United States District Court, D. Nevada
GREGORY O. GARMONG, Petitioner,
TAHOE REGIONAL PLANNING AGENCY, Respondent.
C. JONES UNITED STATES DISTRICT JUDGE
case arises out of the approval of a cell tower project in
the Lake Tahoe area. Pending before the Court is a motion for
a temporary restraining order ("TRO").
FACTS AND PROCEDURAL HISTORY
Gregory Garmong resides in Douglas County, Nevada near Lake
Tahoe and has a second home in Smith, Nevada. (First Am.
Compl. ¶¶ 1, 33, ECF No. 84). In the Amended
Complaint ("AC"), he has sued the Tahoe Regional
Planning Agency ("TRPA"), Verizon Wireless, Inc.
("Verizon"), Complete Wireless Consulting, Inc.
("CWC"), Crown Castle, and eighteen individuals in
this Court, listing thirty-four causes of action. His claims
arise out of TRPA's grant of a permit ("the
Permit") to CWC to construct a cell tower within
TRPA's jurisdiction at 811 U.S. Highway 50 ("US
50") in Douglas County ("the Project").
(Id. ¶¶ 32-33). The Court has taken
judicial notice that the site of the Project is directly
across U.S. 50 from the Skyland neighborhood where Plaintiff
lives, which is about a mile south of the Cave Rock Tunnel on
U.S. 50 and a mile north of Zephyr Cove on die east shore of
Lake Tahoe. The site currently appears free from development
except for a water tower.
alleges TRPA mailed a notice of the February 23, 2017 hearing
on the Project to property owners like him on February 9
("the Notice"), which indicated a February 23
hearing on the Project, and that he received the Notice on
February 14. (Id. ¶¶ 28-30). The Court
takes judicial notice mat February 14 was a Tuesday. The
Notice indicated that Bridget Cornell was the point of
contact for the Project, and that the application for me
Project ("me Application") could be viewed from
9:00 a.m. to 12:00 p.m. and 1:00 p.m. to 4:00 p.m. on
Mondays, Wednesdays, Thursdays, and Fridays. (Id.
¶ 28). The Notice also indicated that a "staff
summary" for the Project could be viewed at
www.trpa.org ("the Website") and at the
TRPA office as of February 16. (Id.). Written
comments had to be received by February 22 or they would not
be considered at me February 23 hearing. (Id.). When
Plaintiff checked the Website on 5:20 p.m. on February 16, he
was unable to locate any staff summary, although it became
available at some time after that for a total of less than
seven days prior to the hearing. (Id. ¶ 31).
does not allege that the Application was not viewable at me
TRPA office on Wednesday the 15th, Thursday me 16th, Friday
the 17th, Monday the 20th, and Wednesday the 22nd. He alleges
only that the weather was "very bad" on February
15-17 due to significant snowfall that made it hazardous to
drive. (Id. ¶ 32). Plaintiff does not allege
any such difficulties on Monday the 20th or Wednesday the
22nd, although TRPA was closed on the 20th for
President's Day. (Id. ¶ 43). The Court
previously took judicial notice that there was no recorded
precipitation at the South Lake Tahoe Airport (approximately
twelve miles by road from Skyland) on February 14th or 15m,
0.24 inches of snow on the 16th, and 0.08 inches of snow on
the 17th, and that there was no recorded precipitation at the
Heavenly Mountain Resort (a ski resort about a mile from
TRPA's Stateline, Nevada office) February 14th through
16th, and three inches of snow on the 17th. Plaintiff also
alleges that the drive to TRPA's office would take
"1-1/2 hours in good weather." (Id. ¶
37). But the Court previously took judicial notice that the
normal driving time for the 5.3 miles between Skyland and
TRPA's office at 128 Market Street, Stateline, Nevada is
approximately ten minutes. Plaintiff has clarified in the FAC
that he was staying at his home in Smith at the time, not his
home in Skyland.
Court granted a motion to dismiss the Complaint, because
Plaintiff had not alleged facts indicating standing.
Specifically, he had only alleged that he used the affected
area in the past, not that he had any particular plans to use
it in the future. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559-64 (1992). Plaintiff filed
the FAC, alleging that he has visited Genoa Peak Plan Area
060 (TRPA's designation for the area) 24 times in 2018,
passing the site of the Project 17 times, and that he plans
to continue using the area. (First Am. Compl. ¶ 80).
