Friends of Merrymeeting Bay v. Hydro Kennebec, LLC

United States Court of Appeals
For the First Circuit

No. 13-1220

FRIENDS OF MERRYMEETING BAY and ENVIRONMENT MAINE,

Plaintiffs, Appellants,

v.

HYDRO KENNEBEC, LLC and BROOKFIELD POWER US ASSET MANAGEMENT,
LLC,

Defendants, Appellees.

No. 13-1750

FRIENDS OF MERRYMEETING BAY and ENVIRONMENT MAINE,

Plaintiffs, Appellants,

v.

MERIMIL LIMITED PARTNERSHIP, FPL ENERGY MAINE HYDRO, LLC, and
BROOKFIELD RENEWABLE SERVICES MAINE, LLC,

Defendants, Appellees,

NEXTERA ENERGY RESOURCES, LLC and NEXTERA ENERGY MAINE OPERATING
SERVICES, LLC,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]
 Before

Thompson, Stahl, and Kayatta,
Circuit Judges.

Charles C. Caldart, with whom Joshua R. Kratka, Bruce M.
Merrill, David A. Nicholas, and National Environmental Law Center
were on brief, for Appellants.
Mark Stancil, with whom Donald A. Carr, Aileen Meyer, and
Pillsbury Winthrop Shaw Pittman LLP were on brief, for Appellees.

July 14, 2014
 STAHL, Circuit Judge. Two conservation groups, Friends

of Merrymeeting Bay and Environment Maine (collectively,

"Plaintiffs"), brought two citizen enforcement suits containing

claims under the Endangered Species Act ("ESA"), 16 U.S.C.

§§ 1531–1544, and the Clean Water Act ("CWA"), 33 U.S.C.

§§ 1251–1387, against Hydro Kennebec, LLC, Brookfield Power US

Asset Management, LLC, Merimil Limited Partnership, FPL Energy

Maine Hydro, LLC, and Brookfield Renewable Services Maine, LLC.

(collectively "Defendants"),1 who operate four hydroelectric dams

("Dams") on the Kennebec River. The district court entered summary

judgment in favor of Defendants as to the CWA claims in both cases

below, and Plaintiffs appeal those rulings.2 For the following

reasons, we vacate and remand.

1
The two lawsuits below (case numbers 11-cv-35 and 11-cv-38)
have been consolidated on appeal. Case number 11-cv-38 included
additional defendants NextEra Energy Resources, LLC and NextEra
Energy Maine Operating Services, LLC, but they are not parties to
the appeal.
2
In both district court cases, the ESA claim was Count I and
the CWA claim was Count II. In case number 11-cv-35, the district
court granted Defendants' motion to dismiss Count I. Friends of
Merrymeeting Bay v. Brookfield Power US Asset Mgmt., No. 11-cv-35-
GZS, 2013 WL 145506, at *2–4 (D. Me. Jan. 14, 2013). In case
number 11-cv-38, the district court denied Defendants' motion for
summary judgment as to Count I. Friends of Merrymeeting Bay v.
NextEra Energy Res., LLC, No. 11-cv-38-GZS, 2013 WL 145733, at *2–4
(D. Me. Jan. 14, 2013). In the present appeal, Plaintiffs only
challenge the district court's rulings as to Count II, the CWA
claim.

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 I. Background

The facts of this case are set forth in detail in the

district court's opinions. Friends of Merrymeeting Bay v.

Brookfield Power US Asset Mgmt., No. 11-cv-35-GZS, 2013 WL 145506,

at *2–4 (D. Me. Jan. 14, 2013);3 Friends of Merrymeeting Bay v.

NextEra Energy Res., LLC, No. 11-cv-38-GZS, 2013 WL 145733, at *2–4

(D. Me. Jan. 14, 2013). We briefly reiterate them here only as

necessary to provide context for the issues on appeal.

The crux of the matter is that certain endangered species

of fish, including Atlantic salmon, pass through Defendants' Dams

when they migrate down the Kennebec River to the sea. Each Dam

operates under the terms of water-quality certifications issued by

the state of Maine pursuant to Section 401 of the CWA, 33 U.S.C.

§ 1341. All of the Dam's certifications incorporate the provisions

of the Kennebec Hydro Developers Group Settlement Agreement

("Settlement Agreement"), which Defendants (among other operators

of hydroelectric projects) entered into in 1998 with various

federal and state agencies ("Agencies").

The Settlement Agreement allows for two basic methods of

downstream fish passage, either through the turbines of the Dams or

3
In case number 11-cv-35, the district court issued two
orders on the same day. The first order, cited above, recounts the
facts of the case and rules on Defendants' motion to dismiss. The
second order granted summary judgment for Defendants as to Count
II. Friends of Merrymeeting Bay v. Brookfield Power US Asset
Mgmt., No. 11-cv-35-GZS, 2013 WL 145580, at *4 (D. Me. Jan. 14,
2013). It is the second order from which Plaintiffs appeal.

