Lo et al v. County of Siskiyou et al

Filing 47

ORDER signed by Chief District Judge Kimberly J. Mueller on 09/03/21 GRANTING IN PART 4 Motion for Preliminary Injunction; until further order of this court, Siskiyou County and its officers, agents, employees, and any person acting in concert with it are ENJOINED from enforcing Siskiyou County Ordinance Nos. 21-07 and 21-08, both adopted 05/04/21. (Benson, A.)

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Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 1 of 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Dilevon Lo, et al., 12 Plaintiffs, 13 14 No. 2:21-cv-00999-KJM-DMC ORDER v. County of Siskiyou, et al., 15 Defendants. 16 17 A California county has passed a pair of ordinances which have the practical effect of 18 cutting off the water supply to a minority community that has recently been the target of racial 19 prejudice. The plaintiffs, who are members of this community, have raised serious questions 20 about the merits of their claim that the ordinances are motivated by racial animus. They have also 21 shown that without an injunction, they will not have water to meet their basic needs. Because the 22 hardships tip sharply in favor of temporary relief, their motion for a preliminary injunction is 23 granted in part, as described below. 24 I. BACKGROUND 25 Siskiyou County occupies some of California’s northernmost territory along the state’s 26 border with Oregon. It is one of the largest counties in California by land area, and it is mostly 27 rural and undeveloped. See Suppl. LaRue Decl. Ex. A at 5, ECF No. 41-1. Mount Shasta rises to 28 more than 14,000 feet above sea level within the County’s borders, and more than half of the 1 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 2 of 28 1 County’s land holds national forests and wilderness areas, including the Shasta-Trinity National 2 Forest and the Trinity Alps Wilderness. Id. The landscape is often rugged, inaccessible, and 3 remote. See id. 4 These conditions have contributed to people growing marijuana illegally in Siskiyou 5 County for some time, including on public lands. See generally id. In 2015, the County passed 6 an ordinance banning commercial cannabis cultivation, and it stepped up its enforcement efforts 7 against marijuana growers. LaRue Decl. ¶ 3, ECF No. 31-2.1 These efforts seem to have 8 succeeded only in shifting marijuana cultivation away from public lands, out of the open air, and 9 into greenhouses and hoop houses that have increasingly sprung up on private land. Id. In 10 Siskiyou County, it is also possible to grow much more marijuana in a greenhouse than out in the 11 open. See Suppl. LaRue Decl. Ex. A at 1–2; LaRue Decl. ¶ 3. Growers can plant and harvest two 12 crops every year, in the Spring and Fall. See Suppl. LaRue Decl. Ex. A at 1–2. Yields are twice 13 or three times as high. LaRue Decl. ¶ 3. 14 Criminal liability has been an ineffective deterrent to commercial cannabis cultivation. 15 Cultivation alone is a misdemeanor offense, and sentences are commonly low unless a person has 16 also violated regulations or laws enforced by Fish and Wildlife authorities or the California Water 17 Board. See Suppl. LaRue Decl. Ex. A at 8. For many, the potential rewards of commercial 18 cannabis cultivation seem to outweigh the risks, at least in the County Sheriff’s Office’s 19 assessment. See id. at 6. 20 The proliferation of illegal marijuana cultivation in greenhouses spurred the County’s 21 Board of Supervisors to declare a state of emergency in 2018. LaRue Decl. ¶ 4; Suppl. LaRue 22 Decl. Ex. A at 4. The Sheriff’s Office began issuing search warrants and seizing illegally 23 cultivated cannabis. LaRue Decl. ¶ 5. It obtained and executed almost 150 warrants a year. Id. 24 Over the last few years, it has seized and destroyed hundreds of thousands of illegally cultivated 1 California laws that permit marijuana use and distribution do not preempt the authority of California cities and counties to restrict or completely prohibit the same conduct. See Cal. Bus. & Prof. Code § 26200(a); see also, e.g., City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 56 Cal. 4th 729, 762 (2013); City of Vallejo v. NCORP4, Inc., 15 Cal. App. 5th 1078, 1081 (2017). 2 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 3 of 28 1 marijuana plants and dozens of tons of processed marijuana worth nearly half a billion dollars. 2 LaRue Decl. Ex. C; Suppl. LaRue Decl. Ex. A at 4, 7. Millions of dollars in currency and dozens 3 of firearms have also been seized, and the County has made more than 200 arrests. See LaRue 4 Decl. Ex. C. Two Sheriff’s Deputies devote all of their time to investigating illegal marijuana 5 grow operations. Suppl. LaRue Decl. Ex. A at 1. One Deputy splits time between investigations 6 on private and public land, and the other focuses on private land only. Id. Three part-time 7 Reserve Deputies also assist when they are available, but the Sheriff’s Office does not have any 8 other staff to assign to this enforcement effort. See id. at 6, 9. Other deputies and jail staff can 9 volunteer, but then they must work, and be paid, overtime. See id. at 9. 10 The County’s enforcement efforts have proven costly. In 2020 alone, the Sheriff’s Office 11 spent more than $120,000 on helicopter flights, a utility vehicle, overtime expenses, protective 12 equipment, GPS units, chainsaws, cutters, and other gear—all of it investigating and stopping 13 illegal marijuana cultivation. Id. at 4. Its budget for 2021 is $130,000. See id. at 10–11. To 14 cover these costs, the County has secured funding from a domestic cannabis suppression and 15 eradication program at the U.S. Drug Enforcement Administration. See generally id.; see also 16 U.S. Drug Enf. Admin., Domestic Cannabis Suppression / Eradication Program (visited Sept. 2, 17 2021).2 18 Despite these enforcement efforts, the illegal cultivation of marijuana in greenhouses on 19 private land has increased rapidly. See LaRue Decl. ¶ 6 & Ex. A; Suppl. LaRue Decl. Ex. A at 1. 20 According to a 2020 report, the Sheriff’s Office had eradicated only about 10 percent of the 21 cultivation sites within the County’s borders. Suppl. LaRue Decl. Ex. A at 5. Thousands more 22 grow sites remained. See id. 23 Although cannabis is cultivated illegally in many places in Siskiyou County, see, e.g., 24 Conrad Decl. ¶¶ 6–9 & Ex. B, ECF No. 22, grow operations are highly concentrated in a few 25 specific regions, see Suppl. LaRue Decl. ¶ 6 & Ex. A at 5–6. One of these regions is in the 26 northeast area of the County, off County Road A12 between Big Springs Road and Highway 97, 27 an area known as the “Mount Shasta Vista Subdivision” or just “Shasta Vista.” See First 2 https://www.dea.gov/operations/eradication-program 3 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 4 of 28 1 Szendrey Decl. ¶¶ 33–35, ECF No. 4-5. The number of cannabis greenhouses in Shasta Vista is 2 much greater than in other parts of the County. LaRue Decl. ¶ 6. According to the Sheriff, it is 3 the most “expansive, excessive, extreme, and impactful” concentration of illegal cannabis 4 cultivation within the County’s borders. Suppl. LaRue Decl. ¶ 6. 5 The court pauses briefly here to resolve a dispute on this point: the plaintiffs and amici 6 dispute the County’s claim that illegal marijuana cultivation is heaviest in Shasta Vista, relying 7 primarily on a brief statement in the 2020 Sheriff’s Office report cited above. See, e.g., Mot. at 8 15–16, ECF No. 4; First Szendrey Decl. Ex. C; Amicus Br. at 5–6 & n.8, ECF No. 42-1. The 9 report shows two aerial photos of greenhouses in Shasta Vista. See Suppl. LaRue Decl. Ex. A at 10 3–4. It introduces the photos as depicting “a 600-acre parcel that has been divided into at least 80 11 cultivation sites.” Id. at 3. The plaintiffs and amici interpret this phrase as a description of the 12 whole Shasta Vista subdivision as a “600-acre parcel.” See Mot. at 15–16; Amicus Br. at 5–6 & 13 n.8. If this interpretation is correct, then only a tiny fraction of the thousands of cultivation sites 14 in Siskiyou County are within Shasta Vista. See Amicus Br. at 6 n.8. The court itself read the 15 report similarly in a previous order. See Prev. Order at 4, ECF No. 11. According to the next 16 sentence in the report, however, “it is safe to say that almost every surrounding parcel is being 17 used for the sole purpose of cultivating hundreds if not thousands of marijuana plants.” Suppl. 