) (“The whole station mortality estimates I presented for the Weston

Project . . . of 9% to 11% and 14% to 34%[] are the range of three years’ direct

calculations from Brookfield’s own 2013, 2014 and 2015 downstream study reports

for S1 survival (immediate survival passing dam) and S2 survival (immediate

survival with fish not passing in 24 hours considered mortalities).”). That may

explain the Plaintiffs’ estimate of a 40% mortality for smolts across the four dams,

but the precise basis for this estimate is not clear from the record.

The expert witness declarations submitted by both sides support the

conclusion that the Defendants are currently taking out-migrating GOM DPS

Atlantic salmon by harming them without the authorization required by the ESA.

The Defendants’ own studies have found that the four dams took 17% of smolts

through losses due to the salmon’s attempts at physical passage. Dr. Trested’s

declaration indicates that the Defendants’ studies involved the release of actual

smolts above the dams and measured actual deaths. Accordingly, the record contains

sound evidence showing actual harm to the protected species. What was true in a

prior case concerning three of the four dams at issue in this case is true again: “[T]he

Court necessarily finds that Plaintiffs have shown a likelihood of success on

establishing a taking” because “the experts do not appear to disagree that some

amount of . . . mortality is occurring at each of [the] Projects.” Friends of

Merrymeeting Bay v. NextEra Energy Res., LLC, No. 2:11-cv-38, 2013 WL 1835379,

at *6 (D. Me. Apr. 30, 2013).

Regarding upstream migration, the Defendants do not dispute that the only

way for in-migrating adults to pass Lockwood Project is via that dam’s fish lift. The

record contains the Defendants’ aforementioned incidental take authorization to

operate Lockwood’s trap-sort-and-truck facility (not the entire dam) pursuant to 50

C.F.R. § 17.21(c)(3)(i). The authorization in the record, which expired on November

15, 2021, does not address returning adults that never enter the fish lift. NMFS’s

2013 biological opinion estimated that 60% of in-migrating Atlantic salmon motivated

to pass Lockwood Project would fail to enter the fish lift, and the Plaintiffs’ complaint

contains recent critiques of the lift’s efficacy from NMFS and Maine’s Department of

Marine Resources. Thus, record evidence establishes that it is also likely that the

Plaintiffs will succeed on their claim that the Defendants harm and thus take at least

some in-migrating salmon by frustrating their spawning migrations.3

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.

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

Having concluded that the Plaintiffs are likely to succeed on the merits of their

claim, I turn to consider the other preliminary-injunction criteria.

B. Irreparable Harm Absent the Injunctive Relief

The second criterion for a preliminary injunction is proof of likely irreparable

harm in the absence of the requested preliminary relief. Winter, 555 U.S. at 20.

Irreparable harm refers to harm that cannot be adequately redressed by a later

permanent injunction or an award of damages. Rio Grande Cmty. Health Ctr., Inc. v.

Rullan, 397 F.3d 56, 76 (1st Cir. 2005). “Environmental injury, by its nature, can

seldom be adequately remedied by money damages and is often permanent or at least

of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,

545 (1987). To merit preliminary relief, the irreparable harm must be “likely” absent

the requested injunction. Winter, 555 U.S. at 22.

The First Circuit has twice addressed how courts should evaluate a plaintiff’s

evidence of irreparable harm in the ESA context. In Water Keeper Alliance v. U.S.

Department of Defense, the court held that a district court does not abuse its

discretion when it finds no irreparable harm “[i]n the absence of a . . . concrete

showing of probable deaths . . . and of how these deaths may impact the species.” 271

F.3d 21, 34 (1st Cir. 2001). In Animal Welfare Institute v. Martin, the First Circuit

rejected the plaintiffs’ argument “that as a matter of law the district court could not

inquire into species-level harm during the irreparable harm inquiry because that

would conflict with the role Congress has assigned to [agencies] through the

assert that it had authority to incidentally take an endangered species and then to assert, years later,

[incidental-take-authorization] process.” 623 F.3d 19, 28 (1st Cir. 2010). The court

upheld the district court’s “nuanced” approach that recognized that the death of a

single animal can qualify as irreparable harm in certain circumstances but not when

the single death would have a “negligible impact on the species as a whole.” Animal

Welfare Institute, 623 F.3d at 29 (quoting Animal Welfare Inst. v. Martin, 668 F. Supp.