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around the turbines by various bypass methods. It further provides

that:

to the extent that licensee desires to achieve interim
downstream passage of out-migrating adult Atlantic salmon
and/or adult shad by means of passage through turbine(s),
licensee must first demonstrate, through site-specific
qualitative studies designed and conducted in
consultation with the resource agencies, that passage
through turbine(s) will not result in significant injury
and/or mortality (immediate or delayed).

After entering into the Settlement Agreement, Defendants, in

consultation with the Agencies, constructed diversionary facilities

to take the fish around the turbines at all four of the Dams.

Plaintiffs filed a two-count complaint in each case on

January 31, 2011, alleging that endangered fish continue to pass

through the Dams' turbines despite the construction of the

diversionary facilities, resulting in injury and death to some of

the fish. Plaintiffs claimed in Count I that the fish casualties

amounted to an illegal "taking" of an endangered species in

violation of the ESA. In Count II, Plaintiffs argued that

Defendants are in violation of their water-quality certifications,

and thus the CWA, because they have not conducted the "site-

specific quantitative studies" ("Studies") that are required if

Defendants desire passage of the fish through the turbines.

According to Plaintiffs, evidence in the record shows that

Defendants' diversionary facilities are ineffective, and that

Defendants know they are ineffective, which raises a question of

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fact about whether Defendants desire at least some of the fish to

pass through the turbines.

The district court entered summary judgment in favor of

Defendants on Count II in both cases. We find that the district

court erred by entering judgment in favor of Defendants without

properly considering the record as a whole in the light most

favorable to Plaintiffs. We therefore vacate and remand for

further proceedings consistent with this opinion.

II. Analysis

We review the district court's summary judgment decision

de novo. Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 69 (1st

Cir. 2014). The dispositive issue with respect to the CWA claim is

a question that is straightforward to pose but not particularly

easy to answer: do the Defendants "desire to achieve" passage of

the endangered fish through the turbines? If so, Defendants must

conduct the Studies in order to remain compliant with the terms of

the Settlement Agreement.

The district court decided as a preliminary matter that

the relevant language in the Settlement Agreement is unambiguous.

Friends of Merrymeeting Bay, 2013 WL 145733, at *14.4 It

interpreted the word "desire" according to its commonly understood

meaning — "to want" – equivalent to a party's subjective intent.

4
Although there are two district court opinions below, the
analysis of the CWA claim in each is identical.

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Id. The district court then categorically rejected Plaintiffs'

evidence related to: (1) whether fish were in fact passing through

the turbines; (2) and whether Defendants knew fish were passing

through the turbines. On the grounds that "[k]nowledge does not

equate to desire," the district court held that Plaintiffs'

evidence related to those two topics was "not germane to the

[c]ourt's inquiry." Id. Reviewing the portion of the record that

remained, the district court concluded that the "evidence . . . on

summary judgment reveals that Defendants do not desire to pass

[endangered fish] through the turbines." Id.

We agree that the language of the Settlement Agreement is

not ambiguous, and that the common meaning of the word "desire,"

corresponding to a party's subjective intent, should apply.

Questions of intent in the context of contract interpretation often

arise when the language of a contract is ambiguous and we must

determine the parties' intended meaning. That is not the question

here. Instead, the unambiguous contractual language in this case

presents a factual question regarding the subjective intent

underlying Defendants' conduct pursuant to the contract.

This type of question does not appear to arise frequently

in contract disputes. Questions of the intent underlying a party's

conduct are more common in other contexts, such as employment

discrimination suits. We have not found another case specifically

analogous to this one, where a party's subjective desire for a

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particular outcome triggers the application of a contractual

provision.

Nevertheless, certain principles apply when a district

court resolves questions about a party's underlying intent at the

summary judgment stage, regardless of the specific doctrinal

context. We have held that courts should "use special caution in

granting summary judgment as to intent. Intent is often proved by

inference, after all, and on a motion for summary judgment, all

reasonable inferences must be drawn in favor of the nonmoving

party." Daniels v. Agin, 736 F.3d 70, 83 (1st Cir. 2013). But

even when "elusive concepts such as motive or intent are at issue,

summary judgment is appropriate if the nonmoving party rests merely

upon conclusory allegations, improbable inferences, and unsupported

speculation." Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)

(internal quotation mark omitted).

