AquAlliance et al v. U.S. Bureau of Reclamation et al

Filing 16

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND SETTING HEARING ON MOTION FOR PRELIMINARY INJUNCTION signed by Senior Judge William B. Shubb on 9/7/2021: IT IS ORDERED that Plaintiffs' Motion For a Temporary Restraining Order 6 be, an d the same hereby is, DENIED. Plaintiffs' Motion for a Preliminary Injunction 6 is hereby set for hearing, pursuant to the agreement of the parties, on Thursday, 9/9/2021 at 10:00 AM via Zoom video conference before Senior Judge William B. Shubb. The courtroom deputy clerk will email counsel with the Zoom login information. (Kirksey Smith, K)

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Case 2:21-cv-01533-KJM-DMC Document 16 Filed 09/07/21 Page 1 of 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 AQUALLIANCE; CALIFORNIA SPORTFISHING PROTECTION ALLIANCE; and CALIFORNIA WATER IMPACT NETWORK, 14 15 16 17 18 19 No. 2:21-cv-01533 KJM DMC ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND SETTING HEARING ON MOTION FOR PRELIMINARY INJUNCTION Plaintiffs, v. THE UNITED STATES BUREAU OF RECLAMATION; U.S. DEPARTMENT OF THE INTERIOR; DEB HAALAND, in her official capacity; and DOES 1 – 100, Defendants. 20 21 22 23 ----oo0oo---Plaintiffs have moved for a temporary restraining order 24 and/or a preliminary injunction barring defendants from 25 continuing with a groundwater extraction project in the 26 Sacramento River Valley, including providing any funds or 27 28 1 Case 2:21-cv-01533-KJM-DMC Document 16 Filed 09/07/21 Page 2 of 5 1 approving any groundwater pumping.1 2 on the request for a temporary restraining order was held before 3 the undersigned, acting as the duty judge, on September 7, 2021. 4 (Docket No. 6.) A hearing “The purpose of a temporary restraining order is to 5 preserve the status quo pending the complete briefing and 6 thorough consideration contemplated by full proceedings pursuant 7 to a preliminary injunction.” 8 Sacramento, No. 2:11-CV-02873-MCE, 2011 WL 5374748, at *3 (E.D. 9 Cal. Nov. 4, 2011) (citing Granny Goose Foods, Inc. v. Teamsters, 10 415 U.S. 423, 438–39 (1974) (temporary restraining orders “should 11 be restricted to serving their underlying purpose of preserving 12 the status quo and preventing irreparable harm just so long as is 13 necessary to hold a hearing, and no longer”); Reno Air Racing 14 Ass’n., v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006); Dunn v. 15 Cate, 2010 WL 1558562, at *1 (E.D. Cal. 2010)). 16 Occupy Sacramento v. City of Injunctive relief is “an extraordinary and drastic 17 remedy, one that should not be granted unless the movant, by a 18 clear showing, carries the burden of persuasion.” Mazurek v. 19 Armstrong, 520 U.S. 968, 972 (1997) (per curiam). In order to 20 obtain a temporary restraining order or preliminary injunction, 21 the moving party must establish (1) it is likely to succeed on 22 the merits, (2) it is likely to suffer irreparable harm in the 23 absence of preliminary relief, (3) the balance of equities tips 24 in its favor, and (4) an injunction is in the public interest. 25 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20-21 (2008); 26 27 28 Plaintiffs’ complaint (Docket No. 1), filed on August 26, 2021, challenges the Bureau of Reclamation’s August 4, 2021 Finding of No Significant Impact after an environmental review. The motion was filed on September 1, 2021. 2 1 Case 2:21-cv-01533-KJM-DMC Document 16 Filed 09/07/21 Page 3 of 5 1 Humane Society of the U.S. v. Gutierrez, 558 F.3d 896, 896 (9th 2 Cir. 2009); Credit Bureau Connection, Inc. v. Pardini, 726 F. 3 Supp. 2d 1107, 1132 (E.D. Cal. 2010) (standards for temporary 4 restraining orders and preliminary injunctions are the same). 5 “Under Winter, plaintiffs must establish that 6 irreparable harm is likely, not just possible, in order to obtain 7 a preliminary injunction.” 8 Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis in 9 original). All. for the Wild Rockies v. The irreparable harm claimed here is that absent 10 injunctive relief, the Bureau of Reclamation will approve and 11 provide funding for groundwater pumping in the Sacramento River 12 Valley, leading to, among other things, damage to property from 13 land subsidence and aquifer depletion and harm to threated or 14 endangered species. 15 constitute irreparable harm, plaintiffs still must demonstrate 16 that the injury is immediately threatened. 17 Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) 18 (citation omitted). 19 Assuming that these predicted effects See Caribbean Marine Plaintiffs have not carried this burden. As explained by the government, the groundwater pumping 20 project seeks to incentivize groundwater pumping over obtaining 21 water from Shasta Basin reservoirs, though the Bureau “has just 22 received funding for the program and is only in the initial 23 stages of contacting water users about participation in this 24 program,” and “has not entered into any contracts under this 25 program and no payments have been made.” 26 Further, the Bureau represents that “it will not enter into any 27 contracts prior to September 9, 2021” and states that “it is 28 unlikely that any contracts will be in place for the next two to 3 (Docket No. 8 at 2.) Case 2:21-cv-01533-KJM-DMC Document 16 Filed 09/07/21 Page 4 of 5 1 three weeks.” 2 (Id.) Plaintiffs have not shown that any irreparable harm 3 would occur before the court can conduct a full hearing on 4 plaintiffs’ request for a preliminary injunction and review full 5 briefing from the parties.2 6 pumping would immediately occur without injunctive relief or that 7 even if it did occur, irreparable harm to property or threatened 8 species would occur in the brief period of time between now and a 9 hearing on the request for a preliminary injunction, especially The court has no evidence that 10 given the parties’ agreement to a hearing on the request for a 11 preliminary injunction later this week.3 12 conceded at the hearing that water users may pump groundwater 13 without the Bureau’s approval or any incentive payments, which 14 makes it difficult, if not impossible, for the court to assess 15 the immediate environmental impact of the Bureau’s program absent 16 a temporary restraining order. Moreover, plaintiffs 17 IT IS THEREFORE ORDERED that plaintiffs’ motion for a 18 temporary restraining order be, and the same hereby is, DENIED. 19 Plaintiffs’ motion for a preliminary injunction is hereby set for 20 hearing, pursuant to the agreement of the parties, on Thursday, 21 September 9, 2021 at 10:00 a.m. via Zoom video conference before 22 the undersigned judge.4 The courtroom deputy clerk will email 23 The court notes that defendants’ full brief was filed yesterday afternoon. (See Docket No. 14.) 2 24 25 26 27 28 The court expresses no opinion as to whether plaintiffs have met their burden of showing that the other factors for preliminary injunctive relief have been met. 3 Pursuant to the discussion at the hearing on the request for a temporary restraining order, the parties have 4 4 Case 2:21-cv-01533-KJM-DMC Document 16 Filed 09/07/21 Page 5 of 5 1 counsel with the Zoom login information. 2 Dated: September 7, 2021 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agreed to rely on the papers already submitted and do not request to submit supplemental briefing before the September 9, 2021 hearing. 5

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