Friends of Moon Creek v. Diamond Lake Improvement Association Inc et al

Filing 80

ORDER GRANTING IN PART and DENYING IN PART MOTION FOR PRELIMINARY INJUNCTION; granting in part and denying in part 3 Motion for Preliminary Injunction; the court's temporary injunctive order 72 is vacated. Signed by Senior Judge Justin L. Quackenbush. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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FRIENDS OF MOON CREEK, an
unincorporated association,

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Plaintiff,
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vs.
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DIAMOND LAKE IMPROVEMENT,
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ASSOCIATION, INC. et al,
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Defendants.
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___________________________________ )

No. CV-13-0396-JLQ
ORDER GRANTING IN PART and
DENYING IN PART MOTION FOR
PRELIMINARY INJUNCTION

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BEFORE THE COURT is Plaintiff Friends of Moon Creek’s Motion for

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Preliminary Injunction (ECF No. 3). The Motion has been fully briefed and oral

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argument was heard on January 23, 2014. The court allowed supplemental briefs to be

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filed, and has considered those submissions.

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I. Introduction and Procedural History

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Plaintiff Friends of Moon Creek (“Plaintiff”) filed this action November 21, 2013,

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and has twice amended its Complaint. In the Second Amended Complaint ("SAC" at

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ECF No.36), Plaintiff (an association of property owners living in Moon Creek Estates

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in Pend Oreille County, Washington) claims that Defendants have trespassed and

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damaged their property. Specifically Plaintiff claims that Defendants have engaged in

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a project to reduce the water level of Diamond Lake which has involved, without the

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participation or consent of Plaintiff’s members, herbicide applications on Moon Creek,

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stream dredging, beaver dam destruction, and trapping and killing beavers.

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ORDER - 1

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The Defendants are Diamond Lake Improvement Association (“DLIA”)(an

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association of property owners living on or near Diamond Lake); Sharon Sorby,

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coordinator of the Pend Oreille County Noxious Weed Control Board (“Sorby”); and

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Phil Anderson, Director of the Department of Fish & Wildlife (“Anderson”).

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Plaintiff contends that Defendants' activities on Moon Creek began in the summer

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of 2012. Specifically, the first herbicide application complained of is alleged to have

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occurred on July 6, 2012, when a "propeller driven air boat...was launched into Moon

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Creek over the strenuous objections of Plaintiff's members" and Plaintiff's members were

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allegedly "physically threatened by the boat operators". (SAC ¶ 4.3). Plaintiff also

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alleges it learned in the summer 2012, that a Hydraulic Project Approval (“HPA”) had

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been issued to allow for removal of vegetation and installation of beaver tubes in and

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along Moon Creek (SAC ¶ 4.7). Plaintiff alleges that in the fall of 2012 DLIA trespassed

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on Plaintiff’s members’ land and that beaver dams were destroyed and beavers trapped

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and killed. (SAC ¶ 4.8).

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Plaintiff contends that again in September 2013, Diamond Lake Improvement

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Association ("DLIA") was issued a Hydraulic Project Approval ("HPA") by the Dept.

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of Fish & Wildlife to allow for stream dredging, modification/removal of beaver dams,

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etc. On September 23, 2014, DLIA installed a large culvert through a beaver dam. (SAC

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¶ 4.12). Plaintiff claims that DLIA and the Dept of Fish & Wildlife have advised that

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additional HPAs will be issued. (SAC ¶ 4.14).

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Section 5 of the SAC is entitled “Claims for Relief” and contains eight paragraphs,

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but no “counts”. It appears that Plaintiff alleges under 42 U.S.C. 1983, a Fifth

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Amendment taking of property. (SAC ¶ 5.2 & 5.3). Plaintiff contends that Defendant

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Sorby violated RCW 17.10.170 by issuing a permit to DLIA without proper statutory

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notice. (SAC ¶ 5.4). Plaintiff alleges that Defendant Anderson of the Department of Fish

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& Wildlife violated state law by issuing a permit to dredge and destroy beaver dams.

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Plaintiff alleges trespass in paragraph 5.1, but the paragraph is somewhat vague and no

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ORDER - 2

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specific Defendants are named. Paragraphs 5.6 to 5.8 simply argue that injunctive and

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declaratory relief is proper.

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In sum, Plaintiff contends that Moon Creek is a non-navigable waterway and that

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the lands underlying the waterway are owned by the individual property owners adjacent

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to the Creek. Plaintiff contends that Defendants’ actions constitute a taking of property

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without just compensation in violation of the Fifth Amendment. Plaintiff seeks an

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injunction prohibiting Defendants from engaging in unlawful conduct, declaratory

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judgment, and an award of attorney fees.