In determining whether Plaintiffs introduced sufficient

evidence to survive summary judgment, the district court "examines

the entire record in the light most flattering to the nonmovant and

indulg[es] all reasonable inferences in that party's favor." Cadle

Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997) (internal quotation

marks omitted). This review of the record is limited, however, to

evidence that "would be admissible or usable at trial." Asociacion

de Periodistas de Puerto Rico v. Mueller, 680 F.3d 70, 78 (1st Cir.

2012) (internal quotation marks omitted). When the district court

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held that Plaintiffs' evidence regarding Defendants' knowledge and

the bypass measures' effectiveness was "not germane to [its]

inquiry," it decided in effect that the proffered evidence was

irrelevant and therefore outside of the scope of admissible

evidence available for review on summary judgment. That is the

point at which the district court erred.

While the district court was correct that it should not

substitute "knowledge" for "desire" in the Settlement Agreement,

it does not follow that evidence of Defendants' knowledge and the

effectiveness of the diversion systems is necessarily irrelevant.

As a general matter, if we want to figure out what parties desire

to achieve in a given situation, it makes sense to look at what

they know about the situation, what steps they are taking, what

results they are actually achieving, and how they respond to those

results. As Plaintiffs point out, we considered this type of

evidence to help determine a party's subjective intent in United

States v. General Electric Co., albeit in a different doctrinal

context. 670 F.3d 377, 387–88 (1st Cir. 2012) (evaluating the

defendant's knowledge and conduct to decide whether the defendant

had the requisite intent to find "arranger liability" under a

different environmental statute).

Defendants maintain, however, that facts related to their

knowledge and the effectiveness of the bypass systems are

irrelevant in the context of this particular Settlement Agreement.

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According to Defendants, the Settlement Agreement contemplates two

methods of downstream passage, bypass or through the turbines, and

the fact that Defendants installed diversionary structures is

sufficient on its own to preclude a finding that they desired

passage through the turbines: "Because the plain terms of the

Agreement establish two basic methodologies (bypass or turbine

passage) – and because subjective intent is the critical element –

a signatory that has chosen to install diversionary structures does

not 'desire to achieve' interim turbine passage."

Thus, according to Defendants, we should assess their

"desire" from the vantage point of a fork in the road — at a

certain point in time, they could choose to go either down the path

of turbine passage or down the path of the bypass method. Once

they chose the bypass method by installing interim diversionary

facilities, no matter how ineffective they may turn out to be,

there is no longer any possibility that they might desire turbine

passage — that was the road not taken. A hypothetical dam owner

operating under the Settlement Agreement could install interim

diversionary facilities that it suspected would be ninety-nine

percent ineffective, and ninety-nine percent of the endangered fish

may continue to pass through the turbines with the full knowledge

of the dam owner. In Defendants' view these circumstance could not

lead a jury to infer that the owner desired passage through the

turbines because of the owner's decision to install diversionary

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facilities in the first place. We do not think that such a result

is consistent with the language of the Settlement Agreement as a

whole.

The Settlement Agreement does more than offer Defendants

a binary choice between two methods of downstream passage; it also

imposes obligations to study the effectiveness over time of

whatever interim downstream passage facilities it may choose to

implement and to make good faith efforts to reach certain

efficiency goals. Thus, it seeks to fulfill its stated purpose of

restoring endangered fish populations through an ongoing series of

assessments and, if necessary, modifications to the Dams'

facilities and operations. It also specifically contemplates the

possibility that Defendants might desire downstream passage through

the turbines in the event that interim bypass facilities prove

ineffective.

Reading the Settlement Agreement as a whole, it makes

more sense to assess Defendants' desire in the context of the

continuous efforts required by the Settlement Agreement, rather

than in reference to a single decision Defendants make at one

particular point in time. This broader context belies the notion

that the installation of diversionary facilities is alone

sufficient to determine Defendants' desire regarding downstream

passage and opens the door to evidence regarding the extent to

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which the facilities actually work and what Defendants know about

it.

Defendants point out, however, that nothing in the

Settlement Agreement requires that interim diversion facilities be

completely effective. In other words, there is no basis for

holding Defendants to a strict liability standard by which any

failure to prevent passage through the turbines, however trivial,

triggers the obligation to conduct the Studies. Defendants argue

that the consideration of evidence regarding the effectiveness of

bypass methods would effectively impose a strict liability

standard.

Defendants are correct that the Settlement Agreement does

not require complete effectiveness. To be clear, the Agreement

does not require Defendants to achieve any particular objectively

measurable level of effectiveness, and neither should the court.

