Goosebay Homeowners Association v. Bureau of Reclamation et al

Filing 33

ORDER denying 28 Motion for Preliminary Injunction Pending Appeal. Signed by Judge Charles C. Lovell on 4/29/2013. (MKB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
*******
GOOSEBAY HOMEOWNERS ASSOCIATION,
LLC,

CV 13-21-H-CCL

Plaintiff,
-vsBUREAU OF RECLAMATION, U.S.
DEPARTMENT OF INTERIOR, MONTANA
DEPARTMENT OF FISH, WILDLIFE AND
PARKS, RUTH LEFEVER, HOLLIS
LEFEVER,

ORDER

Defendants.
*******
Plaintiff moves for injunctive relief pending appeal. Defendants oppose the
motion. The Court has previously denied Plaintiffs’ similar request and will deny
this motion because Plaintiff is plainly not entitled to this extraordinary relief.

STANDARD FOR INJUNCTION PENDING APPEAL
The same standards that apply to a motion for preliminary injunction apply
to a motion for preliminary injunction pending appeal. See Lopez v. Heckler, 713
F.2d 1432, 1435 (9th Cir. 1983).
Federal Rule of Civil Procedure 62(c) provides that
[w]hile an appeal is pending from an interlocutory order or final
judgment that grants, dissolves, or denies an injunction, the court may
suspend, modify, restore, or grant an injunction on terms for bond or
other terms that secure the opposing party’s interests....”
The four relevant factors considered by the Court in analyzing the motion for
injunction pending appeal are these: (1) whether Plaintiff is likely to succeed on
the merits, (2) whether Plaintiff is likely to suffer irreparable harm absent an
injunction, (3) whether the balance of equities tips in Plaintiff’s favor, and
(4) whether the injunction is in the public interest. Winter v. Nat’l Res. Def.
Council, 555 U.S. 7, 129 S.Ct. 365, 374 (2008). Plaintiff must “shoulder the
burden” of meeting these four factors. See Fund for Animals v. Clark, 27
F.Supp.2d 8, 10 (D.D.C. 1998). “[P]laintiffs must establish that irreparable harm
2

is likely, not just possible, in order to obtain a preliminary injunction.” Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citing
Winter, 129 S.Ct. at 375-76). In the alternative, utilizing the Serious Questions
Test, Plaintiffs may show that there are serious questions on the merits, the
balance of hardships tips sharply in Plaintiffs’ favor, and the injunction is in the
public interest. Id.
DISCUSSION
In bringing this motion for an injunction pending appeal, Plaintiff HOA has
not raised any new issues that have not already been considered by this court.
Having already reviewed and rejected Plaintiff’s arguments (ECF No. 25), the
Court need not address the issues again in depth. See Lands Council v. Packard,
391 F.Supp.2d 869, 871 (D. Idaho 2005). Before addressing the injunction
criteria, the Court clarifies Plaintiff’s allegation of violation of court order.
1. Alleged Violation of Court Order. Plaintiff HOA now asserts that the
BOR has violated this Court’s April 22, 2013, Order (ECF No. 25) by BOR’s
termination of their water and septic service. Unlike Plaintiff, however, this Court
3

does not view this action as a violation of the Court’s Order. Plaintiff HOA has
been aware that its members remain on BOR property after December 31, 2012
(the date of expiration of the concessionaire’s Lease and Permit), only by the
courtesy and permission of the BOR. After December 31, 2012, the utilities
services were transferred from the former concessionaire to the BOR.
In September, 2012, the BOR informed HOA members that they could
remain on-site after December 31, 2012, “in a disconnected status,” until April 30,
2013, meaning that the mobile homes would have no electricity, no water service,
and no septic service after December 31, 2012. (ECF NO. 17-3, Ex. 103.) This
was a courtesy extended by the BOR so that HOA members would not have to
remove their mobile homes in the middle of winter. Prior to the filing of this
lawsuit at the end of February, 2013, the mobile homes’ “disconnected status” was
and still is the status quo.1 Thus, this Court does not agree that termination of