2d 254, 261, 264 (D. Me. 2009)). Based on these decisions, irreparable harm means

more than negligible harm to a species as a whole or, as in this case, a distinct

population segment as a whole.

Additionally, because this prong of the injunctive-relief test requires a plaintiff

“to demonstrate that irreparable harm [is] likely to occur absent an injunction,” id. at

24 (emphasis added), a plaintiff must demonstrate a “‘sufficient causal connection’

between the alleged irreparable harm and the activity to be enjoined,” Nat’l Wildlife

Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (quoting

Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 982 (9th Cir. 2011)); accord Puerto Rico v.

OPG Tech., Inc., Civil No. 15-3125, 2016 WL 5724807, *18 (D.P.R. Sept. 6, 2016). In

other words, a plaintiff must “show[] that ‘the requested injunction would forestall’

the irreparable harm.” Nat’l Wildlife Fed’n, 886 F.3d at 819 (quoting Perfect 10, 653

F.3d at 981). “However, a plaintiff ‘need not further show that the action sought to

be enjoined is the exclusive cause of the injury.’” Id. (quoting M.R. v. Dreyfus, 697

F.3d 706, 728 (9th Cir. 2012)). In this context, a plaintiff must show that a non-

negligible harm would likely befall the species or distinct population segment as a

whole unless the proposed injunctive relief is granted.

The Defendants contend that the Plaintiffs have not shown that the dams

harm the GOM DPS as a whole. They also argue that the proposed preliminary

injunction would not materially affect the GOM DPS because adults returning to the

Kennebec River represent less than 4% of GOM DPS returns; the Plaintiffs misstate

the risks turbines present to smolts; and there is insufficient data on harm to out-

migrating kelts and the dams have features that mitigate that harm. Moreover, the

Defendants assert that annual changes in adult return rates of the GOM DPS to

rivers with and without dams correlate and are driven primarily by marine survival

conditions and not the dams themselves.

The Plaintiffs’ evidence that the requested preliminary injunction would

forestall irreparable harm primarily consists of three expert witness declarations.

Jonathan Carr, a biologist, warned that “the ongoing harm during upstream and

downstream migration seasons from operations of these four lower mainstem

hydropower projects on the Kennebec River, if allowed to continue without the full

measures proposed by Plaintiffs to reduce or eliminate that harm, does[] and will

continue to jeopardize the continued existence of Atlantic salmon in the United States

and most certainly will prohibit the recovery of the species in the United States.”

ECF No. 33-1 ¶ 11. Robert Lusardi, an aquatic research ecologist and applied

conservation biologist, opined that “[t]here are no great options, but at a minimum,

we can significantly reduce take by” implementing the proposed injunctive relief.

ECF No. 10-1 ¶ 8. Lastly, Donald Pugh, an expert in analyzing fish passage at dams,

opined that the Plaintiffs’ plan “will reduce the percentage of takes.” ECF No. 10-2

¶ 12. Pugh did not provide an estimate of the reduction in take, but he did state that

if the measures he proposed “are not undertaken, ‘take’ of one or more–and likely

much more than a few–individual fish at each project is certain to occur in

downstream migrations, during both the fall and spring migration seasons.” ECF

No. 10-2 ¶ 8.

The Plaintiffs’ experts’ declarations say little about the data and methods that

led the experts to conclude that the proposed relief would reduce the take of Atlantic

salmon, although Carr noted that “spillways are regarded as safer passage routes”

than turbines. ECF No. 33-1 ¶ 10. None offered concrete projections of the size of

the reduction in take that would be achieved if the relief the Plaintiffs seek were

implemented. Most importantly, none of the three experts expressed in concrete

terms, supported by data, why or how the reduction in take, whatever it might be,

would translate into a more than negligible benefit to the GOM DPS as a whole.4

“The trial court’s gatekeeping function requires more than simply ‘taking the

expert’s word for it.’” Fed. R. Evid. 702 advisory committee’s note to the 2000

amendments. Although record evidence establishes that the Plaintiffs will likely

succeed in proving that the dams are taking Atlantic salmon, the Plaintiffs’ expert

declarations do not show that the specific injunctive relief that the Plaintiffs seek

