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Thomas v. Zachry

United States District Court, D. Nevada

June 19, 2017

LORI L. THOMAS; Plaintiff,
v.
THOMAS ZACHRY; MARNA ZACHRY; JOHN HARPER; and STOREY COUNTY and its BOARD OF COMMISSIONERS, Defendants.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is plaintiff Lori L. Thomas' (“Thomas”) motion for a preliminary injunction. ECF No. 3. Defendant Storey County and its Board of Commissioners filed an opposition (ECF No. 21) joined by defendants Thomas Zachry, Marna Zachry, and John Harper (collectively “homeowner defendants”) (ECF No. 25), to which Thomas replied (ECF No. 33). Thereafter, defendants filed “supplements” to their oppositions that are more appropriately considered sur-replies. See ECF Nos. 38, 39. A hearing on Thomas' motion for a preliminary injunction was held on May 31, 2017.

         I. Facts and Procedural Background

         At its heart, this case involves a dispute over a dirt road in Storey County, Nevada, commonly known as “Sutro Springs Road.” In October 2016, Thomas purchased approximately 40 acres of real property within Storey County located near Dayton, Nevada. This property was originally carved out of a 960 acre parcel of land in Storey County that was taken out of the public domain and transferred to private ownership by United States Land Patent No. 27-68-0138 recorded February 8, 1968 (“1968 patent”).[1] The property conveyed by the 1968 patent was subsequently divided into smaller parcels through the Storey County development process. On August 15, 1995, the Storey County Board of Commissioners (“Commissioners”) approved a subdivision of one of the parcels adjacent to the Thomas property. The final subdivision map (“1996 map”) was recorded in Storey County on January 10, 1996, as Document No. 77085.[2]

         Sutro Springs Road is a now-paved road running through the approved subdivision. The paved portion of the road terminates in a cul-de-sac at the edge of Thomas' property. A visible dirt road then continues across Thomas' property in a northeasterly direction, continues onto public land managed by the Bureau of Land Management (“BLM”), and ultimately leads to defendants Zachry's and Harper's private properties above the public land.

         After Thomas purchased her property in October 2016, she erected barriers and obstacles, along with no trespassing signs, at the location where Sutro Springs Road transitions from the paved road ending in the cul-de-sac to the dirt road entering her property. In response, on or about December 28, 2016, the Storey County District Attorney (“D.A.”) sent a letter to Thomas advising that the dirt road across her property was a long-established public road and requesting that she remove the barriers and allow the road to be used as a public roadway.[3] Thomas refused. Since that time, however, Thomas alleges that various trespassers have entered her property along the disputed roadway on the advice and approval of the Storey County D.A. Then, in April 2017, during its regularly scheduled meeting, the Storey County Commissioners approved a project to allow the Storey County Public Works Department to immediately remove all of the obstructions Thomas had placed on the road.[4]

         On April 7, 2017, Thomas filed the underlying complaint against defendants alleging four causes of action: (1) a petition for writ of mandamus or injunction against Storey County; (2) a Fifth Amendment takings claim; (3) entitlement to injunctive relief; and (4) declaratory relief and quiet title. ECF No. 1. Thereafter, on April 10, 2017, Thomas filed the present motion for a preliminary injunction seeking to enjoin Storey County from removing the obstructions she had placed on the road. ECF No. 3.

         II. Legal Standard

         A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). A court may grant a preliminary injunction upon a showing of: (1) irreparable harm to the petitioning party; (2) the balance of equities weighs in petitioner's favor; (3) an injunction is in the public's interest; and (4) the likelihood of petitioner's success on the merits. See Id. at 20 (citations omitted). In Winter, the Supreme Court stated that a “likelihood” is required as to all four factors. See Id. at 22. The Ninth Circuit has since interpreted the Winter decision as being compatible with a sliding scale, under which a party may satisfy the requirements for an injunction with a lower showing under one factor if there is a very strong showing under another. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Under the sliding scale approach, the Ninth Circuit has determined that “serious questions” as to the merits would satisfy the “likelihood of success” requirement in the event of a strong showing of irreparable harm. Id.

         III. Discussion

         A. Likelihood of Success on the Merits

         “The sine qua non of preliminary injunction inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” New Comm Wireless Services, Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). However, a plaintiff may be awarded a preliminary injunction by establishing “serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor, ” so long as the plaintiff satisfies the additional Winter factors. Alliance for the Wild Rockies, 632 F.3d at 1131.

         In her motion, Thomas argues that she is likely to succeed on her Fifth Amendment claim against Storey County for unconstitutionally taking her real property without just compensation. See ECF No. 3. Thomas' claims are premised on the assumption that the dirt road that crosses her property is a private road. See ECF No. 1. Thus, the threshold question for the court is whether the road is public or private. If the road is private, then Thomas may be likely to succeed on her claims. However, if the road is public, then Thomas is not likely to succeed on her claims and may not be entitled to preliminary injunctive relief.

         The court has reviewed the pleadings, documents and exhibits in this matter and finds that Thomas is not likely to succeed on her claims. The evidence before the court does not support a finding that the road crossing her property is a private road. Rather, the weight of the evidence, largely undisputed, shows that the road was used by the public for many years prior to transfer of the underlying property from the ...


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