Slidewaters LLC v. Washington State Department of Labor and Industries, et al

Filing 8

ORDER Denying 3 Plaintiff's Motion for Temporary Restraining Order. Signed by Chief Judge Thomas O. Rice. (CV, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Jun 12, 2020
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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SLIDEWATERS LLC,

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NO. 2:20-CV-0210-TOR
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION FOR TEMPORARY
RESTRAINING ORDER

v.

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WASHINGTON DEPARTMENT OF
LABOR AND INDUSTRIES and
GOVERNOR JAY INSLEE, in his
official capacity,

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Defendant.
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BEFORE THE COURT is Plaintiff’s Motion for Temporary Restraining

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Order (ECF No. 3). This matter was submitted for consideration without oral

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argument. The Court has reviewed the record and files herein, and is fully

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informed. For the reasons discussed below, Plaintiff’s Motion for Temporary

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Restraining Order (ECF No. 3) is DENIED.

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ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
RESTRAINING ORDER ~ 1

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BACKGROUND
This case concerns Plaintiff’s ability to operate its business while subject to

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state emergency restrictions put into place due to the COVID-19 pandemic.

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Plaintiff seeks a temporary restraining order (“TRO”) enjoining Defendants from

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enforcing Proclamations 20-05 and 20-25.4 and WAC 296-800-14035. The

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following facts are drawn from Plaintiff’s Complaint and are essentially

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undisputed for the purposes of resolving the instant motion.

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Plaintiff Slidewaters LLC is a family-owned waterpark in Lake Chelan,

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owned by cousins Burke and Robert Bordner. ECF No. 1-4 at 2, ¶ 4.1. Plaintiff

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employs approximately 150 seasonal employees and four year-round employees.

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ECF No. 1-4 at 2, ¶¶ 4.5, 4.7. Plaintiff operates seasonally for an approximately

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100-day window that starts the Saturday prior to Memorial Day weekend and ends

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at Labor Day. ECF No. 1-4 at 3, ¶¶ 4.8-4.9. Plaintiff makes nearly all of its

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income that sustains its business throughout the year during this 100-day period.

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ECF No. 1-4 at 3, ¶ 4.10. Plaintiff depends on being open during this 100-day

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period to ensure that it can survive during the “off-season.” ECF No. 1-4 at 3, ¶

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4.13. Plaintiff previously made a business decision to expand the park, with the

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goal of having the 2020 season recoup the money expended during the three-year

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expansion project. ECF No. 1-4 at 3, ¶ 4.14. Plaintiff has taken on substantial

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ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
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business debt for the expansion project in reliance upon being able to operate

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during the 2020 season. Id.

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On February 29, 2020, in response to the COVID-19 pandemic, Defendant

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Governor Jay Inslee proclaimed a State of Emergency for all counties in

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Washington, referred to as the “Stay Home, Stay Healthy” order, or “Proclamation

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20.05.” ECF No. 1-4 at 3, ¶ 4.16. Governor Inslee issued Proclamation 20.05

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pursuant to RCW chapters 38.08, 38.52, and 43.06. ECF No. 1-4 at 3, ¶ 4.17.

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Governor Inslee proclaimed that COVID-19 is a “public disaster.” ECF No. 1-4 at

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4, ¶ 4.19. Governor Inslee also proclaimed that the Washington State

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Comprehensive Emergency Management Plan be directed, and that state agencies

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and departments were directed to utilize state resources and do everything

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reasonably possible to assist affected counties to respond to and recover from

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COVID-19. ECF No. 1-4 at 4, ¶¶ 4.22-4.23.

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On May 4, 2020, Governor Inslee sent a letter to the Washington State

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legislature requesting an extension of statutory waivers and suspensions ordered by

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Proclamation 20.05. ECF No. 1-4 at 4, ¶ 4.24. On May 9, 2020, the four

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legislative caucus leaders sent a letter in response to Governor Inslee, in which

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they granted an extension of the requested proclamations until May 31, 2020,

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pursuant to RCW 43.06.220(4). ECF No. 1-4 at 4, ¶ 4.25.

