Summary of a Recent
Judicial Development in
Water Law

Plaintiff Fails to Establish Irreparable Injury from
Disruption of Water Flow to Creek

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Wochos v. Smith, Civil No. 08-6070, 2008 WL 4183393 (W.D. Ark. Sept. 11, 2008), the United States District Court for the Western District of Arkansas denied the plaintiff's motion for an emergency order to restore water flow to Kelly Creek and the supplement thereto because the plaintiff had adequate legal remedies and would not suffer irreparable harm.

Background

The plaintiff sought injunctive relief by filing a motion for an emergency order to require the defendant to restore water flow to Kelly Creek. Id. at *1. The defendant responded to the motion, and the instant court held an evidentiary hearing. Id. At the hearing, the plaintiff presented several letters he had written to the Environmental Protection Agency and the defendant, and the defendant introduced his permit application from and documented correspondence with the United States Army Corps of Engineers. Id.

Arguments

The plaintiff argued that the preliminary injunction should be issued because he suffered from three types of irreparable injury: (1) the defendant's action in cutting off the flow of Kelly Creek caused the plaintiff to breach his contract with the United States Department of Agriculture; (2) the defendant's action interfered with his ability to track species around Kelly Creek with pattern recognition software because the species had been driven away from the area; and (3) the plaintiff claimed that his wetlands have been destroyed by the defendant's action. Id. at *2.

Analysis and Holdings

Because the plaintiff had failed to raise the wetlands argument in his petition, the court held that he could not argue that issue during the evidentiary hearing. Id. The court went on to discuss the plaintiff's two other claims of irreparable injury.

The prima facie standard for a preliminary injunction to issue consists of four factors: (1) the threat of irreparable harm; (2) the balance between the harm and the injury that would be inflicted on other parties if the injunction was granted; (3) the probability that the moving party will succeed on the merits; (4) and the public interest. Id. In the case at bar, the court held that the plaintiff's motion for preliminary injunction should be denied because the plaintiff failed to show how the defendant's conduct in cutting off the water supply to Kelly Creek caused the plaintiff irreparable harm. Id. at *3. First, the United States Department of Agriculture had never contacted the plaintiff about a potential breach of contract, and even if he had breached due to the defendant's conduct, money damages would make the plaintiff whole. Id. Second, the plaintiff failed to present evidence showing that money damages would not make him whole for the injury he suffered from the interference with his tracking of species around Kelly Creek. Id.

The case was decided on September 11, 2008.