Tag: preliminary injunction

Special CEQA provision regarding Sacramento downtown arena project is not unconstitutional.

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This case stems from one of the many efforts by opponents of the City of Sacramento’s decision to approve a partially subsidized downtown arena project to stop the project. Here, the project opponents argued Public Resources Code section 21168.6.6, which shortens several CEQA deadlines for the project, is unconstitutional. The Third District Court of Appeal disagreed in a published opinion: Saltonstall v. City of Sacramento, Case No. C077031 (Nov. 20, 2014).

As a result of the City’s efforts to retain the Kings NBA team, the NBA blocked sale of the team to the city of Seattle. But the NBA reserves the right to acquire the team and relocate it to another city if the downtown arena is not opened by 2017. To address this timeframe, the Legislature passed Senate Bill 743. Relevant to this case, the bill added section 21168.6.6 to the Public Resources Code. This section accelerates the ordinary CEQA litigation timeline, with provisions addressing, for example, speedy preparation of the administrative record. The section also augments the proof of harm required to obtain a preliminary injunction against the project. Specifically, a preliminary injunction may only issue if proceeding with the project presents an “imminent threat to the public health and safety” or if unforeseen historical or archaeological artifacts are discovered on the project site. The section applies only to the downtown arena project.

The project opponents initially sought a preliminary injunction in the trial court to stop demolition and construction activities for the downtown arena. The trial court declined to grant the injunction, and the project opponents appealed on the grounds that section 21168.6.6 violates the state constitution.

Project opponents first argued section 21168.6.6 violates the state constitution’s separation of powers doctrine. Project opponents reasoned that, by passing this section into law, the Legislature infringed on the power of the state courts to grant injunctive relief. The appellate court noted that while the section does change the standard for granting injunctive relief, nothing in the section prevents a court from issuing such relief. Therefore, the courts may still fulfill their adjudicatory function under the section.

In reaching this outcome, the appellate court emphasized that CEQA is a legislative act, subjective to legislative limitation and amendment. In fact, the court pointed out that the Legislature could exempt the downtown arena project entirely from the requirements CEQA. Such an exemption implicates no constitutional rights because rights derived from CEQA are granted by the Legislature.

Nor does section 21168.6.6 impermissibly interfere with the judicial branch by requiring the Judicial Council to adopt procedures for resolving actions, “to the extent feasible,” within 270 days. The appellate court noted the time-line is suggestive and, therefore, does not materially impair the ability of state courts to adjudicate cases pursuant to the section.

In light of its determination that section 21168.6.6 is constitutional, the appellate court declined to overturn the trial court’s decision to deny the preliminary injunction. The appellate court also rejected the City’s request for sanctions for failure to comply with Rules of Court, rule 8.276(b)(1). Requesting sanctions pursuant to this rule requires that the moving party file a motion supported by a declaration. The City did not file such a supported motion.

Ninth Circuit Issues Injunction for Oregon Logging Project

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League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton (May 8, 2014) 14 C.D.O.S. 5102.

Plaintiffs League of Wilderness Defenders / Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council sought to enjoin logging in the Snow Basin project area, which covers 29,000 acres of the Whitman-Wallowa National Forest in northeast Oregon, on the theory that the U.S. Fish and Wildlife Service had violated NEPA and the federal Endangered Species Act (ESA).  The district court denied the preliminary injunction, holding that plaintiffs were not likely to succeed on any of their claims and that the balance of harms did not tip sharply in their favor.  But, on May 8, 2014, the Ninth Circuit Court of Appeals reversed in part and remanded, holding that plaintiffs had satisfied the Winter v. Natural Resources Defense Council test for preliminary injunctions.

Likelihood of Success on the Merits

The first prong of the preliminary injunction test asks whether there is a likelihood of success on the merits.  The Ninth Circuit found that plaintiffs were likely to succeed on the merits of one of their claims. The project’s Environmental Impact Statement (EIS) had reviewed the logging project’s potential environmental impacts on elk and their habitat, assuming that the US Forest Service’s Travel Management Plan, which regulated off-road motorized travel and reduced the number of roads within the forest, would be in place.  The plan, however, was subsequently withdrawn.  The court found that plaintiffs would likely prevail on their claim that the Forest Service must prepare a supplemental EIS to analyze the project’s impact on elk independent of the plan.  An accurate analysis based on up-to-date information, the court said, was key to informed public participation and proper functioning of NEPA.

Plaintiffs did not successfully show that they would be likely to prevail on their second claim that 130 acres of the project area warranted a cumulative impacts analysis.  The Ninth Circuit found that the Forest Service’s actions in that section were speculative and the environmental effects inchoate.  Nor did plaintiffs show any likelihood of success on their claim that the EIR should have analyzed the cumulative effects of stream temperatures on fish in the project region.  The court noted that the project would not impact stream temperatures, therefore any thermal stress on the fish was part of the project’s environmental baseline.  The court also rejected plaintiffs’ argument that the EIS’s reliance on aged studies was arbitrary and capricious, since no reliable evidence showed that the results of those studies were incorrect or that the status of bull trout in the project area had changed over time. Finally, the court upheld the agencies’ determination that bull trout were likely extirpated from the project area, finding that the agencies had conducted a reasonable reading of ambiguous evidence.

Likelihood of Irreparable Harm

The second prong of the preliminary injunction tests looks to the likelihood of irreparable harm absent issuance of the injunction.  The court noted that environmental harms can seldom be remedied by money damages and are often permanent or irreparable.  The logging of mature trees in particular cannot be remedied easily, if at all, as neither the planting of new seedlings nor the payment of money damages can fully repair such harm.  The court noted that it had upheld or granted injunctions in cases involving only smaller trees and in areas that had previously been logged.  There was sufficient likelihood of irreparable harm here, therefore, to support a preliminary injunction.

Balance of Equities

Having determined there was a likelihood of success on the merits and a likelihood of irreparable harm, the court then looked to whether the balance of equities tipped in plaintiffs’ favor.  The court took into account both economic and environmental interests, but concluded that the balance tipped in favor of the environmental harms since those would be permanent, whereas the economic setbacks would only be temporary.  The economic harm of the preliminary injunction would be the value of moving jobs and tax dollars to a future year — a harm the court considered “marginal.”

Interest to the Public

The final prong in the test for a preliminary injunction is whether the injunction is in the public interest.  The Forest Service argued that the public interest would be harmed by a preliminary injunction because the risk of local forest fires and insect infestation would not be reduced unless the logging occured as planned.  The court, however, cited evidence that fire suppression was expected to continue and be highly successful if no action were taken, with the possibility of periodic insect outbreaks.  Without evidence of an imminent threat, the agency could not say that the inability to mitigate such risks for a temporary period outweighed the public’s interest in maintaining elk habitat and mature trees in the forest.  The public’s economic interest, the court added, would not be completely foregone but merely delayed while the injunction was in place.

The Ninth Circuit remanded the case to the district court to issue the preliminary injunction.  The court expressly declined to comment on the appropriate scope of that injunction.