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Each of the three Defendants responded to the SAC by filing a Motion to Dismiss

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(ECF Nos. 39, 43, & 51). The court heard argument on those Motions on January 23,

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2014, and after receiving supplemental briefing, issued an Order denying the Motions

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on February 27, 2014. (ECF No. 71). The court has issued a temporary injunctive order

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which remains in effect until March 28, 2014, unless otherwise modified, vacated, or

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extended by the court. (ECF No. 72). Each of the Defendants has now answered the

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SAC. Defendant Anderson asserts a crossclaim against Defendant DLIA. (ECF No. 73).

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Defendant DLIA asserts a counterclaim against Plaintiff Friends of Moon Creek, and

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asserts third-party claims against the individual members of Friends of Moon Creek.

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(ECF No. 76).

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II. Discussion

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A plaintiff seeking preliminary injunction “must establish that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of the equities tips in his favor, and that an injunction

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is in the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 21

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(2008). A preliminary injunction is an “extraordinary remedy” not awarded as of right.

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Id. at 23. In Winter, the Supreme Court rejected the Ninth Circuit’s approach which had

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allowed for an injunction to be entered on the “possibility” of irreparable harm, and

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stated such harm must be “likely”. As an alternative to demonstrating a likelihood of

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success on the merits, a movant for a preliminary injunction may establish “serious

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questions going to the merits, and that the balance of the hardships tips sharply in its

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favor.” Soda Mountain Wilderness Council v. Bureau of Land Management, 534

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Fed.Appx. 680, 683 (9th Cir. 2013); see also Alliance for Wild Rockies v. Cottrell, 632

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F.3d 1127 (9th Cir. 2011).

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The grant of a preliminary injunction is an exercise of judicial discretion. Sierra

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On-Line v. Phoenix Software, 739 F.2d 1415, 1421 (9th Cir. 1984). A preliminary

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injunction “is not a preliminary adjudication on the merits but rather a device for

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preserving the status quo and preventing the irreparable loss of rights before judgment.”

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Id. at 1422.

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A. Likelihood of Success on the Merits

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Plaintiff has, essentially, two claims: 1) a Constitutional takings claim based on

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the Fifth Amendment, and 2) a state law trespass claim. In order to succeed on the

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Constitutional claim, Plaintiff “must establish that the interest at issue was their private

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property and that it was taken without just compensation.” Washington Legal

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Foundation v. Legal Foundation of Washington, 271 F.3d 835, 851 (9th Cir. 2001).

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Plaintiff argues that if, as Defendant Anderson contends, this was a private project

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undertaken by DLIA, then it was a taking of private property for a private purpose, and

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Plaintiff need not establish that it sought compensation. (ECF No. 65, p. 3-4). As to the

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trespass claim, Plaintiff must show the intentional invasion of its members’ property

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interests. Washington has utilized a four-part test for trespass: 1) an invasion affecting

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an interest in the exclusive possession of plaintiffs’ property; 2) an intentional doing of

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the act which results in the invasion; 3) reasonable foreseeability that the act done could

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result in an invasion of plaintiffs’ possessory interest, and 4) substantial damage to the

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property. Gill v. LDI, 19 F.Supp.2d 1188, 1197 (W.D. Wash. 1998) citing Bradley v.

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American Smelting, 104 Wash.2d 677, 691 (1985). “The law does not require that the

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invasion or trespass itself be intentional–it is sufficient that the act resulting in the

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trespass is intentional.” Id. The fourth element of substantial damage is only required

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when there has been an intangible invasion, such as by airborne pollutants, and not when

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there has been actual entry on the land by the defendant. Id.

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Plaintiff’s argument that it has established a likelihood of success on the merits of

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it’s Fifth Amendment claim is not convincing. Plaintiff states this element “will almost

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surely be satisfied: Plaintiff is only asking that Defendants, in essence, be enjoined from

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violating the law, are only asking that the present status quo ... be protected pending a

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full hearing on the merits.” (ECF No. 3, p. 26). This argument, itself, does not establish

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that Plaintiff is likely to prevail on the Constitutional claim under Section 1983 claim.

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Plaintiff submitted Declarations of nine individuals who own property in the Moon

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Creek area. (ECF No. 4-12). These Declarations clearly establish that those owners

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believe trespass has occurred.

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Cheryl Ballentine submits that she suffered a headache from the herbicide spray.

