Black Warrior Riverkeeper Inc. et al v. U.S Army Corps of Engineers et al

Filing 42

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 2/18/14. (SAC )

FILED
2014 Feb-18 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLACK WARRIOR RIVERKEEPER,
INC., et al.,

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Plaintiffs,
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v.
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U.S. ARMY CORPS OF ENGINEERS, }
et al.,
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Defendants,
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THE ALABAMA COAL ASSOCIATION, }
et al.,
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}
Intervenor-Defendants.
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CIVIL ACTION NO.
2:13-CV-2136-WMA

MEMORANDUM OPINION
Plaintiffs in the above-entitled action are asking this court
to waive the surety bond required by Rule 65(c), Fed.R.Civ.P., as
a prerequisite to the entry of a preliminary injunction.
During its 31 years on the bench, this court has never waived
the bond required by Rule 65(c), or reduced it to a nominal amount,
and it has never been asked to do so.

This, then, is a case of

first impression for this court. Because an injunction would cause
great economic harm to some of the parties sought to be enjoined,
this court now echoes and adopts as its own belief, what the Third
Circuit said about the bond requirement of Rule 65(c) in Zambelli
Fire Works Mfg. Co. v. Wood, 592 F.3d 412, 426 (3d Cir. 2010):
We have never excused a District Court from requiring a
bond where an injunction prevents commercial, moneymaking activities.

(emphasis added).
Black Warrior Riverkeeper, Inc., and Defenders of Wildlife
(hereinafter “plaintiffs”) are organizations made up of people who
are committed to the protection of the environment.

They bring

this action against U.S. Army Corps of Engineers, Lt. General
Thomas P. Bostick, U.S. Army Corps of Engineers, Col. John Chytka,
U.S.

Army

Corps

of

Engineers,

Mobile

District

(hereinafter

“government-defendants”), Alabama Coal Association, MS&R Equipment
Co., Inc.,

Reed

Minerals,

Inc.,

Twin

Pines,

LLC,

and

Minerals, Inc. (hereinafter “intervenor-defendants”).

Walter

Plaintiffs

attack 41 national permits issued and enforced by governmentdefendants under which national permits intervenor-defendants are
engaged in the surface mining of coal within the watershed of the
Black

Warrior

River.

Intervenor-defendants

defendants without objection.
intervenor-defendants

are

made

themselves

It is obvious and undisputed that

engaged

in

“commercial

money-making

activities” and that they would be drastically harmed while an
erroneous preliminary injunction, if granted, would be in effect.
In fact, they would have to shut down their operations.
Plaintiffs’ motion came on to be heard on February 4, 2014.
During a lengthy colloquy, the court made known its opinion,
arrived at after a consideration of the papers then before the
court, that a bond in the amount of $300,000 will be required
before the entry of any preliminary injunction.

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This condition

must

be

met

prerequisites

even
for

if
a

plaintiffs

can

preliminary

prove

injunction,

the

other

namely:

four

(1)

a

substantial likelihood of success on the merits; (2) irreparable
injury to plaintiffs unless the injunction is issued; (3) whatever
harm

plaintiffs

injunction

may

sustain

outweighs

the

by

harm

a

denial

the

of

the

injunction

preliminary
would

cause

defendants; and (4) the preliminary injunction would not be adverse
to the public interest.

The court pointed out to the parties the

obvious, namely, that it would be a futile act and a total waste of
judicial resources to conduct a two or three day hearing in order
to afford plaintiffs the opportunity to try to meet their burden of
proving the above four essentials if they cannot meet the other
essential, the posting of the bond required by Rule 65(c).

The

court in its very first order entered in this case called upon the
parties to express themselves on what should be the amount of a
preliminary injunction bond.

This constituted fair warning that

this court believes that Rule 65(c) means what it says.

In

arriving at the sum of $300,000, the court admittedly was acting in
the mistaken belief that intervenor-defendants are claiming a
prospective monetary loss of approximately $78,000,000. The court,
suffering from macular degeneration and shock, put the comma in the
wrong

place

actually

when

claims

$78,000,000.

reading

intervenor-defendants’

prospective

damages

of

brief,

$780,000,000,

which

and

not

Intervenor-defendants have now made clear their

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position that a bond of $300,000 is pitifully inadequate.

The

court did not, and does not, retreat from its finding of $300,000
as an appropriate amount for the Rule 65(c) bond in this case,
despite acknowledging that a wrongfully enjoined party is limited
to the amount of the bond for the recovery of any damages it
sustains.

See Blumenthal v. Merrill Lynch, 910 F.2d. 1049, 1055-

1056 (2d Cir. 2003).
courts

as

a

Put another way, the bond is treated by most

contract

by

which

the

amount

posted

is

consideration or “price” paid for a wrongful injunction.

the
See

Sprint Commc’ns Co. v. CAT Commc’ns Int’l, Inc., 335 F.3d 235, 240
(3d Cir. 2003).

