United States Court of Appeals 

For the First Circuit 

No. 16-2155 

MAINE COUNCIL OF THE ATLANTIC SALMON FEDERATION; NATURAL 

RESOURCES COUNCIL OF MAINE; KENNEBEC VALLEY CHAPTER OF TROUT 

UNLIMITED; and MAINE RIVERS, 

Plaintiffs, Appellants, 

v. 

NATIONAL MARINE FISHERIES SERVICE (NOAA FISHERIES); BROOKFIELD 

RENEWABLE SERVICES MAINE, LLC; BROOKFIELD POWER U.S. ASSET 

MANAGEMENT, LLC; BROOKFIELD WHITE PINE HYDRO, LLC; MERIMIL 

LIMITED PARTNERSHIP; and HYDRO-KENNEBEC, LLC, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. John A. Woodcock, Jr., U.S. District Judge] 

Before 

Kayatta, Circuit Judge, 

Souter, Associate Justice,*

and Stahl, Circuit Judge. 

Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy, 

LLC, and Charles Owen Verrill, Jr., were on brief, for 

appellants. 

 Kevin W. McArdle, Attorney, U.S. Dep't of Justice, Env't & 

Natural Resources Div., with whom Ellen J. Durkee and Robert P. 

Williams, Attorneys, U.S. Dep't of Justice, Env't & Natural 

 

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme 

Court of the United States, sitting by designation. 
Resources Div.; John C. Cruden, Assistant Attorney General; and 

John P. Almeida, Attorney Advisor, U.S. Department of Commerce, 

National Oceanic and Atmospheric Administration, were on brief, 

for appellee National Marine Fisheries Service. 

 Matthew W. Morrison, with whom Pillsbury Winthrop Shaw 

Pittman LLP was on brief, for appellees Brookfield Renewable 

Services Maine, LLC; Brookfield Power U.S. Asset Management, 

LLC; Brookfield White Pine Hydro, LLC; Merimil Limited 

Partnership; and Hydro-Kennebec LLC. 

 

June 7, 2017 
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 SOUTER, Associate Justice. This appeal is from the 

district court's dismissal for lack of jurisdiction of an action 

brought by the Plaintiff-Appellants under the Administrative 

Procedure Act (APA). They sought review of two biological 

opinions issued to the Federal Energy Regulatory Commission 

(FERC) by the National Marine Fisheries Service1 evaluating 

requested modifications of licenses to operate hydropower dams. 

We affirm. 

I. 

 Defendant-Appellees power companies (Brookfield 

Renewable Services Maine, LLC; Brookfield Power U.S. Asset 

Management, LLC; Brookfield White Pine Hydro, LLC; Merimil 

Limited Partnership; and Hydro-Kennebec, LLC) sought to modify 

the terms of existing licenses to operate four hydropower dams 

on the Kennebec River in Maine, which are subject to licensing 

by FERC, acting under the Federal Power Act, 16 U.S.C. § 791a et 

seq. Because the river is a traditional waterway for spawning 

Atlantic salmon, a protected species under the terms of the 

Endangered Species Act, FERC was required to obtain biological 

opinions (called BiOps) from the Fisheries Service, on whether 

operating the dams under the proposed license modifications 

would jeopardize survival of the salmon species or degrade its 

 

1 The National Marine Fisheries Service has been renamed NOAA 

Fisheries. We follow the parties' lead and use the former 

title, which applied when the biological opinions were issued. 
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environment. See 16 U.S.C. § 1536(a)(2), (b)(3); 50 C.F.R. 

§ 402.14(a), (g), (h). The Fisheries Service found no jeopardy 

to the species from the proposed modifications and no threat of 

degradation. It did, however, find that the changes proposed 

would result in the incidental "taking" of individual fish among 

the protected population. See 16 U.S.C. § 1538(a)(1)(B) 

(prohibiting the "take" of an endangered species); id. 

§ 1532(19) (defining "take" to include "harm" and "kill"). 

Consequently, it issued an "incidental take statement," setting 

forth measures to minimize the take and providing a safe harbor 

for those (including FERC and its employees) who act in accord 

with such measures and whose actions might otherwise violate the 

Endangered Species Act. See id. § 1536(b)(4), (o)(2); 50 C.F.R. 

§ 402.14(i). 