But that does not mean effectiveness is irrelevant. Rather, it is

one of the pieces of information forming the background against

which the court or the fact finder can determine what Defendants

desire. We do not expect the district court to look at evidence of

effectiveness in isolation and draw conclusions therefrom. Its

significance lies in relation to all of the other relevant

background information. For example, to return to our hypothetical

dam owner, assuming the record showed that the diversionary

facilities were less than fully effective, the district court could

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still grant summary judgment in concluding that the dam owner did

not desire passage through the turbines based on other information,

such as good faith efforts to ameliorate problems with the bypass

method. The important point is that it would reach that conclusion

based on all of the relevant evidence. Following this approach,

the consideration of evidence related to the effectiveness of the

bypass methods does not impose strict liability.

Defendants also make much of the fact that the Agencies

that are signatories to the Settlement Agreement have never sought

to enforce those provisions requiring Defendants to conduct the

Studies. According to Defendants, the absence of enforcement by

the Agencies demonstrates conclusively that Defendants do not

desire passage of the fish through the turbines, because "[t]he

parties to an agreement know best what they meant." Reed & Reed,

Inc. v. Weeks Marine, Inc., 431 F.3d 384, 388 (1st Cir. 2005)

(internal quotation marks omitted).

It is true, as Defendants argue, that the conduct of the

parties to an agreement often informs the court's interpretation of

the agreement. Id. But this argument conflates two separate

issues. We are not concerned with contract interpretation in this

case. The district court and the parties all agree on the

unambiguous meaning of the term "desire"; in the context of the

Settlement Agreement it refers to Defendants' subjective intent.

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 Instead, we are faced with a factual question about what

Defendants actually desired. Of course, the Agencies' conduct will

be part of the overall context in which the court can evaluate that

question. But the focus of that inquiry must be on the Defendants

themselves. The conduct of the Agencies does not conclusively

settle a factual question regarding Defendants' subjective

intentions.

Moreover, the idea that a lack of agency enforcement

necessarily implies compliance with the CWA places an undue

restriction on the statutory provision for citizen suits. The

language of that provision is broad; it allows citizens to bring

suits "against any person . . . who is alleged to be in violation"

of the CWA. 33 U.S.C. § 1365(a)(1). Citizens may sue an agency

itself "where there is alleged a failure of the Administrator to

perform any act or duty under this chapter which is not

discretionary with the Administrator." § 1365(a)(2). On the other

hand, the statute prohibits citizen suits "if the Administrator or

State has commenced and is diligently prosecuting [an] action . . .

to require compliance" with the CWA. § 1365(b)(1)(B).

On the record before us, there is no basis for a suit

against the Agencies themselves for failure to perform non-

discretionary duties under section 1365(a)(2). Neither is there any

active agency enforcement that would prohibit a citizen suit under

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section 1365(b)(1)(B). Rather, what we have here is a claim that

there is a lack of discretionary enforcement.

The statute does not explicitly address this situation.

But if courts dismiss citizen suits on the grounds that a lack of

discretionary enforcement necessarily implies a defendant's

compliance with the CWA, then citizen suits will only be able to go

forward when there is a failure of mandatory agency action; i.e.,

when the plaintiff can sue the agency itself. We do not read the

provisions of section 1365(a)(1), however, as limited to only those

situations where section 1365(a)(2) applies. Section 1365(a)(2)

expands upon section 1365(a)(1) by adding an additional basis for

a citizen suit; it is not a restriction.

We think there is a better approach. A lack of

discretionary enforcement may indicate either a defendant's

compliance with the statute or a failure by the agency to rein in

a non-compliant defendant. A court must look at the facts of the

particular case; it cannot draw a conclusion solely from the fact

of a lack of discretionary enforcement. Here, the Agencies'

conduct should be considered as part of the whole record, but not

dispositive in itself.

That point is where our fundamental disagreement with the

dissent arises. According to the dissent, we are ignoring the fact

that the Agreement provides a process by which the signatories

address any problems with effectiveness, so we should not be

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involved. But in focusing narrowly on the role of the agencies

within the Agreement, the dissent ignores the basic fact that the

Agreement has been incorporated into the statutory framework of the

CWA. And in the CWA, Congress specifically provided for citizen

suits. Therefore, the courts necessarily have a role to play in

assessing compliance with the statute alongside that of the

agencies.

Accordingly, a court can make an independent

determination, from the facts on the record as a whole, about

whether Defendants desire passage through the turbines. When a

court makes that determination, for the reasons we have explained,

evidence regarding the Defendants' knowledge and the effectiveness

of their measures will be relevant for the purposes of summary

judgment. If we decide that the parties to the Agreement put

enforcement solely in the hands of the agencies and refuse to look

further, we abdicate our responsibility over the workings of the

statute. The parties to the Agreement cannot negotiate away the

role that Congress intended for the court to play under the statute

when it provided for citizen suits.

