Atchafalaya Basinkeeper et al v. U.S. Army Corps of Engineers

Filing 190

RULING denying 179 Second Motion for Preliminary Injunction. Signed by Chief Judge Shelly D. Dick on 2/7/2019. (LLH)

Case 3:18-cv-00023-SDD-EWD

Document 190

02/07/19 Page 1 of 5

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ATCHAFALAYA BASINKEEPER,
LOUISIANA CRAWFISH PRODUCERS
ASSOCIATION-WEST, GULF RESTORATION
NETWORK, WATERKEEPER ALLIANCE, AND
SIERRA CLUB AND ITS DELTA CHAPTER

CIVIL ACTION

VERSUS

18-23-SDD-EWD

U.S. ARMY CORPS OF ENGINEERS
RULING
This matter is before the Court on the second Motion for Preliminary Injunction1
filed by Plaintiffs, Atchafalaya Basinkeeper, Louisiana Crawfish Producers AssociationWest, Gulf Restoration Network, Waterkeeper Alliance, and Sierra Club and its Delta
Chapter (“Plaintiffs”).

Plaintiffs seek an injunction from the Court to prevent alleged

irreparable harm to the Atchafalaya Basin based on Plaintiffs’ claim that Bayou Bridge is
violating key provisions of the permit by continuing construction in the Basin even though
conditions in the Basin are in flood stage.2
A preliminary injunction is an “extraordinary and drastic remedy” that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.3 A plaintiff

1

Rec. Doc. No. 179.
Rec. Doc. No. 179-1.
3
Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008).
2

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seeking a preliminary injunction must establish (1) a substantial likelihood of success on
the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3)
that the substantial injury outweighs the threatened harm to the party whom the plaintiff
seeks to enjoin; and (4) that granting the preliminary injunction will not disserve the public
interest.4
This Court previously granted a preliminary injunction on Plaintiffs’ motion staying
the construction in the Basin,5 and the Court denied the Motion to Stay Preliminary
Injunction Pending Appeal by the Corps and Bayou Bridge.6 The Corps and Bayou Bridge
took an appeal, and the Fifth Circuit reversed both the stay of construction pending
appeal7 and this Court’s Ruling granting Plaintiffs’ preliminary injunction, finding that
Plaintiffs had not demonstrated a likelihood of success on the merits.8
In the present motion, Plaintiffs maintain that the flooding issue and alleged
violations of the permit were not before the Fifth Circuit on appeal, and the Fifth Circuit
did not address these claims in its Opinion; therefore, this issue is ripe for adjudication
before the Court. The record belies this contention.
In response to Plaintiffs’ brief filed with the Fifth Circuit,9 Appellant Bayou Bridge
moved to supplement the record with a declaration,10 and the Fifth Circuit granted this

4
Planned Parenthood Ass'n of Hidalgo Cty. Tex., Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012); accord
Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).
5
Rec. Doc. No. 86.
6
Rec. Doc. No. 96.
7
Case No. 18-30257, Doc. No. 00514388428.
8
Rec. Doc. No. 126.
9
Case No. 18-30257, Doc. No. 00514428039.
10
Case No. 18-30257, Doc. No. 00514438746.

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motion.11 In Plaintiffs’ appellate brief, they claimed that “construction in the Basin has not
resumed due to high water conditions that are likely to persist for months.”12

The

declaration of Cary J. Farber, Project Manager for the Bayou Bridge Pipeline, addressed
the process of determining what water levels and conditions would be safe for
construction.13 Plaintiffs never responded to, or challenged, Bayou Bridge’s motion or
this declaration during the appeal. With this declaration as part of the appellate record,
the Fifth Circuit held that Plaintiffs had failed to demonstrate a likelihood of success on
the merits. Accordingly, this issue is not properly before the Court on a renewed motion
for a preliminary injunction.
Plaintiffs also fails to satisfy the necessary showing of irreparable harm. The
record reflects that Plaintiffs complained to the Corps via letter about elevated water
levels and the potential permit violations at issue herein as far back as March 2018.14
Plaintiffs sent another letter to the Corps regarding the same issues on May 9, 2018, and
a “Supplemental Notice of Potential Permit Violations” dated June 1, 2018, which alleged
the same permit violations based on observations and measurements taken in May
2018.15 On January 4, 2019, Plaintiffs sent a “Third Notice of Potential Permit Violations”
to the Corps based on monitoring that had taken place in October 2018 and December
2018.16 Thus, at the time Plaintiffs filed the present motion on January 23, 2019, Plaintiffs

11

Case No. 18-30257, Doc. No. 00514544184.
Id. at 1.
13
Case No. 18-30257, Doc. No. 00514438747, Farber Declaration.
14
Rec. Doc. No. 177-2 at 8-9.
15
Id. at 16-18.
16
Id. at 23-31.
12

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had knowledge of these alleged permit violations and believed these alleged violations
were harming the Basin for nearly a year. This delay in bringing the pending motion
undermines Plaintiffs’ claims of urgency and irreparable harm.
“[D]elay in seeking a remedy is an important factor bearing on the need for a
preliminary injunction. Absent a good explanation, a substantial period of delay militates
against the issuance of a preliminary injunction by demonstrating that there is no apparent
urgency to the request for injunctive relief.”17 Wright and Miller recognizes that “[a] long
delay by plaintiff after learning of the threatened harm also may be taken as an indication
that the harm would not be serious enough to justify a preliminary injunction.”18 The Court
finds that the delay between knowledge of the harm and the filing of this motion
undermines the urgency of the request.19

Additionally, it is undisputed that the

construction in the Basin is near completion, and the request for relief may already be
moot.

17

Gonannies, Inc. v. GoAuPair.Com, Inc., 464 F.Supp.2d 603, 609 (N.D. Tex. 2006) (quoting Wireless
Agents, L.L.C. v. T–Mobile USA, Inc., 2006 WL 1540587, *3 (N.D. Tex. June 6, 2006) (internal citations
and punctuation omitted)).
18
11A Charles A. Wright, Arthur R. Miller, et al., Federal Practice and Procedure, § 2948.1 (3d ed. 2018).
19
See Gonannies, 464 F.Supp.2d at 609 (citing Tough Traveler, Ltd. v. Outbound Prod., 60 F.3d 964, 968
(2d Cir. 1995) (vacating preliminary injunction where movant waited four (4) months to seek a preliminary
injunction after filing suit); Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (ten (10) week delay
in seeking injunction for trademark infringement undercut claim of irreparable harm); Boire v. Pilot Freight
Carriers, Inc., 515 F.2d 1185, 1193 (5th Cir. 1975) (affirming district court's denial of temporary injunctive
relief where movant, among other things, delayed three (3) months in making its request) (descriptions of
authority quoted from Gonannies )).

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Accordingly, Plaintiffs’ Second Motion for Temporary Restraining Order20 is
DENIED.

IT IS SO ORDERED.
Baton Rouge, Louisiana, the 7th day of February, 2019.

S

____________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

20

Rec. Doc. No. 179.

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