 The BiOps, with their incidental take statements, drew 

immediate objection from the Plaintiff-Appellants environmental 

organizations participating in the licensing proceedings (Maine 

Council of the Atlantic Salmon Federation, Natural Resources 

Council of Maine, Kennebec Valley Chapter of Trout Unlimited, 

and Maine Rivers). They challenged the statements in this 

district court action against the Fisheries Service and the 

power companies, brought under the provisions of Section 10 of 

the APA, 5 U.S.C. §§ 701-706, claiming that the BiOps were 

arbitrary and capricious agency actions, id. § 706(2)(A), which 
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violated Section 7 of the Endangered Species Act, 16 U.S.C. 

§ 1536. While the case was pending, FERC granted the license 

modifications by orders adopting the terms of the BiOps. The 

district court then dismissed the case for lack of subject 

matter jurisdiction, relying on section 313(b) of the Federal 

Power Act, 16 U.S.C. § 825l(b), which vests jurisdiction of 

appeals from such FERC orders in the courts of appeals.2 This 

appeal followed, as did the Appellants' filing for review of the 

FERC orders in the United States Court of Appeals for the 

District of Columbia. 

 We agree with the district court that time and events 

have eliminated whatever claims of district court jurisdiction 

to review the BiOps the Appellants might have raised, whether 

sound or not, when this action was filed. So far as the appeal 

 

2 Section 825l(b) provides, in relevant part: 

Any party to a proceeding under this chapter aggrieved 

by an order issued by [FERC] in such proceeding may 

obtain a review of such order in the United States 

Court of Appeals for any circuit wherein the licensee 

or public utility to which the order relates is 

located or has its principal place of business, or in 

the United States Court of Appeals for the District of 

Columbia, by filing in such court, within sixty days 

after the order of [FERC] upon the application for 

rehearing, a written petition praying that the order 

of [FERC] be modified or set aside in whole or in 

part. . . . Upon the filing of such petition such 

court shall have jurisdiction, which upon the filing 

of the record with it shall be exclusive, to affirm, 

modify, or set aside such order in whole or in part. 
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concerns the BiOp with respect to the Hydro-Kennebec dam 

affecting Waterville, Winslow, and Benton, Maine, the action is 

moot by virtue of the terms of the BiOp itself, which expired on 

December 31, 2016. As for the BiOp addressing the other three 

dams, FERC's decision to modify the licenses by terms that 

incorporated that BiOp changed the relevant facts as alleged 

when the district court action was filed. 

 Once issued, the FERC order was unquestionably subject 

to the Federal Power Act's provision for direct appellate 

jurisdiction of the courts of appeals, 16 U.S.C. § 825l(b). The 

Supreme Court has made it clear that the jurisdiction provided 

by § 825l(b) is "exclusive," not only to review the terms of the 

specific FERC order, but over any issue "inhering in the 

controversy." City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 

320, 336 (1958). Thus, the United States Court of Appeals for 

the District of Columbia, where the Appellants have filed their 

petition for review of FERC's orders, has exclusive jurisdiction 

over the attacks on the BiOps, on two separate and independently 

sufficient grounds: as it was free to do, FERC incorporated the 

BiOps in its own orders, and the BiOps were by any measure 

"inher[ent]" in the statutory process for consideration of the 

license modifications. The Appellants accordingly have nowhere 

else to go but to the courts of appeals, where they are afforded 
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the opportunity to litigate just what they claimed in their 

attempt to proceed in the district court. 

 The Appellants try to avoid this conclusion by 

pressing two arguments, neither of which avails them. They say, 

first, that the scope of appeal under § 825l(b) is narrower than 

the review that would be afforded on a district court action 

under the APA: that the reach of the court of appeals goes only 

as far as considering whether FERC was arbitrary or capricious 

in accepting the BiOps as recommended by the Fisheries Service, 

whereas in review under the APA the district court could examine 

the BiOps directly for arbitrariness or capriciousness on the 

part of the Fisheries Service in issuing them. The former, they 

say, is not an "adequate" counterpart of the latter. See 5 

U.S.C. § 703 (providing that "[t]he form of proceeding for 

judicial review is the special statutory review proceeding 

relevant to the subject matter in a court specified by statute," 

so long as that specified review proceeding is not 

"inadequa[te]"); id. § 704 (authorizing judicial review of final 

agency action under the APA where there is "no other adequate 

remedy in a court"). 

 The argument for inadequacy fails. Not only have the 

Appellants found no case with reasoning that supports them, but 

the cases that have considered the scope of review in a court of 

appeals under the special Power Act provision have come down 
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against the Appellants' argument, seeing no good reason to read 

"limited" into the Supreme Court's understanding of "exclusive" 

jurisdiction. See City of Tacoma v. FERC, 460 F.3d 53, 76 (D.C. 

