IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

CITY OF AUSTIN, 

CITY OF SAN MARCOS, 

TRAVIS COUNTY, 

HAYS COUNTY, 

BARTON SPRINGS EDWARDS AQUIFER 

CONSERVATION DISTRICT, 

LARRY BECKER, ARLENE BECKER, 

JONNA MURCHISON, AND 

MARK WEILER 

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Plaintiffs, § 

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CASE NO. 1:20-cv-00138-RP 

KINDER MORGAN TEXAS PIPELINE, 

LLC, PERMIAN HIGHWAY PIPELINE, 

LLC, UNITED STATES DEPARTMENT OF 

INTERIOR, DAVID BERNHARDT, in his 

Official Capacity as Secretary of Interior, 

UNITED STATES FISH AND WILDLIFE 

SERVICE and AURELIA SKIPWITH, in her 

Official Capacity as Director of the U.S. Fish 

and Wildlife Service, 

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Oral Argument Requested 

Defendants § 

     

PLAINTIFFS’ APPLICATION FOR A TEMPORARY RESTRAINING ORDER 

COME NOW, Plaintiffs City of Austin, City of San Marcos, Travis County, Hays County, 

Barton Springs Edwards Aquifer Conservation District, Larry Becker, Arlene Becker, Jonna 

Murchison and Mark Weiler (“Plaintiffs”) and respectfully request the Court to issue a temporary 

restraining order, as authorized under Rule 65(b) of the Federal Rules of Civil Procedure, until 

such time as the Court can hear and rule on Plaintiffs’ Application for Preliminary Injunction (Dkt. 

9). Plaintiffs have given notice of this TRO Application to the Kinder Morgan Defendants via the 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 1 of 14
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ECF system and by email, and to the federal defendants by hand delivery to the U.S. Attorney for 

the Western District of Texas at 903 San Jacinto Blvd., Suite 334, Austin, Texas 78701. 

1. On February 7, 2020, Plaintiffs filed an opposed motion (Dkt. 11), requesting an 

emergency hearing on the Preliminary Injunction Application. The Court denied that motion on 

February 10, 2020 in part because the Court declined to set a preliminary injunction hearing before 

the deadline for Defendants to file a response opposing the application. (Dkt. 16). Under W.D. 

Tex. Loc. R. CV-7(e), such response is due to be filed by Friday, February 14, 2020. 

2. In support of this TRO Application, Plaintiffs rely on their Application for Preliminary 

Injunction, Dkt. 9, and Memorandum in Support of Plaintiffs’ Application for Preliminary 

Injunction. Dkt. 10. In addition, Plaintiffs include an Appendix to this Application containing the 

declarations on which Plaintiffs rely to establish the facts of the likelihood of take under the 

Endangered Species Act (“ESA”) and the imminence of irreparable injury to Plaintiffs if a 

temporary restraining order does not issue. 

3. In this case Plaintiffs challenge Kinder Morgan’s plan to rush to construct the Permian 

Highway Pipeline (“PHP” of “Pipeline”) through some of the most sensitive environmental 

features in the Texas Hill Country without engaging in the extensive public planning and review 

processes that Congress explicitly designed to protect these resources in the ESA and the National 

Environmental Policy Act (“NEPA”). Plaintiffs are local governmental entities, a groundwater 

conservation district, and affected landowners who have consistently objected to Kinder Morgan’s 

precipitous rush to construct the pipeline without adequate process and protections for imperiled 

species and their essential, fragile habitat. 

4. The PHP is a proposed 430-mile natural gas pipeline, 42 inches in diameter, which is 

designed to transport about 2 billion cubic feet of natural gas per day. Current plans are to route 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 2 of 14
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the PHP through the Central Texas Hill Country, traversing sensitive environmental features, 

including the Edwards and Trinity Aquifer recharge zones as well as habitat for many endangered 

species. This route entails destroying hundreds of acres of habitat for the endangered Goldencheeked warbler (“warbler”) and cutting and clearing through the Central Texas oak forest during 

the period when all relevant experts recommend against cutting or pruning oak trees to prevent the 

spread of Oak Wilt. 

