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V&E Wins Significant Endangered Species Act Ruling

Published: 08-11-2017

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.

On August 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 port.

In March 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.

In 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 agencies.

The 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.

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