White et al v. University of California et al

Filing 19

TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE. Order to Show Cause Hearing set for 5/11/2012 10:00 AM. Signed by Judge Richard Seeborg on 4/27/12. (cl, COURT STAFF) (Filed on 4/27/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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No. C 12-01978 RS

TIMOTHY WHITE, et al.,
Plaintiffs,
v.
THE UNIVERSITY OF CALIFORNIA, et
al.,

TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW
CAUSE WHY A PRELIMINARY
INJUNCTION SHOULD NOT ISSUE

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Defendants.
____________________________________/

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I. TEMPORARY RESTRAINING ORDER
In consideration of plaintiffs’ application for a temporary restraining order, the supporting

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evidence submitted therewith, the complaint, and the arguments raised by defendants in opposition

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to the requested relief, the court hereby finds that plaintiffs are entitled to temporary injunctive

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relief. Although this case remains at the earliest stages of litigation, plaintiffs have nonetheless

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demonstrated entitlement to a temporary restraining order under Federal Rule of Civil Procedure 65

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for the limited purpose of preserving the relative positions of the parties pending further

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proceedings. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (temporary

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injunctive relief may be granted if moving party adequately shows: (1) there are serious questions

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going to the merits, (2) absent relief, there is a likelihood of irreparable harm, (3) that the balance of

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the equities tips sharply in movant’s favor, and (4) that issuance of injunctive relief serves the public

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interest). See also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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NO. C 12-01978 RS
ORDER

Plaintiffs are three University of California professors who maintain that the University and

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its various officers and agents, unless restrained, intend to transfer possession of an exceedingly rare

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pair of ancient human skeletons (“the La Jolla Skeletons”), and associated funerary items, to the La

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Posta Band of the Diegueno Mission Indians for burial. According to plaintiffs, interment would

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irrevocably destroy the priceless research value of the remains. These allegations suffice to show

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the requisite likelihood of irreparable harm, as well as serious questions going to the merits of their

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claims under the Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001, et seq.

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See also Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004) (overturning Department of

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Interior decision to repatriate 9,000-year old “Kennewick Man”). Plaintiffs’ averments also

For the Northern District of California

United States District Court

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persuasively demonstrate that the balance of the equities strongly favors issuance of a restraining

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order, as does the public interest.

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Defendants do not, at least at this early stage, present a developed argument on the merits,

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but instead oppose the requested relief primarily on grounds of over breadth. Plaintiffs’ proposed

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order would strictly prohibit defendants from “changing in any manner the current condition and

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location of the La Jolla Skeletons, and associated funerary objects.” Defendants insist that there is

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no legal basis to restrain them so broadly, since they are willing to refrain from transferring the La

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Jolla Skeletons to the La Posta Band, and have proven capable conservators of them for some thirty-

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five years. Although defendants insist there is no evidence to suggest the University otherwise

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intends to move or alter the Skeletons, they offer no persuasive justification for its refusal to agree

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to that very condition.1 Under the circumstances, plaintiffs cannot be expected to rely on the

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“reasonable, good faith efforts” of defendants to maintain the status quo.
As a consequence, and pending a hearing on the order to show cause, as set forth below,

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defendants University of California, the Regents of the University of California, Mark G. Yudof,

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Marye Anne Fox, Gary Matthews, Does 1-50, their employees, agents servants, assigns and all

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those acting in concert with them, including but not limited to, the San Diego Archaeological

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Center, are hereby restrained from changing in any manner the current condition and location of the

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In the highly unlikely event that a natural disaster or other act of God requires the University to
relocate the Skeletons for the sake of preservation, contrary to defendants’ concern, a finding of
contempt is not a realistic prospect.
NO. C 12-01978 RS
ORDER

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La Jolla Skeletons, and associated funerary objects. This temporary restraining order shall expire at

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the conclusion of the hearing on the order to show cause on May 11, 2012, unless extended by the

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Court. See Fed. R. Civ. P. 65(b)(2) (“order expires at the time after entry – not to exceed 14 days –

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that the court sets, unless before that time the court, for good cause, extends it for a like period”).

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Federal Rule of Civil Procedure 65(c) directs the court to require security from the moving

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party “in an amount that the court considers proper to pay the costs and damages sustained by any

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party found to have been wrongfully enjoined or restrained.” Here, however, there is no indication

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in the record that defendants will suffer any costs or damages by complying with this order, even if

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wrongfully issued. The district court retains discretion “as to the amount of security required, if

For the Northern District of California

United States District Court

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any,” and in this instance plaintiffs need not post any bond. Johnson v. Couturier, 572 F.3d 1067,

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1086 (9th Cir. 2009) (internal quotation marks and citations omitted) (emphasis in original).
II. ORDER TO SHOW CAUSE

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Defendants are further ordered to show cause why a preliminary injunction should not issue

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upon dissolution of the temporary restraining order. A hearing on that matter will be held at 10 a.m.

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on Friday, May 11, 2012 in Courtroom 3, 17th Floor, Phillip Burton Federal Building and U.S.

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Courthouse, 450 Golden Gate Avenue, in San Francisco, California, unless the parties agree to

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postpone the hearing with the Court’s consent. Plaintiffs may, if they so elect, file a supplemental

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brief in support of their request for preliminary relief, not to exceed twenty-five pages of text

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(excluding declarations and exhibits), by 5 p.m. on Friday, May 4, 2012. Defendants may, if they

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choose to do so, file an opposition brief of the same length by 5 p.m. on Tuesday, May 8, 2012. No

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further briefing by either party is authorized absent Court order.

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IT IS SO ORDERED.

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Dated: 4/27/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 12-01978 RS
ORDER

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