Endangered Species Law & Policy

Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological opinions issued by the National Marine Fisheries Service (NMFS) for four hydroelectric projects on the Kennebec River in Maine, finding that because the federal approvals triggering the biological opinions were issued by the Federal Energy Regulatory Commission (FERC), the lawsuit had to be filed in the U.S. Court of Appeals in the first instance, not the district court.  Maine Council of the Atlantic Salmon Fed'n v. NMFS, Case No. 2:15-cv-00261 (D. Maine Aug. 18, 2016).

Not surprisingly, the docket for most U.S. Court of Appeals is primarily comprised of appeals from district court decisions.  However, as a result of federal legislation, there are some actions that skip the district court and head directly to the U.S. Court of Appeals.  The Federal Power Act, which, among other things, authorizes FERC to issue licenses for hydroelectric projects, includes a provision vesting review of FERC decisions in the U.S. Court of Appeals.

Pursuant to the consultation requirement in section 7 of the ESA, FERC consulted with NMFS prior to amending the licenses for four hydroelectric projects in Maine.  The projects were all located on the Kennebec River, which is home to the federally endangered Gulf of Maine Distinct Population Segment of Atlantic salmon.  As a result of the consultation, NMFS issued two biological opinions.  Shortly thereafter, four environmental groups filed a lawsuit in district court challenging the biological opinions and NMFS' findings under the ESA and the Administrative Procedure Act.

The defendants moved to dismiss the lawsuit arguing, among other things, that the district court lacked jurisdiction over the dispute because under the Federal Power Act the lawsuit had to be filed in the U.S. Court of Appeals.  In opposition to the motion, plaintiffs asserted that they were challenging NMFS' failure to comply with the ESA and Administrative Procedure Act, and not FERC's ultimate decision.  The district court rejected this argument, finding parallels in a number of other decisions that concluded the Federal Power Act established exclusive jurisdiction in the U.S. Court of Appeals even if the challenge was based on a failure to comply with another federal statute.  Accordingly, the district court concluded that it lacked subject matter jurisdiction and dismissed the action.