Plaintiff has filed a motion for a temporary restraining
order. He has also filed a motion for a preliminary
injunction, but the Court will address only the motion for a
TRO in the present order.
Court of Appeals has established two alternative sets of
criteria for obtaining preliminary injunctive relief:
Under the traditional test, a plaintiff must show: (1) a
strong likelihood of success on the merits, (2) the
possibility of irreparable injury to plaintiff if preliminary
relief is not granted, (3) a balance of hardships favoring
the plaintiff, and (4) advancement of the public interest (in
certain cases). The alternative test requires that a
plaintiff demonstrate either a combination of probable
success on the merits and the possibility of irreparable
injury or that serious questions are raised and the balance
of hardships tips sharply in his favor.
Taylor v. Westly, 488 F.3d 1197, 1200 (9th Cir.
2007). The Supreme Court later ruled, however, that a
plaintiff seeking a preliminary injunction must demonstrate
that irreparable harm is "likely," not just
possible. Winter v. NRDC, 555 U.S. 7, 19-23 (2008)
(rejecting the alternative "sliding scale" test, at
least as to the irreparable harm requirement). The Court of
Appeals has recognized that the "possibility" test
was "definitively refuted" in Winter, and
that "[t]he proper legal standard for preliminary
injunctive relief requires a party to demonstrate '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 equities tips in his favor, and that an
injunction is in the public interest.'"
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th
Cir. 2009) (quoting Winter, 555 U.S. at 20)
(reversing a district court's use of the Court of
Appeals' pre-Winter, "sliding-scale"
standard and remanding for application of the proper
Court of Appeals later held that although irreparable harm
must be more likely than not, the sliding scale approach
remains viable as to the other requirements, and a plaintiff
needn't be more likely than not to succeed on the merits,
so long as there are "serious questions" on the
merits. Alliance for the Wild Rockies v. Cornell,
&>2 F.3d 1127, 1134-35 (9th Cir. 2011)
("That is, 'serious questions going to the
merits' and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary
injunction, so long as the plaintiff also shows that there is
a likelihood of irreparable injury and that the injunction is
in the public interest."). Cottrell presents
some difficulty in light of Winter and
Stormans. To the extent Cottrel's
interpretation of Winter is inconsistent with
Stormans, Stormans controls. Miller v.
Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). The
Supreme Court stated in Winter that "[a]
plaintiff seeking a 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 equities tips in
his favor, and that an injunction is in the public
interest." Winter, 555 U.S. at 20. As a matter
of grammar, the Supreme Court has laid out four conjunctive
tests, not a four-factor balancing test, using the word
"likely" to modify the success-on-the-merits test
in exactly the same way as the irreparable-harm test. In
finding die "possibility" of irreparable harm to be
insufficient, the Winter Court itself emphasized
(with italics) the fact mat me word
"likely" modifies the irreparable-harm
prong. Id. at 22. The word "likely"
modifies the success-on-the-merits prong in a textually
identical way. Id. at 20.
summary, to satisfy Winter, a movant must show that
he is "likely" to succeed on the merits and to
suffer irreparable harm. As to the irreparable-harm test,
Winter is clear mat "likely" means what it
normally means, i.e., more probable than not. There is
tension in the case law as to the meaning of
"likely" as applied to the success-on-the-merits
test. Black's Law Dictionary defines the
"likelihood-of-success-on-the-merits test" as
"[t]he rule that a litigant who seeks [preliminary
relief] must show a reasonable probability of
success...." Black's Law Dictionary 1069
(10th ed. 2014). A Court of Appeals case predating
Cottrell restates "[s]erious questions" as
"a fair chance of success on the merits."
Republic of the Philippines v. Marcos, 862 F.2d
1355, 1362 (9th Cir. 1985). The Court of Appeals has
reiterated the "fair chance" language since
Cottrell. See, e.g., Arc of Cal. v. Douglas, 757
F.3d 975, 993 (9th Cir. 2014).
obtain a temporary restraining order Under Fed.R.Civ.P.
65(b), a plaintiff must make a showing that immediate and
irreparable injury, loss, or damage will result to plaintiff
without a temporary restraining order. The standard for
obtaining ex parte relief under Rule 65 is very
stringent. Reno Air Racing Ass 'n v. McCord, 452
F.3d 1126, 1130 (9th Cir. 2006). The temporary restraining
order "should be restricted to serving [its] underlying
purpose of preserving the status quo and preventing
irreparable harm just so long as is necessary to hold ...