ELR Citation: ELR 20164
No(s). 73-2487 (5th Cir. Feb 15, 1974)

The Fifth Circuit Court of Appeals reverses a lower court's ruling that where proponents of the Cross-Florida Barge Canal sought to enjoin federal officials from releasing impounded water in order to protect threatened trees, the burden of persuasion as to whether the injunction should issue was on the defendants. The party seeking a preliminary injunction always has the burden of showing that irreparable injury is threatened; that it has a substantial likelihood of prevailing on the merits of the case; that the damage to the moving party if the injunction is refused will be greater than that to the other party if it is granted; that the injunction seeks to preserve the last uncontested status quo; and that the public interest will not be disserved. The district court erred in giving overriding weight to the possibility that a drawdown of the impounded waters might have the psychological effect of making the public think that the canal project, ordered terminated by President Nixon, was in fact being stopped. The fact that the number of trees involved is small compared to all trees in the Ocala National Forest and to the annual nationwide loss of trees to forest fires is irrelevant, and the district court was incorrect in taking that factor into account. The appellate court notes that the effect of the erroneous grant of a preliminary injunction against the drawdown may well have been the destruction of two square miles of hardwoods, and serious damage to the swamp forest ecosystem of which the trees are a crucial element.

Counsel for Plaintiff-Appellee Canal Authority of the State of Florida
Ralph E. Elliott, Jr.
Frank C. Decker
Decker, Elliott & Kaler
Suite 1710, American Heritage Life Building
11 East Forsyth Street
Jacksonville, FL 32202

John H. Gullett
1250 Connecticut Avenue, NW
Washington, DC 20036

Willard Ayres
Greene, Ayres, Swigert, Cluster & Tucker
103 N.E. 1st Avenue
Ocala, FL 32670

Counsel for Plaintiff-Appellant Environmental Defense Fund, Inc.
Jon T. Brown
Wallace L. Duncan
Environmental Defense Fund, Inc.
1525 18th Street, NW
Washington, DC 20036

Edward Lee Rogers General Counsel
Environmental Defense Fund, Inc.
162 Old Town Road
East Setaucket, NY 11733

Counsel for Federal Defendants-Appelants
Wallace H. Johnson Asst. Attorney General
Jacques B. Gelin
Frederick L. Miller
Land & Natural Resources Division
Department of Justice
Washington, DC 20530

John L. Briggs U.S. Attorney
John D. Roberts Asst. U.S. Attorney
U.S. Courthouse
311 W. Monroe Street
Jacksonville, FL 32202

Counsel for Plaintiff-Appellee Jacksonville Port Authority
David U. Tumin Asst. City Counsel
David U. Livermore, Jr. Asst. City Counsel
City Hall
220 E. Bay Street
Jacksonville, FL 32202

Counsel for Plaintiff-Appellee Cross-Florida Canal Association
Tracy Danese
Grissett, Humpheries & Danese
210 First Bank and Trust Building
231 East Forsyth Street
Jacksonville, FL 32202

Counsel for Individual Plaintiffs-Appellees
William L. Eagan
Arnold, Matheny & Eagan
857 North Orange Avenue
Orlando, FL 32802

Ronald E. Clark
523 St. Johns Avenue
Palatka, FL 32077