We wish to be abundantly clear about the scope of this

opinion. We are reversing the district court's order on the narrow

procedural grounds that it failed to consider all relevant evidence

in the light most favorable to Plaintiffs. We express no opinion

on the substantive question of Defendants' compliance with the

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Settlement Agreement, nor have we determined whether Plaintiffs

have offered enough evidence to create an issue of material fact.

That will be for the district court to answer on remand, when it

considers the entire record in accordance with this opinion.

III. Conclusion

For the foregoing reasons, we VACATE the district court's

rulings and REMAND for further proceedings consistent with this

opinion. Each side shall bear their own costs.

- Dissenting Opinion Follows –

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 KAYATTA, Circuit Judge, Dissenting. The plaintiffs argue

that the district court should have considered evidence that the

defendants' chosen methods of passing fish downstream are less than

fully effective at keeping the fish out of the dam turbines.

Normally, consideration of such an argument would lead us to ask:

What significance does the Agreement assign to evidence that a fish

passage methodology chosen by an owner is of questionable

effectiveness? The majority, drawn in by the myopic focus of the

plaintiffs, instead asks and answers a different, much more

abstract, question: Whether a determination of what a person

desires can be informed by evidence of the results of his behavior?

The majority then assigns contractual significance to its answer to

this question by assuming that the Agreement anticipates evidence

of effectiveness serving as a device for continuously reevaluating

what the owners desire. Because the Agreement clearly anticipates

that evidence of effectiveness will be dealt with very differently,

I respectfully dissent.

The Agreement obliged each dam owner to take interim

steps to protect fish migrating downstream while permanent

solutions were devised. Specifically, the owners agreed to

"continue and where needed improve existing interim operational

measures" to reduce entrainment (i.e., the drawing of fish into the

turbines) and to "eliminate significant injury or mortality . . .

to out-migrating species." Accordingly, each owner agreed to

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"develop" a "plan for interim downstream passage facilities and/or

operational measures to minimize impacts on downstream migrating

fish."5 The Agreement gave great power to the signatory agencies

when it came to the design of the owners' plans: the owners had to

consult with the agencies in preparing their plans, which were

subject to agency approval "with evaluation based on qualitative

observations." Moreover, if the interim plan involved changes to

the project facilities,6 rather than just operational changes, the

design of any "fish passage . . . facility" had to be approved by

the signatory agencies before being filed with the Federal Energy

Regulatory Commission ("FERC") or the Maine Department of

Environmental Protection.

Importantly, if the plans involved diverting the fish

around the turbines, the Agreement set no required level of

effectiveness. It did, though, suggest that one hundred percent

5
The available "existing interim operational measures"
varied somewhat between projects; for all four of the projects at
issue on appeal (the Weston, Lockwood, Shawmut, and Hydro-Kennebec
Projects), they included "controlled spills" and "temporary turbine
shutdowns"; for Shawmut, Weston, and Lockwood, they also included
use of sluiceways. For the latter three projects, the Agreement
specified "that fish passage by means of sluiceways and/or
controlled spills [is] the first and preferred approach to interim
downstream fish passage." Hydro-Kennebec had no such term.
6
The Agreement distinguishes between new "facilities"
(evidently, whatever diverts the fish away from the turbines,
including floating booms) and "new diversionary structures." The
Agreement assured Lockwood, Shawmut, and Weston that its terms did
not require "[c]onstruction of new diversionary structures to
achieve success," but Hydro-Kennebec received no such assurance.

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diversion efficiency was not required: the Agreement's stated aim

was to "diminish" entrainment, eliminate "significant" injury or

mortality, and "minimize" impacts, "with evaluation based on

qualitative observations."7 This is not to say that the Agreement

was indifferent to the effectiveness of whatever diversion

methodologies the owners might develop. Any "newly constructed

interim and permanent downstream fish passage facilit[y]" was

subject to effectiveness tests based on "targeted passage

efficiency goals." Agrmt. § III(F). If the new facilities fell

short of those goals, the owners had to undertake good faith

mitigation efforts at the behest of the agencies; if even these

failed, the agencies could seek continued funding from the owners

for alternative programs, including possibly trucking the fish

around the dam.

The Agreement did not actually preclude an owner from

proposing a plan that relied on achieving downstream passage by

running the fish downriver through the turbines. But if an owner

chose that option (after adult fish were inhabiting the impoundment

7
Indeed, the 1998 amendment to Weston's water quality
certification reads: "Interim Downstream Fish Passage[:] The
applicant shall continue and where needed improve existing interim
operational measures to diminish entrainment, allow downstream
passage, and eliminate significant injury or mortality to
out-migrating anadromous fish, in accordance with the terms of the
[Agreement]."

