Karankawa Kadla’s Fight Against MODA Midstream Covered by the Texas Tribune

The Moda Midstream subsidiary which holds the Army Corps of Engineers permit to build the new oil terminal and to do the dredging of LaQuinta Channel is called “Moda Ingleside Oil Terminal LLC”.

Its worth noting that the Canadian oil pipeline and processing company Enbridge is in the process of buying all of the stock in Moda Midstream. When that happens Moda Midstream will no longer be a New York Stock Exchange traded company, so the information about “how the company is doing” will disappear from the American media. However, as to the existing and proposed new Moda Midstream oil terminals in the Coastal Bend, their construction and operation will still be government by U.S. law.

Just this month, the subsidiary, Moda Ingleside Oil Terminal LLC, planning to build the new supertanker teminal and dredge the LaQuinta Channel to deepen it, has been granted the right, by the U.S. District Court to be a fully empowered participant in the Clean Water Act and NEPA lawsuit filed by the 3 plaintiffs (Indigenous Peoples of the Coastal Bend, Karankawa Kadla Tribe of the Gulf Coast and Ingleside on the Bay Coastal Watch Association) against the Army Corps of Engineers.

From a non-party’s point of view, some of the plaintiff’s goals of the lawsuit are:

(1) to invalidate or freeze the use of the “404 Permit” granted by the Army Corps to Moda which would allow Moda to build their new supertanker accommodating oil terminal/docks on the LaQuinta Channel of Corpus Christi Bay and to dredge the channel to accommodate much bigger ships and tankers;

(2) to require the Army Corps of Engineers to prepare a full Environmental Impact Statement, complaint with Federal laws, regulations and case law, concerning the proposed oil terminal; and

(3) to require the Army Corps of Engineers to treat the two indigenous plaintiff groups with respect and involve them in “special consultation” concerning the issuance of the 404 Permit’s impact on the indigenous groups use of lands historically occupied/used by the Karankawa immediately near Moda’s existing oil terminal and the proposed, new terminal.

Below is a public link to the resume of Moda’s lead lawyer, which is worth everyone reading. He is a heavy hitter to say the least. Clearly Moda is preparing for a serious, lengthy battle to protect Moda’s Army Corps 404 Permit from being terminated as improperly issued.

https://www.craincaton.com/attorneys/kelly-d-brown-p-e/

The first serious skirmish in the lawsuit will happen some time after October 26, 2021. That’s the date Moda’s lawyers have to file with the court their full opposition to the plaintiffs motion for a preliminary injunction issued by the Federal trial judge to stop Moda from using/doing land grading or construction work authorized by the 404 Permit while the plaintiffs lawsuit is pending and heading towards a trial date some time a year or so in the future.

The U.S. District Court Judge to whom this case is assigned is Drew B. Tipton. He grew up in Angleton, TX, is an Aggie and graduated from South Texas College of Law in Houston. He became a Federal judge in 2021. His official resume is here: https://www.fjc.gov/node/8377921 His unofficial resumes, which provide more detail about his life and his former clients are found at Wikipedia and Ballotpedia, for example. There’s a saying among former law clerks for Federal judges what when there is a “new” judge in the court house, the older judges make sure the new guy is assigned to all of the new, difficult cases they really don’t want to handle. As a result, Judge Tipton has not only been assigned the case about the Moda terminal and dredging of the bay, Judge Tipton has been assigned multiple cases concerning the Biden Administration and ICE, Border Patrol and INS policies which you may read about in the news. As to the Moda case, from his resumes, it does not appear that Judge Tipton had any experience, as a lawyer, in handling NEPA/EIS cases or Clean Water Act/Army Corps of Engineers Permit cases. As a result, Judge Tipton is likely to engage in his own study of those two bodies of law before making rulings on motions (requests) by the plaintiffs, defendant Army Corps of Engineers, or intervenor Moda.

As a result, it may be December 2021 or later before Judge Tipton rules on the plaintiffs’ motion for a preliminary injunction to stop Moda from using its Army Corps 404 Permit to grade, dredge and build its new/expanded Ingleside facility.

The Army Corps of Engineers lawyers on this case who are seriously experienced are working out of the U.S. Department of Justice’s Washington D.C. offices, although they have one bright 9-year lawyer DOJ lawyer managing day-to-day litigation from an office here in the Coastal Bend.

