Academic journal article Energy Law Journal

Citizen Suits in Contract Disputes: Friends of Merrymeeting Bay V. Hydro Kennebec

Academic journal article Energy Law Journal

Citizen Suits in Contract Disputes: Friends of Merrymeeting Bay V. Hydro Kennebec

Article excerpt

I. INTRODUCTION

Under the Clean Water Act (CWA), a citizen suit may be used to enforce the terms of water quality certifications.1 In Friends of Merrymeeting Bay v. Hydro Kennebec, the Plaintiffs brought a citizen suit to enforce certain provisions of the water quality certifications against the Defendants who were dam operators.2 The Plaintiffs argued that the Defendants' dams were killing endangered Atlantic Salmon as they pass through the dam turbines in violation of the water quality certifications.3 The water quality certifications incorporate a contract (the "Agreement") between various federal and state agencies and the dam operators, obligating the operators to conduct site-specific studies to the extent that they "desire" the fish to pass through the dam turbines.4 The Plaintiffs argued that the Defendants desired fish to pass through the turbines but had not conducted the studies and were therefore in violation of the Agreement, the certifications that incorporate it, and thus the CWA.5 The Defendants argued that they did not desire fish to pass through the turbine and the fact that they constructed diversionary facilities was conclusive proof of their desire that the fish not pass through the turbines.6

The United States District Court for the District of Maine granted summary judgment for the Defendants reasoning that the Defendants desired passage through diversionary facilities and not the turbines.7

The First Circuit Court of Appeals reversed the District Court for the District of Maine, reasoning that summary judgment was improper because certain relevant evidence was not considered.8 The evidence the District Court failed to consider related to the Defendants' desire for downstream passage of endangered fish through the dam turbines.9 The First Circuit Court required the same body of evidence necessary to adduce a party's intent, and found that the District Court erred by failing to consider such evidence.10

Part II herein discusses the procedural and factual background of the Friends of Merrymeeting Bay v. Hydro Kennebec case.11 It also analyzes the reasoning of both the District Court for the District of Maine and the First Circuit Court of Appeals. Part III analyzes the First Circuit Court's reasoning and supports the holding of the First Circuit Court. In doing so, Part III also addresses the dissent's reasoning and argues that it is incorrect. The last subsection of Part III looks at the broader implications of the First Circuit Court's decision and attempts to address a question the First Circuit Court did not rule upon: should plaintiffs in citizen suits be allowed to present extrinsic evidence to aid in contract construction if the terms of an agreement between government agencies and public works operators are ambiguous? The subsection argues that such plaintiffs should not be allowed to present extrinsic evidence because they are not signatories to the contract and have no knowledge of the circumstances and negotiations leading up to contract formation. Furthermore, a rule barring discovery and presentation of such evidence comports with the CWA.

II. BACKGROUND

Two conservation groups, Friends of Merrymeeting Bay and Environment Maine, brought two citizen enforcement suits against Hydro Kennebec, LLC, and four other operators (Defendants) of hydroelectric dams (Dams) on the Kennebec River in Maine.12 The enforcement suits contained claims under the Endangered Species Act (ESA) and the CWA.13 The United States District Court for the District of Maine entered summary judgment in favor of Defendants on the CWA claims in both cases, but the First Circuit Court of Appeals vacated and remanded for further proceedings.14

A. Factual Background

Certain species of endangered Atlantic salmon passed through the Defendants' Dams as they migrated down the Kennebec River to the Atlantic Ocean.15 In their complaint, Plaintiffs alleged that passage through the Dams kills, harms, and harasses the salmon in numerous ways. …

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