Opinion
Civil No. 01-882-KI.
July 5, 2001.
Marianne Dugan, Facaros Dugan, Eugene, OR., Attorney for Plaintiff.
Thomas C. Lee, Assistant U.S. Attorney, Portland, OR., Attorney for Defendant.
Clark I. Balfour, G. Kevin Kiely, CABLE HUSTON BENEDICT HAAGENSEN LLOYD LLP, Portland, OR., Attorneys for Intervenor City of McMinnville acting by and through its Water Light Commission.
Gary Rueter, David C. Haugeberg, Walter Gowell, HAUGEBERG RUETER STONE GOWELL FREDRICKS PC, McMinnville, OR., Attorneys for Intervenor City of McMinnville acting by and through its Water Light Commission.
OPINION AND ORDER
In this action, plaintiff Tillamook County challenges the decision by the United States Army Corps of Engineers ("USACE") to permit expansion of McGuire Reservoir located in Yamhill County, Oregon. Tillamook County seeks an order declaring that USACE has violated the National Environmental Policy Act, 42 U.S.C. § 4321-4370d (NEPA) and the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (the Clean Water Act) by issuing a fill permit under the Clean Water Act to the project applicant, the City of McMinnville through its Water and Light Commission (hereinafter, "McMinnville Water Light" or "MWL"). Before the court is Tillamook County's motion for a temporary restraining order (#3) and its motion to waive bond requirement (#4). For the reasons below, I dec line to issue a temporary restraining order ("TRO").
On June 29, 2001, MWL moved to intervene in this action pursuant to Fed.R.Civ.P. 24 (#15) and the court granted the motion that day.
LEGAL STANDARDS
The standard for obtaining a TRO is generally the same as the standard for obtaining a preliminary injunction. To obtain preliminary injunctive relief, a party must meet one of two tests, described by the Ninth Circuit as "traditional" and "alternative." Under the "traditional" test, preliminary relief may be granted if the court finds that (1) the moving party will likely succeed on the merits; (2) the moving party will suffer irreparable injury if the preliminary relief is not granted; (3) the balance of potential harm favors the moving party; and (4) the advancement of the public interest favors granting injunctive relief.Johnson v. California State Bd. Of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995); Rohman v. City of Portland, 909 F. Supp. 767, 771 (D.Or. 1995).
Under the "alternative" test, the moving party may meet its burden by showing either (1) probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party's favor. Johnson, 72 F.3d at 1430; Rohman, 909 F. Supp. at 771. The two prongs of the alternative test have been described as actually one test "a continuum in which the required showing of harm varies inversely with the required showing of meritoriousness." Rohman, 909 F. Supp. at 771 (quoting San Diego Comm. v. Governing Bd., 790 F.2d 1471, 1473, n. 3 (9th Cir. 1986)); see also United States v. Laerdal Mfg. Corp., 853 F. Supp. 1219, 1225-26 (D.Or. 1994), aff'd, 73 F.3d 852 (9th Cir. 1995) ("These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases") and Lee v. State, 869 F. Supp. 1491, 1501 (D.Or. 1994) ("The logical corollary is that the greater the degree of irreparable injury, the less probability of success on the merits is required."). Even if the balance of hardships tips decidely in favor of the moving party, it must be shown "as an irreducible minimum" that there is a fair chance of success on the merits. Johnson, 72 F.3d at 1430.
DISCUSSION
In its Complaint, Tillamook County includes four counts under NEPA and asserts the following theories of liability under that statute (1) failure to prepare an environmental impact statement; (2) failure to adequately disclose and analyze environmental impacts; (3) failure to analyze reasonable alternatives; and (4) failure to adequately address mitigation measures. In its memorandum in support of its motion for a TRO, and at the hearing regarding the motion, Tillamook County relied primarily on the first theory, i.e., that the nature of the project dictates the preparation of an Environmental Impact Statement ("EIS") under NEPA rather than just an Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI") as issued by USACE (See Plaintiff's Exhibit B).
Although Tillamook County has articulated various arguments for why the project requires an EIS rather than EA, I find that it has not met its burden of establishing that it will likely succeed on the merits on any of its NEPA claims. Moreover, I am not convinced that irreparable harm will occur if the project is allowed to proceed until a full hearing on the merits can be held (currently scheduled for August 20, 2001). In short, the procedural and environmental interests at stake will not be jeopardized by the scope of work planned for the next two months (as described by MWL's attorney at the TRO hearing). In contrast, there is a risk that the project will be delayed as much as a year if work does not proceed given that there is a narrow window (July 1 through September 15) in which in-stream work is permitted.
CONCLUSION
Plaintiff's motion for a temporary restraining order (#3) is denied. Plaintiff's motion to waive bond requirement (#4) is moot.
IT IS SO ORDERED.