United States District Court, D. Nevada
LORI L. THOMAS; Plaintiff,
THOMAS ZACHRY; MARNA ZACHRY; JOHN HARPER; and STOREY COUNTY and its BOARD OF COMMISSIONERS, Defendants.
R. HICKS UNITED STATES DISTRICT JUDGE.
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.
Facts and Procedural Background
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”). 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.
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.
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. 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.
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.
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.
Likelihood of Success on the Merits
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.
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.
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 ...