United States District Court, M.D. Louisiana
ATCHAFALAYA BASINKEEPER, LOUISIANA CRAWFISH PRODUCERS ASSOCIATION-WEST, GULF RESTORATION NETWORK, WATERKEEPER ALLIANCE, AND SIERRA CLUB AND ITS DELTA CHAPTER
U.S. ARMY CORPS OF ENGINEERS
D. DICK CHIEF DISTRICT JUDGE.
matter is before the Court on the second Motion for
Preliminary Injunctionfiled by Plaintiffs, Atchafalaya
Basinkeeper, Louisiana Crawfish Producers Association-West,
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
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. A plaintiff
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.
Court previously granted a preliminary injunction on
Plaintiffs' motion staying the construction in the Basin,
the Court denied the Motion to Stay Preliminary
Injunction Pending Appeal by the Corps and Bayou
Bridge. The Corps and Bayou Bridge took an appeal,
and the Fifth Circuit reversed both the stay of construction
pending appeal and this Court's Ruling
granting Plaintiffs' preliminary injunction, finding that
Plaintiffs had not demonstrated a likelihood of success on
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
response to Plaintiffs' brief filed with the Fifth
Circuit,  Appellant Bayou Bridge moved to supplement
the record with a declaration,  and the Fifth Circuit
granted this motion. 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.” 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. 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.
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.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. 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. Thus, at the time Plaintiffs filed
the present motion on January 23, 2019, Plaintiffs 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.
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.” 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.” The Court finds that the delay between
knowledge of the harm and the filing of this motion
undermines the urgency of the request. Additionally,
it is undisputed that the construction in the Basin is near
completion, and the request for relief may already be moot.
Plaintiffs' Second Motion for Temporary Restraining
Order is DENIED.
IS SO ORDERED.
 Rec. Doc. No. 179.
 Rec. Doc. No. 179-1.