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ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
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On May 26, 2020, Defendant Department of Labor and Industries (“LNI”)

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filed an emergency rule, WAC 296-800-14035, with the Washington Office of

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Code Reviser. ECF No. 1-4 at 4, ¶ 4.26. The emergency rule states, “Employers

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must not allow employees to perform work where a business activity is prohibited

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by an emergency proclamation.” ECF No. 1-4 at 26. The emergency rule cites, in

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part, Proclamation 20.05 as the basis for its rulemaking authority. ECF No. 1-4 at

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5, ¶ 4.28. LNI posted a notice on its website which stated, “If employers are found

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to be defying the Governor’s order, they’ll be informed and directed to close or

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adjust operations immediately. If they do not, they’ll face a workplace safety

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citation that could carry a fine of nearly $10,000 or more.” ECF No. 1-4 at 5, ¶

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4.29.

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On May 31, 2020, Governor Inslee announced Proclamation 20-25.4,

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“Transition from ‘Stay Home – Stay Healthy’ to ‘Safe Start – Stay Healthy’

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County-By-County Phased Reopening.” ECF No. 1-4 at 31-35. Proclamation 20-

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25.4 utilizes a four-phase plan for opening the State of Washington. ECF No. 1-4

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at 6, ¶ 4.36. Each county must, in accordance with the plan, independently

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demonstrate that they meet a number of specific criteria to move into a new phase.

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ECF No. 1-4 at 6, ¶ 4.41.

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Chelan County is, as of the filing of the Complaint, in phase one of the four-

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phase plan. ECF No. 1-4 at 6, ¶ 4.40. At the earliest, Plaintiff would be eligible to

ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
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begin moderate operations in phase three of Proclamation 20-25.4. ECF No. 1-4 at

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6, ¶ 4.39. Plaintiff has not yet been able to open for its 2020 season and expects it

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will unlikely be able to open for the entire 2020 season. ECF No. 1-4 at 6, ¶¶ 4.42-

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4.43. Plaintiff now faces increased competition from out-of-state water parks such

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as Silverwood’s water park in Idaho, which opened on May 30, 2020. ECF No. 1-

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4 at 7, ¶ 4.48. Plaintiff has created a “Clean & Safe” plan for its water park to

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assist patrons, guests, and staff in being able to maintain cleanliness, health, and

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necessary social distancing measures. ECF No. 1-4 at 7, ¶¶ 4.49-4.50. But for the

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Proclamations and the emergency rule, Plaintiff would be open for its normal

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season. ECF No. 1-4 at 8, ¶ 4.53.
DISCUSSION

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A. TRO Standard
Pursuant to Federal Rule of Civil Procedure 65, a district court may grant a

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TRO in order to prevent “immediate and irreparable injury.” Fed. R. Civ. P.

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65(b)(1)(A). The analysis for granting a temporary restraining order is

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“substantially identical” to that for a preliminary injunction. Stuhlbarg Int’l Sales

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Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). It “is an

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extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council,

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Inc., 555 U.S. 7, 24 (2008).

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ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
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To obtain this relief, a plaintiff must demonstrate: (1) a likelihood of success

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on the merits; (2) a likelihood of irreparable injury in the absence of preliminary

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relief; (3) that a balancing of the hardships weighs in plaintiff’s favor; and (4) that

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a preliminary injunction will advance the public interest. Winter, 555 U.S. at 20;

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M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012). Under the Winter test, a

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plaintiff must satisfy each element for injunctive relief.
Alternatively, the Ninth Circuit also permits a “sliding scale” approach

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under which an injunction may be issued if there are “serious questions going to

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the merits” and “the balance of hardships tips sharply in the plaintiff’s favor,”

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assuming the plaintiff also satisfies the two other Winter factors. All. for the Wild

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Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“[A] stronger showing of

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one element may offset a weaker showing of another.”); see also Farris v.

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Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (“We have also articulated an

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alternate formulation of the Winter test, under which serious questions going to the

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merits and a balance of hardships that tips sharply towards the plaintiff can support

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issuance of a preliminary injunction, so long as the plaintiff also shows that there is

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a likelihood of irreparable injury and that the injunction is in the public interest.”