18 LaRue Decl. Ex. A at 3. That claim suggests the 600-acre parcel is one of many within Shasta 19 Vista; that is, just one parcel within Shasta Vista contains 80 “cultivation sites,” and the 20 surrounding parcels within Shasta Vista contain many more. The Sheriff reads the report this 21 way, see Suppl. LaRue Decl. ¶ 8, and he has extensive first-hand knowledge of marijuana 22 cultivation in Shasta Vista, see LaRue Decl. ¶ 2. The plaintiffs and amici do not offer a reason to 23 doubt his interpretation of his Office’s own report. The court therefore adopts it in this order. 24 Greenhouse cannabis growers in Shasta Vista rely primarily on water trucks to supply 25 their crops. See id. ¶ 7. They transport water from nearby agricultural wells. See id. At the 26 height of the cultivation boom, more than 100 trucks drove into Shasta Vista every day, each 27 carrying between 2,500 and 4,000 gallons of water. Id. According to the Sheriff, more than 30 28 wells in adjacent farmland ran dry as a result of excessive groundwater pumping. Id. That may 4 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 5 of 28 1 not be so, however. A local well driller blames poor well design and natural droughts. See Enloe 2 Decl. ¶¶ 9, 15–16, ECF No. 4-4. Public perception in the County among those expressing their 3 views, however, apparentlywas unmistakable: overuse was the true cause. At a Board of 4 Supervisors Meeting a few months ago, the Sheriff testified that residents were “screaming” 5 about overuse “nonstop.” Testimony of Sheriff Jeremiah LaRue to the Siskiyou Cty. Bd. of 6 Supervisors at 8:224–25 (May 4, 2021), Lawrence Decl. Ex. O-2, ECF No. 4-2. 7 Methods of illegal cannabis cultivation in Shasta Vista also are dangerous and 8 environmentally damaging. See LaRue Decl. ¶¶ 8–10. Growers use unregulated insecticides, 9 pesticides, and fertilizers. Id. ¶ 8; Suppl. LaRue Decl. Ex. A at 15. Chemicals and raw sewage 10 are discharged onto the land. LaRue Decl. ¶ 9 & Ex. B;3 Dean Decl. ¶ 7, ECF No. 8-1. Trash 11 litters the ground. Dean Decl. ¶ 7. People have died in unpermitted structures after suffering 12 carbon monoxide poisoning. LaRue Decl. ¶ 10. 13 Violent crime in Shasta Vista has also spiked in recent years. Id. ¶ 11. The Sheriff’s 14 Office has responded to reports of armed robbery, assault, and murder. Id. In just one recent 15 week, a man was pistol-whipped and robbed, another was the target of gunshots fired by a 16 neighbor, and six people were bound and robbed by gunmen wielding AK-47s. Id. ¶¶ 13–14. 17 Few similar crimes were reported in Shasta Vista before illegal cannabis cultivation took hold. 18 See id. & Ex. C. 19 Not long after marijuana cultivation began rising in Shasta Vista, many Hmong migrants 20 began moving to the area from elsewhere in the United States. See LaRue Decl. ¶ 3 (reporting 21 that marijuana cultivation in Shasta Vista began to increase “a few years before 2015”); Suppl. 22 Der Lee Decl. ¶ 6, ECF No. 33-2 (recalling that Hmong migrants began arriving in Siskiyou 23 County in about 2015). Shasta Vista is now predominantly Hmong. First Szendrey Decl. ¶ 11; 24 Vamntxawg Lee Decl. ¶ 2–3, ECF No. 4-14. About one thousand Hmong migrants live in Shasta 25 Vista itself, and about three thousand more members of the Hmong community live nearby. See 26 Vamntxawg Lee Decl. ¶ 3. 3 The plaintiffs contend that some of the pictures in Exhibit B are not of the Mount Shasta Vista subdivision. See Fourth Szendrey Decl. ¶¶ 4–5, ECF No. 33-3. 5 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 6 of 28 1 Many of the Hmong people who have moved into Shasta Vista do not speak English as 2 their first language, and the language barrier has prevented them from communicating with the 3 locals, who for the most part speak only English. Suppl. Der Lee Decl. ¶ 6. They did not 4 understand how to establish a residence legally. Id. Many Hmong immigrants also harbored 5 suspicions of government born of persecution at the hands of communist authorities in Laos. Id. 6 ¶ 7. Many of the County’s other residents have prejudged Hmong people as outlaws, spread false 7 rumors, brandished weapons at them, shot at their cars, stolen their belongings, told them to “go 8 back where they came from,” and even advocated arson and vigilantism. See King Decl. ¶¶ 8–10, 9 14, ECF No. 4-15; Koua Lee Decl. ¶ 11, ECF No. 9-8; Khue Cha Decl. ¶ 7, ECF No. 9-10. 10 In these circumstances, many Hmong families have not obtained necessary permits and 11 approvals from the County before building their homes in Shasta Vista. About 1,600 parcels 12 comprise the Mount Shasta Vista Subdivision, Dean Decl. ¶ 2, and Hmong families occupy most 13 of those lots, Vamntxawg Lee Decl. ¶ 3, but according to the County’s records, only 85 lots have 14 been properly developed with an approved single-family dwelling, Dean Decl. ¶ 2. Some of the 15 remaining parcels have been developed into roads and other miscellaneous uses, but the vast 16 majority are recorded as unimproved, undeveloped land. See id. 17 Tensions have also prevented the County from updating its records. Since 2017 or 2018, 18 the County’s Assessor-Recorder’s office has not sent its staff to the Mount Shasta Vista out of 19 fear for their safety. Kay Decl. ¶ 11, ECF No. 31-3. People block roads and confront inspectors. 20 Id. As a result, the County does not know whether many of the structures or homes in the Mount 21 Shasta Vista area comply with building codes, zoning rules, and other laws. See, e.g., id. Nor has 22 the County been in a position to enforce rules that limit the time a person can stay on a lot without 23 legally establishing a residence. Dean Decl. ¶¶ 6, 9. 24 Water is another problem. The County requires all single-family houses to have a 25 permanent source of potable water. Id. ¶ 3. Wells could perhaps provide a permanent water 26 source within Shasta Vista, but there are very few, as it is difficult to drill through the volcanic 27 rock beneath the local ground. See Griset Decl. ¶ 9, ECF No. 9-11. According to conventional 28 wisdom, the water beneath the rock is also salty. See, e.g., Nhia Thai Vang Decl. ¶ 8, ECF No. 96 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 7 of 28 1 5. The County has placed a moratorium on new wells. See Griset Decl. ¶ 8. Shasta Vista 2 residents have thus relied on water delivered by truck from one or two wells on nearby farms, 3 namely the same water and the same trucks used to irrigate illegal cannabis. See First Szendrey 4 Decl. ¶ 12; Vamntxawg Lee Decl. ¶¶ 4–5; Griset Decl. ¶¶ 1–3. The wells are agricultural and do 5 not produce potable water. See Dean Decl. ¶ 5; Suppl. Dean Decl. ¶ 2, ECF No. 41-4. 6 Agricultural water is not tested or treated for contaminants. Suppl. Dean Decl. ¶ 3. Nor are the 7 water trucks commonly used in Shasta Vista approved to carry potable water. Dean Decl. ¶ 5. 8 9 In the summer of 2020, the County’s Board of Supervisors responded to the explosion of illegal cannabis cultivation in greenhouses by passing an ordinance that bans the use of 10 groundwater for illegal cannabis cultivation. See generally Siskiyou Cty. Ord. No. 20-13 (Aug. 4, 11 2020), Suppl. Donald Decl. Ex. A, ECF No. 41-2. The ordinance emphasizes the importance of 12 groundwater “for domestic, municipal, agricultural, and industrial uses,” for the environment, and 13 for the plants and animals that have made the County a tourist destination. See id. § 1.E–F. 14 “Cannabis is a water-intensive crop,” the Board found, and despite prohibitions on commercial 15 cannabis cultivation, Sheriff’s Deputies were seizing thousands of illicit cannabis plants and 16 thousands of pounds of processed cannabis. Id. § 1.L–M. Water trucks were also delivering 17 “large quantities of groundwater” from local wells to illegal cannabis cultivation sites, most 18 “without legally established residences.” Id. § 1.N. This was untenable, especially because some 19 parts of the County were in an extreme drought. See generally id.; see also Haupt Decl. ¶ 2.a, 20 ECF No. 41-5. The Board thus added three prohibitions to the County’s municipal code: 21 22 23 24 25 (a) No person or entity shall engage in the act of wasting or unreasonably using groundwater by extracting and discharging groundwater underlying Siskiyou County for use in cultivating cannabis in violation of Chapter 14 or Chapter 15 of Title 10 of the Siskiyou County Code. 26 27 28 (b) No person or entity shall permit the existence of any public nuisances, as defined in this Article, to exist on property in his or her ownership or possession and control. 29 ///// 7 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 8 of 28 1 2 (c) No person shall knowingly use water extracted in violation of this section. 3 Ord. No. 20-13 § 3 (amending Siskiyou County Code § 3-13-702). The ordinance was adopted 4 by the ordinary process and after public hearings. See Kiernan Decl. ¶¶ 5, 9, ECF No. 41-3. By 5 its terms, it applies throughout the County’s borders, including in Shasta Vista. 