The plaintiffs’ lawyer on the Motion for Preliminary Injunction is a highly experienced environmental litigator. His name is Robert Wiygul. He’s been a litigation attorney in Federal court for 32 years, with a lot of experience in environmental, NEPA, Army Corps of Engineers permit and Native American rights cases. https://wwglaw.com/attorney/robert-wiygul/ His law firm has offices in New Orleans and a Biloxi suburb, both coastal cities with a lot of heaving marine shipping issues. To those of us in the Coastal Bend, among his most interesting cases was/is participation as a lawyer in Federal court cases concerning the Klamath Tribe and people’s historic fishing rights in the Klamath River versus the Federal government’s regulation of the river and the desires of large scale farmers to divert the river water for their crop irrigation, to the detriment of the salmon the Klamath people fish.

As a result, over the next year or so, this lawsuit is going to be a battle between the two highly experienced environmental lawyers, Mr. Wiygul and Mr. Brown, with the young Federal judge and the local Coastal Bend lawyers and other people watching, wide-eyed.

No Federal court proceedings are televised, video-taped or sound-taped, so its my hope to attend each “live” court hearing, read the documents filed with the court, the judge’s written orders, and provide all who care about the health of Corpus Christi Bay and its related marine ecosystems with an unbiased play-by-play.

I will have a report on any “live” hearing before Judge Tipton on the plaintiffs’ motion for a preliminary injunction to stop the use of the 404 Permit. Whether or not there is a live hearing, the next report will be on what the judge rules on the granting or not-granting of the preliminary injunction sought by the plaintiffs.

In Federal court, there is an essential principle followed by judges concerning Preliminary Injunctions. They are not supposed to issue them unless the party requesting the injunction convinces the judge that the party is likely to win the case at a later trial on the law and the facts. These sorts of cases do not have juries of local people deciding them. Instead, they are decided on the facts and law by the trial judge.

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3 thoughts on “Karankawa Kadla’s Fight Against MODA Midstream Covered by the Texas Tribune”

Jennifer Shaw says:

October 11, 2021 at 2:59 am

The Moda Midstream subsidiary which holds the Army Corps of Engineers permit to build the new oil terminal and to do the dredging of LaQuinta Channel is called “Moda Ingleside Oil Terminal LLC”.

Its worth noting that the Canadian oil pipeline and processing company Enbridge is in the process of buying all of the stock in Moda Midstream. When that happens Moda Midstream will no longer be a New York Stock Exchange traded company, so the information about “how the company is doing” will disappear from the American media. However, as to the existing and proposed new Moda Midstream oil terminals in the Coastal Bend, their construction and operation will still be government by U.S. law.

Just this month, the subsidiary, Moda Ingleside Oil Terminal LLC, planning to build the new supertanker teminal and dredge the LaQuinta Channel to deepen it, has been granted the right, by the U.S. District Court to be a fully empowered participant in the Clean Water Act and NEPA lawsuit filed by the 3 plaintiffs (Indigenous Peoples of the Coastal Bend, Karankawa Kadla Tribe of the Gulf Coast and Ingleside on the Bay Coastal Watch Association) against the Army Corps of Engineers.

From a non-party’s point of view, some of the plaintiff’s goals of the lawsuit are:

(1) to invalidate or freeze the use of the “404 Permit” granted by the Army Corps to Moda which would allow Moda to build their new supertanker accommodating oil terminal/docks on the LaQuinta Channel of Corpus Christi Bay and to dredge the channel to accommodate much bigger ships and tankers;

(2) to require the Army Corps of Engineers to prepare a full Environmental Impact Statement, complaint with Federal laws, regulations and case law, concerning the proposed oil terminal; and

(3) to require the Army Corps of Engineers to treat the two indigenous plaintiff groups with respect and involve them in “special consultation” concerning the issuance of the 404 Permit’s impact on the indigenous groups use of lands historically occupied/used by the Karankawa immediately near Moda’s existing oil terminal and the proposed, new terminal.

Below is a public link to the resume of Moda’s lead lawyer, which is worth everyone reading. He is a heavy hitter to say the least. Clearly Moda is preparing for a serious, lengthy battle to protect Moda’s Army Corps 404 Permit from being terminated as improperly issued.

https://www.craincaton.com/attorneys/kelly-d-brown-p-e/

The first serious skirmish in the lawsuit will happen some time after October 26, 2021. That’s the date Moda’s lawyers have to file with the court their full opposition to the plaintiffs motion for a preliminary injunction issued by the Federal trial judge to stop Moda from using/doing land grading or construction work authorized by the 404 Permit while the plaintiffs lawsuit is pending and heading towards a trial date some time a year or so in the future.

