Opinion
Case No. 2:03-CV-00603 TC
June 2, 2004
ORDER
Intervenor Defendants Gary Robb, Dorothy Ivie, Marelda Harper, Hal Ivie, Jerry Leavitt, Kent Lewis, Stephen Clinger, and Russ Tillock, dba "Knight's Canal Company." and Weldon Brown, Wayne Robb, Mark Barton, Rod Harrison, Bob Mullens, Pete Montague, Leslie Montague, Gary Stringham, Carl Mott, Gene Batemen, Stephen Clinger, and Marc Coulam, dba "Shanks Irrigation Company," (collectively, the "Knight and Shanks Water Users") have moved for a preliminary injunction. They contend that the Plaintiffs Richard Mountain, Stewart Pike and Floyd Wopsock have blocked them from irrigation water to which they are entitled. Plaintiffs contend that the pipelines through which the irrigation water flows trespass on Ute Tribal Land. Plaintiffs also argue that diversion of the irrigation water through the pipelines results in a lack of water to their and other Tribal land.
The parties have submitted memoranda and various supporting documents. An evidentiary hearing was held.
For the reasons discussed below, the court GRANTS the Motion for Preliminary Injunction.
FINDINGS OF FACT
Since 1909, the Knight's Canal Company diverted and conveyed their water through an open canal, known as the Knight's Canal. The Knight's Canal crossed Tribal and other Indian land and was operated pursuant to a right-of-way granted by the Department of Interior in 1909. The Knight's Canal provided water to both Indian and non-Indian lands.
Until 1988, the Shanks Irrigation Company diverted water from the Duchesne River, immediately downstream from the confluence of Rock Creek and the Duchesne River. In 1987, in an effort to increase the efficiency of water use and to decrease the leaching of salt into the Duchesne River ( see Colorado River Basin Salinity Control Act, 43 U.S.C. § 1571 et seq.), the Natural Resources Conservation Service (NRCS), an agency of the U.S. Department of Agriculture, proposed the construction of two pipelines, the Knight Pipeline and the Shanks Pipeline, to allow for sprinkler irrigation under the Knight and Shanks systems. The Knight and Shanks Water Users applied to the NRCS to fund, engineer and construct the two pipelines.
As part of the new NRCS project, the Shanks Irrigation Company applied to and received approval from the Utah State Engineer to move the Shanks point of diversion from the Duchesne River to the existing Knight Canal point of diversion on Rock Creek, to obtain gravity pressure for the sprinkler system.
The Knight and Shanks Water Users also applied to the BIA for a right-of-way for the two new pipelines, since parts of the pipelines would cross Tribal lands.
On or about October 17, 1988, the Business Committee of the Ute Tribe passed Resolution 88-182. (Ex. D to May 20, 2004 Aff. of Gary Robb.) The Knights and Shanks Water Users contend that Resolution 88-182 shows that the Business Committee consented to the project and granted a right-of-way for the two pipelines. Plaintiffs disagree, arguing that "[t]he Tribal Business Committee declined to give its consent to the right of way request but did prove the Shanks with a limited approval [Resolution 88-182] for crossing Tribal lands, utilizing their Duchesne River point of Diversion." (May 20, 2004 Aff. of Steward Pike ¶ 6.)
On October 31, 1988, the BIA sent the Knight and Shanks Water Users a letter that authorized them to begin construction of the pipelines. (Ex. C to May 20, 2004 Aff. of Gary Robb.) Construction of the pipelines was completed in 1989, at a total cost of over $300,000 (30% of which was paid by the Knight and Shanks Water Users), and at all times since then the Knight and Shanks Water Users have used the pipelines to convey water to their lands. Since 1989, the Knight and Shanks Water Users have spent more than $6,000 to maintain the two pipelines.
Stewart Pike has leased all of the land in which he has an interest that is affected by the pipelines. Floyd Wopsock, other than being a member of the Tribe, has no direct interest in the lands. Richard Mountain has an assignment of 120 acres from the Ute Tribe on lands east of Rock Creek.
The legal point of diversion from Rock Creek for the Knight and Shanks Water Users is located on lands owned by the Ute Indian Tribe approximately 350 feet south and 450 feet east of the north quarter corner of Section 19, Township 2 South, Range 5 West, Uintah Special Base Meridian, in the northwest quarter of the northeast quarter of said Section 19.
On May 29, 2003, the Uintah and Ouray Tribal Business Committee passed a resolution declaring the Knight and Shanks Water Users' pipeline easements to be in trespass on Tribal lands.
Sometime during the Spring of 2004, a gate was erected on the Rock Creek Road at a point where the road is owned by Duchesne County, a short distance below the Knight and Shanks diversion structure. At times, the gate has been locked and at times it has not. A sign was placed on the gate which reads: "Notice; No Trespassing!! Knight and Shanks can no longer divert water from the Indian allottee diversion."