6 Several months later, this ordinance seemed not to have achieved the Board’s purposes. 7 The County’s officers were still seeing large numbers of water truck deliveries to suspected 8 illegal cannabis operations. See Siskiyou Cty. Ord. No. 21-07 § 1 (May 4, 2021), Suppl. Donald 9 Decl. Ex. B, ECF No. 41-2; Siskiyou Cty. Ord. No. 21-08 § 1 (May 4, 2021), Suppl. Donald 10 Decl. Ex. C, ECF No. 41-2. The Sheriff had also estimated that millions more gallons of 11 groundwater were being used to grow cannabis, see, e.g., Ord. No. 21-07 § 1.Q, and constituents 12 were still complaining of land use violations and well problems, id. § 1.N. 13 The Board of Supervisors thus passed two more ordinances in May 2021, again using its 14 usual process, after public hearings. See Kiernan Decl. ¶¶ 5, 9. The May ordinances created 15 permit requirements. The permits fall into two categories. 16 First, a permit is “required in all instances in which groundwater is extracted and 17 transported off the parcel from which it was extracted, including occasions in which groundwater 18 is extracted, transported off-parcel, and returns to the parcel from which it was extracted.” Ord. 19 No. 21-07 § 3 (amending Siskiyou Cty. Code § 3.5-13.102). With a few exceptions, including 20 emergency services uses, both water suppliers and water users must obtain permits: 21 22 23 24 25 26 27 28 29 It shall be unlawful to extract groundwater of any nature or description, or for a property owner to allow such extraction on his or her land, or for any person to cause, permit, aid, abet, suffer, or furnish equipment or labor for such extraction, for the purpose of using the water or selling the water for use on other than the parcel of land upon which the extraction occurs, or contiguous parcels of land under the same ownership as the parcel from which the extraction occurs, without first obtaining an administrative permit as provided in this chapter. 30 31 32 It shall be unlawful to use water extracted in violation of this section on other than the parcel of land upon which the extraction occurs, or contiguous parcels of land under the same ownership as the parcel 8 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 9 of 28 1 2 3 4 5 6 from which the extraction occurs, or for a property owner to allow such use on their land, or for any person to cause, permit, aid, abet, suffer, or furnish equipment or labor for such use, without first obtaining an administrative permit as provided in this Article. Id. These provisions apply throughout the County’s borders, including in Shasta Vista. See id. To apply for a water extraction permit, a person must submit an application to the 7 Environmental Health Division of the County’s Community Development Department. Id. 8 (amending Siskiyou Cty. Code § 3.5-13.103). Other departments must then review the 9 application as well, including the Agricultural Commissioner and the Planning Director. Id. The 10 Community Development Director or a designee reviews the application and any comments by 11 “the affected county departments” and may require an inspection. Id. Permits may be issued 12 only “incidental to a lawful activity.” Id. (amending Siskiyou Cty. Code § 3.5-13.104). They 13 cannot be issued for any uses not “allowed by the underlying zoning designation.” Id. The 14 Community Development Director or designee may also withhold permits “until the property or 15 properties are found to be in complete compliance with any and all applicable County Code 16 sections.” Id. Permits are good for one year and may be renewed. Id. (amending Siskiyou 17 County Code § 3.5-13.107). Violations are punishable as a public nuisance and may be “abated 18 through any available remedy” under federal, state, or local law. Id. (amending Siskiyou County 19 Code § 3.5-13.108). 20 The second permit is for transporting water transportation in a “water truck.” Ord. 21 No. 21-08 § 3 (amending Siskiyou County Code § 3-4.1501(b)). A “water truck” is defined as “a 22 vehicle designed or being used to carry water of not less than 100 gallons or any vehicle designed 23 or carrying or towing tanks or bladders of 100 gallons of water or more or a ‘Water Tender 24 Vehicle,’ as defined in California Vehicle Code section 676.5.” Id. (amending Siskiyou Cty. 25 Code § 3-4.105(a)). Section 676.5, in turn, defines a “water tender vehicle” as “a vehicle 26 designed to carry not less than 1,500 gallons of water and used primarily for transporting and 27 delivering water to be applied by other vehicles or pumping equipment at fire emergency zones.” 28 Cal. Veh. Code § 676.5. The ordinance does not draw distinctions between full water trucks or 29 empty water trucks, or between water trucks carrying potable or unpotable water, but it does 9 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 10 of 28 1 make exceptions for emergency vehicles. See generally Ord. No. 21-08 § 3. The Director of 2 Public Works is authorized to issue water truck permits “at his or her discretion, upon application 3 in writing, and if good cause exists.” Ord. No. 21-08 § 3 (amending Siskiyou Cty. Code § 3- 4 4.1504). 5 Unlike water extraction permits, water transportation permits are not necessary in all parts 6 of Siskiyou County. A permit is necessary only on the streets and highways the Board of 7 Supervisors specifies by resolution. Id. (amending Siskiyou County Code § 3-4.1501(b)). The 8 Board of Supervisors specified several roads on the same day it passed the permit ordinances. 9 See Lawrence Decl. Ex. D, ECF No. 4-2. These roads include the only access points to Shasta 10 Vista and are concentrated in the area around Shasta Vista where many Hmong immigrants live. 11 First Szendrey Decl. ¶¶ 32–36. As a result, water truck permits are required in and around Shasta 12 Vista, but nowhere else. 13 The County and its officers have described several goals of the three ordinances above. In 14 a declaration submitted in this litigation, the Chairman of the County’s Board of Supervisors 15 describes six: 16  Preserving groundwater, Haupt Decl. ¶ 2.a; 17  Preventing unlawful cannabis cultivation, id. ¶ 2.b; 18  Reducing violent crime associated with illegal cannabis cultivation, see id. ¶ 2.c; 19  Reducing environmental harms associated with illegal cannabis cultivation, see id.; 20  Preserving limited law enforcement resources, see id. ¶ 2.d; and 21  Enforcing protections against unpermitted dwellings and structures, unsanitary 22 water use, unapproved distribution of electricity, and inadequate fire protection, id. 23 ¶ 2.e. 24 By contrast, the County’s District Attorney told The Sacramento Bee that the ordinances were 25 “not designed to protect the aquifer, or the ground water” but rather “to enforce California’s and 26 Siskiyou’s cannabis laws.” Xavier Mascareñas, “Asian Pot Growers Face Sheriff Raids, 27 Bulldozers in Northern California,” The Sacramento Bee (May 26, 2021), Lawrence Decl. Ex. M, 28 ECF No. 4-2. The Sheriff has also focused on rooting out marijuana cultivation. See Testimony 10 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 11 of 28 1 of Sheriff Jeremiah LaRue to the Siskiyou Cty. Bd. of Supervisors at 8 (May 4, 2021), Lawrence 2 Decl. Ex. O-2, ECF No. 4-2. 3 The County and its officers disavow any intent to discriminate against anyone on the basis 4 of their race. See, e.g., LaRue Decl. ¶¶ 3–5; Haupt Decl. ¶ 3. The ordinances’ effects, however, 5 have been especially damaging to the Hmong community in Shasta Vista. Many of these people 6 have not obtained permits to extract or transport water, and for several reasons, permits are likely 7 beyond their reach. The County entertains applications for water extraction permits on a four- 8 page English-only form. See Second Szendrey Decl. ¶ 12 & Ex., ECF No. 9-12.4 Among other 9 things, the applicant must identify where water will be extracted and to which parcel it will be 10 delivered. See id. at 12. The application requires a property owner’s name and the property’s 11 address, its assessor parcel number (usually abbreviated APN), and its zoning category. See id. 12 Applicants must also identify which vehicle will deliver water, how the water will be used 13 (including for which crops or livestock, if any), the projected number of deliveries, and annual 14 water volume. Id. ¶ 13. Applicants must swear under penalty of perjury that water is sought for 15 lawful use and not for illegal cannabis cultivation. Id. at 14 & ¶ 14. So in practical effect, the 16 application requires persons who use off-parcel water to apply for a permit and supply minutiae 17 about the property where they live, including the parcel number and zoning restrictions, even if 18 they are not the property owners. And as noted above, the County may refuse to issue a permit if 19 the destination property is not in compliance with “any” County Code section. Ord. No. 21-07 20 § 3. Many people in the Shasta Vista Hmong community do not live in approved structures and 21 do not have approved water sources, the very reason they would apply for a permit in the first 22 place. 