1

This Court certainly did not rule “that Goose Bay HOA’s rights terminate
on April 30, 2013, [so that therefore] the BOR had no right to take any action
against the HOA [before that date].” (Pl.’s Brief in Supp. at 3.) BOR’s purpose in
permitting the mobile homes to remain on its property “in a disconnected status”
4

water supply and septic service on April 23, 2013, violates this Court’s Order.
2. Success on the Merits of Plaintiff’s NEPA claim. For this most recent
motion pending appeal, Plaintiff HOA submits the 2009 Draft Environmental
Assessment prepared by the BOR for its initial planning of the Goose Bay Marina
modernization project. Plaintiff asserts that this draft document fails to consider
any environmental impact caused by removal of their mobile homes. Indeed, this
draft document barely mentions the existence of the 31 mobile homes and
certainly does not predict the future of the mobile homes. As in its prior brief
(ECF No. 22), Plaintiff HOA seeks to avoid eviction by claiming that there is no
NEPA documentation to support the April 30 eviction of the mobile homes. This
argument has no merit.
Plaintiff HOA members are being evicted because they lost their mobile
home rental contracts, not because the NEPA planning process dictates that they

after December 31, 2012, was to extend a courtesy to the HOA members by not
requiring them to remove their mobile homes during the winter. (ECF NO. 17-3,
Ex. 103.)
5

should be evicted. The concessionaire lost the right to manage the marina on
December 31, 2012, and that written contract required the concessionaire to
remove all its property within 90 days--including the 31 mobile homes at issue in
this case. (The trailer spaces were rented by the concessionaire to the mobile
home owners by oral agreements).
The 2009 NEPA documentation relating to the planning process for Goose
Bay Marina is simply not related to this eviction. As stated in the prior Order,
Plaintiff HOA members’ removal of their mobile homes is a private action, not a
federal agency action. There has been no final agency action that would allow
Plaintiff to seek legal review of their eviction under the Administrative Procedures
Act. 5 U.S.C. § 704. The evictions stem solely from Plaintiff HOA members’ loss
of their rental contracts when the concessionaire’s right to manage the marina and
thus rent the trailer spaces was extinguished.
The NEPA planning process for the future of the marina and the evictions
are progressing along separate tracks that do not intersect. Because there is no
final agency action appropriate for judicial review, this Court lacks subject matter
6

jurisdiction over Plaintiff HOA’s NEPA claim. The Court has considered whether
Plaintiff is likely to succeed on the merits of its NEPA claim, and found it to be
unlikely.
3. Irreparable Harm. The Court has also considered whether Plaintiff HOA
is likely to suffer irreparable harm absent an injunction and finds no likelihood of
irreparable harm. These are not primary residences, but summer vacation
properties. Because they are mobile homes, they can be fairly easily transported
away from BOR property. Should it be determined at a later date that the 31
mobile home owners do have the right to rent trailer spaces from the BOR at the
Goose Bay Marina, the HOA members’ mobile homes can be returned to Goose
Bay Marina just as easily as they were removed. The Court concludes that there is
no likelihood that Plaintiff HOA will suffer an irreparable harm.
4. Balancing the Equities. A balancing of the equities does not tip in
Plaintiff HOA’s favor. While Plaintiff HOA members have developed a
sentimental attachment to the BOR’s facility, they have no legal right to use it.
Meanwhile, the BOR’s policy has shifted to one of prohibiting this type of private
7

exclusive use of public property.2 Now that Plaintiff HOA has lost the right to its
private exclusive use of the trailer court at Goose Bay Marina, it is highly unlikely
that HOA can get it back. In essence, Plaintiff HOA is clinging to a privilege that
it no longer possesses, and it is a privilege that is no longer granted by BOR
policy.
5. The Public Interest. If an injunction were entered, the BOR could not
continue to conduct planning for the future of the Goose Bay Marina facility
because the entire marina septic system is currently connected to the trailer court’s
failing septic system (which also, unfortunately, encroaches upon Defendant
Lefevers’ private land). There is no authorized concessionaire to operate the
Goose Bay Marina, and the BOR cannot issue a request for proposals for a new

2

See 43 C.F.R. § 429.31(b) (“Reclamation prohibits any use that would
result in new private exclusive recreational or residential use of Reclamation land,
facilities, or waterbodies as of the effective date of this part. Improvements that
are within the terms and conditions of an existing authorization will not be
considered new private exclusive recreational or residential use.”). Significantly,
the Plaintiff HOA’s trailer court is no longer within the terms and conditions of an
existing authorization, since the Lease and Permit expired on December 31, 2012.
8

concessionaire without having conducted the necessary planning for, at a
minimum, a modernized and code-compliant septic system. Thus, if an injunction
enters, all planning is likely to halt, and the ability of Goose Bay Marina to
function as a public recreation facility will be jeopardized. The Court concludes
that an injunction is not in the public interest.
CONCLUSION
This Court has determined that Plaintiff is not likely to succeed on the
merits of the underlying litigation and that Plaintiff has not presented serious
questions on the merits. Plaintiff HOA will not suffer irreparable harm by its
eviction from Goose Bay Marina. The balance of hardships does not tip in
Plaintiff’s favor. The public interest would not be served by granting the
injunctive relief requested. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Injunction Pending
Appeal (Doc. 28) is DENIED.
Done and Dated this 29th day of April, 2013.

9