UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 23, 2008
TIMBISHA SHOSHONE TRIBE, PLAINTIFF,
DIRK A. KEMPTHORNE, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MEMORANDUM AND ORDER
Presently before the Court is Plaintiff's Ex Parte Application for Temporary Restraining Order and Preliminary Injunction. Certain prerequisites must be satisfied prior to issuance of a temporary restraining order.*fn1 The Ninth Circuit recognizes two standards for issuing injunctive relief.
Under the so-called "traditional" standard, a TRO may be had if the court determines that (1) the moving party will suffer irreparable injury if the relief is denied; (2) there is a strong likelihood that the moving party will prevail on the merits at trial; (3) the balance of potential harm favors the moving party; and (4) the public interest favors granting relief. International Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir. 1993). Under the "alternative" standard, a TRO properly issues when a party demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) the existence of serious questions going to the merits combined with a balancing of hardships tipping sharply in favor of the moving party. Id. The requirement for showing a likelihood of irreparable harm increases or decreases in inverse correlation to the probability of success on the merits, with these factors representing two points on a sliding scale. United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1985).
No matter which test is used, however, Plaintiff must first demonstrate a significant threat of irreparable injury in order to obtain preliminary injunctive relief. Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999). That threat must be imminent (Caribbean Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988); a risk of irreparable harm in the indefinite future is not enough. Midgett v. Tri-County Metro. Transp. Dist. of Oregon, 254 F.3d 846, 850-51 (9th Cir. 2001).
The Court has reviewed Plaintiff's Ex Parte Application for Temporary Restraining Order. Plaintiff has failed to show the irreparable harm necessary to obtain immediate equitable relief and additionally, adequate remedies exist at law. The parties are also able to appeal the BIA decision to the Interior Board of Indian Appeal. Moreover, if the Court were to grant the requested temporary relief, the Court would be deciding an ultimate issue in the case which should not be done on an expedited and ex parte basis. Thus, Plaintiff's Ex Parte Application for Temporary Restraining Order is DENIED. As per the Court's December 22, 2008, minute order, hearing on Plaintiff's Application for Preliminary Injunction has been scheduled at 4:00 p.m. on Monday, January 5, 2009. Any Opposition is to be filed no later than 4:00 p.m. on Monday, December 29, 2008, and any reply is to be filed no later than 12:00 p.m. on Wednesday, December 31, 2008.
IT IS SO ORDERED.