23 Applications for water truck permits are also likely to be denied to people in the Shasta 24 Vista Hmong community. To obtain a permit, applicants must specify, among other things, their 25 names, the names of their business, their addresses, and their phone numbers; the reasons for the 4 A copy of the application is attached as an unnumbered and unlettered exhibit at the end of this declaration. The permit starts on page 12, using the numbers printed on the top right of the page by the CM/ECF system. 11 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 12 of 28 1 permit; the license plate numbers for the truck; the driver’s name and license number; the size of 2 the tank or amount of water; the destination; where the truck will drive; and when deliveries will 3 be made. See Second Szendrey Decl. at ¶ 16 & Ex at 16.5 In short, the County seems to require 4 every resident to obtain a permit and to know in advance the name and driver’s license number of 5 the person who will drive each truck, how large the truck is and what its license plate number is, 6 and when water will be delivered. 7 The County has also imposed restrictions beyond those listed in the applications. It does 8 not approve water truck permits if people cannot show they will comply with state and local laws. 9 Skierski Decl. ¶ 6, ECF No. 31-5. This means, for example, that the County will not approve any 10 permit requesting delivery to an unapproved single-family dwelling, and it will not approve a 11 water truck permit for deliveries to people living on unimproved land—parcels it describes as 12 “campsites”—even if those people have approved “camping” permits. Id. ¶ 6. As a result, the 13 County would most likely reject permit applications from anyone in Shasta Vista, where most 14 dwellings are unpermitted, as described above. The County also relies on vaguely defined criteria 15 when approving groundwater extraction permits. For example, it rejects extraction permit 16 applications “if the source of the extracted water is a priority basin in either the medium to high 17 priority designation.” Id. ¶ 5. It is unclear on the current record which basins are priority basins, 18 who decides whether a basin is a “priority” basin, and what criteria are part of that assessment. 19 The County has approved very few permits. In July 2021, about two months after the 20 permit ordinances went into effect, the County had approved only five groundwater extraction 21 permits and fourteen water truck permits. Id. ¶¶ 3–4. These low numbers appear to be low by 22 design. They align roughly with the County’s expectations of about ten per year. See Testimony 23 of Rick Dean to the Siskiyou Cty. Bd. of Supervisors at 3:72–78 (May 4, 2021), Lawrence Decl. 24 Ex. O-1, ECF No. 4-2. The County’s records show that no plaintiffs have applied for an 25 ///// 5 A copy of the application is attached to this declaration starting on page 16, using the numbers applied to the top right of the page by the CM/ECF system. 12 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 13 of 28 1 extraction or water truck permit, and the plaintiffs do not claim to have applied for any permits.6 2 See Skierski Decl. ¶ 2. 3 Although the County’s permit ordinances do not draw distinctions between potable and 4 unpotable water, the Sheriff claims never to have prevented people from delivering potable water. 5 Suppl. LaRue Decl. ¶ 7. The Sheriff’s Office has no records of anyone stopping a car or truck 6 transporting potable water. Id. Potable water is also available for delivery within Siskiyou 7 County, and the County agrees potable water can be stored safely in tanks available at farm 8 supply stores. See Suppl. Dean Decl. ¶¶ 4–5. But other barriers have discouraged people from 9 transporting and delivering large quantities of potable water. Sheriff’s Deputies have stopped 10 many Hmong drivers near Shasta Vista, often with questionable justifications, see, e.g., Nathan 11 Thao Decl., ECF No. 4-12; Suppl. Nathan Thao Decl., ECF No. 9-1, Mao Thao Decl., ECF No. 12 4-10; Suppl. Mao Thao Decl., ECF No. 9-3; Dilevon Lo Decl., ECF No. 4-13, sometimes without 13 regard for how much water they were carrying, if any at all, and why, see, e.g., Pao Lee Decl., 14 ECF No. 4-11; Suppl. Pao Lee Decl., ECF No. 9-9; Antonio Lee Decl., ECF No. 4-6; Suppl. 15 Antonio Lee Decl., ECF No. 9-6, and sometimes without consideration for whether the water 16 suitable for drinking or irrigating crops, see, e.g., Jerry Vang Decl., ECF No. 4-7 (“[T]he water in 17 my truck was dirty and unusable.”); see also Der Lee Decl. ¶ 9 (“I am afraid of being pulled over 18 for transporting water from Walmart to my home.”). 19 Stringent state and federal regulations may be another deterrent. “For water to be 20 considered potable,” the County’s Community Development Director explains, “the water and 21 delivery truck must be specifically maintained and licensed.” Suppl. Dean Decl. ¶ 4. Water 22 haulers must obtain a license from the California Department of Public Health and comply with 23 federal regulations, which require regular inspections, sanitizing, and clear marking. See id.; 24 Dean Decl. ¶ 4. And “[t]o insure that delivered potable water remains potable for human use, the 25 receiving vessel for the end user must also be maintained enclosed, clean and sanitized for that 26 ///// 6 One plaintiff has applied for a different permit, to drill a well, and the County appears neither to have granted nor denied it. See Der Lee Suppl. Decl. ¶ 9. 13 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 14 of 28 1 purpose.” Suppl. Dean Decl. ¶ 4. The water trucks people have used to transport water into the 2 Shasta Vista in the past do not meet these standards. Dean Decl. ¶ 5. 3 Many people who live in Shasta Vista are thus without water for basic needs. Der Lee, for 4 example, who is a plaintiff, lives in Shasta Vista with his wife. See Der Lee Decl. ¶ 1, ECF No. 5 23; Suppl. Der Lee Decl. ¶ 1, ECF No. 33-2. He was born in Laos. Der Lee Decl. ¶ 3. For many 6 years in his youth, Lee hid in the jungle to escape persecution from Lao forces. See id. ¶ 4. He 7 later escaped to Thailand and the United States, and in 2015, he moved to Shasta Vista, where he 8 bought 2.5 acres. Id. ¶¶ 5–6. He and others experienced a “great deal of racial prejudice at the 9 time,” so he moved to Minnesota temporarily, but returned the next year. Id. ¶ 6. He now lives 10 on his land with his wife and their ducks and chickens. Id. ¶ 10. They rely on livestock and 11 vegetables for food. Id. ¶¶ 10, 12. He has no well on his property. Id. ¶ 7. He describes his 12 current living situation as similar to his time in the jungles of Laos, but without water. Id. ¶ 15. 13 Since the County’s water ordinances have gone into effect, all of Der Lee’s vegetables have died 14 due to a lack of water. Id. ¶ 12. At least two of his chickens have died due to a lack of water. Id. 15 ¶ 10. If Der Lee cannot get enough water, he plans to move back to Minnesota, but he cannot do 16 that in the summer because his animals would likely die in transit in the hot weather. Id. ¶ 14. 17 Koua Lee, another plaintiff, also lives in Shasta Vista with his wife. Koua Lee Decl. ¶ 1, 18 ECF No. 9-8; Suppl. Koua Lee Decl. ¶ 1, ECF No. 24. They are both from Laos. Koua Lee 19 Decl. ¶ 2. They fled to Thailand and then Hawaii in the 1970s. Id. ¶ 3–5. He worked for IBM in 20 North Carolina, then owned a Chinese restaurant in California. Id. ¶ 5. He is now disabled and 21 retired. Id. Koua Lee and his wife previously relied on water transported by water trucks to grow 22 vegetables and keep animals. Suppl. Koua Lee Decl. ¶ 5. They now drive to Mt. Shasta Creek 23 for water twice a week. Id. ¶ 4. They can no longer grow vegetables and do not have enough 24 water. Id. ¶ 5. Some of their animals recently died from dehydration. Id. ¶ 6. They can bathe 25 only once a week, and they do not have enough water to stay cool and hydrated. Id. Koua Lee 26 says he is thirsty all the time and has become depressed. Id. 27 28 Nhia Thai Vang, another plaintiff, also lives with his wife in Shasta Vista. See Nhia Thai Vang Decl. ¶ 1, ECF No. 9-5; Suppl. Nhia Thai Vang Decl. ¶ 1, ECF No. 26. They were both 14 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 15 of 28 1 born in small villages in Laos. Nhia Thai Vang Decl. ¶ 1. During the time of the war in Vietnam, 2 Vang helped intercept communist supplies on the Ho Chi Minh trail. Id. ¶ 2. He and his wife 3 fled to the jungles of Laos during the 1970s, and they lived there until the late 1980s before 4 immigrating to the United States. Id. ¶¶ 5–6. They lived in Sacramento until 2015, when they 5 bought land in the Mount Shasta Vista subdivision. Id. ¶¶ 6–7. They have previously relied on 6 trucked water. Id. To get water now, they depend on their daughter and son-in-law, who fill two 7 55-gallon drums every three days. Id. ¶ 9. This is not enough; many of their chickens and ducks 8 have died. Suppl. Nhia Thai Vang Decl. ¶ 6. 