Murphy v. United States Forest Service, et al.

Filing 10

ORDER signed by Judge Garland E. Burrell, Jr on 11/15/2013 DENYING 8 Motion for Temporary Restraining Order. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS D. MURPHY,

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Plaintiff,

2:13-cv-02315-GEB-AC
ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

v.
UNITED STATES FOREST SERVICE;
THOMAS TIDWELL, in his
official capacity as Chief of
the United States Forest
Service; NANCY J. GIBSON, in
her official capacity as
Forest Supervisor of the
United States Forest
Service,
Defendant.

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On Thursday, November 14, 2013, at approximately 6:00

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p.m., Plaintiff filed a motion for a temporary restraining order

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(“TRO”) to “enjoin the Upper Echo Lake Hazardous Fuels Reduction

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Project,” (“Project”) (Pl.’s Notice of Mot. 1:6-7, ECF No. 8),

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which the Forest Service commenced on September 30, 2013. (Compl.

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¶ 27.) Plaintiff asserts it should be scheduled for hearing on

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Monday, November 18, 2013.

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As prescribed in Local Rule 231(b):

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Timing of Motion. In considering a motion for
a temporary restraining order, the Court will
consider whether the applicant could have
sought relief by motion for preliminary
injunction at an earlier date without the
necessity for seeking last-minute relief by
motion
for
temporary
restraining
order.
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Should the Court find that the applicant
unduly delayed in seeking injunctive relief,
the Court may conclude that the delay
constitutes
laches
or
contradicts
the
applicant's allegations of irreparable injury
and may deny the motion solely on either
ground.

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Here, Plaintiff alleges: “On November 15, 2012, the

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Forest

Service

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indicated its determination to implement the Upper Echo Lakes

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project.” (Compl. ¶ 26.) Moreover, Plaintiff avers that he wrote

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“letters to the Forest Service outlining a variety of concerns

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with the Project on July 22 and August 21, 2013.” (Decl. of

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Dennis

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alleges, “On September 30, 2013, the Forest Service commenced the

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Project over [his] objections,” suspended the Project “[d]ue to a

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federal government shutdown,” and “resumed [the Project] sometime

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after the shutdown ended on October 16, 2013, but before October

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22, 2013.” (Compl. ¶ 27.)

D.

issued

Murphy,

Ph.D

Plaintiff

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a

decision

3:7-8,

provides

no

memo

ECF

No.

in

which

8-2).

explanation

the

agency

Plaintiff

concerning

also

why

he

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waited over one month after work on the project commenced to file

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his

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hearing in virtually one business day. Since Plaintiff has not

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provided sufficient explanation concerning why he “could [not]

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have sought relief by motion for preliminary injunction at an

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earlier [or future] date without the necessity for seeking last-

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minute relief by motion for temporary restraining order,” Local

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R. 231(b), the TRO is denied on “procedural grounds alone,” and

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it

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Plaintiff’s

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Ass’n v. United States, 2:13-CV-01025-MCE-AC, 2013 WL 2297067, at

motion

is

for

a

TRO,

“unnecessary
motion

at

which

to

he

address

this

time.

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expects

the

to

be

scheduled

substantive

Jameson

Beach

issues”

Prop.

for

of

Owners'

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*4 (E.D. Cal. May 24, 2013
4
C
3).

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Da
ated:

No
ovember 15, 2013
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