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(ECF No. 4). Gaylen Warren states that the airboat driver threatened/attempted to run

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him over. (ECF No. 6). Mark Moeser states that the beaver pond on his property was

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destroyed by the Defendants’ activity and that this has dramatically decreased his

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property value. (ECF No. 7). Doug Anderson operates SpruceWood Farms from his 5

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acre parcel and sells plants, trees, and shrubs. He alleges that he sells organic products

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and they have been contaminated by the herbicide application. (ECF No. 8). Joe

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Struthers states he told the DLIA they could not use his property as an access point to the

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beaver dams and that he has called local police about the trespass, but they have refused

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to act. (ECF No. 10).

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contaminated the well on her property. She alleges that 8 months after the spraying, she

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passed out at a casino from dehydration and attributes this to the lack of potable water

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at her home. Plaintiff has presented evidence to support a claim of trespass, but it is not

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clear that Plaintiff has established a likelihood of success on the merits of a Fifth

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Amendment claim under Section 1983. Plaintiff has not, at this stage, demonstrated that

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Michele Bowyer alleges that the herbicide application

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Defendant Anderson acted jointly with DLIA. Plaintiff has also not established, at this

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stage, whether a compensable taking occurred, whether it was for a private or public

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purpose, or whether Plaintiff’s members sought compensation.

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Defendant Anderson suggests that Plaintiff’s claim would fail as a matter of law

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because the Washington Supreme Court has rejected inverse condemnation claims

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against municipalities for permitting decisions. In Lakey v. Puget Sound Energy, 176

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Wash.2d 909, 930 (2013), the Washington Supreme Court stated, “we read the language

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in Phillips [v. King County, 136 Wash.2d 946 (1998)] as holding that governments have

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no liability for inverse condemnation for permitting decisions and reject the

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homeowners’ interpretation.”. The State’s position is it only issued the HPA, it did not

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trespass or take the property. The HPA states by its plain terms: “This Hydraulic Project

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Approval does not authorize trespass.” (ECF No. 4-9, p. 34). The court need not resolve

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these arguments at this time. It is sufficient that Plaintiff, at this stage, has not

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established a likelihood of success on the merits on the Constitutional claim as to any of

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the Defendants. As discussed further in Section E, the court does find a likelihood of

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success on the merits as to the trespass claim.

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B. Irreparable Harm

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Plaintiff has alleged trespass and damage to its members’ real property in the form

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of loss of property value, destruction of vegetation, and contamination of water. The

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Ninth Circuit has stated: “It is well-established that the loss of an interest in real property

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constitutes an irreparable injury.” Park Village Tenants Ass’n v. Mortimer Howard Trust,

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636 F.3d 1150, 1159 (9th Cir. 2011). Further, “environmental injury, by its nature can

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seldom be adequately remedied by money damages and is often permanent or at least of

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long duration, i.e., irreparable.” Soda Mountain Wilderness Council v. Bureau of Land

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Management, 534 Fed.Appx. 680 (9th Cir. 2013). Although Plaintiff may be able to

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establish that injury to real property has occurred in the past, the question in the context

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of the injunction is whether future harm is likely. “An injunction will not issue if the

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person or entity seeking injunctive relief shows a mere possibility of some remote future

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injury, or a conjectural or hypothetical injury.” Id. at 1160. Plaintiff has alleged that

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members of DLIA and the Department of Fish and Wildlife have advised that additional

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HPAs will issue. (SAC, ¶ 4.14). This allegation is supported by the declarations

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submitted. See for example Dec. of Cheryl Ballentine at ECF No. 4, ¶ 14, “DLIA

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members continue to trespass at will, and to threaten us with more HPAs, which they

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have been able so far to secure at will.” Additionally, the HPAs filed as exhibits do not

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expire until 2016 or 2017. (See for example ECF No. 4-9). Patrick Chapman, an

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employee of the Dept. of Fish and Wildlife has filed a declaration stating that there is an

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active HPA #127229-03, issued to DLIA for dredging and installation of beaver dam

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tubes. (ECF No. 39-1, ¶2(b)(iii)).

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Plaintiff has not definitively established that Defendants will engage in further

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trespass or take further actions in reliance on the active HPA, but Plaintiff has

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established more than a remote possibility of future injury. Injury to real property is

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irreparable harm and this element weighs in favor of Plaintiff and is supported by

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evidence such as Mr. Moeser’s declaration about lost property value, Ms. Bowyer’s

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declaration about well water contamination, and Ms. Ballentine’s affidavit concerning

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continuing trespass.

