The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTION
On December 14, 2006, Plaintiff Daniel Renard, appearing pro se, filed his first amended complaint ("FAC") against the San Diego Unified Port District, the Port District Board of Commissioners, individual members of the Board of Commissioners,*fn1 the San Diego Harbor Police, individual members of the Harbor Police,*fn2 and Does 1-10. (Doc. No. 2.) On January 5, 2007, Plaintiff filed a motion for a temporary restraining order ("TRO") and injunction seeking to prevent seizure of property by Defendants San Diego Unified Port District and San Diego Harbor Police (collectively, "Defendants"). (Doc. No. 6.) Defendants filed a response in opposition on January 9, 2007. (Doc. No. 44.) The Court heard oral argument on January 12, 2007. Plaintiff appeared pro se, and William D. McMinn appeared for Defendants. Following oral argument, Defendants submitted supplemental documents on January 19, 2007 and January 23, 2007. (Doc. Nos. 49 & 50.) Plaintiff filed supplemental documents on January 25, 2007 and on January 29, 2007. (Doc. Nos. 51 & 53.) For the reasons set forth below, the Court DENIES Plaintiff's motion.
In the FAC, Plaintiff claims that he is an owner and operator of vessels in the United States. (FAC ¶ 5.) Plaintiff alleges that he has a permit for the A-9 Anchorage in San Diego Bay and that he lives there. (Id. ¶ 16.) At oral argument, Plaintiff presented a property tax bill and receipt related to his boat, and he presented a homestead declaration as to his vessel. (TRO Hr'g, Pl.'s Exs. 8-10.)
In the FAC, Plaintiff complains of several actions taken by Defendants. First, Plaintiff asserts that the Board of Commissioners' actions in regulating various anchorages violate federal law. (FAC ¶¶ 15, 20.) Plaintiff contends that federal law preempts some of the local regulations. (Id. ¶ 22.) Further, he asserts that certain regulations violate Article 10, Section 4 of the California Constitution. Next, Plaintiff asserts that the San Diego Unified Port District ("Port District") and its officers have violated various federal and state laws in ticketing him without cause. (Id. ¶ 23.)
Plaintiff also claims that, following his initiation of a lawsuit in 2003, he entered into a settlement with the Port District, its commissioners, and employees in December of 2003. (Id. ¶ 27.) In the agreement, the Port District provided him with a disabled permit for the Port's A-9 Anchorage, and in return he agreed to dismiss the suit and to comply with applicable laws. (Id., Ex. 10 at 5.) Plaintiff alleges that, on June 6, 2006, the Port District commissioners voted to eliminate the A-9 Anchorage accommodation for disabled boaters. (Id. ¶ 26.) According to Plaintiff, on or about July 12, 2006, a notice was placed on his vessel indicating that the vessel would be seized if it was not relocated from its anchorage within 72 hours. (Id. ¶ 28.) He asserts that the permitting program violates the United States Constitution. (Id. ¶ 29.)
Plaintiff states that he received a letter on August 12, 2006 from the Chief of the San Diego Harbor Police ("SDHP") noting that the Port District's commissioners had voted to eliminate free, unlimited anchoring in the A-8 Anchorage. (Id. ¶ 30, Ex. 10 at 9.) The letter also states that, because the A-9 Anchorage was designated as an alternative anchoring site for persons with disabilities who were unable to use A-8, and because qualified disabled owners using A-9 are required to meet all the requirements set forth in the A-8 Anchorage ordinance in order to obtain an A-9 permit, the changes to the A-8 ordinance will also affect the A-8 disabled permit holders. (Id.) In response, Plaintiff sent a letter stating that he wanted to remain in the A-9 Anchorage, and that the changes proposed in the letter would violate the December 2003 settlement agreement. (Id. ¶ 30, Ex. 10 at 10.) He received a response from the SDHP indicating that Plaintiff's A-9 disabled anchorage permit requires him to comply with all requirements in the A-8 Anchorage ordinance. (Id. ¶ 30, Ex. 10 at 11.) The letter indicates that, when the free, long term A-8 Anchorage was eliminated, the A-9 Disabled Anchorage was also eliminated. (Id.) Further, the letter indicates that A-9 Disabled Anchorage permittees could join any A-8 Anchorage permittees who wish and are eligible to obtain, for a monthly fee, a mooring ball in an existing mooring field in San Diego Bay. (Id.) The letter also states that Plaintiff's settlement did not entitle him to permanent, free, long term anchoring in the A-9 Anchorage. Rather, the obligation to accommodate him arose from the existence of the A-8 Anchorage program. (Id., Ex. 10 at 12.) Accordingly, the letter states that, when the A-8 Anchorage is eliminated, there will no longer be any free, long term anchoring in the bay, and the A-9 Disabled Anchorage will revert to its prior use. (Id.)
Plaintiff's complaint lists the following seven claims: (1) unlawful rulemaking based on preemption; (2) unlawful seizure in violation of Article 1, section 13 of the California Constitution; (3) 42 U.S.C. § 1983 claim based on violations of the Fourth and Fifth Amendments; (4) violation of 42 U.S.C. § 1985; (5) unlawful retaliation or coercion based on disability; (6) breach of contract and fraud; (7) negligence in violation of 42 U.S.C. § 1986.
In his motion and supplemental documents, Plaintiff asserts that the San Diego Harbor Police (SDHP) routinely impounds vessels anchored in San Diego bay without due process. According to Plaintiff, the SDHP does not cite the owners or notify them in advance before impounding vessels. Further, Plaintiff claims that many people live aboard these vessels and that the seizures violate the Fourth Amendment. Plaintiff contends that these vessels are anchored in special anchorage areas over which the United States retains navigational control. Thus, he argues that federal law preempts local regulation. According to Plaintiff's motion, after the SDHP seizes a vessel, if a person pays the fees and retrieves the vessel, the vessel will be seized again as soon as the owner stops in San Diego Bay. Plaintiff claims that this system is designed to defeat his Ninth Amendment rights. Accordingly, Plaintiff seeks an injunction to prevent Defendants from seizing or destroying anyone's vessel.
Federal Rule of Civil Procedure 65(b) provides that a court may enter a TRO only if "immediate and irreparable injury, loss, or damage will result to the applicant." A TRO is a form of preliminary injunctive relief whose sole purpose is to preserve the status quo pending a hearing on the moving party's application for a preliminary injunction. See, e.g., Schwarzer, et al., Cal. Prac. Guide: Fed. Civ. P. Before Trial, ¶ 13:7 (The Rutter Group 2006) (citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974)). A preliminary injunction is a device for preserving the status quo and preventing the irreparable loss of rights before a judgment in the suit. See Textile Unlimited, Inc. v. ABMH and Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001). The same standard governs the issuance of both TROs and preliminary injunctions. See, e.g., Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001) ("The standard for issuing a preliminary injunction is the same as the standard for issuing a temporary restraining order .").
A plaintiff can demonstrate that he is entitled to a TRO or preliminary injunction in one of two ways. First, using the "traditional criteria," a plaintiff must demonstrate:
(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). See Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1158 (9th Cir. 2006). Alternatively, a plaintiff may show "either a combination of probable success on the merits and the possibility of irreparable harm or that serious questions are raised and the balance of hardships tips sharply in his favor." Id. (internal quotations and emphases omitted). "This analysis creates a continuum: the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor." Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003). Even if the balance of hardships tips decidedly in favor of the moving party, however, the movant must show at least a fair chance of success on the merits. See Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995).
A. Likelihood of Success on ...