United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
the Court is Plaintiff Central Arizona Water Conservation
District's (“District”) motion for a
temporary restraining order (TRO). (Doc. 7.) The motion is
fully briefed (Doc. 17) and the Court heard oral argument on
March 9, 2018. At the hearing, the Court denied the
District's motion and informed the parties that this
written order would follow.
Alamo Dam (“Dam”) is owned, operated, and
maintained by Defendant United States Army Corps of Engineers
(“Corps”). The Dam is located between Alamo Lake
and the Bill Williams River. On March 2, 2018, the Corps
issued an Environmental Assessment (EA) and a Finding of No.
Significant Impact (FONSI) for the Alamo Dam Flushing
Release. The release, which is the first step in the
Corps' efforts to conduct long overdue maintenance on the
Dam, is intended to remove accumulated sediment from the Dam
and lower the water elevation in Lake Alamo so as to increase
diver safety. The proposed release is scheduled to last 19
days, starting at 8:00 a.m. on March 12, 2018.
District owns and operates a water intake and pumping plant
in Lake Havasu, adjacent to the mouth of the Bill Williams
River, approximately 39 miles downstream from the Dam.
Concerned that the Corps failed to take into account the
environmental impact of its release, specifically increased
downstream turbidity, the District filed this lawsuit on
March 6, 2018, alleging violations of the National
Environmental Policy Act (NEPA). Concurrent with the
complaint, the District filed the motion at issue, which
requests that the Court temporarily enjoin the Corps from
initiating the scheduled release.
standard for issuing a TRO is identical to the standard for
issuing a preliminary injunction. Whitman v. Hawaiian Tug
& Barge Corp./Young Bros., Ltd. Salaried Pension
Plan, 27 F.Supp.2d 1225, 1228 (D. Haw. 1998). A
plaintiff seeking a TRO must establish that he is likely to
succeed on the merits and 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 v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008); Am. Trucking Ass'n, Inc. v.
City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009). These
elements are balanced on a sliding scale, whereby a stronger
showing of one element may offset a weaker showing of
another. See Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131, 1134-35 (9th Cir. 2011).
The sliding-scale approach, however, does not relieve the
movant of the burden to satisfy all four prongs for the
issuance of a TRO. Id. at 1135. Instead,
“‘serious questions going to the merits' and
a balance of hardships that tips sharply towards the
plaintiff can support issuance of a [TRO], so long as the
plaintiff also shows that there is a likelihood of
irreparable injury and that the [TRO] is in the public
interest.” Id. at 1135. The movant bears the
burden of proof on each element of the test. Envtl.
Council of Sacramento v. Slater, 184 F.Supp.2d 1016,
1027 (E.D. Cal. 2000).
Likelihood of Success on the Merits
purpose of NEPA is “to establish procedural mechanisms
that compel agencies, such as the Corps, to take seriously
the potential environmental consequences of a proposed
action. [Courts] have termed this crucial evaluation a
‘hard look.'” Ocean Advocates v. U.S.
Army Corps of Eng'rs, 402 F.3d 846, 864 (9th Cir.
2005) (citation omitted). Under NEPA, a federal agency is
required to prepare, “to the fullest extent possible,
” an environmental impact statement for “every .
. . major Federal actio[n] significantly affecting the
quality of the human environment.” 42 U.S.C. §
4332(2)(C). An agency, however, is not required to prepare a
full Environmental Impact Statement (EIS) if it determines,
based on the EA, that the proposed action will not have a
significant impact on the environment. 40 C.F.R. §§
primary contention is that the Corps' failure to conduct
an EIS was a result of its arbitrary and capricious decision
to limit the project area in the EA to the mouth of the Bill
Williams River and to not consider the effects of the release
on Lake Havasu. Specifically, the District contends that the
Corps erred in its position that it need not conduct a new
EIS with respect to the Lake Havasu area because its effects
“have been previously evaluated in the 1999 EIS.”
(Doc. 7-4 at 10.) The District challenges the accuracy of
this position and asserts that the proposed agency action is
unlawful because the Corps' failed to consider its
foreseeable effects. (Doc. 7 at 15-16.)
support of its contention, the District cites to the 1999
EIS, which states in relevant part,
Larger discharges into the Bill Williams River would result
in substantial benefits to downstream riparian vegetation,
while increasing turbidity and sedimentation within the
river. Since these releases would be generally short term in
nature and would mimic the natural conditions in the river
before construction of Alamo Dam, this impact is not
(Doc. 7-9 at 4.) The District argues the Corps' reliance
on the 1999 EIS is misplaced because the 1999 EIS did not
expressly discuss the Lake Havasu area. In response, the
Corps contends that Lake Havasu is included in the term
“downstream” because it is ...