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SHAFER & FREEMAN LAKES ENVTL. CONSERVATION v. FERC

No. 19-1066.

992 F.3d 1071 (2021)

SHAFER & FREEMAN LAKES ENVIRONMENTAL CONSERVATION CORPORATION, et al., Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Northern Indiana Public Service Company and United States Department of the Interior, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided March 26, 2021.

Attorney(s) appearing for the Case

Robert O. Fleming Jr. , Atlanta, GA, argued the cause for petitioners. With him on the briefs was Alan I. Saltman.

Elizabeth E. Rylander , Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were David L. Morenoff , Acting General Counsel at the time the brief was filed, and Robert H. Solomon , Solicitor. Robert M. Kennedy Jr. and Beth G. Pacella , Attorneys, entered appearances.

Justin D. Heminger , Attorney, U.S. Department of Justice, argued the cause for intervenor U.S. Department of the Interior in support of respondent. With him on the brief were Jeffrey Bossert Clark , Assistant Attorney General at the time the brief was filed, Eric Grant , Deputy Assistant Attorney General at the time the brief was filed, and Robert J. Lundman , Attorney.

Charles R. Sensiba , Washington, DC, J. Houston Shaner , Atlanta, GA, Michael Bryan Little , Merrillville, IN, and Angela J. Levin , San Francisco, CA, were on the brief for intervenor Northern Indiana Public Service Company, LLC in support of respondent.

Before: Rogers and Millett, Circuit Judges, and Sentelle, Senior Circuit Judge.

In the dry summer of 2012, scientists from the United States Fish and Wildlife Service discovered that endangered mussels were dying on the banks of the Tippecanoe River in northwest Indiana. The Service placed responsibility on the upstream Oakdale Dam, which significantly restricts the flow of water downstream in order...

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