V&E Wins Significant Endangered Species Act Ruling
The U.S. Court of Appeals for the Fifth Circuit has issued a resounding victory to V&E client Lydia Ann Channel Moorings LLC, striking down an injunction issued under the Endangered Species Act that had shut down the company’s barge fleeting facility near the Port of Corpus Christi.
9, 2017, the Fifth Circuit ruled that environmental plaintiff Friends of Lydia
Ann Channel’s speculative evidence concerning the impact of LACM’s operations
on endangered sea turtles in the area is insufficient to support a preliminary
injunction the district court issued under Section 9 of the ESA.
LACM runs a
barge fleeting facility in the Lydia Ann Channel, which is part of the Gulf
Intracoastal Waterway near the Port of Corpus Christi. The fleeting facility
consists of a number of pylons driven into the channel floor to which barges
can be moored parallel to the shoreline, while awaiting entry to the
2017, the plaintiffs obtained a preliminary injunction forcing LACM to cease
operating in the channel, arguing that the company’s business threatened local
populations of Green Sea Turtles and Kemp’s Ridley Sea Turtles. V&E
represented LACM on appeal to the Fifth Circuit, which heard oral arguments in
the case on May 2, 2017.
ruling for LACM, the Fifth Circuit rejected as “quintessential speculation” the
plaintiff’s argument that turtles could be harmed by barge traffic and mooring
activities, noting that there is no evidence that any turtles have been injured
since LACM began operating in the channel in 2015. The appeals court also ruled
that the injunction could not be upheld against LACM under the National
Environmental Policy Act, because that statute only applies to federal
decision represents the first application of the legal standard the Fifth
Circuit adopted in 2014 for issuing preliminary injunctions under the
citizen-suit provision of the ESA, which requires a “reasonably certain threat
of imminent harm” to a protected species.
The V&E appellate team included partner
Michael Heidler, senior associate Conor McEvily and associate Zach Howe.