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above the dam), the owner first had to do quantitative fish-safety

studies.8

The fork in the road thus established was clear: a

facility owner had to have a plan for downstream passage that could

get approved; if the plan involved only operational modifications

(the preferred approach for three of the dams), evaluation was

based on qualitative observations; if it involved new facilities,

effectiveness studies were necessary (though not until the facility

was in place). But if the owner wanted to avoid the cost and

effort entailed in a diversion methodology, and instead achieve

fish passage to the agencies' satisfaction by running the adult

fish through the turbines, it first had to do a quantitative study

of whether turbine passage was safe.

There is no doubt about what the owners decided to do:

they acceded to the agencies' preference and sought to achieve fish

passage by use of existing and upgraded diversionary measures.

8
The defendants likely conceded in their answer to the
complaint that adult salmon inhabit the impoundment above
Hydro-Kennebec. The district court assumed that the habitation
requirement was met for all dams, and I do likewise for present
purposes.
The rules are different for juvenile fish. At Lockwood,
Shawmut, and Weston, if passing juvenile salmon and shad downstream
by the preferred methods (sluiceways or spills) is not
"successful", then to the extent that the owners want to satisfy
their obligations under the Agreement by choosing to send the fish
through the turbines, site-specific qualitative survival studies
are needed. (The requirement for site-specific qualitative studies
at Hydro-Kennebec has no defined relationship to the "success[]" of
other methods, as no preferred method is named.)

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Specifically, as called for by the Agreement, the owners worked

with the agencies to develop and implement--sometimes at

significant cost--operational modifications and diversionary

measures. The central changes have hardly been wink-and-nods. As

an example, here is a description of the plan submitted by Hydro

Kennebec in 2006:

[T]he interim downstream fish passage facility consists
of a 10-foot-deep, 160-foot-long angled fish guidance
boom in the project forebay leading to a 4-foot-wide by
8-foot deep gated slot cut into an existing concrete wall
located between the turbine intakes and the bascule gates
adjacent to the spillway. The boom is suspended from the
surface by [sic] series of floating barrels and is cabled
to lead ballast on the bottom, with each end attached to
an existing concrete wall. The slot contains a
downward-opening steel slide gate that is capable of
passing about four percent of the project turbine flows,
or a maximum of about 300 [cubic feet per second]. The
gate discharges into an existing plunge pool that drains
into the project tailrace.

The Maine Department of Environmental Protection expressly

determined that this plan "satisfactorily address[ed]" the

requirement in Hydro-Kennebec's water quality certification

(incorporated from the Agreement) that operational measures to

ensure downstream fish passage be improved. The Department

conditioned its approval, though, on Hydro-Kennebec's proposing and

conducting an effectiveness study in 2007 and, consistent with the

Agreement, "in the event that it is revealed that certain interim

downstream measures are needed to avoid significant downstream

turbine injury and/or mortality . . . consult[ing] with the

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resource agencies and agree[ing] to undertake cost-effective

measures designed to minimize mortality at the site."

With their proposed operational and diversion plans

approved, no owner ever chose to assume the obligation to justify

the essentially "do-nothing" plan of relying on turbine

pass-through as its fish passage methodology.9 And since no owner

sought approval of any plan relying on successful turbine

pass-through to allow adult salmon or shad to travel downstream,

none were required to do a pre-approval quantitative mortality

study.

The agencies, it seems, have subsequently monitored

performance, in some instances securing substantial modifications.

For example, after the Hydro-Kennebec's interim fish bypass was

built in 2006, the plunge pool was deepened on agency request. And

of the three dams for which the Agreement specified that

operational modifications were the preferred method of achieving

downstream passage, two have now installed fish-diversion booms.

It is fair to say that one cannot reasonably read the

Agreement and the record and find that the owners, upon first

presenting their plans to achieve downstream passage by

9
Evidently, "[a]s part of the . . . Accord and prior to the
listing of Atlantic Salmon [as endangered], turbine passage had
previously been approved as a downstream passage route for juvenile
fish, based on observation studies indicating no significant injury
or mortality." We are concerned here, however, only with adult
fish.

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diversionary measures, "desired" to achieve anything other than

what they were obviously proposing. In other words, it is clear

that no owner, in proposing its fish passage methodology for agency

approval, sought to convince the agencies that simply running the

fish through the turbine would do the trick. And as I read the

majority's opinion, my colleagues do not actually dispute this

conclusion. Rather, they bring their focus forward in time beyond

the "vantage point of [the] fork in the road" when the owners first

sought approval for their plans. The majority reasons that if it

turned out, down the road so to speak, that an approved fish

passage methodology was not effective (to what extent, we are not

told), and the owner continued using that methodology, then a fact

finder could infer that the owner at that point began to desire to

achieve fish passage by turbine pass-through.

