Some people have been asking us questions on what procedural harm means and what that has to do with irreparable harm and Judge Patrick’s decision denying our request for a Temporary Restraining Order (TRO) in our lawsuit against Delta County.  We figured that others might also be interested in the legal issues and reasoning behind the Judge’s order. When the Judge issued his final order, it did not include any of his analysis or pre-decision comments, which led to his conclusion and decision. Instead, the court order stated “the Court denied the TRO finding that Plaintiff did not meet its burden of real immediate injury or irreparable harm as more fully discussed on the record.”

A little background on TROs
A TRO prevents a party from moving forward with an action that is currently being litigated, and it is considered to be an extraordinary remedy.  CHC asked the Court at a hearing on June 19, 2019 to grant it a TRO against Delta County, to ensure that Gunnison Energy couldn’t move forward with the seismic mapping projects approved by Delta County during the ongoing lawsuit against Delta County.  In order to grant a TRO, a judge must determine whether or not allowing the permitted action to go ahead would cause “irreparable harm.” Irreparable harm is a high legal threshold that can be caused by “procedural harm” or “environmental harm” (among other types of harm not at issue in our case). In our case, CHC alleged (among other things) that the process the County followed in reviewing and approving these two seismic projects was deficient, and that those deficiencies caused us, and our members, “procedural harm.”

Our argument
We argued that the County caused harm by not following its procedures.
More specifically, harm was caused by the County when it damaged the public’s trust and expectations of lawful governance. By not following its rules and regulations, and approving a project without considering vital information, the County created a specter of doubt around meeting its regulatory obligations to protect the community. Among our arguments, we claimed that the county did not consider the geohazard information required by the regulations, and that such information is necessary for the county to meet its regulatory obligation to ensure no interruption of irrigation water or infrastructure; this information is also required to protect groundwater.

CHC argued that the procedural harm CHC and its members suffered due to deficiencies in the County application review and approval process amounted to irreparable harm that merits granting a TRO. Procedural harm, for failure of a government body to follow laws and regulations has been found to be irreparable harm in other court cases.

Discussion of Irreparable Harm on the Record
Before rendering his decision, the Judge recapped and analyzed the testimony and cross examination of county staff, the applicant, and the expert witnesses brought forth by CHC and the applicant.  The Judge found that CHC did in fact suffer procedural harm because the Planning Department did not consider required information. However, he struggled with the procedural harm versus the environmental harm in reaching his conclusion on whether to grant the TRO. Gunnison Energy’s expert witnesses all testified that seismic mapping is safe when conducted within appropriate setbacks, and would result in no significant environmental harm—no irreparable harm. The Judge found that while the County’s process was deficient, and that CHC did suffer procedural harm as a result, he did not believe this procedural harm—or rather the required information that was not considered, resulted in the level of environmental harm found in other cases needed to support a finding of irreparable harm and justify granting a TRO.

Court Order
Judge Patrick issued an order denying our request for a TRO because he found that the harms we experienced did not rise to the level of irreparable harm. However, due to his determination that procedural harm did occur, he also ordered that our underlying lawsuit be expedited, to allow the court to hear our case on its merits before the case becomes moot because the projects are completed prior to resolution of the case.

We hope this answers a number of questions you may have about a complicated legal proceeding.