Friends of Lydia Ann Channel v. United States Army Corps of Engineers
701 F. App'x 352
| 5th Cir. | 2017Background
- Lydia Ann Channel Moorings, L.L.C. (LACM) built and began operating a barge fleeting facility in Lydia Ann Channel in March 2015 after receiving a Corps of Engineers letter of permission; local group Friends of Lydia Ann Channel (Friends) sued in Dec. 2015 alleging NEPA and ESA violations and noncompliance with the letter.
- The Corps later inspected, concluded the pilings deviated from the authorized design and locations, revoked the letter of permission in Sept. 2016, and ordered LACM to submit a restoration plan; Corps treats LACM’s proposal as a new permit request and says it lacks unilateral authority to stop current use of pilings.
- The district court granted Friends a preliminary injunction (Mar. 2017) halting LACM’s operations based principally on ESA Section 9 “take” theories relating to (1) cold-stunned turtles being struck by barges and (2) turtles feeding on algae on mooring dolphins and being unable to evade barges.
- The district court credited Friends’s expert testimony on those take theories, stayed further litigation pending Corps review, and did not rule on Friends’s NEPA claim.
- On appeal, Friends emphasized NEPA more than ESA; the Corps declined to take a position on the injunction because it was directed at LACM. The Fifth Circuit reviewed the injunction for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Friends showed likelihood of success on ESA Section 9 "take" claims justifying a preliminary injunction | Cold-stunning and algae-attraction create a reasonably certain, imminent threat that LACM’s operations will take endangered turtles | The necessary chain of events (cold <50°F, turtle presence near barges using LACM, inability to avoid impact, failure of mitigation) is speculative and not reasonably certain | Denied: speculative chain defeats imminence and likelihood of success on ESA claims; injunction unsupported by ESA |
| Whether NEPA/APA violations by the Corps can support injunctive relief against nonfederal LACM | Corps failed to prepare an EIS; that NEPA violation supports enjoining LACM’s ongoing operations | APA review and injunction against a nonfederal actor are unavailable; APA applies only to federal agencies | Denied: APA/NEPA cannot be the basis to enjoin a nonfederal defendant; NEPA confers no private right of action against LACM |
| Whether claims tied to ongoing Corps review are ripe while administrative process is pending | Injunctive relief is appropriate now because harms are ongoing | Claims dependent on final agency action are not ripe; district court lacks jurisdiction over nonfinal agency action | Denied as unripe: Friends conceded review-related claims are not ripe; stay and continued control improper |
| Whether claims tied to now-revoked letter of permission are moot or capable of redress | Not moot because harmful activity resulting from the letter is ongoing | NEPA challenges concern agency process, and court cannot grant effectual relief against LACM for revoked-permit process; thus NEPA claim is moot | Denied as moot: NEPA/APA claims tied to revoked letter cannot yield effectual relief against LACM |
Key Cases Cited
- Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535 (5th Cir.) (preliminary injunction standard and review)
- Byrum v. Landreth, 566 F.3d 442 (5th Cir.) (standards for injunction elements)
- Aransas Project v. Shaw, 775 F.3d 641 (5th Cir.) (imminence and "reasonably certain threat" standard for ESA injunctive relief)
- Defenders of Wildlife v. Bernal, 204 F.3d 920 (9th Cir.) (authority on imminence requirement for ESA relief)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (U.S.) (future injury must be "certainly impending")
- La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217 (5th Cir.) (failure to show likelihood on merits disposes preliminary injunction)
- Narragansett Indian Tribe v. Guilbert, 934 F.2d 4 (1st Cir.) (speculation cannot substitute for likelihood of success)
- Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown, 875 F.2d 453 (5th Cir.) (limits on using APA to enjoin nonfederal entities)
- Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown, 948 F.2d 1436 (5th Cir.) (same)
- Spiller v. White, 352 F.3d 235 (5th Cir.) (NEPA prescribes process, not substantive results)
- Hooks v. Landmark Indus., Inc., 797 F.3d 309 (5th Cir.) (mootness requires possibility of effectual relief)
Outcome: The Fifth Circuit vacated the preliminary injunction, dismissed as moot Friends’s APA/NEPA and Rivers and Harbors Act claims, and remanded for further proceedings consistent with the opinion.