The flaw in this reasoning is that it ignores how the

Agreement addresses assessments of the effectiveness of the fish

passage plans that were initially proposed at the fork in the road.

Cf., e.g., Twombly v. AIG Life Ins. Co., 199 F.3d 20, 23 (1st Cir.

1999) (under Maine law, noting that courts must examine the whole

instrument--there, an insurance contract--to ascertain the intent

of the parties and to eliminate possible ambiguity). As noted

above, all of the plans were evaluated at least qualitatively as

part of the negotiations with the agencies--and their progress was

reported through annual reports, with plans set to be reassessed at

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least by this year. Plus, any "newly constructed interim . . .

downstream fish passage facilities" are, once operational, subject

to effectiveness tests based on "targeted passage efficiency

goals." Agrmt. § III(F). Section III(F) further provides:

In the event that effectiveness studies show that passage
at individual projects is less than the targeted passage
efficiency goals, [the] dam owners will make a good faith
effort to achieve these goals through modification of
facilities and/or operations, following consultation with
the resource agencies. In the event that studies show
that, subsequent to said modifications, passage at
individual projects continues to be less than the
targeted efficiency goals, resource agencies may seek
continued funding for trap and truck or other programs,
or other mitigation from [the] dam owners. Any disputes
will be handled through the FERC process.

This language makes clear that: (1) no changes to new

facilities need be made by the owner unless "targeted passage

efficiency goals" are missed; (2) if goals are missed, then the

next step is not to deem that the owners "desire" the goals to be

missed, but rather to require the owners to make good faith

modification efforts, in consultation with the agencies; (3) if the

modifications fall short in the judgment of the agencies, then the

resource agencies "may seek continued funding for trap and truck or

other programs . . . ."; and (4) any disputes will be resolved

through the FERC process. In short, the Agreement creates a

process of what seems to be near-constant interaction and

negotiation between the dam owners and the signatory agencies.

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 But, says the majority, suppose some fish get through the

booms? Could not the court then rule that, notwithstanding the

owner's conceded desire at the time it opted to rely on

diversionary methods to secure agency approval for its plan to pass

fish downstream, the owner later developed a desire to use turbine

passage? By this logic, if the diversionary method chosen is

discovered to be anything less than one hundred percent effective,

the owner might be found to have developed a "desire" that some

fish go through the turbine. This blindered reading, however,

ignores and undercuts section III(F) as applied to interim

facilities for downstream fish migration. Read in context, the

language upon which the majority hinges its analysis is plainly

meant to set the terms of owner-agency negotiation by requiring the

owners to conduct safety studies before proposing the turbines as

their chosen method of moving the fish downstream--not to serve as

a pretext for revisiting and re-labeling the owner's choice based

on its effectiveness. Simply put, given the existence of section

III(F), it makes no sense to claim that the parties buried in

section IV an unstated, standardless procedure for using evidence

of effectiveness in an entirely different manner that trumps the

actual procedures upon which the parties expressly settled. Cf.

Fishman v. LaSalle Nat. Bank, 247 F.3d 300, 302-03 (1st Cir. 2001)

(in construing an unclearly drafted commercial note, explaining

that "[i]t is centrally important" that the prevailing

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interpretation "make[] sense--that is, [carry] out what one might

imagine to be a plausible objective of parties so situated. . . .

Common sense is as much a part of contract interpretation as is the

dictionary or the arsenal of canons.")

Sensing this problem, the majority posits the possibility

that an owner's diversion facility might turn out to be ninety-nine

percent ineffective (presumably on a sustained basis, even when

maintained in accordance with the plan and approval). Plaintiffs

of course point to no evidence in the record to show that such is

actually the case. Even if it were so, though, the Agreement would

leave it to the agencies to decide whether to have the owner revise

its method, go to a trap-and-truck program, or do something else.

Of course, if at any point the owner falls back on proposing that

it can satisfy its obligation to "diminish entrainment . . . and

eliminate significant injury or mortality . . . to out-migrating"

fish by sending them through the turbines, then quantitative safety

studies would have to accompany that proposal. But that would be

because, within the context of plan negotiations with the agencies

(i.e., the context in which the term "desire" is used), the

defendants actually "desired"--that is, proposed, chose, or

requested--to rely on turbine passage to satisfy their fish

protection obligations.

I do concede that the majority is not deciding now

whether there is enough evidence to create an issue of material

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fact; it only says that the district court need "consider" the

evidence of effectiveness. But even this modest requirement must

mean that the majority believes that some amount of evidence of

ineffectiveness could affect the outcome of the case. See Fed. R.