9 Others face similarly desperate circumstances. See, e.g., Zeng Lee Decl., ECF No. 27; 10 Boua Hue Vue Decl., ECF No. 9-2; Mai Yang Lee Decl., ECF No. 9-7; Khue Cha Decl., ECF No. 11 9-10; Suppl. Khue Cha Decl., ECF No. 25. Some have resorted to filling jugs of water in a 12 stream in a local park and asking friends for water. Second Szendrey Decl. ¶ 8, ECF No. 9-12; 13 Zeng Lee Decl. ¶ 8; Suppl. Khue Cha Decl. ¶ 6. An advocate for the Hmong community asked 14 the Sheriff and County Supervisor to set up water distribution centers at fire stations so people 15 could get water for their personal use, for their animals, and for growing vegetables. Third 16 Szendrey Decl. ¶ 15, ECF No. 28. He received no reply. Id. 17 The water shortfall has also hampered firefighting efforts in Shasta Vista. Before the 18 permit ordinances were passed, people in Shasta Vista relied on an unofficial fire brigade of local 19 water truck drivers. See King Decl. ¶¶ 2–4. They aver official fire trucks take too long to arrive. 20 Suewasiengboom Saiaaron Lee Decl. ¶¶ 10, 12–13, ECF No. 4-9. After the County ordinances 21 were passed, two houses in Mount Shasta Vista burned down because water was in short supply 22 and firefighters did not arrive in time. Id. ¶¶ 6–9, 11. 23 Six plaintiffs filed this action in June 2021. See generally Compl., ECF No. 1. They 24 moved immediately for a temporary restraining order and preliminary injunction barring the 25 County from enforcing the three ordinances described above. See generally Mot., ECF No. 4. 26 The court denied their request for injunctive relief on an ex parte basis, and the parties submitted 27 briefs on an expedited schedule. See Min. Order, ECF No. 5; Opp’n, ECF No. 7; Reply, ECF 28 No. 9. The court denied the motion. ECF No. 11. At the time, none of the plaintiffs had alleged 15 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 16 of 28 1 or provided sworn evidence that the County’s ordinances would deprive any of them the water 2 required for their basic needs, and they had not shown that an injunction was in the public 3 interest. See id. at 8–11. The court set a schedule for briefing and a hearing on the motion for a 4 preliminary injunction. See id. at 11. 5 Before these supplemental briefs were due, the plaintiffs requested more time to collect 6 evidence and amend their complaint. See Request to Continue, ECF No. 15. The court granted 7 that request. Min. Order, ECF No. 18. The parties then submitted supplemental briefs, the 8 plaintiffs amended their complaint, and the court held a hearing. See Pls.’ Suppl. Br., ECF No. 9 17; Pls.’ Second Suppl. Br., ECF No. 21; Def. Suppl. Opp’n, ECF No. 31; Suppl. Reply, ECF No. 10 33; First Am. Compl., ECF No. 29; Hr’g Min., ECF No. 37; Hr’g Tr., ECF No. 40. Several more 11 people joined as plaintiffs in the amended complaint, which asserts three legal claims: 12 (1) A claim for declaratory and injunctive relief based on 42 U.S.C. § 1983 and the 13 Fourteenth Amendment Due Process and Equal Protection Clauses, see First Am. 14 Compl. ¶¶ 57–91; 15 (2) 16 17 A claim for damages based on the same statute and Amendment, see id. ¶¶ 92–98; and (3) A claim for damages based on § 1983 and the Fourth and Fourteenth Amendment 18 protections of “‘the privacies of life’ against ‘arbitrary power,’” id. ¶¶ 99–104 19 (quoting Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018)). 20 Each of the plaintiffs asserts all three claims against all of the defendants, including the County, 21 the Sheriff, the Board of Supervisors, the County Counsel, and the California Department of 22 Forestry and Fire Protection. See generally id. 23 At hearing on the plaintiffs’ motion for a preliminary injunction, the court expressed 24 concern that the parties had not supplied the information it needed to answer the difficult and 25 sensitive questions raised by the plaintiffs’ motion. See Hr’g Tr. at 6, ECF No. 40. For that 26 reason, and in light of the plaintiffs’ overlong reply brief, the court permitted the defendants to 16 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 17 of 28 1 file a surreply, see Hr’g Min., ECF No. 37, which they have now done,7 see Surreply, ECF No. 2 41. The court also referred the parties to a mandatory settlement conference before a Ninth 3 Circuit mediator. See Min. Order, ECF No. 38. The purpose of the mediation was to exhaust 4 efforts to ensure that people in Shasta Vista had water to meet their basic needs while the motion 5 for a preliminary injunction was pending. See id. Two amici, the American Civil Liberties 6 Union of Northern California and the Asian Law Caucus, moved for leave to participate in the 7 mediation and to file an amicus curiae brief in support of the plaintiffs’ pending motion. See Mot. 8 Amici, ECF No. 42; Amicus Br., ECF No. 42-1. The court granted that motion. Order (Aug. 20, 9 2021), ECF No. 46. The parties did not agree to a temporary solution during the mediation. 10 II. 11 LEGAL STANDARD “A preliminary injunction is an extraordinary remedy, never awarded as of right.” Winter 12 v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). In determining whether to issue a preliminary 13 injunction, courts must consider (1) whether the moving party “is likely to succeed on the merits” 14 (2) whether it is “likely to suffer irreparable harm in the absence of preliminary relief,” 15 (3) whether “the balance of equities tips in [its] favor, and” (4) whether “an injunction is in the 16 public interest.” Id. at 20. The moving party must show an injunction is warranted by “a clear 17 showing.” See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation, quotation marks, and 18 emphasis omitted). 19 Courts within the Ninth Circuit sometimes employ an alternate formulation of the Winter 20 test, referred to as the “serious questions” test. Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 21 2012). Under this test, “[a] preliminary injunction is appropriate when a plaintiff demonstrates 22 . . . that serious questions going to the merits were raised and the balance of hardships tips 23 strongly in plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 24 (9th Cir. 2011) (quotation marks omitted) (quoting Lands Council v. McNair, 537 F.3d 981, 986– 25 87 (9th Cir. 2008)). The two final factors must also be satisfied. See id. 26 ///// 7 The plaintiffs’ motion for leave to exceed page limits, ECF No. 36, is thus granted nunc pro tunc. 17 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 18 of 28 1 When deciding whether to issue a preliminary injunction, the court may rely on 2 declarations, affidavits, and exhibits, among other things, and this evidence need not conform to 3 the standards that apply at summary judgment or trial. See Johnson v. Couturier, 572 F.3d 1067, 4 1083 (9th Cir. 2009); see also Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) 5 (“The trial court may give even inadmissible evidence some weight, when to do so serves the 6 purpose of preventing irreparable harm before trial”). 7 III. ANALYSIS 8 A. Likelihood of Success on the Merits 9 For several claims and arguments in the complaint and briefing, the plaintiffs have not 10 shown they are likely to succeed on the merits. The court addresses these claims and arguments 11 at the outset in the interest of guiding future litigation in this case. 12 First, the plaintiffs’ filings refer briefly to Title VI of the Civil Rights Act of 1964 and 13 California Government Code section 11135. See, e.g., Mot. at 25; Second Suppl. Br. at 10. As 14 summarized above, the operative complaint does not include claims under Title VI or 15 Government Code section 11135. As the plaintiffs conceded at hearing, they are thus not entitled 16 to injunctive relief on the basis of Title VI or Government Code 11135. 