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					Case 2:08-cv-01763-KJD-LRL

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Nancy Lord, MD Nev Bar No. 6697 1970 N. Leslie Rd., No. 220 Pahrump, NV 89060 775-751-3636 Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA CONCERNED CITIZENS FOR A SAFE COMMUNITY, AN ASSOCIATION; AND DONNA COX, AN INDIVIDUAL ) ) CIVIL CASE ) ) NO. __________ Plaintiffs ) ) vs. ) NOTICE OF MOTION ) NYE COUNTY, NYE COUNTY COMMISSIONERS, ) and JONI EASTLEY, in her Official ) Capacity, GARY HOLLIS, in his Official ) MOTION FOR EMERGENCY Capacity, BORASKY, ANDREW “BUTCH” in ) PRELIMINARY his Official Capacity, PETER ) INJUNCTION LIAKOPOULOS,in his Official Capacity, ) and MIDGE CARVER, in her Official ) Date: 12/16/2008 Capacity. ) Time: Defendants ) Place: ) Judge ) ______________________________________ )_______________________

NOTICE OF MOTION Please take notice that the following Motion for Preliminary Injunction is scheduled to be heard by the Honorable

____________________, United States District Court, on December 16, at ___ a.m. in Courtroom __, __th Floor, 333 Las Vegas Blvd S Las Vegas, NV 89101. MOTION FOR PRELIMINARY INJUNCTION Pursuant plaintiffs to Federal Rule FOR of A Civil SAFE Procedure COMMUNITY, 65(a), et al.,

CONCERNED

CITIZENS

hereby move for a preliminary injunction to prevent the Board of 1

Case 2:08-cv-01763-KJD-LRL

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Nye

County

Commissioners

and

the

Correctional

Corporation

of

America, Inc., from implementing a Development Agreement at issue in this litigation by constructing a large “detention center” in rural Pahrump, Nevada. A preliminary injunction is warranted

because plaintiffs have a strong likelihood of success on the merits and the balance of hardships favors preserving the status quo pending this Court’s resolution of the parties’ pending

motions for summary judgment. This motion is accompanied by a Proposed Order and is based upon the pleadings and administrative record on file in this case, the Memorandum and in Support of of Motion for Preliminary and other

Injunction

Declaration

Judith

Holmgren

supportive Exhibits, submitted herewith.

Plaintiffs anticipate

the hearing on this motion will require no more than one hour and will not involve oral testimony.

Respectfully submitted, S/nancylord/s _____________________________ Nancy Lord, M.D. Nevada Bar No. 6697 Attorney for Plaintiffs Nancy Lord 1970 N. Leslie Rd., No. 220 Pahrump, NV 89060 775-751-3636 Attorney for Plaintiffs

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Case 2:08-cv-01763-KJD-LRL

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Nancy Lord, MD Nev Bar No. 6697 1970 N. Leslie Rd., No. 220 Pahrump, NV 89060 775-751-3636 Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA CONCERNED CITIZENS FOR A SAFE COMMUNITY, AN ASSOCIATION; AND DONNA COX, AN INDIVIDUAL ) ) CIVIL CASE ) ) NO. __________ Plaintiffs ) ) vs. ) MEMORANDUM OF LAW ) IN SUPPORT OF NYE COUNTY, NYE COUNTY COMMISSIONERS, ) JONI EASTLEY, in her Official ) Capacity, GARY HOLLIS, in his Official ) MOTION FOR EMERGENCY Capacity, BORASKY, ANDREW “BUTCH” in ) PRELIMINARY his Official Capacity, PETER ) INJUNCTION LIAKOPOULOS,in his Official Capacity, ) and MIDGE CARVER, in her Official ) Date: 12/16/2008 Capacity. ) Time: Defendants ) Place: ) Judge ______________________________________ )_______________________
TABLE OF CONTENTS

17 18 19 20 21 22 23 24 25 26 27 28 1
II. The Balance of Hardships Tips Sharply in Favor of Granting a Preliminary Injunction in this Case...............................7 CONCLUSION........................................................9 INTRODUCTION......................................................2 BACKGROUND........................................................2 ARGUMENT..........................................................6 I. Citizens and Individual Plaintiff Have a Strong Likelihood of Succeeding on the Merits of this Case.............................6

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INTRODUCTION On December 16, 2008, the Board of County Commissioners for Nye County will enter into of a Development Agreement for a with the

Correctional

Corporation

America,

Inc.,

detention

facility of up to 1,500 bed capacity. could begin the next day.

