United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3915
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Rogers Group, Inc., *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
City of Fayetteville, Arkansas, *
*
Appellant. *
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Submitted: September 21, 2010
Filed: December 27, 2010
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Before BYE, BEAM, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Rogers Group, Inc. ("Rogers Group") brought suit in district court1 against the
City of Fayetteville, Arkansas, ("the City") seeking to prevent the enforcement of the
City's ordinance regulating rock quarries in or near the City's corporate limits. The
complaint alleged that the City lacked authority to license and regulate Rogers Group's
quarry. Rogers Group moved for a preliminary injunction to enjoin the ordinance prior
to its enforcement date, and the district court granted the preliminary injunction. On
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
appeal, the City argues that the district court erred in granting the preliminary
injunction. We affirm.
I. Background
Rogers Group operates a limestone quarry ("the Quarry") in an unincorporated
section of Washington County, Arkansas. It began leasing the Quarry in February
2007. The Quarry is located entirely outside, but within one mile of, the corporate
limits of the City. Rogers Group operates the Quarry pursuant to air and water quality
permits issued by the Arkansas Department of Environmental Quality and additional
permits issued by the Federal Mine Safety and Health Administration. Rogers Group
also operates the Quarry as a preexisting, nonconforming use under Washington
County's zoning ordinance. The Quarry is not located within the City's planning or
zoning authority.
In early 2009, the City, responding to noise and vibration complaints from
citizens living near rock quarries, began considering an ordinance to regulate and
license rock quarries operating in or near the City's corporate limits. Although Rogers
Group maintains that it never agreed to be regulated by the City and consistently
denied that the City had jurisdiction over the Quarry, it participated in the City's
ordinance drafting discussions and meetings. In fact, the City incorporated a number
of Rogers Group's recommendations into the proposed ordinance. On October 20,
2009, the Fayetteville City Council passed Ordinance No. 5280, entitled "AN
ORDINANCE TO PREVENT INJURY OR ANNOYANCE WITHIN THE
CORPORATE LIMITS OF FAYETTEVILLE BY REGULATING ROCK
QUARRYING FACILITIES SO THAT THESE FACILITIES WILL NOT BE
NUISANCES" ("the Ordinance").
The Ordinance provides for the licensing and regulation of rock quarries. It
purports to find that "the operation of a rock quarry would be a nuisance to the citizens
and City of Fayetteville, Arkansas[,] if operated or used other than as prescribed in
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[the Ordinance]." Thus, in order to operate a rock quarry within the City or one mile
beyond the City's corporate limits, a quarry operator must obtain a license from the
City after demonstrating its full compliance with all requirements of the Ordinance.
The Ordinance limits quarry operations to a total of 60 hours per week and allows
"major noise producing activities"2 only between 8:30 a.m. and 4:30 p.m., Monday
through Friday. Further, the Ordinance restricts rock blasting to a five-hour period on
the first and third Wednesday of each month. In addition, a quarry must comply with
several "safeguards and measures" to protect the City's roads from all vehicles,
regardless of ownership, exiting the quarry.3 An "operator, manager, or employee" of
a quarry subject to the Ordinance may face criminal punishment for violating the
Ordinance, and the quarry may have its license suspended or revoked for multiple
violations. In addition, the City may fine the quarry for each violation of the
operational hour and rock blasting restrictions.
At the preliminary injunction hearing, Darin Matson, Rogers Group's Vice
President of Aggregate Operations, testified that Rogers Group would lose
approximately $13,000 per week under the Ordinance's restrictions. Matson conceded
that the Ordinance's blasting restrictions reflect the frequency of Rogers Group's
current blasting operations. Nevertheless, Matson believed the blasting restrictions
would limit Rogers Group's ability to bid on and meet larger customer orders. This
restricted bid ability, in turn, would hinder its competitiveness in the Northwest
2
The Ordinance defines "major noise producing activities" as all "blasting, rock
breaking, dump truck tailgate banging, and the use by the quarry operator of non-static
backup warning devices on its loader, breaker or other major equipment." The
definition also includes "[r]ock crushing within a half mile of a house within the city
limits."
3
A quarry must ensure that (1) all vehicles exiting the quarry have "all mud and
dirt removed from the tires and exterior parts of the body of the vehicles"; (2) certain
dump trucks have properly covered their loads; and (3) all dump trucks have an
identification number on their tailgates.
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Arkansas market. Matson also testified that the Ordinance would restrict Rogers
Group's ability to expand the Quarry. He considered future expansion necessary for
the Quarry's long-term viability. Matson further stated that Rogers Group would have
difficulty restoring its customer base upon reopening if the City closed the Quarry for
violating the ordinance.