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(internal quotation marks and citation omitted)).

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ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
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B. Likelihood of Success on the Merits
Plaintiff’s Complaint raises claims that may be categorized by three main

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arguments: (1) Governor Inslee does not have the authority to issue the emergency

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proclamations; (2) LNI does not have authority to issue an emergency rule based

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on the Governor’s unlawful emergency proclamations; and (3) Defendants’ actions

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have violated Plaintiff’s substantive due process rights under the U.S. Constitution

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and the Washington Constitution. ECF No. 1-4 at 8-13, ¶¶ 5.1-5.42. Plaintiff

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contends, while developing minimal supporting legal argument, that it is likely to

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succeed on the merits of its claims. ECF No. 3 at 8-9. To obtain injunctive relief,

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Plaintiff must show that there are “serious questions going to the merits” of its

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claim, and that it is likely to succeed on those questions of merit. Cottrell, 632

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F.3d at 1131; Farris, 677 F.3d at 865.

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1. Governor’s Authority

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First, Plaintiff contends it is likely to succeed on the merits of its argument

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that the Governor’s Proclamations exceed the statutory authority authorizing the

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governor to declare a state of emergency. ECF No. 3 at 8-9. Plaintiff’s argument

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raises questions of statutory interpretation. A federal court charged with

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interpreting a state statute should do so according to that state’s principles of

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statutory interpretation. Powell’s Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th

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Cir. 2010).

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Plaintiff argues that the Proclamations exceed Governor Inslee’s statutory

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authority because the COVID-19 pandemic does not constitute one of the

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statutorily authorized purposes for which a governor may declare a state of

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emergency. ECF No. 3 at 8. Washington law allows a governor to proclaim a

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state of emergency “after finding that a public disorder, disaster, energy

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emergency, or riot exists within this state or any part thereof which affects life,

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health, property, or the public peace.” RCW 43.06.010(12). “Public disorder,

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disaster, energy emergency, or riot” are all terms that are not otherwise defined in

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the statute.

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“Whenever [the court] faced with a question of statutory interpretation [it

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looks] to the plain meaning of the words used in the statute.” State v. Fjermestad,

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114 Wash. 2d 828, 835 (1990). “A nontechnical statutory term may be given its

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dictionary meaning; statutes should be construed to effect their purpose, and

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unlikely, absurd, or strained consequences should be avoided.” State v. Smith, 189

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Wash. 2d 655, 662 (2017). The dictionary meaning of “disorder” within the state

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of emergency statute is relevant here. The Oxford English Dictionary defines

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“disorder” as a “disturbance of the bodily (or mental) functions; an ailment,

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disease.” Oxford University Press, disorder, n., OED Online (June 2020),

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https://oed.com/view/Entry/54859?result=1&rskey=LLoCgB&. Merriam-Webster

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similarly defines “disorder” as “an abnormal physical or mental condition.”

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Merriam-Webster, Disorder, Merriam-Webster.com (May 16, 2020),

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https://www.merriam-webster.com/dictionary/disorder. The plain meaning of the

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governor’s statutory authority to proclaim a state of emergency in the event of a

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“public disorder” clearly encompasses an outbreak of pandemic disease. RCW

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43.06.010(12). Plaintiff fails to raise a serious question going to the merits of this

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claim.

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Plaintiff’s related argument, that only local health officers may issue health

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directives in light of a pandemic, is similarly unpersuasive. ECF No. 3 at 9.

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Plaintiff’s own cited authority states that the state secretary of health may exercise

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the authority of local health officers “when in an emergency the safety of public

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health demands it.” RCW 43.70.130(7). Because the governor may lawfully

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proclaim a public emergency related to disease outbreak, authority to enforce

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public health rules related to a pandemic is not vested “exclusively” in local health

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officers. Plaintiff fails to raise a serious question going to the merits of this claim.

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2. LNI Rulemaking Authority

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Second, Plaintiff contends LNI exceeded its rulemaking authority when it

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promulgated a rule in reliance on the Governor’s Proclamations. ECF No. 3 at 8-9.

