AquAlliance v. U.S. Bureau of Reclamation ( 2021 )

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