5. A temporary restraining order is an extraordinary remedy that is justified in this case by 

the extraordinarily short time-frame between when Kinder Morgan expects to receive 

authorization from the Corps (on or around February 14, 2020) to begin clearing and construction 

activities and when Kinder Morgan will be bound by the terms of that authorization to complete 

all clearing and construction work in warbler habitat (by March 1, 2020). See Dkt. 12 at 12. In the 

absence of a temporary restraining order, Plaintiffs will suffer irreparable harm, namely injury to 

their aesthetic, recreational, conservation, and incalculable financial interest in federally listed 

species and the irreplaceable water resources that depend on clean, clear water in the Edwards 

Aquifer. Furthermore, in the absence of a temporary restraining order, this Court’s ability to render 

a judgment on the merits of Plaintiffs’ substantial legal claims will be mooted. 

6. The requested temporary restraining order is fully justified because Plaintiffs can clearly 

establish the four elements required for temporary or preliminary relief: “(1) a substantial 

likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable 

injury if the temporary restraining order is denied; (3) that the threatened injury outweighs any 

damage that the temporary restraining order might cause the defendant; and (4) that the temporary 

restraining order will not disserve the public interest.” Jackson Women's Health Org. v. Currier, 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 3 of 14
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760 F.3d 448, 452 (5th Cir. 2014) (quoting Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998)); 

PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005). 

Plaintiffs Are Likely to Prevail on the Merits of their ESA and NEPA Claims 

7. Plaintiffs are likely to prevail on the merits of their ESA and NEPA claims because Kinder 

Morgan is poised to take members of endangered species without a lawful Section 10 Incidental 

Take Permit (“ITP’) required under the ESA, and a Section 10 ITP cannot be issued without NEPA 

review. Section 9 of the ESA makes it unlawful for any person to “take” any endangered species 

anywhere in the United States. 16 U.S.C. § 1538(a)(1)(B). The ESA broadly defines “take” to 

mean to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to 

engage in any such conduct.” Id. § 1532(19); Babbitt v. Sweet Home Chapter of Comtys. for a 

Great Or., 515 U.S. 687, 704-05 (1995). In addition, “harm” in the definition of “take” is defined 

to include significant habitat modification or degradation that actually kills or injures wildlife by 

“significantly impairing essential behavioral patterns, including breeding, feeding or sheltering” 

and “harass” is defined as an act or omission that “creates the likelihood of injury to wildlife by 

annoying it to such an extent as to significantly disrupt normal behavioral patterns which include 

breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. 

8. Only two narrow mechanisms provide a safe harbor from ESA take liability: a Section 10 

Incidental Take Permit (“Section 10 ITP”) available the U.S. Fish and Wildlife Service (“Service”) 

for projects not dependent on a federal permit (and therefore lacking a federal action agency), 16 

U.S.C. § 1539(a)(1)(B); or, for projects requiring a federal permit, an Incidental Take Statement 

(“ITS”) resulting from a Section 7 consultation between the federal action agency and the Service. 

16 U.S.C. § 1536(b)(4). Less than 5% of the PHP is directly subject to the jurisdiction of a federal 

permitting agency. Thus, for the remaining 95% or more of the pipeline, Kinder Morgan cannot 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 4 of 14
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lawfully take a member of an endangered species unless it has a Section 10 ITP. Kinder Morgan 

does not have an ITP for incidental take of the warbler or the listed aquatic species at issue in this 

case. Therefore, any take that occurs during clearing and construction for the non-federal portion 

of the PHP (more than 95% of the PHP) will violate the ESA. 

