Texas Federal Court Grants Preliminary Injunction Based On Sea Turtle Concerns

by Nossaman LLP

On March 13, 2017, the U.S. District Court for the Southern District of Texas granted a preliminary injunction relying primarily on Endangered Species Act (ESA) claims, halting operation of a mooring project on the Lydia Ann Channel near Corpus Christi, Texas. Friends of Lydia Ann Channel U.S. Army Corps of Engineers v. Lydia Ann Channel Moorings, LLC, No. 2:15-CV-0514, (S.D. Tex. Mar. 13, 2017).  The Friends of Lydia Ann Channel (Plaintiff) filed the lawsuit against the U.S. Army Corps of Engineers (USACE) seeking injunctive and declaratory relief for violations of the ESA and the National Environmental Policy Act (NEPA).   The court allowed Lydia Ann Channel Moorings, LLC (LACM), the mooring project owners, to intervene.

Pursuant to its authority under the Clean Water Act and associated regulations, USACE issued a Letter of Permission (LOP) authorizing the construction of the mooring project.  LOPs are an abbreviated processing procedure for activities that are “minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition.”  33 C.F.R. § 325.2(e)(1)(i).  The LOP acknowledged the presence of several endangered or threatened species within the Lydia Ann Channel (including, whooping cranes, piping plovers, West Indian manatees, several species of sea turtles, among others), but concluded that the project would have minimal impact on these species and their critical habitat.  The administrative record did not contain any documentation that USACE received or reviewed any studies on the potential impacts of the mooring project to the endangered or threatened species.

USACE suspended and eventually revoked LACM’s LOP after discovering that LACM failed to comply with the terms of the LOP and that LACM’s stated purpose and need differed from what had been provided to USACE.  USACE then conducted an analysis to evaluate potential removal and restoration plans for the mooring project.  Operation of the mooring project continued while USACE analyzed its potential removal.

In determining whether a preliminary injunction was warranted, the court reviewed whether the Plaintiff had met the Fifth Circuit’s four-part test for preliminary injunction: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law, (3) the threatened injury outweighs the threatened harm to the defendant; and (4) an injunction will not disserve the public interest.  Focusing on only the ESA claims, the court found that the Plaintiff had met its burden and that there was a high probability of direct take of endangered Green Sea Turtles (Chelonia mydas) and Kemp’s Ridley Sea Turtles (Lepidochelys kempii) as a result of the continued operation of the mooring project.  The court’s conclusion with respect to the turtles relied on expert testimony stating that sea turtles are attracted to the area due to algae growing on the mooring structures, and that when temperatures in the Lydia Ann Channel dropped below 40 degrees, the turtles would be “cold stunned” and likely unable to react in time to avoid barge traffic using the mooring project.  Accordingly, the court enjoined any further operation of the mooring project and stayed the litigation until USACE completes its review of removal and restoration plans.

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