The Knight and Shanks Water Users were unable to reach their diversion works on Rock Creek and turn water into their pipes until May 15, 2004. The day before, on May 14, 2004, this Court issued a temporary restraining order, ordering Plaintiffs to allow the Knight and Shanks Water Users to access their diversion structure.
CONCLUSIONS OF LAW
The traditional purpose of a preliminary injunction is to maintain the status quo pending final determination. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1099 (10th Cir. 1991). The Knight and Shanks Water Users are seeking to maintain the status quo, which was the time when the Knight and Shanks Water Users had access to irrigation water through the pipelines. That was the "last uncontested status between the parties." See O Centra Espiritaa Beneficient Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1178 (10th Cir. 2003).
In order to obtain preliminary injunctive relief, the moving party must show: (1) that the moving party will suffer irreparable harm unless an injunction issues, (2) that the injury to the moving party outweighs any damage to the non-moving party caused by the injunction, (3) that the injunction will not be adverse to the public interest, and (4) that there is a substantial likelihood that the moving party will ultimately prevail on the merits. SCFC ILC, Inc., 936 F.2d at 1098.
1. Irreparable Harm.
To establish irreparable harm, the movant must show that the harm is actual, certain, and great. Chemical Weapons Working Group v. United States Dep't of the Army, 963 F. Supp. 1083, 1095 (D. Utah 1997). The evidence here shows that if the court does not grant the preliminary injunction, the Knight and Shanks Water Users will be unable to gain access to the diversion structure and will be unable to irrigate their crops. Plaintiffs submitted evidence that the first of their alfalfa crop has already been damaged, and without consistent irrigation through the summer, the entire season's hay crop will be lost. (Robb Aff. ¶ 21; Harrison Aff. ¶ 19; Swasey Aff. ¶ 12.) Most importantly, the harm is great. Alfalfa is a perennial crop, and without water the crop will die, necessitating a new seeding next year at great cost.
This harm cannot simply be compensated with money damages. Loss of an entire year's crop could permanently damage the viability of cattle operations, which may be forced to sell cattle at a loss for lack of feed.
2. Harm to Plaintiffs.
The second element in the preliminary injunction analysis requires the court to balance the harm to non-movants if the injunction is issued against the harm to movants if it is not. Tri-State Generation Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 356 (10th Cir. 1986). The only Plaintiff who arguably has a present direct interest in the land at issue is Richard Mountain. But there is no evidence that Mr. Mountain has planted crops this season that will suffer because of a lack of water. Further, the fact that the Knight and Shanks pipelines were in place for more than a dozen years without Plaintiffs attempting any sort of legal action demonstrates that they will not suffer harm from the granting of this preliminary injunction.
3. The Public Interest.
The public has a significant interest in seeing that property rights are protected. If the Knight and Shanks' easements are found to be invalid, then Plaintiffs will have suffered a temporary loss to their property rights. But if it is found at the termination of this case that the easements are valid, the Knight and Shanks Water Users' property rights — the right to access their rights of way — would be infringed upon by the lack of issuance of an injunction. In other words, while the public interest in protecting property rights is important, it is impossible to tell which party it favors until this litigation is resolved on the merits.
But the court is mindful that without injunctive relief, the Knight and Shanks Water Users will be unable to beneficially use their water, and hundreds of acres of farm land will be rendered unproductive. Given the importance of agriculture to Utah's rural economies, it appears that the public interest will be served by granting the injunction.
4. Substantial Likelihood of Success.
Because the Knight and Shanks Water Users have met the first three elements of the preliminary injunction test, the "likelihood of success" standard is relaxed. Chemical Weapons Working Group v. United States Dep't of the Army, 963 F. Supp. 1083, 1095 (D. Utah 1997) ("If plaintiffs establish the first three requirements for a preliminary injunction to issue, they may establish likelihood of success by showing questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation") (internal quotes omitted).
The Knights and Shanks Water Users have produced evidence that meets this standard. There are numerous documents in the record that indicate that the pipeline easements are valid. Further, the water users have been conveying water through the contested pipelines for fifteen years, and until this litigation, never received any notice from Plaintiffs or the Tribe that their right of way was in dispute.
ORDER
For the above reasons, the court GRANTS the Knight and Shanks Water Users' Motion for a Preliminary Injunction.
Pending resolution of this case, the Plaintiffs, their agents, and anyone acting under their control or direction, who have direct or indirect knowledge of this Injunction Order, are prohibited from interfering in any way with the Knight and Shanks Water Users' access to their easements, or interfering with the Knight and Shanks Water Users' diversion works.
It appears that a bond is not appropriate here and, accordingly, the court does not order one.