9. Clearing and construction in the Texas Hill Country will “undoubtedly” result in take of 

warblers and is “highly likely” to damage Barton Springs and adversely affect the quality and 

quantity of clear, clean water in the Edwards Aquifer and its recharge zone, which in turn could 

“cause irreversible impacts” on the Barton Springs salamander and the Austin blind salamander. 

The likelihood of unlawful take is fully explained in the declarations of Jennifer Blair, CWB, and 

Christopher Herrington, PE, contained in the Appendix, Exhibits 4 and 6. Blair concludes that 

“significant impairment to feeding, sheltering, and breeding activities will undoubtedly result in 

the actual death or injury to [warblers] through elimination of feeding and sheltering habitat, 

significant fragmentation of high quality habitat created by a 125-foot scar on the landscape, and 

the loss of reproductive success due to the elimination of breeding habitat, nesting areas, and nest 

abandonment due to disturbance related to construction, operation, and maintenance of the PHP.” 

Appendix, Exhibit 4 at ¶7. Herrington concludes that “[t]he construction and operation of the PHP 

is highly likely to damage Barton Springs and the aquifer [and] [t]he harm outlined above to the 

springs as endangered species habitat is essentially irreversible if salamander populations decline 

below sustainable levels.” Appendix, Exhibit 6 at ¶¶10, 11. Because Kinder Morgan does not have 

a valid Section 10 ITP, each and every take will violate the ESA. 

10. Kinder Morgan’s (and the Service’s) attempt to treat a Section 7 ITS as if it were a Section 

10 ITP without first undertaking NEPA review is a violation of NEPA. NEPA requires the 

preparation of an Environmental Impact Statement (“EIS”) for all “major Federal actions 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 5 of 14
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significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The 

issuance of a Section 10 ITP that authorizes a project to proceed is a “major federal action” for 

purposes of NEPA. So too is the issuance of a Biological Opinion and accompanying ITS if those 

documents are the basis upon which the project is authorized to proceed. See Ramsey v. Kantor, 

96 F.3d 434 (9th Cir. 1996) (holding that issuance of a BiOp and ITS is a major federal action 

because the project could not proceed without the ITS). Kinder Morgan cannot rely on the ITS to 

provide incidental take coverage for the non-federal portion of the PHP if the ITS and the 

Biological Opinion on which it is based have not been subject to NEPA review. 

11. Under NEPA, an EIS must thoroughly discuss the environmental impacts of a proposed 

action, including direct, indirect effect and cumulative effects, and shall “rigorously explore and 

objectively evaluate all reasonable alternatives” to the proposed action. 40 C.F.R. § 1502.14. After 

preparing a draft EIS and before preparing a final EIS, the agency must request comments from 

State and local agencies authorized to develop and enforce environmental standards and also 

request comments from the public, “affirmatively soliciting comments from those persons or 

organizations who may be interested or affected.” 40 C.F.R. § 1503.1(a)(4). The agency then 

must “assess and consider comments both individually and collectively” and state “its response in 

the final [EIS].” This notice and comment period for the preparation of the EIS is essential to its 

information-forcing role in agency decisions. 40 C.F.R. § 1503.3(a). Kinder Morgan and the 

Service’s attempt to secure a safe harbor for the non-federal portions of the PHP—it is important 

to remember that this is more than 95% of the PHP—through a Section 7 ITS essentially treats the 

ITS as if it were a Section 10 ITP. But implementing a Section 10 ITP without NEPA review 

violates NEPA, and implementing a Section 7 ITS that is used as a Section 10 ITP is just as much 

a NEPA violation. 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 6 of 14
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Plaintiffs Will Be Irreparably Injured If A TRO Does Not Issue, and This Court’s 

Jurisdiction to Rule on the Merits Will be Rendered Moot. 

