American Whitewater, et al v. United States Army Corps of Engineers, et al

Filing 24

ORDER denying 5 MOTION for Temporary Restraining Order. The Court will reserve ruling on the Plaintiffs' request for a preliminary injunction until such time as the Defendants have had an opportunity to respond to the Plaintiffs' motion. The Defendants shall file a response to the Plaintiffs Motion for Preliminary Injunction no later than 12/4/2024. (Responses due by 12/4/2024). Signed by Chief Judge Martin Reidinger on 11/22/2024. (hms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:24-cv-00284-MR-WCM
AMERICAN WHITEWATER and
AMERICAN RIVERS,

)
)
)
Plaintiffs,
)
)
vs.
)
)
THE UNITED STATES ARMY CORPS )
OF ENGINEERS, UNITED STATES
)
FOREST SERVICE, and UNITED
)
STATES FISH AND WILDLIFE
)
SERVICES,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Temporary Restraining Order and Preliminary Injunction [Doc. 5].
I.

BACKGROUND
The Plaintiffs American Whitewater and American Rivers bring this

action pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 400 et
seq. (“Rivers and Harbors Act”); the Clean Water Act, 33 U.S.C. § 1251 et
seq. (“CWA”); the Forest Service Organic Act, 16 U.S.C. § 551 et seq.; the
National Forest Management Act, 16 U.S.C. § 1600, et seq.; the National
Environmental Policy Act, 42 U.S.C. § 4331, et seq. (“NEPA”); and the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06, seeking to
challenge authorizations and approvals from the U.S. Army Corps of
Engineers (“the Corps”), the U.S. Forest Service (“USFS”), and U.S. Fish
and Wildlife Service (“FWS”) (collectively, the “Agencies”) authorizing CSX
Transportation, Inc. (“CSXT”) to conduct activities necessary to repair and
reconstruct its railroad line through the Nolichucky River Gorge that was
severely damaged by the catastrophic flooding from Hurricane Helene on
September 27, 2024. The Plaintiffs allege that the methods used by CSXT
in its reconstruction efforts are harming the environment, wildlife, and
scenery in the Gorge as well as affecting the navigability of the river. [Doc.
1]. They further allege that CSXT began its work without first securing
necessary authorizations from any of the overseeing agencies, and thus
without any mitigation requirements. [Id.].
The Plaintiffs filed this action on November 18, 2024. [Doc. 1]. They
filed the present Motion for Temporary Restraining Order (“TRO”) and
Preliminary Injunction at approximately 4:40 p.m. on November 20, 2024.
[Doc. 5]. In their Motion, the Plaintiffs request entry of a TRO by noon on
Friday, November 22, 2024. [Id. at 1]. The Defendants filed an expedited
response to the Plaintiffs’ TRO request on November 22, 2024. [Doc. 17].
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II.

STANDARD OF REVIEW
To obtain temporary injunctive relief, a plaintiff must establish that: (1)

it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in
absence of preliminary relief; (3) the balance of equities tips in its favor; and
(4) injunctive relief is in the public interest. Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008). Thus, in each case the Court
“must balance the competing claims of injury and must consider the effect
on each party of the granting or withholding of the requested relief.” Amoco
Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). A plaintiff's
entitlement to preliminary injunctive relief is a matter of discretion with the
Court. See Metropolitan Reg'l Info. Sys., Inc. v. American Home Realty
Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013).
III.

DISCUSSION
The Plaintiffs seek the entry of a TRO a mere 43 hours after they filed

their motion. The Plaintiffs have not identified any particular adverse action
that will occur on November 22, 2024. Moreover, the Plaintiffs acknowledge
that the Government has been collaborating with CSXT on the rebuild efforts
since at least October 15, 2024, and that CSXT has been performing the
challenged work for “weeks.” [See Doc. 1: Complaint at ¶¶ 93, 119]. The
Plaintiffs have failed to establish a harm so immediate and irreparable that
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temporary injunctive relief must issue before all parties can be heard on the
Plaintiffs’ preliminary injunction request.
Hurricane Helene was a devastating natural disaster, and the response
to it has been extensive and complex, requiring the coordination of multiple
governmental agencies and private industries such as CSXT to repair and
restore vital infrastructure. Moreover, as the Defendants’ filing indicates, the
rebuilding efforts of the CXST rail line in both North Carolina and Tennessee
are subject to daily developments, which may in fact render some or all of
the Plaintiffs’ request for injunctive relief moot. For example, less than two
hours after the Plaintiffs filed the present motion, CSXT received additional
work parameters on the Rebuild from the Corps’ Nashville District, including
parameters directly addressing the impact on the endangered species
Appalachian elktoe and Virginia spiraea. [See Doc. 17-1 at 4-5].
For all these reasons, the Court will deny the Plaintiffs’ request for a
temporary restraining order. The Court will reserve ruling on the Plaintiffs’
request for a preliminary injunction until such time as the Defendants have
had an opportunity to respond to the Plaintiffs’ motion. The Defendants shall
file their response no later than December 4, 2024.
IT IS, THEREFORE, ORDERED that the Plaintiffs’ Motion for
Temporary Restraining Order [Doc. 5] is DENIED. The Court will reserve
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ruling on the Plaintiffs’ request for a preliminary injunction until such time as
the Defendants have had an opportunity to respond to the Plaintiffs’ motion.
The Defendants shall file a response to the Plaintiff’s Motion for Preliminary
Injunction no later than December 4, 2024.
IT IS SO ORDERED.

Signed: 11/22/2024

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