would reduce take to an extent that would prevent harm that is likely and otherwise

irreparable; namely, non-negligible harm to the GOM DPS as a whole. See Winter,

555 U.S. at 22 (“Our frequently reiterated standard requires plaintiffs seeking

4 In his declaration, Carr states that, if the dams were removed, that would satisfy one third of the

habitat-availability benchmark in NMFS’s recovery plan for the GOM DPS. The removal of the dams

is not, however, part of the preliminary relief sought by the Plaintiffs. In addition, the recovery plan

preliminary relief to demonstrate that irreparable injury is likely in the absence of

an injunction.” (emphasis omitted)); Nat’l Wildlife Fed’n, 886 F.3d at 819 (“There

must be a ‘sufficient causal connection’ between the alleged irreparable harm and the

activity to be enjoined, and showing that ‘the requested injunction would forestall’

the irreparable harm qualifies as such a connection.” (quoting Perfect 10, 653 F.3d at

981-82)).

The Plaintiffs’ other evidence does not disturb the foregoing conclusion. They

argue that the efficacy of their proposed injunctive relief is demonstrated by the fact

that the Defendants temporarily shut down operations at Lockwood, Hydro-

Kennebec, and Shawmut Projects in May and June of 2021, in coordination with

NMFS, to facilitate smolt migration. The Defendants resumed operations at the

three sites following the shutdowns in early June 2021 when NMFS and Maine’s

Department of Marine Resources agreed that the smolt migration had ended. At

Weston Project, instead of shutting down the turbines, the Defendants coordinated

with NMFS to continue operations because NMFS advised that the smolts were safer

going through Weston’s turbines than over the spillway.

While the actions taken in May and June of 2021 support the conclusion that

the Plaintiffs’ proposed preliminary injunction would reduce the take of smolts at

three of the four dams, the record is silent as to the results of those efforts and the

resulting benefit, if any, to the GOM DPS as a whole. The record is also silent as to

what reduction in take and benefits would have been obtained if the shutdowns had

been for the more extensive time periods, coinciding with different seasonal

conditions, now sought by the Plaintiffs. Accordingly, the fact that the Defendants

took steps in May and early June of 2021 to temporarily shut down three of the four

dams does not, without more, show the extent to which the proposed preliminary

injunction would reduce take and whether that reduction would benefit the GOM

DPS as a whole.5

Finally, the Plaintiffs rely on and quote from a 2020 Maine Department of

Marine Resources regulatory comment from FERC’s relicensing proceeding for

Shawmut Project in which the state agency declared that relicensing that dam

without improving its fish-passage facilities would hasten the extinction of the GOM

DPS. This statement does little to help the Plaintiffs here because the agency’s

analysis supporting this comment is not in the record, nor does the comment bear on

whether the specific injunctive relief sought by the Plaintiffs would prevent

irreparable harm to the GOM DPS as a whole.6

Accordingly, the Plaintiffs have not met their burden of showing irreparable

harm to the GOM DPS absent an award of the specific preliminary injunctive relief

they seek.

5 As proposed, the preliminary injunction would shut down the turbines at Lockwood Project only at

night to avoid luring in-migrating adults away from the fish lift. But there is no evidence in the record

that the Defendants did this at Lockwood in May and June of 2021 or evidence that otherwise explains

why this false-attraction problem would not make the requested relief counterproductive during the

day. Further, the Plaintiffs do not explain why they propose fully opening the sluice bypass at Weston

Project “as the first point of downstream passage for both kelts and smolts,” ECF No. 10-2 ¶ 10(A)(i),

when NMFS previously advised the Defendants to continue operations there and the Trested

Declaration reports that the Defendants’ studies found the sluice bypass to be the most dangerous

path at Weston, more dangerous than the turbines. This feature of the preliminary relief also creates

a risk that the Plaintiffs’ proposal would be counterproductive.

6 Some support for the Plaintiffs’ proposed injunctive relief appears in the Trested Declaration

submitted by the Defendants. The data reported therein show that smolts passing through turbines

tended to fare worse than smolts that took other routes. However, the data show the opposite at

Weston Project. This evidence does not establish that the specific operational changes proposed by the

C. Balance of the Equities and the Public Interest

The third and fourth prongs of the preliminary-injunction analysis require

courts to consider whether the balance of the equities tips in a plaintiff’s favor and

whether the injunction is in the public interest. Winter, 555 U.S. at 20.