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Plaintiff’s argument not based in the text of the emergency rule, which states that

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LNI promulgated the rule pursuant to its statutory authority under RCW 49.17.040

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and 49.17.050, among other provisions. ECF No. 1-4 at 26. Contrary to Plaintiff’s

ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
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characterization, LNI did not promulgate a rule “pursuant to a proclamation by the

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governor.” ECF No. 3 at 9; see also ECF No. 1-4 at 10, ¶ 5.15. Indeed, the

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emergency rule only references the Proclamation as an explanation for why the

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emergency rule was promulgated pursuant to other authority. ECF No. 1-4 at 26-

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27. Plaintiff fails to raise a serious question going to the merits of this claim.

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3. Substantive Due Process

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Finally, Plaintiff contends the Proclamations and emergency rule infringe on

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Plaintiff’s substantive due process right to pursue and common calling and to use

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and dispose of private property. ECF No. 3 at 8. “The substantive component of

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the Due Process Clause forbids the government from depriving a person of life,

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liberty, or property in such a way that … interferes with rights implicit in the

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concept of ordered liberty.” Engquist v. Oregon Dep’t of Agric., 478 F.3d 985,

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996 (9th Cir. 2007) (quotation and citation omitted); see also Yim v. City of Seattle,

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194 Wash. 2d 682, 686 (2019) (unless Washington courts adopt “heightened

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protections as a matter of independent state law, state substantive due process

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claims are subject to the same standards as federal substantive due process

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claims.”). Defendants oppose Plaintiff’s motion on the grounds that Plaintiff does

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not identify a fundamental right that is protected by the Due Process Clause. ECF

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No. 5 at 5-7. Even if Plaintiff does identify a protected right, Plaintiff’s claim fails

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to raise a serious question going to the merits of its claim.

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It is well settled that state governments have the authority to enact

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“quarantine laws and ‘health laws of every description’” pursuant to their police

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powers. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 24-25 (1905).

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“[T]he liberty secured by the Constitution of the United States to every person

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within its jurisdiction does not import an absolute right in each person to be, at all

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times and in all circumstances, wholly freed from restraint.” Id. at 26. So long as

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a public health law is reasonable and not overly broad or unequally applied, it is

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permissible even where it infringes on other protected interests. Id. at 28. Here, it

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could not be disputed that the Proclamations and emergency rule are reasonably

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related to the ongoing COVID-19 pandemic. Plaintiff does not argue that the

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Proclamations and emergency rules are overly broad or unequally applied; instead,

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Plaintiff’s challenge is to the mere existence of the rules. ECF No. 3 at 8; see ECF

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No. 1-4 at 12-13, ¶¶ 5.38-5.42. This Court joins the growing consensus of district

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courts that constitutional challenges to similar COVID-19 related measures are

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precluded by Jacobson. See Open Our Oregon v. Brown, No. 6:20-cv-773-MC,

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2020 WL 2542861, at *2 (D. Or. May 19, 2020) (gathering cases). Plaintiff fails to

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raise a serious question going to the merits of this claim.

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Because Plaintiff fails to raise a serious question going to the merits of any

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of its claims, the Court finds it unnecessary to address Defendants’ standing

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argument. ECF No. 5 at 4.

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C. Irreparable Injury
Plaintiff contends its lost income and threatened closure constitute an

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irreparable injury. ECF No. 3 at 9-10. A plaintiff seeking injunctive relief must

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“demonstrate that irreparable injury is likely in the absence of an injunction.”

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Winter, 555 U.S. at 22 (emphasis in original). “Issuing a preliminary injunction

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based only on a possibility of irreparable harm is inconsistent with [the Supreme

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Court’s] characterization of injunctive relief as an extraordinary remedy that may

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only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

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Id. “Irreparable harm is traditionally defined as harm for which there is no

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adequate legal remedy, such as an award of damages.” Arizona Dream Act

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Coalition v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014).