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C. Balance of the Equities

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On one side of this case is Plaintiff, composed of property owners on Moon Creek,

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who allege trespass and unwanted herbicide application, dredging, and destruction of

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wildlife. On the other side , is the DLIA, composed of Diamond Lake property owners,

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who claim to have taken the actions along Moon Creek in order to minimize flooding

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and preserve their real property. Plaintiff alleges that the actions taken damaged its

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members’ property. DLIA’s Third-party Claims (ECF No. 76) allege the Plaintiff’s

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members maintained their property in such a manner as to constitute a nuisance. While

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both sides allegedly seek to preserve their real property, the equities weigh in favor of

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Plaintiff, whose members allege their property was physically invaded by DLIA’s

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members and its agents.

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D. Public Interest

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The public interest on both sides must be considered. On Plaintiff’s side is the

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interest in preserving wildlife, not having its water contaminated through herbicide

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application, and protecting Plaintiff’s members right to use and enjoyment of their

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property. The Ninth Circuit has recognized the “well-established public interest in

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preserving nature and avoiding irreparable environmental injury.” Alliance for Wild

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Rockies v. Cottrell, 632 F.3d 1127,1138 (9th Cir. 2011). DLIA claims its interest is not

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having flooding that leads to property damage. Anderson and the Department of Fish

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and Wildlife states its interest is in the protection of fish. The Department argues that

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it plays a limited role in the permit process and that under RCW § 77.55.021(7)(a),

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“Protection of fish life is the only ground upon which approval of a permit may be

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denied or conditioned.” The Pend Oreille Noxious Weed Control Board is presumably

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serving the public interest by eradicating noxious weeds in waterways. The State

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Legislature has expressed an interest in such activity. See RCW § 17.10.007 (“The

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purpose of this chapter is to limit economic loss and adverse effects to Washington’s

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agricultural, natural, and human resources due to the presence and spread of noxious

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weeds on all terrestrial and aquatic areas in the state.”).

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E. Conclusion

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Application of the four factor Winter test discussed supra applies generally to the

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three Defendants and the two claims. However, the analysis also varies, as discussed

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infra, based on the individual Defendant and on the claim being asserted by Plaintiff.

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As to Defendant Anderson, and a Constitutional Taking claim, Plaintiff has not

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established a likelihood of success on the merits to support a preliminary injunction.

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Anderson would not be liable merely for issuing the HPA. The HPA by its terms did not

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authorize trespass. There is insufficient evidence at this stage to establish a joint action

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theory of liability between the State and DLIA. The allegations of the SAC include that

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the DLIA’s permit application contained false statements. Anderson has disclaimed joint

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action and has filed a cross-claim against DLIA. As to the trespass claim, Plaintiff

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alleges that “defendants did individually and collectively” enter Plaintiff’s members’

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property as trespassers. (SAC ¶ 5.1). However, there is no specific allegation that

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Anderson or Dept. of Fish and Wildlife officials physically trespassed on Plaintiff’s

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members’ property. Rather, Anderson issued a permit which specifically did not

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authorize trespass. The court has determined that at this stage Plaintiff is not entitled to

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a preliminary injunction against Anderson.

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As to Defendant Sorby, Plaintiff has not established a likelihood of success on a

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trespass or Fifth Amendment claim. Sorby was authorized by statute to inspect property

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for noxious weeds. See RCW 17.10.160 (providing in part that, “Any authorized agent

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or employee of the county noxious weed control board...where not otherwise proscribed

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by law may enter upon any property for the purpose of....taking of specimens of weeds,

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general inspection, and the performance of eradication or control work”). The statute

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further requires that the official making the inspection “make a reasonable attempt to

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notify the owner of the property.” RCW 17.10.160. Sorby claims she did attempt to

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provide some notice. As set forth in the Declaration of one of Plaintiff’s members,

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Cheryl Balentine (ECF No. 4), Sorby sent a letter in June 2012. The Declaration of

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Sorby (ECF No. 44) states that she sent a letter to property owners/tax payers on May 3,

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2012, before she first inspected the property. She conducted the inspection by using a

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canoe. There may be genuine issues concerning the adequacy of the notice. Sorby

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admits in her Answer (ECF No. 74), that the letter she sent stated that the herbicide

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application would occur on June 22, 2012, and that it did not occur that day, but rather

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on July 6, 2012. She states she sent an e-mail on July 5, 2012, attempting to advise of

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the July 6, 2012, spraying. She further states that her May and June 2012, letters were

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sent via first class mail, rather than certified mail.

