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City of Austin v. State of Texas

United States District Court, W.D. Texas, Austin Division

August 31, 2017

CITY OF AUSTIN, Plaintiff,
v.
STATE OF TEXAS and GREG ABBOTT, in his official capacity as TEXAS GOVERNOR, Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the motion of Plaintiff, the City of Austin (“City”), for a preliminary injunction, (Dkt. 4). Plaintiff seeks an order from this Court enjoining Defendants, Governor Greg Abbott and the State of Texas, from implementing SB 1004, [1] a bill passed by the Texas Legislature scheduled to take effect on September 1, 2017.

         BACKGROUND

         Earlier this year, the governor signed SB 1004, a new law that imposes certain standards on the permitting process for telecommunications companies seeking to install pieces of equipment called “small cell nodes.” These small cell nodes are of interest to providers of cellular service because they provide the capacity to reliably serve large crowds, and because they will form the basis for the development of a new kind of wireless network-5G. (See Resp. to Mot. Prelim. Inj., Dkt. 9, at 3). Up until now, municipalities have enjoyed the authority to impose fees on applications to install and use small cell nodes and rule on the applications when they see fit (within certain parameters established by the Federal Communications Commission). The City of Austin, for instance, has been charging an application fee of $1, 250 per small cell permit application and an annual rental fee of $1, 500 per year for use of traffic signal poles downtown. (Mot. Prelim. Inj., Dkt. 4, at ¶ 9). Once SB 1004 goes into effect, however, such fees will be capped, and municipalities will be forced to act within a shorter time frame on applications for small cell node permits. In particular, SB 1004 places two temporal restrictions on the application process: a prohibition of “moratoria, ” or periods where a municipality refuses to issue permits, and the imposition of a “shot clock, ” or a specified time period within which an application must be reviewed. (See Mot. Prelim. Inj., Dkt. 4, at ¶¶ 54, 56). To prevent the implementation of SB 1004, scheduled to take effect on September 1, 2017, the City moved for a preliminary injunction. A hearing was held on August 30, 2017.

         LEGAL STANDARD

         A preliminary injunction is an extraordinary remedy. This remedy is to be granted only if a plaintiff demonstrates (1) likelihood of success on the merits; (2) irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in plaintiff's favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking injunctive relief carries the burden of persuasion for all four requirements. PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005).

         DISCUSSION

         In the City's opening brief, it put forth two legal bases for enjoining the new law: (1) federal preemption; and (2) that the law effects an unconstitutional taking of private property without just compensation. Because the City did not respond in its Reply brief to Defendants' arguments concerning its takings claim or argue the matter at the hearing, its takings argument is deemed waived with respect to its motion for a preliminary injunction. Therefore, the Court will consider only the City's federal preemption claim, and determine whether this claim entitles the City to the injunction it seeks.

         I. Standing, Sovereign immunity

         As a preliminary matter, the Court addresses Defendants' jurisdictional arguments. Defendants argue that (1) the City lacks standing to bring this suit; (2) the State is immune from suit as a result of sovereign immunity; and (3) Governor Abbott is not a proper defendant. None of these arguments prevents the Court from hearing this case.

         A. Standing

         Article III standing requires (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that a favorable decision will redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Here, Defendants dispute causation and redressability. However, the City has pleaded facts sufficient to demonstrate that the law's implementation will cause the City to lose revenue, and that an injunction preventing the law from taking effect would redress that injury. (See Mot. Prelim. Inj., at ¶¶ 9, 16).

         B. Sovereign Immunity

         Defendants are correct to point out that “the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.” Kimel v. Florida Bd. of Regents,528 U.S. 62, 73 (2000). Congress may abrogate state sovereign immunity under certain circumstances, but it is not argued here that Congress has done so. Rather, the City relies upon Ex parte Young,209 U.S. 123 (1908), which permits a suit for injunctive relief against a state official charged with enforcing a state law. See Morris v. Livingston,739 F.3d 740 (5th Cir. 2014). Defendants contend that the governor is not a proper official to be named in this lawsuit, and that this case should therefore be dismissed, because neither the State nor the governor can be sued. The City does not dispute Defendants' assertion that the State has sovereign immunity here and ...


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