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Defendants respond that monetary injury alone is insufficient to stablish

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irreparable harm. ECF No. 5 at 10. “Nonetheless, ‘[t]he threat of being driven out

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of business is sufficient to establish irreparable harm.’” hiQ Labs, Inc. v. LinkedIn

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Corp., 938 F.3d 985, 993 (9th Cir. 2019) (quoting Am. Passage Media Corp. v.

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Cass Commc’ns, Inc., 750 F.2d 1470, 1474 (9th Cir. 1985)). Plaintiff has offered

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declarations in support of its alleged business losses and risk of closure. See ECF

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No. 1-4 at 15-18. This is sufficient to indicate that Plaintiff is likely to suffer an

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irreparable injury absent injunctive relief.

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D. Balancing of Equities and Public Interest
Plaintiff contends that the balance of equities tip sharply in its favor and that

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a TRO would advance the public interest. ECF No. 3 at 6-7, 10-11. “When the

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government is a party, these last two factors merge.” Drakes Bay v. Oyster Co. v.

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Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). “In each case, courts must balance

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the competing claims of injury and must consider the effect on each party of the

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granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (quotation

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marks and citation omitted). The Court must balance the hardships to the parties

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should the status quo be preserved against the hardships to the parties should

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Plaintiff’s requested relief be granted. “In exercising their sound discretion, courts

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of equity should pay particular regard for the public consequences in employing

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the extraordinary remedy of injunction.” Id. (quotation omitted). “The public

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interest inquiry primarily addresses impact on non-parties rather than parties.”

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League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton,

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752 F.3d 755, 766 (9th Cir. 2014) (citation omitted). Regardless, the Court will

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not grant a preliminary injunction unless the public interests in favor of granting an

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injunction “outweigh other public interests that cut in favor of not issuing the

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injunction.” Cottrell, 632 F.3d at 1138 (emphasis in original).

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Plaintiff contends that the equities tip sharply in its favor because Plaintiff
has a “Clean & Safe” plan which Plaintiff asserts would allow it to operate its

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business at a low risk to public health, because LNI would otherwise remain able

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to enforce its other workplace safety rules, and because it is inequitable to allow

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some business to operate while Plaintiff is prohibited from operating and unable to

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recoup its economic losses. ECF No. 3 at 6-7. Plaintiff reiterates some of these

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arguments in favor of its public interest argument. Id. at 10-11. Defendants

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respond that the significant public health risks outweigh other considerations here.

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ECF No. 5 at 10-11.

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Defendants’ argument is more persuasive. Defendants have put forth
substantial evidence of the public health risks posed by COVID-19, especially

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concerning its serious symptoms and risk of death, its ability to be spread by

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individuals who do not know they are infected, the limited knowledge medical

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professionals have of this novel disease, and the need to restrict in-person

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gatherings to slow transmission of the disease in the absence of other effective

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prevention or treatment measures. ECF No. 6-1 at 21-25; ECF No. 7 at 3-8, ¶¶ 6-

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15. Defendants have also proffered opinions from public health professionals who

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believe that the risks posed by COVID-19 would not be adequately managed if

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only addressed by local officials. ECF No. 6-1 at 26-27; ECF No. 7 at 13-14, ¶ 23.

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The Court sympathizes with Plaintiff that the economic impact of the

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COVID-19 pandemic has been extremely challenging, particularly for small and

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family-owned businesses. However, the public interest in mitigating and

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combatting the significant danger posed by the spread of COVID-19 outweighs

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individual business interests in continued operations. It is not the Court’s role to

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second-guess the reasoned public health decisions of other branches of

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government. Jacobson, 197 U.S. at 28. Plaintiff’s requested TRO would not be in

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the public interest.

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CONCLUSION

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The Court finds that Plaintiff has failed to satisfy either the Winter test or the

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Cottrell sliding scale test. Therefore, Plaintiff is not entitled to its requested relief.

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ACCORDINGLY, IT IS HEREBY ORDERED:

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1. Plaintiff’s Motion for Temporary Restraining Order (ECF No. 3) is
DENIED.
2. The District Court Executive is directed to enter this Order and furnish

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copies to counsel.

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DATED June 12, 2020.

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THOMAS O. RICE
Chief United States District Judge

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