17 Second, the plaintiffs refer to the constitutional doctrine of overbreadth. See Mot. at 22– 18 23; First Am. Compl. ¶¶ 82–83. They argue the County’s ordinances “needlessly intrude upon 19 . . . [their] First Amendment right to freedom of association, [their] Fourth Amendment right to be 20 free from unreasonable searches and seizures, and [their] Fourteenth Amendment rights to equal 21 protection of the laws and due process.” Mot. at 22. “The overbreadth doctrine holds that a law 22 is void on its face if it sweeps within its ambit not solely activity that is subject to governmental 23 control, but also includes within its prohibition the practice of a protected constitutional right.” 24 Clark v. City of Los Angeles, 650 F.2d 1033, 1039 (9th Cir. 1981). The Supreme Court has 25 employed this doctrine “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 26 601, 613 (1973). This is “particularly” true if “conduct and not merely speech is involved.” Id. at 27 615. In that circumstance, “the overbreadth of a statute must not only be real, but substantial as 28 well, judged in relation to the statute’s plainly legitimate sweep.” Id. 18 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 19 of 28 1 The plaintiffs have not cited cases in which courts have applied the overbreadth doctrine 2 in circumstances similar to those present in this case. The court’s own searches have revealed no 3 examples. The Supreme Court’s descriptions of the overbreadth doctrine also suggest it is limited 4 to protections of First Amendment rights. See, e.g., United States v. Salerno, 481 U.S. 739, 745 5 (1987) (declining to apply the overbreadth doctrine to a Fifth Amendment due process challenge 6 because the Court has “not recognized an ‘overbreadth’ doctrine outside the limited context of the 7 First Amendment.”). The Ninth Circuit appears not to have recognized an overbreadth doctrine 8 beyond the First Amendment either. See, e.g., Nunez by Nunez v. City of San Diego, 114 F.3d 9 935, 949 n.2 (9th Cir. 1997) (“The Supreme Court has not applied overbreadth outside the limited 10 context of the First Amendment. We decline to do so here.” (citations omitted)); but see Clark, 11 650 F.2d at 1039 (“The overbreadth doctrine has been applied almost exclusively in the areas of 12 first amendment expressive or associational rights.” (emphasis added)). Other circuits appear not 13 to have applied the overbreadth doctrine to rights secured by amendments other than the First 14 Amendment. See, e.g., United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009); Lutz v. City of 15 York, 899 F.2d 255, 270–71 (3d Cir. 1990); Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 16 286, 295 (D.C. Cir. 1993). This court thus declines to apply the overbreadth doctrine to claims 17 not based on First Amendment rights. 18 The plaintiffs have advanced only a brief argument based on the First Amendment: they 19 argue the ordinances violate their right to freely assemble. See Mot. at 22–23; Suppl. Reply at 2. 20 They cite no cases in which courts have found that a person’s First Amendment rights were 21 violated in similar circumstances, and the court has found none. Nor does the operative 22 complaint claim the defendants violated the First Amendment. It does not cite the First 23 Amendment. The plaintiffs have not shown they are likely to succeed on the merits of any 24 overbreadth claim, if one is properly pled. 25 The plaintiffs’ third claim rests on the Due Process Clause. Their complaint focuses on 26 the process the County used when it adopted the water ordinances. See First Am. Compl. ¶¶ 67– 27 72 (alleging the County adopted the water truck licensing ordinance using an improper 28 procedure); id. ¶¶ 73–75 (alleging the County did not give the plaintiffs a meaningful chance to 19 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 20 of 28 1 challenge all three ordinances); id. ¶¶ 76–81 (alleging the County’s procedure was arbitrary and 2 capricious). Their legal arguments also suggest procedure is their target. See, e.g., Mot. at 27 3 (arguing the County “passed the Ordinances and Resolution in this case in an irregular manner”); 4 Reply at 6–7 (arguing the County seized the plaintiffs’ vehicles without an opportunity for a 5 hearing); Suppl. Reply at 10–11 (arguing the plaintiffs have a “‘legitimate claim of entitlement’ to 6 access water in Siskiyou County” (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 7 1, 11 (1978)). At hearing, however, the plaintiffs argued for the first time that the County’s 8 ordinances also deprived them of due process in a “substantive” sense, and counsel advanced 9 several alternative theories of relief. See Hr’g Tr. at 10–12. The court will not consider these 10 arguments. See, e.g., Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist., 935 F. Supp. 2d 11 968, 975 (E.D. Cal. 2013) (declining to consider an argument raised for the first time at hearing); 12 Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1168 n.84 (C.D. Cal. 2013) (same). Nor will 13 the court consider at this time whether the County has violated the Due Process Clause of the 14 Fourteenth Amendment by affirmatively placing the plaintiffs in a position of danger, as the amici 15 argue. See Amicus Br. at 8–10. The plaintiffs do not assert that claim in their complaint, and the 16 defendants have not had the opportunity to respond to these arguments. At this time, the court 17 considers only whether the County’s ordinances deprive the plaintiffs of a property right without 18 notice and a reasonable opportunity to be heard. 19 To succeed in this claim, the plaintiffs must show they have a protected property right. 20 See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). They claim a property 21 right to water under state law. See First Am. Compl. ¶¶ 61–66. To substantiate that claim, they 22 cite decisions by California courts describing the rights of “riparian users” who own land through 23 which water passes and of “appropriators” who divert water, id. ¶ 62; defining water rights as 24 “usufructuary,” i.e., as limited to use, and not as rights to ownership, id. ¶ 63; giving preference to 25 “natural” over “commercial” water uses, id. ¶ 64, and describing rights to water for irrigation as a 26 right in real property, id. ¶ 65; see also Suppl. Reply at 10–11 (arguing similarly). The plaintiffs 27 have not, however, cited evidence showing that water flows through or is a part of any real 28 property they own or that the County has wrongly given preference to commercial water uses. 20 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 21 of 28 1 Nor have they shown that California law restricts when or how a municipality may restrict water 2 use. Cf. Memphis Light, 436 U.S. at 11 (considering the limitations Tennessee law places on the 3 termination of service by a public utility). They have not shown they are likely to prove that 4 California law grants them a property right to well water delivered from another parcel by truck, 5 so they have not shown they are likely to succeed on their due process claim. 6 The plaintiffs’ final claim, which relies on the Fourteenth Amendment’s Equal Protection 7 Clause, presents a much closer question. The plaintiffs allege the County’s ordinances selectively 8 target Hmong immigrants in Shasta Vista. See, e.g., First Am. Compl. ¶¶ 84–89; Mot. at 23–27; 9 Pls.’ Second Suppl. Mem. at 8–9; Suppl. Reply at 20–26. 10 The Equal Protection clause of the Fourteenth Amendment provides that “[n]o State shall 11 make or enforce any law which shall . . . deny to any person within its jurisdiction the equal 12 protection of the laws.” U.S. Const. amend. XIV, § 1. This clause “is essentially a direction that 13 all persons similarly situated should be treated alike.” Sampson v. Cty. of L.A. by & through L.A. 14 Cty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1022 (9th Cir. 2020) (quoting City of 15 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “To succeed on a § 1983 equal 16 protection claim, the plaintiffs must prove that the defendants acted in a discriminatory manner 17 and that the discrimination was intentional.” Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 18 740 (9th Cir. 2000). The three ordinances the plaintiff’s challenge here are facially neutral. None 19 identifies any racial group. But even facially neutral government actions can violate the Equal 20 Protection Clause if they have “a racially disproportionate impact” and if the government acted 21 with “racially discriminatory intent.” Vill. of Arlington Heights v. Met. Hous. Dev. Corp., 429 22 U.S. 252, 264–65 (1977). If these two factors are not present, those government actions are 23 unconstitutional only if they were not “rationally related to a legitimate government interest.” 