On-the-ground operations

Because the Development Agreement at

issue in this litigation and threatens irreparable harm to old forest habitat and associated sensitive species, plaintiffs

Concerned Citizens for a Safe Community, [Citizen] Donna Cox, respectfully request that this Court preliminarily enjoin the Development Agreement until such time as the Court rules on the parties’ pending motions for summary judgment in this case. As set forth below, a preliminary injunction is warranted because Citizens has a strong likelihood of success on the merits, and the balance of hardships tips sharply in favor of preserving the status quo pending this Court’s ruling on the merits. BACKGROUND The history of the Agreement is described in detail in the attached Complaint for Declaratory and Injunctive Relief. To

summarize, the BOCC appears to have planned since on or about July 21, 2006, to have a federal detention facility built on a property at 2190 East Mesquite Ave, in Pahrump. The Final

Environmental Impact Statement began a 30 day review on March 28, 2008 and has never been sanctioned by the U.S. Fish & Wildlife Service.

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On

January

29,

2008,

the

U.S.

Environmental

Protection

Agency notified OFDT that it had rated his Draft Environmental Impact Statement as ED-2, Environmental Concerns - Insufficient Information. Nova Blajez, Manager of the Environmental Review Office wrote: “We are concerned about the potential impacts of the proposed project on water resources and air quality." After criticizing ephemeral the findings Blajez regarding noted: "EPA the is jurisdiction concerned about over the

waters,

general uncertainty of the water supply for this project. For the two sites located within Pahrump, Nevada, the DEIS states that the potable is water supply service and wastewater service collection could be

service

currently

unavailable,

although

provided by extending a water main and wastewater collection line to the selected site. The majority of surface water resources within Nye County have already been appropriated and existing groundwater allocations exceed the perennial yield of the Pahrump Basin. Based on recent projections, a shortfall of 65,000 to 61,000 acre-feet per year is projected by the year 2050.” (CO Exh 9, FEIS, pgs. IV-32,33). On March 14, 2008, Defendant Corrections Corporation of

America (“CCA”) records a Memorandum of Right to Purchase the 2250 E. Mesquite location. No other proposed location had such a On March 27, 2008, the “Detention center

Memorandum attached to it. [CO Exh 11]

Pahrump Mirror’s front-page headline read: headed to Pahrump. Exh 12]

Facility to be built on Mesquite Ave.” [CO

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On March 28, 2008, the Final Environmental Impact Statement (“FEIS”) began a 30-day review. Notice was given in the PVT, and

on April 28, 2008, the review period ended. [Co Exh 13] Ninety nine (99) form letters dated 1.04.2008 from Pahrump citizens were received. Sixty-three (63) of these were in favor of a different Not

site and the other thirty three (33) did not specify a site. one letter requested the 2250 E. Mesquite location. sample letter]

[Co Exh 14,

On May 14, 2008, the BOCC split the 160 acre E. Mesquite location, parcel no. 027-421-10, into 2 parcels of 120 acres and approximately 40 acres. 2008, a PVT front-page (Agenda Item 17 [Exh 15]) On May 16, headline reads: “It’s Official.

Detention Center is on the Way.”

It was not, however “official”;

as the Development Agreement has not yet been submitted by CCA. [Exh 16] On May 19, 2008, CCA secured the OFDT contract to build on “agency preferred alternative”, i.e., the East Mesquite

location.

The next day, CCA put out a press release announcing

that CCA will be building a “1072-bed prison” in Pahrump. [Exh 17] However, upon information and belief, a 1,500 bed facility may be constructed. On June 30, 2008, CCA purchased above

mentioned 120 acre (parcel no. 027-421-15) for $6,990,000, now addressed at 2190 East Mesquite Ave. sewer, no electricity, is located The site had no water, no in close proximity to an

airport and the town dump and all of the heavy equipment therein, and within the habitat for the desert tortoise.