The U.S. District Court Judge to whom this case is assigned is Drew B. Tipton. He grew up in Angleton, TX, is an Aggie and graduated from South Texas College of Law in Houston. He became a Federal judge in 2021. His official resume is here: https://www.fjc.gov/node/8377921 His unofficial resumes, which provide more detail about his life and his former clients are found at Wikipedia and Ballotpedia, for example. There’s a saying among former law clerks for Federal judges what when there is a “new” judge in the court house, the older judges make sure the new guy is assigned to all of the new, difficult cases they really don’t want to handle. As a result, Judge Tipton has not only been assigned the case about the Moda terminal and dredging of the bay, Judge Tipton has been assigned multiple cases concerning the Biden Administration and ICE, Border Patrol and INS policies which you may read about in the news. As to the Moda case, from his resumes, it does not appear that Judge Tipton had any experience, as a lawyer, in handling NEPA/EIS cases or Clean Water Act/Army Corps of Engineers Permit cases. As a result, Judge Tipton is likely to engage in his own study of those two bodies of law before making rulings on motions (requests) by the plaintiffs, defendant Army Corps of Engineers, or intervenor Moda.

As a result, it may be December 2021 or later before Judge Tipton rules on the plaintiffs’ motion for a preliminary injunction to stop Moda from using its Army Corps 404 Permit to grade, dredge and build its new/expanded Ingleside facility.

The Army Corps of Engineers lawyers on this case who are seriously experienced are working out of the U.S. Department of Justice’s Washington D.C. offices, although they have one bright 9-year lawyer DOJ lawyer managing day-to-day litigation from an office here in the Coastal Bend.

The plaintiffs’ lawyer on the Motion for Preliminary Injunction is a highly experienced environmental litigator. His name is Robert Wiygul. He’s been a litigation attorney in Federal court for 32 years, with a lot of experience in environmental, NEPA, Army Corps of Engineers permit and Native American rights cases. https://wwglaw.com/attorney/robert-wiygul/ His law firm has offices in New Orleans and a Biloxi suburb, both coastal cities with a lot of heaving marine shipping issues. To those of us in the Coastal Bend, among his most interesting cases was/is participation as a lawyer in Federal court cases concerning the Klamath Tribe and people’s historic fishing rights in the Klamath River versus the Federal government’s regulation of the river and the desires of large scale farmers to divert the river water for their crop irrigation, to the detriment of the salmon the Klamath people fish.

As a result, over the next year or so, this lawsuit is going to be a battle between the two highly experienced environmental lawyers, Mr. Wiygul and Mr. Brown, with the young Federal judge and the local Coastal Bend lawyers and other people watching, wide-eyed.

No Federal court proceedings are televised, video-taped or sound-taped, so its my hope to attend each “live” court hearing, read the documents filed with the court, the judge’s written orders, and provide all who care about the health of Corpus Christi Bay and its related marine ecosystems with an unbiased play-by-play.

I will have a report on any “live” hearing before Judge Tipton on the plaintiffs’ motion for a preliminary injunction to stop the use of the 404 Permit. Whether or not there is a live hearing, the next report will be on what the judge rules on the granting or not-granting of the preliminary injunction sought by the plaintiffs.

In Federal court, there is an essential principle followed by judges concerning Preliminary Injunctions. They are not supposed to issue them unless the party requesting the injunction convinces the judge that the party is likely to win the case at a later trial on the law and the facts. These sorts of cases do not have juries of local people deciding them. Instead, they are decided on the facts and law by the trial judge.

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Jennifer Shaw says:

October 16, 2021 at 12:26 am

Enbridge has finalized its purchase of Moda Midstream. Today, October 15, 2021, their lawyers filed an “Amended Answer” in the Indigenous Peoples et al lawsuit against the Army Corps of Engineers announcing that Enbridge changed the name of the limited liability company which holds the Army Corps permit for the new oil terminal to this name:

Enbridge Ingleside Oil Terminal LLC

So don’t be confused when you see this new name, and assume that the company’s management are going to start calling their existing oil terminal on Corpus Christi Bay the “Enbridge Terminal” not “Moda Midstream”.

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Jennifer Shaw says:

October 22, 2021 at 5:31 am

On October 15-18, 2021 something pretty amazing happened in the lawsuit.

The lawyers for the 3 plaintiffs groups and the lawyers for Enbridge (with the lawyers for the Army Corps along for the ride) agreed to take the plaintiffs’ motion for preliminary injunction “off calendar”, meaning that the Army Corps and Enbridge won’t have to file “responsive pleadings”. In return Enbridge agreed to not start certain work under the Army Corps permit until August 2022. The detail about what work won’t be started is not easy to understand from the court-filed documents (#32 and #33) but it sounds pretty significant in that the work-stoppage involves the 3 planned super-tanker bays/docks.

The legal battle is essentially delayed until a date roughly in the middle of 2022, when copies of all of the Army Corps files (called the Administrative Record) are in the possession of all 3 parties lawyers, and the lawyers have filed written Motions for Summary Judgment, which might end the case without a trial.

All in all, this development strikes me as very good for the 3 plaintiffs groups, at least on a short term basis.

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