            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




 
               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.
                                            - 3 -
 
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

                                               - 4 -
 
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.

 

                                       - 5 -
 
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



                                      - 6 -
 
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

                                     - 7 -
 
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,
                                      - 8 -
 
          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).
                                    - 9 -
 
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.
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