24 The Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 25 2009). 26 The plaintiffs have not shown the County’s first ordinance (No. 20-13) affects them 27 disproportionately. That ordinance forbids anyone (a) from “wasting or unreasonably using 28 groundwater” for cultivating cannabis in violation of the County Code, (b) from permitting 21 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 22 of 28 1 groundwater to be used to cultivate cannabis illegally on property in their “ownership or 2 possession and control,” and (c) from “knowingly” using groundwater extracted in violation of 3 these provisions. See Ord. No. 20-13 § 3. This ordinance does not otherwise limit or restrict the 4 use of groundwater. It applies throughout the County. The plaintiffs do not claim they intend to 5 use or extract water to grow cannabis. The ordinance is also rationally related to the County’s 6 legitimate interest in preserving scarce groundwater resources in a drought. The court denies the 7 motion to enjoin enforcement of this ordinance. 8 9 By contrast, the plaintiffs have shown the second and third ordinances have exacted a heavy and disproportionate toll on the Shasta Vista Hmong community. Unlike the first 10 ordinance, which effectively punishes groundwater use if the County can show it is unlawful, the 11 second and third ordinances effectively prohibit groundwater use and transportation absent proof 12 to the County’s satisfaction that the groundwater will be put to legal use. In this way, the second 13 and third ordinances shift the burden of proving lawful use from the County to water suppliers, 14 users, and transporters. That shift has left the Shasta Vista Hmong community without water to 15 drink, to grow food, to raise animals, and to bathe, among other basic needs. Nothing in the 16 record suggests the effect has been the same for other racial or ethnic groups. The County has 17 also limited the water truck permitting ordinance to the one part of its territory where most 18 Hmong residents live. The County disputes none of these conclusions. It argues only that it had 19 no discriminatory intent. See generally, e.g., Surreply. The court thus turns to that question. 20 Racial disparities can sometimes be so extreme that their existence alone proves the 21 government intended to discriminate. See Arlington Heights, 429 U.S. at 266. But “it is the rare 22 case where impact alone will be sufficient to invalidate a challenged government action.” Comm. 23 Cmty. Improvement, 583 F.3d at 703. Two cases are often cited as examples in this category. In 24 Yick Wo v. Hopkins, 118 U.S. 356 (1886), San Francisco’s Board of Supervisors denied permits 25 to laundries operated by Chinese immigrants, claiming they were a fire risk. See id. at 374. But 26 the city had granted permits to all of the similarly situated laundries operated by people other than 27 Chinese immigrants. See id. No evidence showed the laundries operated by Chinese immigrants 28 were unsafe or out of compliance with any regulations, and the city had no explanation for the 22 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 23 of 28 1 disparate impact. See id. at 373–74. The disparity alone was proof of intent to discriminate. See 2 id. In Gomillion v. Lightfoot, 364 U.S. 339 (1960), the City of Tuskegee, Alabama changed its 3 boundaries from a square “into a strangely irregular twenty-eight-sided figure.” Id. at 341. 4 About four hundred of the city’s residents were Black before this change, but afterward, only four 5 or five residents were Black—a 99 percent reduction. See id. The city offered no reason for the 6 change. See id. at 342. The disparity was enough on its own to prove the city intended to 7 discriminate. See id. 8 The plaintiffs have not shown they will likely prove the extraction and water truck permit 9 requirements are in the same narrow class as the obviously discriminatory government actions in 10 Yick Wo and Gomillion. Unlike the defendants in those cases, the County has explained and 11 pointed to evidentiary support for its decision to focus on Shasta Vista. Illegal marijuana 12 cultivation in and around Shasta Vista is more intense than in other parts of the County, has 13 increased rapidly in scale, and has caused violent crime and conflicts. See generally, e.g., LaRue 14 Decl. & Exs.; Dean Decl.; Haupt Decl. ¶ 2. The County also has several legitimate interests in 15 responding to public health and land use concerns specific to Shasta Vista, such as the depletion 16 of groundwater, large numbers of unpermitted dwellings, the lack of permanent potable water 17 sources, the discharge of raw sewage on the ground, the heavy use of unregulated pesticides and 18 other chemicals, and carbon monoxide poisonings. See LaRue Decl. ¶¶ 9–10 & Ex. B; Dean 19 Decl. ¶ 7; Suppl. Dean Decl. ¶¶ 2–4; Kay Decl ¶ 11; Haupt Decl. ¶ 2. 20 Although County officials have sometimes made inconsistent statements about the 21 County’s goals, see Prev. Order at 5–6, the plaintiffs have cited no authority requiring the County 22 to act with a singular purpose. “In fact, it is because legislators and administrators are properly 23 concerned with balancing numerous competing considerations that courts refrain from reviewing 24 the merits of their decisions, absent a showing of arbitrariness or irrationality.” Arlington 25 Heights, 429 U.S. at 265. The interests the County now cites are legitimate and specific to Shasta 26 Vista. Nor have the plaintiffs submitted evidence that crime, conflicts, public health problems, 27 permitting problems, or other environmental problems are comparable in other parts of the 28 County where marijuana is cultivated illegally. They have not offered reliable statistical evidence 23 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 24 of 28 1 of overwhelmingly disparate effects. At most they have shown that the concentration of illegal 2 marijuana cultivation is a disputed question of fact. Compare Conrad Decl. ¶¶ 5–9 & Exs. A–B 3 with LaRue Decl. ¶¶ 3–6 & Exs. A–C. 4 When, as here, a racial disparity does not itself prove discriminatory intent, a plaintiff 5 must offer other evidence of discriminatory intent. See Arlington Heights, 429 U.S. at 265–66. 6 The court must undertake “a sensitive inquiry into such circumstantial and direct evidence of 7 intent as may be available.” Id. at 266. The Supreme Court has identified several potential 8 sources of this evidence. “The historical background of the decision is one evidentiary source, 9 particularly if it reveals a series of official actions taken for invidious purposes.” Id. at 267. But 10 “a consistent pattern of official racial discrimination” is not a “necessary predicate to a violation 11 of the Equal Protection Clause.” Id. at 266 n.14. “The specific sequence of events leading up to 12 the challenged decision” is also relevant. Id. at 267. “Departures from the normal procedural 13 sequence” may also suggest an intent to discriminate. Id. “Substantive departures too may be 14 relevant, particularly if the factors usually considered important by the decisionmaker strongly 15 favor a decision contrary to the one reached.” Id. “The legislative or administrative history may 16 be highly relevant, especially where there are contemporary statements by members of the 17 decisionmaking body, minutes of its meetings, or reports.” Id. at 268. 18 Here, the plaintiffs have raised serious questions about the County’s intent. First, County 19 officials knew that most if not all of the Hmong families in Shasta Vista were living in 20 unpermitted structures without a reliable supply of potable water and other essentials. See 21 generally, e.g., Kay Decl.; Dean Decl.; Suppl. Dean Decl. Yet the County expected to grant only 22 a few permits under its groundwater regime. See Dean Testimony, supra, at 3:72–78 (May 4, 23 2021). The text of the permitting ordinances suggests they were intended to end all 24 noncompliance with the County’s zoning codes in areas like Shasta Vista. See, e.g., Ord. No. 21- 25 07 § 1.M–N (“The Board of Supervisors desire to ensure land uses in the unincorporated area of 26 the County are in compliance with Siskiyou County’s zoning code . . . . The County continues to 27 receive complaints from constituents of land use violations . . . .”). The ordinances refer to the 28 Board’s intent to prevent “the construction of thousands of unpermitted structures within which 24 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 25 of 28 1 workers illegally reside.” Ord. No. 21-08 § 1.J. The County has also rebuffed attempts at 2 compromises that might have prevented people in Shasta Vista from suffering from lack of water 3 during the hottest parts of the year. Third Szendrey Decl. ¶ 15. It is difficult to square the 4 County’s claims of concern about the health and well-being of people in Shasta Vista with its 5 decision to cut off their water supply completely. This evidence supports the plaintiffs’ claims 6 that the County intends its permitting ordinances to have the effect of forcing people in Shasta 7 Vista out of their homes. 