12. Plaintiffs will be irreparably injured if a temporary restraining order does not issue to 

prohibit Kinder Morgan from engaging in clearing and construction activities before this Court 

can hear and rule on Plaintiffs’ Application for a Preliminary Injunction. Landowner Plaintiffs 

own property and homes in the proposed route of the PHP or adjacent to that route. Their property 

contains high quality warbler breeding habitat, including mature Ashe juniper trees and various 

oak and other native hardwood species. Landowner Plaintiffs enjoy bird watching – many have 

enjoyed sightings of endangered warblers on our property, and all landowner Plaintiffs hope to 

enjoy such sightings in the future. Some of the landowners are beekeepers and have organic 

gardens. All of the landowners have mature oak trees (some more than 150 years old) that will be 

vulnerable to the spread of Oak Wilt. The full extent and individual aspect of these Plaintiffs’ 

irreparable injury is explained in their declarations in the attached Appendix, Exhibits 1-3. In 

general, though, landowner Plaintiffs will be irreparably injured by Kinder Morgan’s clearing and 

construction activity because it will: a) destroy trees and other foliage of warbler habitat on their 

property or adjacent to the warbler habitat on their property, making it less likely that they will 

observe and enjoy endangered warblers in the future; b) increase the risk of spreading Oak Wilt 

on their property and destroying their oak trees, which cannot be replaced in their lifetimes; c) 

create a risk of a leak or explosion that affects their safety as well as the safety of their homes and 

water wells, and potentially trapping some Plaintiffs on their property with no way out, the 

economic impact of which is incalculable; d) risk the spread of herbicides from the PHP right of 

way maintenance to their property, endangering the health and life of some Plaintiffs’ bee colonies 

and the integrity of their organic garden; and e) diminish the market value of their homes and land, 

as well as the peace and enjoyment of their retirement years, due to the pipeline’s proximity. 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 7 of 14
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13. Plaintiffs City of Austin, City of San Marcos, Travis County and Hays County are home 

rule cities in Texas and Texas counties. These local governments have spent hundreds of millions 

of dollars over the past several decades preserving land and water resources for their residents and 

visitors. These resources provide endangered species habitat, sources of drinking water, and land 

and water-based recreation opportunities that are of incalculable value to the cities and counties. 

The full extent of the irreparable injury to these governmental entities and their residents is 

explained in the declarations in the attached Appendix, Exhibits 6, 7, 10, 11 and 12. But the 

incalculable costs of Kinder Morgan’s actions are well captured in the conclusions of Jodi Jay, 

Division Manager of the Austin Parks and Recreation Departments Aquatic Division, and Rebecca 

Ybarra, Director of the Convention and Visitor Bureau for the City of San Marcos. Ms. Jay states, 

“[i]t is not possible to calculate in monetary [terms the] damage that would be done to the City if 

Barton Springs Pool is contaminated by the construction activities of the pipeline.” Appendix, 

Exhibit 11 at ¶6. Ms. Ybarra states, “[i]t is not possible to calculate in monetary terms the damage 

that would be done to the City if [San Marcos] springs and [the San Marcos] river are contaminated 

by the construction activities of the pipeline. . . . [T]he threat to the City’s interests, especially in 

terms of recreational opportunities for its residents and visitors, is great and incalculable.” 

Appendix, Exhibit 7 at ¶6. 

14. Moreover, without a temporary restraining order, Kinder Morgan will rush to complete its 

clearing and construction activity in the Texas Hill Country, undermining this Court’s ability to 

render a meaningful judgment. See Canal Authority of the State of Florida v. Callaway, 489 F.2d 

567, 573 (5th Cir. 1974). 