“[E]xamination of the language, history, and structure of the [ESA] indicates beyond

doubt that Congress intended endangered species to be afforded the highest of

priorities” and that “Congress viewed the value of endangered species as

‘incalculable.’” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174, 187 (1978). Accordingly,

the First Circuit observed in Animal Welfare Institute that “this circuit’s law has

incorporated Congress’s prioritization of listed species’ interests into the third and

fourth prongs of [the preliminary-relief] analysis, modifying those factors where

appropriate to ‘tip heavily in favor of protected species.’” 623 F.3d at 27 (alteration

omitted) (quoting Strahan v. Coxe, 127 F.3d 155, 160 (1st Cir. 1997)).

The Plaintiffs, contending that they have demonstrated irreparable harm to

the GOM DPS as a whole absent interim relief, argue that any economic harm to the

Defendants resulting from a preliminary injunction would be minimal and that the

dams produce less than 0.5% of the total annual electricity generated in Maine. The

Defendants’ response is twofold. First, the dams produce carbon-free electricity,

which helps to fight climate change and thus benefits fish in the Kennebec River.

Second, NMFS has begun its consultation and the Court should defer to that

administrative process, which the Defendants argue will likely restore their

incidental take authority and determine which take-minimization measures are

appropriate at the dams.

My analysis of the third and fourth factors begins with recognizing that both

heavily favor the protection of imperiled species and, therefore, the granting of a

preliminary injunction that would preserve biodiversity. Yet, in this instance, the

analysis of both factors must also account for my earlier conclusion that the Plaintiffs

have failed to demonstrate that the proposed preliminary injunction would prevent

irreparable harm. “The effect of a preliminary injunction on the public interest is

directly tied to its impact on . . . the endangered . . . species.” Water Keeper All., 271

F.3d at 35; accord Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 106 (D. Me.

2008) (“In evaluating the relevant impositions and the public interest, the Court may

properly examine what relief the Plaintiffs propose and what impact an injunction

would have both upon the protected species and upon the public as a whole.”). “As

with irreparable harm, a plaintiff must present the court with some basis on which

it can conclude that an injunction would in fact benefit the protected species,” or else

the ESA’s pro-species presumptions do not apply. All. for the Wild Rockies v. Kruger,

35 F. Supp. 3d 1259, 1267 (D. Mont. 2014).

Whether an injunction would be equitable and in furtherance of the public

interest is, on the record of this case, a matter of speculation. Although the Plaintiffs

have shown that their proposed relief would probably reduce take of some out-

migrating smolts at Lockwood, Hydro-Kennebec, and Shawmut Projects,7 they have

not demonstrated that the proposed relief would prevent irreparable harm to the

7 The record also indicates that the Plaintiffs’ proposed injunction would increase mortality for smolts

at Weston Project. Given the uncertainty around the size of this effect as compared to the potential

benefits for smolts at the other dams, the evidence does not establish whether the proposed relief

would help a greater number of smolts than it would harm.

GOM DPS as a whole.8 Although the third and fourth factors tip heavily in favor of

granting a preliminary injunction that would protect endangered species, my

evaluation of the evidence here leads to the conclusion that the Plaintiffs have not

demonstrated that the balance of equities and the public interest support the

granting of the relief they seek.

III. CONCLUSION

The Plaintiffs have shown that they are likely to succeed on the merits of their

unlawful take claim, but they have not shown that the remedy they seek would

forestall irreparable harm, or that the balance of equities and public interest support

the granting of an injunction. Having carefully considered and weighed the four

preliminary-injunction factors, I conclude that Plaintiffs’ Motion for a Preliminary

Injunction (ECF No. 10) should be and, therefore is, DENIED.

SO ORDERED.

Dated: February 24, 2022

/s/ JON D. LEVY

CHIEF U.S. DISTRICT JUDGE

8 The Defendants’ arguments regarding the balance of equities and public interest also suffer from

a dearth of evidence. The Defendants have not shown that the dams’ climate benefits are substantial

or that granting an injunction would unduly interfere with NMFS’s ongoing administrative process.

Nor have the Defendants shown that an injunction would harm them financially or affect the