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Friends of Moon Creek v. Diamond Lake Improvement, Association, Inc.

United States District Court, E.D. Washington

March 27, 2014

FRIENDS OF MOON CREEK, an unincorporated association, Plaintiff,


JUSTIN L. QUACKENBUSH, Senior District Judge.

BEFORE THE COURT is Plaintiff Friends of Moon Creek's Motion for Preliminary Injunction (ECF No. 3). The Motion has been fully briefed and oral argument was heard on January 23, 2014. The court allowed supplemental briefs to be filed, and has considered those submissions.

I. Introduction and Procedural History

Plaintiff Friends of Moon Creek ("Plaintiff") filed this action November 21, 2013, and has twice amended its Complaint. In the Second Amended Complaint ("SAC" at ECF No.36), Plaintiff (an association of property owners living in Moon Creek Estates in Pend Oreille County, Washington) claims that Defendants have trespassed and damaged their property. Specifically Plaintiff claims that Defendants have engaged in a project to reduce the water level of Diamond Lake which has involved, without the participation or consent of Plaintiff's members, herbicide applications on Moon Creek, stream dredging, beaver dam destruction, and trapping and killing beavers.

The Defendants are Diamond Lake Improvement Association ("DLIA")(an association of property owners living on or near Diamond Lake); Sharon Sorby, coordinator of the Pend Oreille County Noxious Weed Control Board ("Sorby"); and Phil Anderson, Director of the Department of Fish & Wildlife ("Anderson").

Plaintiff contends that Defendants' activities on Moon Creek began in the summer of 2012. Specifically, the first herbicide application complained of is alleged to have occurred on July 6, 2012, when a "propeller driven air boat... was launched into Moon Creek over the strenuous objections of Plaintiff's members" and Plaintiff's members were allegedly "physically threatened by the boat operators". (SAC ¶ 4.3). Plaintiff also alleges it learned in the summer 2012, that a Hydraulic Project Approval ("HPA") had been issued to allow for removal of vegetation and installation of beaver tubes in and along Moon Creek (SAC ¶ 4.7). Plaintiff alleges that in the fall of 2012 DLIA trespassed on Plaintiff's members' land and that beaver dams were destroyed and beavers trapped and killed. (SAC ¶ 4.8).

Plaintiff contends that again in September 2013, Diamond Lake Improvement Association ("DLIA") was issued a Hydraulic Project Approval ("HPA") by the Dept. of Fish & Wildlife to allow for stream dredging, modification/removal of beaver dams, etc. On September 23, 2014, DLIA installed a large culvert through a beaver dam. (SAC ¶ 4.12). Plaintiff claims that DLIA and the Dept of Fish & Wildlife have advised that additional HPAs will be issued. (SAC ¶ 4.14).

Section 5 of the SAC is entitled "Claims for Relief" and contains eight paragraphs, but no "counts". It appears that Plaintiff alleges under 42 U.S.C. 1983, a Fifth Amendment taking of property. (SAC ¶ 5.2 & 5.3). Plaintiff contends that Defendant Sorby violated RCW 17.10.170 by issuing a permit to DLIA without proper statutory notice. (SAC ¶ 5.4). Plaintiff alleges that Defendant Anderson of the Department of Fish & Wildlife violated state law by issuing a permit to dredge and destroy beaver dams. Plaintiff alleges trespass in paragraph 5.1, but the paragraph is somewhat vague and no specific Defendants are named. Paragraphs 5.6 to 5.8 simply argue that injunctive and declaratory relief is proper.

In sum, Plaintiff contends that Moon Creek is a non-navigable waterway and that the lands underlying the waterway are owned by the individual property owners adjacent to the Creek. Plaintiff contends that Defendants' actions constitute a taking of property without just compensation in violation of the Fifth Amendment. Plaintiff seeks an injunction prohibiting Defendants from engaging in unlawful conduct, declaratory judgment, and an award of attorney fees.

Each of the three Defendants responded to the SAC by filing a Motion to Dismiss (ECF Nos. 39, 43, & 51). The court heard argument on those Motions on January 23, 2014, and after receiving supplemental briefing, issued an Order denying the Motions on February 27, 2014. (ECF No. 71). The court has issued a temporary injunctive order which remains in effect until March 28, 2014, unless otherwise modified, vacated, or extended by the court. (ECF No. 72). Each of the Defendants has now answered the SAC. Defendant Anderson asserts a crossclaim against Defendant DLIA. (ECF No. 73). Defendant DLIA asserts a counterclaim against Plaintiff Friends of Moon Creek, and asserts third-party claims against the individual members of Friends of Moon Creek. (ECF No. 76).

II. Discussion

A plaintiff seeking preliminary injunction "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, 555 U.S. 7, 21 (2008). A preliminary injunction is an "extraordinary remedy" not awarded as of right. Id. at 23. In Winter, the Supreme Court rejected the Ninth Circuit's approach which had allowed for an injunction to be entered on the "possibility" of irreparable harm, and stated such harm must be "likely". As an alternative to demonstrating a likelihood of success on the merits, a movant for a preliminary injunction may establish "serious questions going to the merits, and that the balance of the hardships tips sharply in its favor." Soda Mountain Wilderness Council v. Bureau of Land Management, 534 Fed.Appx. 680, 683 (9th Cir. 2013); see also Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011).

The grant of a preliminary injunction is an exercise of judicial discretion. Sierra On-Line v. Phoenix Software, 739 F.2d 1415, 1421 (9th Cir. 1984). A preliminary injunction "is not a preliminary adjudication on the merits but rather a device for preserving the status quo and ...

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