Evid. 401(b); Fed. R. Civ. P. 56(a) (requiring disputes of

"material" fact). The able district court judge will quite rightly

ask: effectiveness by what measure, given that there is no

objective standard set out in the Agreement? And toward exactly

what end, in light of section III(F) and the Agreement's overall

commitment to resolving fish-safety concerns through ongoing

agency-owner negotiations? Suppose, for example, the targeted

passage efficiency goals are met, but a nontrivial number of fish

still evade diversion: can the owners be deemed to desire to use

turbine passage? Suppose the goals are not met, but the resource

agencies have not opted for mitigation such as a long-term shutdown

pending more quantitative studies;10 should the district court

overrule the agencies' efforts under section III(F), and by what

standard of review? The majority offers no guidance on these

questions, all of which are reasonably raised by the new version of

the Agreement forged by what the majority reads into the word

"desire." Instead, the majority casts the case adrift without a

paddle, further extending the litigation over fish passage

10
Short-term turbine shutdowns are (contrary to the
suggestion of defendants) specifically anticipated in the Agreement
as available interim operational measures.

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methodologies that the parties to the Agreement thought they had

managed to avoid.

By holding that the District Court must "consider"

effectiveness in order to gauge ongoing "desire" in some abstract

sense, the majority also allows the plaintiffs to do indirectly

what they cannot do directly. I do not dispute that the plaintiffs

could sue under the Clean Water Act for a breach of a term of the

Agreement as incorporated into a water quality certification.

Thus, if the provisions of Section III.F were being breached,

citizens could sue. Citizen suit or otherwise, however, no court

can rewrite the otherwise lawful manner in which the parties agreed

to address modifying fish passage methodologies based on post-

implementation evidence of effectiveness.

Imagine a plaintiff brings suit claiming that the owners

are in violation of the Agreement because X% of the adult salmon

are passing through the turbines. I would think it clear that no

such claim could survive, because the Agreement plainly sets no

objective measure against which to compare a facility's

effectiveness, and gives the agencies discretion to approve the

interim downstream passage plans. And those approvals stand

unchallenged. Now consider the gist of what these plaintiffs say:

"I want a court to find that, because X% of the salmon pass through

the turbine, the owner must desire turbine pass-through as its

method to achieve downstream passage, and therefore the agency

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should not have approved the diversionary plan without first seeing

quantitative fish safety studies." This is nothing more than a

re-packaged version of the presumably defective hypothetical claim

discussed above. By deeming evidence of effectiveness "relevant,"

the majority allows the plaintiffs to act as though the term

"desire" both established a de facto tipping point (albeit one to

be guessed at under the totality of the circumstances) and set the

remedy for failing to attain it (when in fact section III(F) serves

that function, at least for new facilities). Absent some actual

effort by the defendants to propose or rely on turbine passage as

a way to satisfy their fish-protection obligations, however,

failure to do a quantitative effectiveness study neither violates

the Agreement nor generates a cause of action for the plaintiffs.

For the foregoing reasons, any determination of how the

owners desire to achieve fish passage under the Agreement must be

based on the nature of the plans that they proposed and developed

with the agencies. Any judgment about the adequacy and

effectiveness of those plans was one to be made by the agencies in

approving and monitoring those plans, not by the district court

peeking over the agencies' shoulders. And any disputes concerning

what measures the agencies required to improve effectiveness were

to be handled through the FERC dispute resolution process.

In rejecting this reasoning, the majority opinion

regrettably upends this 16-year-old Agreement, ironically by

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undercutting one of its central purposes: "avoid[ing] extensive

litigation over fish passage methodologies." Crafted with the aid

of five environmental groups11, the Agreement marked a significant

turning point in the long history of Maine's exploitation of one of

its great rivers. By facilitating the transfer of the Edwards Dam

to the state, and securing some of the funds for dam removal, it

led to the eventual removal of the Edwards Dam--an event etched in

the memory of most Mainers desiring to see industry, environmental

groups, and regulators work to find a balance that better protects

the state's natural resources. Toward that same end, the Agreement

funded the next phase of a fisheries restoration program for the

Kennebec, and led to the installation of new interim downstream

fish passage facilities at some of the hydroelectric project sites.

I hope that the majority's willingness to read such an Agreement in

a manner that ignores its overall structure will not deter owners

from making other beneficial agreements with state and federal

resource agencies for fear that third parties will flyspeck them

for supposed ambiguities that none of the parties to the agreement

claims exists.

11
The environmental groups, collectively known as the
Kennebec Coalition, were American Rivers, Inc., the Atlantic Salmon
Federation, Kennebec Valley Chapter of Trout Unlimited, the Natural
Resources Council of Maine, and Trout Unlimited.

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