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At this time, upon information and belief, no approval by the U.S. Fish & Wildlife Service has been provided for provisions made for the desert tortoise. In fact, the plans are only to It is the

fence before grading and kill “only two” tortoises.

position of Citizens, that these plans are inadequate and fail to protect not only the tortoise, but the burrowing owl and yucca plant that have not been addressed in the EIS. There has been no

agreement by CCA to implement the Reasonable and Prudent measures set forth in the draft opinion. [Exh 22]. The response to the Forest Service’s draft SEIS from

wildlife experts expressed concerns of sufficiency. lack of support from the scientific community,

Despite the the BOCC is

planning to sign the Development Agreement on December 16, 2008, which is tomottow. The final EIS for does not disclose the

widespread scientific opposition to the new plan or consider reasonable alternatives to the proposal. In the Draft EIS, U.S. Fish & Wildlife noted that: “Clark County holds a permit from the U.S. Fish & Wildlife Service authorizing ‘take’ of desert tortoises during the course of otherwise legal activities on non-federal lands. In Clark County only, discouraging burrowing owls from breeding in the consturction site on private property is allowed by collapsing tortoise burrow’s during the owl’s non-breeding season (September through February). This may help avoid construction delays. Prior to collapsing a burrow, always check for owls or other protected wildlife occupying the burrow for the winter. The facility at issue however, lies not in Clark County but

24 in Nye County and neither has a permit been In addition to its 25 failing to preserve endangered species, the Development Agreement 26 appears to have been approved behind closed doors by the BOCC 27 over the denial of a change of zoning to accommodate the facility 28 5

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and overwhelming opposition to its construction by the citizens of Pahrump. One meeting was called on one days notice and the

BOCC apparently has made a decision to approve the Development Agreement tomorrow with no meeting at all.

ARGUMENT I. Citizens and Individual Plaintiffs Have a Strong Likelihood of Succeeding on the Merits of this Case. “A preliminary injunction is appropriate when a plaintiff demonstrates either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.” Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007). These two options represent extremes on a single 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. Id. (quoting Sw. Voter Registration Educ. Project v. Shelley, curiam)). 344 F.3d 914, the 918 Ninth (9th Cir. 2003) (en banc) (per a

Thus,

Circuit

has

“emphasized

that

preliminary injunction only requires plaintiffs to show probable success on the merits and the possibility of irreparable harm.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1158 (9th Cir. 2006), cert. denied, 127 S. Ct. 1829 (2007) Citizens respectfully submits that it has a strong

likelihood of success on the merits of this case. As detailed in Legacy’s summary judgment briefing, the record in this case

demonstrates that the Development Agreement violates the National 6

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Environmental Protection Act (“NEPA”) both because it fails to maintain viable populations of desert tortoises, burrowing owls, and yucca, and because it was adopted in the absence of

information regarding population trends for numerous management indicator species and species at risk. The record also shows

that the FEIS for the Development Agreement violates the National Environmental Policy Act (“NEPA”) because it fails to take a hard look at the plan’s serious adverse environmental impacts and because it fails to consider reasonable alternatives. In addition to the need to protect endangered species, the town itself will suffer the nuisance of the destruction of the night time sky, the viewing of this monstrous construction on the beautiful fan of Mount Charleston, and the danger to the citizens and their children of escaped detainees. The BOCC has been

oblivious to outcry of its citizens against the construction of this facility and has held meetings in violation of both the open meeting law, NRS 241.021, and has over-ruled the denial by the regional planning commission for zoning variances under NRS

248.460(2). II. The Balance of Hardships Tips Sharply in Favor of Granting a Preliminary Injunction in this Case. The balance of hardships also tips sharply in favor of

22 granting a preliminary injunction in this case. In the absence of 23 an injunction, Citizens and Individual Plaintiffs will suffer 24 irreparable harm associated with the construction of a large 25 detention facility without adequate means to protect endangered 26 species and for adequate water, power, and sewage drainage. 27 is well established that “[e]nvironmental injury, by its nature, 28 7 It

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can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 545 (1987). Thus, the Ninth Circuit has “often held that a Forest Service logging plan may, in some circumstances, fulfill the irreparable injury criterion because of the long term

environmental consequences.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1299 (9th Cir. 2003). See also Lands

Council, 479 F.3d at 643 (“Logging of old-growth trees is a permanent environmental injury.”); Southeast Alaska Cons. Council v. Army Corps of Engineers, 472 F.3d 1097, 1100 (9th Cir. 2006) (“When a project may significantly relief degrade is some human

environmental

factor,

injunctive

appropriate.”);

