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Lydia Ann Channel Moorings Secures Victory in Barge Facility Suit

The U.S. District Court for the Southern District of Texas has issued a significant victory to V&E client Lydia Ann Channel Moorings LLC (LACM), tossing a lawsuit by a group of local residents alleging that LACM and the U.S. Army Corps of Engineers violated Texas and federal law in connection with the permitting and operation of LACM’s barge mooring and fleeting facility in Lydia Ann Channel.

LACM’s facility, which is part of the Gulf Intracoastal Waterway near the Port of Corpus Christi, 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.

On July 29, 2019, LACM filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6), seeking to toss a complaint brought by Friends of Lydia Ann Channel (FLAC) alleging that LACM’s facility creates a public nuisance under Texas common law.

In a March 24, 2020 order, the District Court dismissed the suit without prejudice on grounds that it lacked jurisdiction to review the plaintiff’s claims. The Court reasoned that the plaintiff’s federal claims are not ripe, and because the federal claims had to be dismissed as unripe, the Court had no basis to exercise jurisdiction over LACM’s state-law claim, either.

This is the second victory V&E has secured for LACM pertaining to its barge fleeting facility. In March 2017, the FLAC obtained a preliminary injunction forcing LACM to cease operating in the channel, arguing that the company’s business threatened local populations of endangered sea turtles.

V&E represented LACM on appeal to the Fifth Circuit, which heard oral arguments in the case on May 2, 2017.

On August 9, 2017, the Fifth Circuit ruled that FLAC’s speculative evidence concerning the impact of LACM’s operations on the sea turtles was insufficient to support the preliminary injunction the District Court issued under Section 9 of the Endangered Species Act (ESA).

The decision represented 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.

V&E partner Mike Heidler led the appeal on behalf of LACM and served as LACM’s appellate counsel in the District Court.

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