Opinion
Case No. 2:99CV852K
July 20, 2000
ORDER
Before the court is Plaintiffs' Motion for a Temporary Restraining Order. A hearing on the motion was held on July 11-12, 2000. At the hearing, Plaintiffs were represented by Heidi J. McIntosh, Stephen H.M. Bloch, and Robert B. Wiygul. Defendants were represented by Stephen Roth and Jeffrey E. Nelson. The Defendant-Intervenors were represented by Paul A. Turcke. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion, the testimony of the witnesses presented at the hearing, and the arguments presented by counsel. Now being fully advised, the court renders the following Order.
I. BACKGROUND
Plaintiffs have moved the court for a temporary restraining order to prevent the alleged "immediate and ongoing threat of irreparable off-road vehicle damage" in numerous existing and proposed wilderness study areas until the court rules on Plaintiffs' Motion for a Preliminary Injunction, which is scheduled to be heard beginning the week of August 28, 2000.
II. DISCUSSION
In order to obtain a temporary restraining order, the moving party must establish the following:
(1) the moving party will suffer irreparable injury unless the [temporary restraining order] issues; (2) the threatened injury to the moving party outweighs any damage to the opposing party; (3) the [temporary restraining order], if issued, will not be adverse to the public interest; and (4) a substantial likelihood exists that the moving party will prevail on the merits.
Bauchman v. West High Sch., 900 F. Supp. 248, 250 (D. Utah 1995). A temporary restraining order is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968 (1997).
Plaintiffs submitted dozens of pictures of some of Utah's most beautiful landscapes marred by webs of ORV tracks. While the court is disturbed by this evidence, that is not the issue before the court. The court must determine, as a preliminary matter, whether Plaintiffs have demonstrated, by a clear showing, that the existing and proposed WSAs at issue in this motion will suffer irreparable injury between now and August 28, 2000, when the court hears Plaintiffs' Motion for a Preliminary Injunction.
The court finds that Plaintiffs have not met that burden. While Plaintiffs submitted evidence that some ORV use occurs during the summer months in the areas at issue, Defendants established that the high-use season in all of the areas at issue is from approximately Easter weekend through Memorial Day weekend, with another small "spike" occurring over the Labor Day weekend. All of Defendants' witnesses, who were various representatives of the Bureau of Land Management Field Offices with jurisdiction over the areas at issue, testified, in essence, that there is minimal ORV use through the summer months because of the intense heat and/or increased presence of bugs in these areas. The court therefore finds that is it unlikely that the areas at issue will suffer irreparable injury in the next five weeks. Because of this determination, the court need not address the other elements required for obtaining a temporary restraining order. Whether Plaintiffs are entitled to their requested preliminary injunction will be determined after the hearing on that motion, which is currently set to begin on August 28, 2000.
This statement assumes that the state and counties' motion to dismiss, currently set to be heard on July 31, 2000, is not granted. Assuming that the hearing on Plaintiffs' preliminary injunction motion goes forward, the parties need not — in fact, should not — repeat the extensive evidence that was presented at the July 11-12, 2000 hearing.