8 Second, the County’s permits are uniquely burdensome for people in the Shasta Vista 9 Hmong community to obtain. Permits are unavailable to anyone who cannot affirmatively prove 10 compliance with zoning and other land use ordinances, so they are likely beyond the reach of the 11 Hmong community at large. See Skierski Decl. ¶¶ 5–6. The County requires permit applicants to 12 supply many specific details in advance, including, for example, the assessor’s parcel number and 13 zoning information, the license number and license plate of every person who will drive every 14 water truck, and where and when each truck might be found. See Second Szendrey Decl. Exs. at 15 12–16. It is difficult to understand what purpose these requirements might serve other than to 16 deter lay people from applying for permits. The County has also given its officials broad 17 “discretion” to deny water truck permits, Siskiyou Cty. Code § 3-4.1504, and officials face no 18 deadlines when reviewing permit applications, see id. §§ 3-4.1504, 3.5-13.104, 3.5-13.105. The 19 plaintiffs have offered evidence that people in the Hmong community may feel the burdens of 20 these regulatory requirements more acutely than others, for example because of a longstanding 21 cultural distrust of government and language barriers. See, e.g., Suppl. Der Lee Decl. ¶ 7. 22 Third, County officials have used concerning language when describing their intent. One 23 defendant has echoed vague claims of cartels and criminal gangs in Shasta Vista. See Suppl. 24 Reply at 25 & n.7. The Sheriff has emphasized the importance of directing “anger at the right 25 people,” not the “good people in the county that have agriculture.” LaRue Hr’g Testimony, 26 supra, at 6:162–64. The permitting ordinances, he explained, were “just another tool for us to 27 choke out . . . the water issue that’s enabling everything.” Id. at 7:219–20. He asked for 28 “cooperation” from “our local people” to help “get to the bottom of this and really choke it out.” 25 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 26 of 28 1 Id. at 7:206–07. These statements may, of course, have an innocent explanation. Cf. Suppl. 2 LaRue Decl. ¶ 4 (denying discriminatory intent). But their context, including local antipathy 3 toward the Hmong community, see, e.g., King Decl. ¶¶ 8–10, 14, raises serious questions about 4 how these comments would likely be interpreted by the public, despite any innocent explanation. 5 “[T]he use of ‘code words’ may demonstrate discriminatory intent.” Ave. 6E Invs., LLC v. City of 6 Yuma, Ariz., 818 F.3d 493, 505 (9th Cir. 2016) (quoting Galdamez v. Potter, 415 F.3d 1015, 1024 7 n.6 (9th Cir. 2005)). 8 Fourth, the County’s permitting ordinances are a poor fit for its purposes. In a number of 9 respects the ordinances drop an inexplicably heavy hammer. If the County’s goals are truly to 10 prevent people from living in dangerous structures, to prevent environmental harms, to reduce 11 crime, and to stop commercial drug production in Shasta Vista, for example, it could enforce 12 zoning ordinances, environmental regulations, and criminal laws rather than cutting off the water 13 supply. As the Sheriff conceded, the County has had “ordinances . . . on the books for many 14 years” and has not “taken an aggressive approach to implementing or . . . enforcing” them. 15 LaRue Hr’g Testimony, supra, at 6:172–74. In other respects, the permitting ordinances are 16 inexplicably narrow. The County could have named more roads than just a few in the region 17 where most Hmong people live, given that it has information about many other grow sites within 18 its borders. See generally Suppl. LaRue Decl. Ex. A. 19 The court cannot say at this juncture that this evidence will likely be enough for the 20 plaintiffs to prevail in their claims of discriminatory intent. As explained above, the County’s 21 interests in preventing crime, environmental harm, water waste, and dangerous living conditions 22 are legitimate and also supported by evidence. The County has introduced evidence showing it 23 has exhausted many other options and turned to these permitting ordinances as something of a last 24 resort. But on the current record, the plaintiffs have raised “serious questions” about the merits of 25 their claims. The court thus turns to the remaining Winter factors. 26 B. 27 The next factor is irreparable harm. The plaintiffs have introduced undisputed evidence 28 Irreparable Harm, the Public Interests, and the Balance of Equities that the County’s permitting ordinances are depriving some of them of water for drinking, 26 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 27 of 28 1 cooking, growing food, raising animals, and bathing. See, e.g., Der Lee Decl. ¶ 7–15; Suppl. 2 Koua Lee Decl. ¶¶ 4–7; Khue Cha Decl. ¶¶ 4–6; Nhia Thai Vang Decl. ¶¶ 4–7. Some have 3 already lost crops and animals. See, e.g., Nhia Thai Vang Decl. ¶ 6. Without an injunction, more 4 animals will likely die, people will suffer from a lack of water, and some will likely be forced to 5 leave their homes behind. See, e.g., Der Lee Decl. ¶ 14. These are irreparable harms. 6 The final two Winter factors, the balance of equities and the public interest, merge here 7 because the defendants are government actors. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 8 1073, 1092 (9th Cir. 2014). As the court recognized in its previous order, “[t]here are weighty 9 public interests on both sides of the balance.” Prev. Order at 10. Now, however, with a more 10 developed record, this balance tips sharply in favor of an injunction. 11 Without an injunction, the plaintiffs and other members of the Shasta Vista Hmong 12 community will likely go without water for their basic needs and will likely lose more plants and 13 livestock. Fires may burn more homes. People may be forced to leave their homes and land 14 behind without compensation. Water extraction and transportation permits are likely beyond 15 reach. The plaintiffs have also raised serious questions about their constitutional right to be free 16 from racial discrimination, and “[i]t is well established that the deprivation of constitutional rights 17 ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th 18 Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). 19 A preliminary injunction will not come without costs, but these costs are negligible in 20 comparison to the heavy hardships reviewed above. Illegal marijuana cultivation may take root 21 again in Shasta Vista, but if it does, the County has the criminal law and Ordinance 20-13 at its 22 disposal. People may continue to live in unpermitted and dangerous structures, but if so, the 23 County has zoning codes and land use regulations it may enforce, and it can remediate violations 24 and help people avoid danger. Shasta Vista residents might drink and bathe in unpotable water 25 trucked into Shasta Vista from nearby agricultural wells, but the alternative is very little water or 26 no water at all. If potable water is in fact ready available, as the County claims, see generally 27 Suppl. Dean Decl., this order in no way prohibits officials from helping the people in Shasta Vista 28 find and use that potable water. The County could also move to dissolve the injunction granted 27 Case 2:21-cv-00999-KJM-DMC Document 47 Filed 09/03/21 Page 28 of 28 1 here if it passes new ordinances that do not impose the same burdens, if it creates simple permit 2 requirements that do not weigh unfairly on Hmong community members, or if it ensures people in 3 Shasta Vista will have a safe and adequate source of water other than trucked groundwater while 4 this case is pending. But the dehydration and de facto expulsion of a disfavored minority 5 community cannot be the price paid in an effort to stop illegal cannabis cultivation and any 6 attendant harms. 7 IV. 8 CONCLUSION The motion for a preliminary injunction is granted in part. Until further order of this 9 court, Siskiyou County and its officers, agents, employees, and any person acting in concert with 10 it are enjoined from enforcing Siskiyou County Ordinance Nos. 21-07 and 21-08, both adopted 11 on May 4, 2021. 12 This order resolves ECF Nos. 4 and 36. 13 IT IS SO ORDERED. 14 DATED: September 3, 2021. 28

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