Portland Audubon Society v. Lujan, 795 F. Supp. 1489, 1509 (D. Or. 1992), aff’d, Portland Audubon Society v. Babbitt, 998 F.2d 705 (9th Cir. 1993) (“Courts in this circuit have recognized that timber cutting cutting when causes it irreparable without damage proper and have enjoined of NEPA

occurs

observance

procedures and other environmental laws.”). Moreover, the Development Agreement will cause irreparable harm to endangered species whose continued viability in the fan of Pahrump, Nevada is at issue in this litigation. Specifically, the Development Agreement will harm desert tortoises and

burrowing owls by rendering unsuitable 120 acres of suitable nesting and foraging habitat This permanent damage to a sensitive species constitutes irreparable harm. Cf. Sierra Club v.

Bosworth, 2005 WL 3096149,(N.D. Cal. 2005). 8

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While Citizens will suffer irreparable harm in the absence of an injunction, the issuance of an injunction will not harm the BOCC. As the Ninth Circuit recognized in Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1125 (9th Cir. 2002), “restrictions on human intervention are not usually irreparable in the sense

required for injunctive relief.” The Ninth Circuit explained: Unlike the resource destruction that attends development, and that is bound to have permanent repercussions, restrictions on forest development and human intervention can be removed if later proved to be more harmful than helpful. Id. Nor is construction

under the Development Agreement necessary for the benefit and welfare of Pahrump, where citizens are overwhelmingly against this project and have appeared in large numbers in protest. Finally, the public interest favors an injunction pending appeal in this case. The Ninth Circuit has made clear that “[t]he preservation of our environment, as required by NEPA is clearly in the public interest.” Earth Island Inst., 442 F.3d at 1177. Moreover, the Ninth Circuit has recognized that the public has a strong interest in “preserving our national forests in their natural state.” Kootenai Tribe of Idaho, 313 F.3d at 1125. CONCLUSION For all the above-stated reasons, Citizens asks this Court preliminary enjoin the Development Agreement for the

construction of a Correctional Corporations of America detention facility at 2190 E. Mesquite Ave., in Pahrump, Nevada. Because this public interest litigation is brought by a private

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association and concerned citizen, no bond – or a merely nominal bond – should be required of Citizens or Cox. Respectfully submitted, S/nancylord/s _____________________________ Nancy Lord, M.D. Nevada Bar No. 6697 Attorney for Plaintiffs Nancy Lord 1970 N. Leslie Rd., No. 220 Pahrump, NV 89060 775-751-3636 Attorney for Plaintiffs

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Nancy Lord, MD Nev Bar No. 6697 1970 N. Leslie Rd., No. 220 Pahrump, NV 89060 775-751-3636 Attorney for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA CONCERNED CITIZENS FOR A SAFE COMMUNITY, AN ASSOCIATION; AND DONNA COX, AN INDIVIDUAL ) ) CIVIL CASE ) ) NO. __________ Plaintiffs ) ) vs. ) ORDER ) NYE COUNTY, NYE COUNTY COMMISSIONERS, ) and JONI EASTLEY, in her Official ) Capacity, GARY HOLLIS, in his Official ) MOTION FOR Capacity, BORASKY, ANDREW “BUTCH” in ) PRELIMINARY his Official Capacity, PETER ) INJUNCTION LIAKOPOULOS,in his Official Capacity, ) and MIDGE CARVER, in her Official ) Date: 12/16/2008 Capacity. ) Time: Defendants ) Place: ) Judge ) ______________________________________ )_______________________

IT IS HEREBY ORDERED: A. That if no Preliminary Injunctions were to issue, Plaintiffs will suffer immediate and irreparable harm. B. That the potential harm to the Respondents by granting Petitioner this Order is minimal if any. C. That bond be set at zero.

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D.

That the matter be set for hearing for preliminary injunction at the hour of ____ a.m./p.m., on the ____ day of December, 2008.

Dated this 15th day of December, 2008 __________________________________ UNITED STATES DISTRICT COURT JUDGE Prepared by Nancy Lord 1970 N. Leslie Rd., No. 220 Pahrump, NV 89060 775-751-3636 Attorney for Plaintiffs

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