Cir. 2006); Cal. Save Our Streams Council, Inc. v. Yeutter, 887 

F.2d 908, 911-12 (9th Cir. 1989); City of Tacoma v. Nat'l Marine 

Fisheries Serv., 383 F. Supp. 2d 89, 92-93 (D.D.C. 2005); Idaho 

Rivers United v. Foss, 373 F. Supp. 2d 1158, 1161 (D. Idaho 

2005). The first of these cases is, of course, from the court 

in which the Appellants have filed their appeal of the FERC 

orders. In any event, their argument is simply precluded here 

by the Fisheries Service's agreement that the scope of any court 

of appeals review of the BiOps will be what the APA would 

provide in a district court if the Fisheries Service's BiOps 

could be challenged directly there. That agreement was 

unequivocally confirmed in open court by the Fisheries Service's 

counsel in arguing this case.3 

 

3 At argument, counsel for the Fisheries Service stated that 

"[s]ince the biological opinion was adopted into the FERC order, 

it's an inherent part of that order, so in exercising its 

jurisdiction over . . . plaintiffs' petition in this case, the 

D.C. Circuit can review not only FERC's reliance on the 

biological opinion, but the substantive validity of the 

biological opinion itself." Oral Argument 20:15-21:00. 

Although the Fisheries Service made clear that its concession 

came with the "caveat" that the Fisheries Service might not be 

granted intervenor status in the case pending before the United 

States Court of Appeals for the District of Columbia, that 

condition is no longer of concern, since the request to 

intervene has been granted. See Order, Maine Council of the 

Atlantic Salmon Fed. v. FERC, No. 17-1003 (D.C. Cir. Mar. 3, 
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 The Appellants' second argument for preserving an 

opportunity to challenge the BiOps directly in the district 

court goes to timing. To be adequate, an appeal must not only 

cover relevant substantive ground, but be available in a timely 

fashion, which the Appellants deny that court of appeals review 

provides: here, they say, APA review in the district court was 

readily invoked, whereas access to the court of appeals had to 

wait for the necessary action by FERC, amounting to 164 days 

from the date of the BiOp in the case of the Hydro-Kennebec dam, 

and 1035 days with respect to the BiOp for the three other dams. 

During those time periods, the Appellants contend, the 

incidental take statements could have allowed harm to occur. 

But we need not decide whether a sufficiently long, ongoing 

delay could render the review provided by § 825l(b) inadequate. 

In the present case, FERC has acted and a petition for review is 

pending in the United States Court of Appeals for the District 

of Columbia. Not only is review in that court adequate in these 

circumstances, it is probably the Appellants' quickest route to 

resolving their challenge to the BiOps. 

 Finally, Appellants contend that their position finds 

support in Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv., 

 

2017) (order granting the Fisheries Service's motion to 

intervene); Motion of the Department of Commerce for Leave to 

Intervene, Maine Council of the Atlantic Salmon Fed. v. FERC, 

No. 17-1003 (D.C. Cir. Feb. 2, 2017) (the Fisheries Service's 

unopposed motion to intervene). 
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637 F.3d 259 (4th Cir. 2011). In Dow, the Fourth Circuit held 

that a BiOp issued by the Fisheries Service to the Environmental 

Protection Agency was reviewable in district court under the 

APA. Id. at 261. "[D]eferring judicial review of the [BiOp] 

until the EPA acts," the court said, "would not provide the 

[plaintiffs] adequate review of the [BiOp]." Id. But this case 

is not the same, for FERC, unlike the EPA in Dow, has acted on 

the BiOps in question, and a petition for review of that action 

is pending in the United States Court of Appeals for the 

District of Columbia.4 

II. 

 The judgment of the district court dismissing this 

action for lack of jurisdiction is affirmed. 

 

4 The Supreme Court's decision in U.S. Army Corps of Engineers v. 

Hawkes Co., 136 S.Ct. 1807 (2016), is also inapposite. In that 

case, there was no reasonable alternative procedure by which the 

aggrieved party could seek review of the agency action in 

question. If an aggrieved party did not wish to obtain judicial 

review by risking civil and criminal penalties for defying the 

agency's determination, the proposed alternative, which had not 

been invoked, could be "arduous, expensive, and long." Id. at 

1815.