INJUNCTION PENDING APPEAL of Goose Bay mobile home eviction TRO/preliminary injunction denial denied by Lovell, emergency motion for injunctive relief denied by 9th Circuit… BOR not in violation of prior order by terminating water/septic.
The Court 4/22/13 denied Goose Bay Homeowners Association’s request for a TRO/preliminary injunction against removal of its 31 mobile homes on rented spaces in a trailer court on Canyon Ferry Lake near Goose Bay Marina, owned by the US and managed by BOR, which has decided to modernize including reconstructing the septic system. (MLW 4/27/13). HOA requests injunctive relief pending appeal.
HOA asserts that BOR violated the 4/22/13 order by terminating water & septic service. However, BOR informed HOA members in 9/12 that they could remain on-site after 12/31/12 “in a disconnected status” until 4/30, meaning no electricity, water, or septic after 12/31. This was a courtesy so they would not have to remove their homes in the middle of the winter. The “disconnected status” was and is the status quo.
The same standards that apply to a preliminary injunction apply to a preliminary injunction pending appeal. Lopez (9th Cir. 1983). HOA has not raised any issues that have not already been considered. It submits that the 2009 DEA prepared by BOR for its initial planning of the modernization project fails to consider any impact by removal of the homes. Indeed, it barely mentions the homes and certainly does not predict their future. As in its prior brief, HOA claims there is no NEPA documentation to support the eviction. However, they are being evicted because they lost their rental contracts, not because NEPA dictates that they be evicted. The concessionaire lost the right to manage the marina 12/31/12, and that written contract required it to remove its property within 90 days, including the mobile homes. (The trailer spaces were rented by the concessionaire by oral agreements.) The 2009 NEPA documentation relating to the planning process for the marina is simply not related to this eviction. As stated in the prior order, removal of HOA members’ homes is a private action, not a federal action. There has been no final agency action that would allow review of their eviction under APA. The NEPA planning for the future of the marina and the evictions are on separate tracks that do not intersect. Because there is no final agency action appropriate for judicial review, this Court lacks subject jurisdiction of HOA’s NEPA claim. The Court has considered whether HOA is likely to succeed on the merits of its NEPA claim and found it unlikely. The Court has also considered whether it is likely to suffer irreparable harm and finds no likelihood. These are not primary residences, but summer vacation properties. Because they are mobile homes they can be fairly easily transported away from BOR property. Should it be determined later that the owners have the right to rent spaces from BOR, they can be returned just as easily. While HOA members have developed a sentimental attachment to the facility, they have no legal right to use it. Meanwhile BOR’s policy has shifted from prohibiting this type of private exclusive use of public property. 43 CFR 429.31(b). Now that HOA has lost the right to its private exclusive use of the trailer court, it is highly unlikely that it can get it back. It is clinging to a privilege that it no longer possesses and which is no longer granted by BOR policy. An injunction would prevent BOR from continuing to plan for the facility because the entire marina septic system is connected to the trailer court’s failing system (which also unfortunately encroaches on Lefevers’ private land). There is no authorized concessionaire, and BOR cannot request proposals for a new one without planning for, at minimum, a modernized and code-compliant septic system. Thus an injunction would likely halt all planning, and the ability of the marina to function as a public recreation facility would be jeopardized.
The motion for injunction pending appeal is denied.
9th Circuit Judges Trott and Nguyen subsequently denied HOA’s emergency motion for injunctive relief.
Goose Bay HOA v. BOR et al, 40 MFR 301, 4/29/13, 9th Cir. order 4/30/13.
Nathan Wagner (Datsopoulos, MacDonald & Lind), Missoula, for Plaintiffs; AUSA Leif Johnson; Kevin Feeback (Gough, Shanahan, Johnson & Waterman), Helena, for Lefevers.
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