Plaintiffs do not want to pay the “price” here

even if the “price” proves to be woefully insufficient to cover
intervenor-defendants’ losses. Plaintiffs have made it quite clear
they could not and would not post a bond of $300,000 or any amount
other than a nominal amount.
A bond in the amount of $780,000,000 would, of course, be
prohibitive in any case.

Inhibition, if not prohibition, in some

cases was undoubtedly one of the purposes of Rule 65(c).

It would

more likely violate Rule 65(c) to eliminate the bond entirely (or
its equivalent, the setting of a nominal bond) than to require a
bond in the millions.

The court cannot imagine that any seeker of

a preliminary injunction would be able to post a bond, whether in
cash or with a corporate surety, of $780,000,000, the astronomical
amount intervenor-defendants claim to be their potential loss.

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And, yet, such a figure arguably is within the contemplation of
Rule 65(c), and to set it in that amount would not constitute an
abuse of discretion if intervenor-defendants can prove prospective
damages in that amount.
Before

ruling

on

plaintiffs’

request

for

a

preliminary

injunction, the court must, of course, satisfy itself that it has
jurisdiction.
standing of

Government-defendants
plaintiffs.

have

not

Intervenor-defendants

challenged plaintiffs’ standing.

challenged
have

the

seriously

While the said challenge is not

entirely devoid of merit, the court has determined and now FINDS
that plaintiffs do have standing to present their complaint to this
court, including standing to request a preliminary injunction.
The next and, as it turns out, the dispositive issue arises
from Rule 65(c) itself, which provides:
Security. The court may issue a preliminary injunction
or a temporary restraining order only if the movant gives
security in an amount that the court considers proper to
pay the costs and damages sustained by any party found to
have been wrongfully enjoined or restrained. The United
States, its officers, and its agencies are not required
to give security.
It should not be necessary to point out that Rule 65(c), like all
statutes and rules, is to be given the plain meaning imparted by
its clear and unequivocal language.
clear and unequivocal.

The language of Rule 65(c) is

The purpose and meaning of Rule 65(c) is

readily discernable from its language.
ambiguity.

The court can detect no

No legislative history is needed to know that the

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drafters of Rule 65(c) intended to protect the subjects of an
ultimately found-to-be erroneous preliminary injunction from the
damages they have sustained.

In other words, if a preliminary

injunction is issued in error, defendants are entitled to the
security against loss afforded by the Rule 65(c) bond.
Although no rules of construction are needed in order to
arrive at the proper understanding of Rule 65(c), there is one rule
of construction that strongly reenforces what this court has
already found to be the clear and unequivocal meaning of the rule.
That well recognized rule of construction is: “Expressio unius est
exclusio alterius”.

The last sentence of Rule 65(c) expressly

exempts “the United States, its officers and its agencies” from the
bond requirement.

This express exemption of federal governmental

entities proves not only that the drafters of Rule 65(c) knew how
to provide for exceptions to their rule, but that they refused to
recognize

any

exceptions

beyond

those

that

they

expressly

enumerated. Hypothetically, if this court had been the drafter, it
could have added public-interest plaintiffs and/or impecunious
plaintiffs to the entities not required to post a bond, but such
additions would have emasculated the rule, and this court is not
dealing with what it might believe is good public policy.

It is

required to enforce the public policy solidly codified in Rule
65(c) as it is written.
Rule 65(c) calls upon this court to fix a bond amount in what

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it considers to be the amount necessary to pay the costs and
damages sustained by parties found to be have been wrongfully
enjoined.

There is not a hint of a suggestion in the language of

Rule 65(c) that a bond can be set at a nominal amount or that the
bond can be waived entirely in cases like this one where the
damages that may be sustained would be enormous, and/or where the
plaintiffs

are

financially

incapable

of

posting

a

fair

and

realistic bond, as in this case.
Plaintiffs rely upon City of Atlanta v. Metro. Atlanta Rapid
Transit Auth., 636 F.2d 1084, 1094 (5th Cir. Unit-B 1981), which is
binding on this court.

Unfortunately for plaintiffs, the instant

scenario was not dealt with in City of Atlanta, where the precursor
to the Eleventh Circuit affirmed a trial court’s denial of a
preliminary injunction after the trial court had first entered a
temporary restraining order that was vacated eight days later when
the motion for a preliminary injunction was denied upon a finding
that there was no likelihood of success on the merits.

The trial

court had not fixed, and the plaintiff had not posted, a bond under
Rule 65(c) during the eight-day period while the TRO was in place.
Unit B found no abuse of discretion by the trial court in failing
to fix a TRO bond, saying, however:

“We recognize that a district

court may abuse its discretion in refusing to require security in
a particular case.”

The instant case is that “particular case” in

which a court would abuse its discretion if it refused to require

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any security.