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Sorby did not conduct the herbicide spraying. There is, however, indication of joint

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action between DLIA and Sorby. At oral argument, counsel admitted that members of

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DLIA approached the Weed Control Board and instigated the inspection. Then Sorby

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sent out notice of the herbicide application, but DLIA paid and hired the contractor to

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make the herbicide application. The herbicide spray did not occur on the day noticed,

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and instead was conducted on July 6th, during what could be considered the extended 4th

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of July weekend. However, under the current circumstances where no action is presently

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planned, the court does not find that the public interest weighs in favor of a preliminary

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injunction. The State Legislature has declared the importance of controlling noxious

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weeds. Further the Legislature has declared a policy against the issuance of court

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injunctions that could interfere with remediation efforts. See RCW 17.10.180

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(“PROVIDED, That no stay or injunction shall lie to delay any control work subsequent

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to notice given pursuant to RCW 17.10.160 or pursuant to an order under RCW

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17.10.210). Considering the four factors from Winter, the court does not conclude that,

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at this stage, Plaintiff is entitled to a preliminary injunction against Sorby.

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As to DLIA, Plaintiff has produced affidavits supporting the claim that DLIA

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members committed trespass. Cheryl Balentine states that an airboat was deployed on

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her property, without her permission and over her objections, for the purpose of spraying

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herbicide. (ECF No. 4, ¶ 7). Mark Moeser asserts that property of his “adjoining and in

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the beaver ponds is now a destroyed mudflat” due to the activities of DLIA. (ECF No.

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7, ¶ 6). Doug Anderson contends that organic products that he sells from his property,

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including plants, trees, and shrubs were contaminated by the spray. (ECF No. 8). Joe

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Struthers contends DLIA members have trespassed on his property. (ECF No. 10).

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Plaintiff has demonstrated a likelihood of success on the merits of its trespass

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claim against DLIA. DLIA members allegedly trespassed in 2012 during the herbicide

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spray, and to conduct dredging and other activities in 2012 and 2013. Injury to real

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property, and environmental injury, is irreparable harm. The balance of the equities and

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the public interest, based on the current record, tip in favor of Plaintiff’s members, who

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have allegedly had their real property interests invaded, against members of DLIA who

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seek to avoid flooding on their property. In balancing the equities, and considering the

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need for a bond, the court has considered that the Defendants maintain that no future

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action is planned. Therefore, Defendants will not be harmed by an injunction.

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IT IS HEREBY ORDERED:

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1. Plaintiff’s Motion for Preliminary Injunction (ECF No. 3) is GRANTED IN
PART AND DENIED IN PART.
2. The court’s temporary injunctive order (ECF No. 72) is vacated.

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3. Defendant DLIA is hereby prohibited from entering on to the real property of

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Plaintiff’s members as described further in paragraph (4) below, and is further prohibited

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from taking further action involving Plaintiffs’ property pursuant to the still active HPA

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# 127229-03. Any action pursuant to an HPA that could involve Plaintiff’s property

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shall be taken only after 20 days prior written notice to Plaintiff’s members listed in

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paragraph (4) or upon receiving express written permission from such members, or with

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the consent of the court.

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4. The Plaintiff’s Members and their real property are described in the Second
Amended Complaint (ECF No. 36, ¶ 3.1) as follows:

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A) Cheryl and Robert Balentine, 31 Casey Road, Newport, Washington 99156;

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B) George A. Tyler, 221 Casey Road, Newport, Washington 99156;

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C) Douglas M. Anderson, 91 Casey Road, Newport, Washington 99156;

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D) Tom and Michele Bowyer, 131 Casey Road, Newport, Washington 99156;

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E) Joe F. Struthers, 441 Casey Road, Newport, Washington 99156;

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F) Mark Moser, 301 Casey Road, Newport, Washington 99156;

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G) Gaylan Warren, 202 Casey Court, Newport, Washington 99156.

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5. Pursuant to Federal Rule of Civil Procedure 65(d) this Order binds the parties

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and the parties’ officers, agents, servants, employees, and attorneys who have received

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actual notice of the Order.

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6. Pursuant to Fed.R.Civ.P. 65(c), the court does not find that a posting of security

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is required. See Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 321

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F.3d 878, 882 (9th Cir. 2003)(stating, “the bond amount may be zero if there is no

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evidence the party will suffer damages from the injunction.”).

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IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to
counsel.
Dated this 27th day of March, 2014.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

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