 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 8 of 14
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The Irreversible and Incalculable Harm to Plaintiffs and Endangered Species Outweighs 

any Temporary Harm that a TRO will Cause to Kinder Morgan 

15. Kinder Morgan is in a hurry to destroy hundreds of acres of habitat for the endangered 

warbler and adversely impact thousands more acres in the next 20 days. But time pressures of 

Kinder Morgan’s own making cannot outweigh the timeless interest in protecting and preserving 

endangered species, especially where courts have uniformly recognized that self-inflicted injuries 

cannot avoid the imposition of equitable relief. See, e.g., Long v. Robinson, 432 F.2d 977, 981 

(4th Cir. 1970) (finding it “elementary that a party may not claim equity in his own defaults”); 

Fund for Animals v. Norton, 294 F. Supp. 2d 92, 116-117 (D.D.C. 2003) (refusing to grant 

equitable relief where party’s actions were “disingenuous at best,” and finding that “any economic 

or emotional harm . . . falls squarely on the defendants’ shoulders”). 

16. Moreover, as the Supreme Court has made clear, where violations of the ESA are 

concerned, such countervailing economic considerations are irrelevant: 

[T]he plain language of the [ESA], buttressed by its legislative history, shows 

clearly that Congress viewed the value of endangered species as “incalculable.” 

Quite obviously, it would be difficult for a court to balance the loss of a sum certain 

–even $ 100 million—against a congressionally declared “incalculable” value, even 

assuming we had the power to engage in such a weighing process, which we 

emphatically do not. 

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 187–88 (1978) (emphasis added) 

A Temporary Restraining Order Will Serve the Clearly Established Public Interest in 

Preserving Endangered Species and their Habitat. 

17. The final factor in considering whether to grant preliminary relief is whether the injunction 

is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, (2008). Here, the 

public interest tips very heavily in favor of preserving the status quo in order to conserve 

endangered species and their habitat, and to subject Kinder Morgan’s proposed pipeline project to 

full, comprehensive, public review, as required by the ESA. As courts have consistently 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 9 of 14
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recognized, Congress itself has determined that the “balance of hardships and the public interest 

tip heavily in favor of endangered species.” Sierra Club v. Marsh, 816 F.2d 1376,1383 (9th Cir. 

1987); see also Strahan v. Coxe, 127 F.3d 155, 160 (1st Cir. 1997), cert. denied, 525 U.S.830 

(1998) (“[U]nder the ESA . . . the balancing and public interest prongs have been answered by 

Congress.”); Animal Prot. Inst. v. Martin, 511 F. Supp. 2d 196, 197 (D. Me. 2007) (finding that 

the balance of hardships “tips heavily in favor of the protected species”). That alone underscores 

the public interest in a TRO in this case. 

18. Moreover, granting a TRO would allow the Court to maintain the status quo pending a 

fuller examination of Plaintiffs’ substantial claims at a preliminary injunction hearing and on the 

merits. This serves the public’s overriding interest in endangered species and the essential habitat 

necessary to sustain and recover them. See Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305, 326-27 

(D.C. Cir. 1987) (affirming that injunction was in the public interest to “protect against further 

illegal action pending resolution of the merits” and to “protect[] the environment from any threat 

of permanent damage”). Finally, the public has a substantial interest in ensuring that entities such 

as Kinder Morgan comply with federal environmental laws before taking actions that irreversibly 

impact the environment. See, e.g., Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. 

Supp. 2d 1, 26 (D.D.C. 2009) (granting preliminary injunction and finding that “[t]here is no 

question that the public has an interest in having Congress’ mandates in [environmental statutes] 

carried out accurately and completely”). 

19. Given the urgency of this matter, Plaintiffs request a hearing for presentation of oral 

argument on this application for temporary restraining order as soon as reasonably possible in 

order for the emergency relief to be granted before Kinder Morgan begins its clearing activities. 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 10 of 14
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20. In the event the Court issues a temporary restraining order, Plaintiffs—local governmental 

entities and local landowners—respectfully request that the Court require no bond, or, at most, a 

nominal bond. See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (“In holding 

that the amount of security required pursuant to Rule 65(c) ‘is a matter for the discretion of the 

trial court,’ we have ruled that the court ‘may elect to require no security at all.’”) (quoting and 

citing Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300, 302-03). Courts routinely 

require no bond or only a minimal bond (i.e., $500 or less) in environmental cases of this kind that 

seek to advance the public interest. See, e.g., Save Strawberry Canyon v. Dep’t of Energy, 613 F. 

