Judge declines bypass restraining order
SANDPOINT - A federal judge is rejecting a temporary restraining order aimed at immediately stopping construction of the U.S. Highway 95 bypass.
U.S. District Judge Edward Lodge denied North Idaho Community Action Network's motion for the restraining order due to insufficient argument, according to court documents.
NICAN's request for a preliminary injunction, which could also thwart construction, is still pending. A hearing on the injunction is set for next month in Boise.
See ORDER, Page 3
"The significance of him denying the temporary restraining order is that there's not an immediate stay on the project," said Liz Sedler, executive director of NICAN.
Construction of the $98.4 million Sand Creek Byway can proceed while the injunction request is pending.
Lodge issued the ruling in Boise on Thursday, the same day project contractor Parsons RCI unveiled construction plans for the next several weeks. NICAN moved for the temporary restraining order and a preliminary injunction on Monday.
The restraining order and injunction requests are part of NICAN's lawsuit against the U.S. Army Corps of Engineers for alleged federal Clean Water Act violations. NICAN argued the violations would result in irreparable injury if construction on the project commenced.
In rejecting the restraining order, Lodge said NICAN's counsel cited standards applicable to the preliminary injunction, not the restraining order itself.
"As such, the Court finds the title of the motion and conclusory request for a temporary restraining order are insufficient," Lodge said in the order.
Lodge added that NICAN failed to satisfy the requirements for issuance of a temporary restraining order by neglecting to demonstrate why relief should be granted before the defendants had a chance to respond.
Under rules governing federal civil proceedings, a moving party must make a clear showing that immediate and irreparable injury will result if the court is to rule before the adverse party is heard. Lodge agreed with NICAN that construction appears to be imminent, but noted that NICAN's supporting documents speak to the merits of the injunction, not the restraining order.
Given the immediacy of construction, Lodge said the court would set an expedited briefing schedule for the preliminary injunction motion.
The corps has until Nov. 24 to file its response to the motion and the plaintiffs have until Dec. 1 to reply. A hearing on preliminary injunction, if necessary, has been tentatively set for Dec. 11 in Boise.
Sedler said NICAN is weighing its legal options. Those include possibly trying to consolidate the preliminary injunction proceedings with NICAN's motion for summary judgment and appealing the denial of the restraining order to the U.S. 9th Circuit Court of Appeals.