In City of Atlanta, Unit B found the district

court’s technical shortcoming innocuous because it had “made it
clear that the TRO would be in effect for only eight more days”,
and “the short duration of the restraining order minimized the risk
of serious harm to MARTA.”

In the instant case, unlike City of

Atlanta, it will be impossible to minimize the risk of serious harm
to intervenor-defendants if a preliminary injunction is imposed
upon them and later set aside.
abusing

this

court’s

To deny a bond would not only be

discretion.

It

would

be

flagrantly

disregarding a binding rule. Plaintiffs, while arguing that a West
Virginia federal court only required a $5,000 bond in a case that
may or may not be substantially similar to this one, informs the
court that it could not and would not post even a $5,000 bond.
And, a preliminary injunction here would most assuredly last a lot
longer than eight days.
While mentioning a very small number of fact situations in
which a trial court might get by with not requiring a Rule 65(c)
bond, 13-65 MOORE’S FEDERAL PRACTICE §65.52 (Matthew Bender 3d Ed.)
conspicuously fails to cite any authority for dispensing with the
Rule 65(c) bond when, as here, there is a high risk of monetary
loss to a party being preliminarily enjoined.
Without

having

evaluated

the

evidence

that

intervenor-

defendants could have offered to prove their monetary losses during
the long period of inactivity assuredly forced upon them by a

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preliminary

injunction,

such

losses

are

unquestionably

very

sizeable, making the waiver of or the fixing of a nominal bond a
quixotic venture without any redeeming feature.
Plaintiffs cannot successfully argue that the court cannot
establish the bond amount unless and until it finds that plaintiffs
have proven the four other essentials to their entitlement to
preliminary injunctive relief.

This court is not putting the cart

before the horse when the cart cannot move without the horse.

As

a matter of simple logic, a trial court must have the authority to
deny a preliminary injunction when plaintiffs admit that they
cannot and will not post a Rule 65(c) bond after an expensive full
scale trial.

The existence of such authority is not only a matter

of logic and good court management, but that logic is illustrated
by Jones v. Brown, 518 Fed.Appx. 643 (11th Cir. 2013), in which the
Eleventh Circuit recently affirmed the denial of a preliminary
injunction.

The trial court’s denial was based on the sole fact

that plaintiff had not provided the security mandated by Rule
65(c).

In that case, the actual amount of the bond had not been

fixed before the preliminary injunction was denied.

Although

unpublished, Jones v. Brown starts with the Eleventh Circuit’s
acknowledgment of the proposition that the denial of a preliminary
injunction is reviewed for abuse of discretion and not de novo.
The Eleventh Circuit then found that the trial court did not abuse
its discretion when it denied the preliminary injunction because

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plaintiff had not furnished any evidence upon which the court could
fix the amount of a bond.

In the instant case, plaintiffs, like

plaintiff in Jones v. Brown, have offered no evidence upon which
the court can fix a fair and reasonable bond.
suggesting that they needed to do so.

This court is not

Instead, in the face of

intervenor-defendants’ affidavits virtually guaranteeing damages in
the millions of dollars, they seek to proceed without a bond.

In

Jones v. Brown, the trial court did not make the requisite findings
of no irreparable harm, etc., before it denied the preliminary
injunction undoubtedly because the bond came first.

Instead, it

recognized that without a bond there could be no injunction, and
therefore placed the absence of the bond as the dispositive fact,
just as this court is now doing.

No matter whether in a lengthy

evidentiary hearing plaintiffs might demonstrate irreparable harm
outweighing the harm to defendants, such a hearing would have been
a

totally

futile

and

frustrating

enterprise

when

plaintiffs

thereafter failed to post the Rule 65(c) bond.
In Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals,
Inc., 734 F.3d 1297 (11th Cir. 2013), the Eleventh Circuit dealt
with another action brought by Black Warrior Riverkeeper, Inc., one
of

the

plaintiffs

extracting company.

in

the

instant

case,

against

another

coal

It was brought under the Clean Water Act. The

defendant there was operating, like these intervenor-defendants,
under a permit issued under the national permitting system, which,

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according to the Eleventh Circuit, is the “centerpiece” of the
Clean Water Act. Id. at 1299 (quoting Friends of the Everglades v.
S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1225 (11th Cir. 2009)).
Black Warrior Riverkeeper there needed to be cut some slack with an
interpretation of the procedural rules in the Clean Water Act that
would open the doors of the court for it to complain about certain
alleged

environmental

Minerals, Inc.

damage

being

caused

by

Black

Warrior

The Eleventh Circuit refused to cut Black Warrior

Riverkeeper any slack.
To enjoin intervenor-defendants without a meaningful bond
would not be cutting plaintiffs a little slack.

Rather, it would

make the drafters of Rule 65(c) “slack jawed”.
A separate order denying the preliminary injunction will be
entered.
DONE this 18th day of February, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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