Supp. 2d 1177, 1191 (N.D. Cal. 2009) (ordering no bond). The same outcome is appropriate in 

this case. 

 Respectfully submitted, 

/s/ Clark Richards 

Daniel R. Richards 

State Bar No. 00791520 

drichards@rrsfirm.com 

Clark Richards 

State Bar No. 90001613 

crichards@rrsfirm.com 

RICHARDS RODRIGUEZ & SKEITH, LLP 

816 Congress Ave, Suite 1200 

Austin, TX 78701 

Tel: 512-476-0005 

/s/ Lynn E. Blais 

Lynn E. Blais* 

Attorney at Law 

Texas Bar No. 02422520 

727 E. Dean Keeton Street 

Austin, TX 78705 

(512) 653-5987 

lblais@law.utexas.edu 

* Motion for admission pro hac vice pending 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 11 of 14
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/s/ Renea Hicks 

Renea Hicks 

Attorney at Law 

State Bar No. 09580400 

LAW OFFICE OF MAX RENEA HICKS

P.O. Box 303187 

Austin, Texas 78703-0504 

(512) 480-8231 

rhicks@renea-hicks.com 

ATTORNEYS FOR PLAINTIFFS

DAVID A. ESCAMILLA

TRAVIS COUNTY ATTORNEY

P. O. Box 1748 

Austin, Texas 78767 

(512) 854-9415 

(512) 854-4808 FAX 

 

By: /s/ Sherine E. Thomas 

Sherine E. Thomas 

Assistant County Attorney 

State Bar No. 00794734 

sherine.thomas@traviscountytx.gov

Sharon K. Talley 

Assistant County Attorney 

State Bar No. 19627575 

sharon.talley@traviscountytx.gov 

Tim Labadie 

Assistant County Attorney 

State Bar No. 11784853 

tim.labadie@traviscountytx.gov 

ATTORNEYS FOR PLAINTIFF 

TRAVIS COUNTY

 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 12 of 14
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CERTIFICATE OF SERVICE 

This is to certify that on February 11, 2020, a true and correct copy of the above and 

foregoing document was filed via the Court’s ECF/CM system and will be served as follows: 

W. Stephen Benesh 

David B. Springer 

111 Congress Avenue, Suite 2300 

Austin, Texas 78701-4061 

Via ECF/CM Notification and 

Email: steve.benesh@bracewell.com

david.springer@bracewell.com 

Ann D. Navaro 

Brittany Pemberton 

BRACEWELL LLP 

2001 M Street NW, Suite 900 

Washington, DC 20006 

Via Email: ann.navaro@bracewell.com 

Brittany.pemberton@bracewell.com 

John F. Bash, U.S. Attorney 

for the Western District of Texas 

903 San Jacinto Blvd., Suite 334 

Austin, Texas 78701 

Via Hand Delivery 

 /s/ Clark Richards 

 CLARK RICHARDS 

   

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 13 of 14
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APPENDIX 

Exhibit 1 Declaration of Larry Becker 

Exhibit 2 Declaration of Jonna Murchison 

Exhibit 3 Declaration of Mark Weiler 

Exhibit 4 Declaration of Jenny Blair 

Exhibit 5 Declaration of David Vaughan 

Exhibit 6 Declaration of Christopher Herrington 

Exhibit 7 Declaration of Rebecca Ybarra 

Exhibit 8 Notice of Intent to Sue, dated 7/17/2019 

Exhibit 9 Notice of Intent to Sue, dated 10/16/2019 

Exhibit 10 Notice of Intent to Sue, dated 5/14/2019 

Exhibit 11 Declaration of Jodi Jay 

Exhibit 12 Declaration of Lon A. Shell 

Case 1:20-cv-00138-RP Document 18 Filed 02/11/20 Page 14 of 14