II. Discussion
"We review the district court's grant of a preliminary injunction for abuse of
discretion, giving deference to the discretion of the district court." Vonage Holdings
Corp. v. Neb. Pub. Serv. Comm'n, 564 F.3d 900, 904 (8th Cir. 2009). "An abuse of
discretion occurs if the district court rests its conclusion on clearly erroneous factual
findings or if its decision relies on erroneous legal conclusions." Id. In determining
whether to issue a preliminary injunction, the district court must consider the
following factors:
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). On
appeal, the City argues that the district court erred in granting the preliminary
injunction for two reasons: (1) the City had jurisdiction to regulate the Quarry within
one mile of its corporate limits, making it unlikely that Rogers Group would succeed
on the merits; and (2) Rogers Group did not show that it would suffer irreparable harm
if the Ordinance were allowed to go into effect. We review each of these arguments
in turn.
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A. Probability of Success on the Merits
The City first contends that Rogers Group is unlikely to succeed on the merits
of its suit to enjoin the enforcement of the Ordinance. The City argues that it
possessed statutory authority to regulate the Quarry because it enacted the Ordinance
pursuant to Arkansas Code Annotated § 14-54-103(1). Under this statute, the City
contends that it has broad regulatory authority both within and one mile beyond its
corporate limits. Under the statute, the City's police power to abate a nuisance extends
one mile beyond its corporate limits. Rock quarries, however, are not nuisances per
se and normally, like other activities, must be declared so after a judicial
determination. See, e.g., Hackler v. City of Fort Smith, 377 S.W.2d 875, 875–77 (Ark.
1964). The City maintains that Arkansas law authorizes a city to exercise its broad
regulatory power under § 14-54-103(1) to abate activity that a city by ordinance
declares to be a nuisance. The City contends that the statute provides this
authority—within or beyond corporate limits—without a previous judicial
determination that a quarry is a nuisance.4
In Arkansas, "[m]unicipal corporations derive their legislative powers from the
general laws of the state." Phillips v. Town of Oak Grove, 968 S.W.2d 600, 603 (Ark.
1998) (citing Ark. Const. art. 12, § 4). "A municipality has no powers except those
expressly conferred by the legislature, and those necessarily or fairly implied as
incident to or essential for the attainment of the purpose expressly declared." Id. Here,
the City asserts regulatory authority over the Quarry based upon § 14-54-103(1),
which gives cities the power to "[p]revent injury or annoyance within the limits of the
municipal corporation from anything dangerous, offensive, or unhealthy and cause
4
The City relies on an Arkansas Attorney General opinion, stating that the City
has the authority under Arkansas Code Annotated § 14-54-103(1) to determine
whether a given activity is a nuisance. This opinion does not control our interpretation
of Arkansas law, however, because attorney general opinions are not binding
precedent under Arkansas law. See, e.g., Gray v. Mitchell, 285 S.W.3d 222, 231 n.5
(Ark. 2008); Klinger v. City of Fayetteville, 732 S.W.2d 859, 860 (Ark. 1987).
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any nuisance to be abated within the jurisdiction given the board of health in §
14-262-102." In turn, the jurisdiction defined in § 14-262-102 extends "for one (1)
mile beyond the city limits."
Section 14-54-103(1) grants cities two distinct powers. Within its corporate
limits, a city may act to "prevent injury or annoyance . . . from anything dangerous,
offensive, or unhealthy." This general police power allows a city to regulate or, in
some cases, prohibit altogether the operation of an otherwise lawful business. Phillips,
968 S.W.2d at 606 (holding that a city could prohibit commercial swine and fowl
businesses within city limits). In contrast, in the area one mile beyond its corporate
limits, a city may only act to "cause any nuisance to be abated." Ark. Code. Ann. § 14-
54-103(1). As the City has conceded, a city's power in the one-mile area beyond its
corporate limits is more limited than its power inside its corporate limits. Indeed, it
would render the second part of § 14-54-103(1) superfluous to find that a city's power
one mile beyond its corporate limits is coextensive with its power inside its corporate
limits—as the power to "prevent injury or annoyance" would surely include the power
to abate a nuisance. Cf. Citifinancial Mortg. Co. v. Matthews, 271 S.W.3d 501, 506
(Ark. 2008) (stating the general principle of statutory construction that courts should
"construe the statute so that no word is left void, superfluous or insignificant, and . .
. give meaning and effect to every word in the statute, if possible"). Thus, while a city
possesses limited authority to regulate businesses located within one mile of its
corporate limits, those regulations must be directed "to cause any nuisance to be
abated." The question remains, however, whether the City can, in essence, simply
declare otherwise lawful conduct outside its corporate limits to be a nuisance.
The City can regulate the Quarry under § 14-54-103(1) only if the Quarry's
activities constitute a nuisance. The City contends that Arkansas courts have
interpreted § 14-54-103(1) to give cities broad authority to exercise their police
powers to regulate businesses and, incident to that authority, to determine whether a
given activity constitutes a nuisance. In other words, the City argues that it can
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regulate the Quarry without a judicial determination that the quarrying activities
constitute a nuisance. The cases on which the City relies, however, all involved a city's
regulation of a business or activity within its corporate limits. See Phillips, 968
S.W.2d at 603–04 (upholding city's authority, pursuant to § 14-54-103(1), to prohibit
businesses within city limits and finding that ordinance's validity did not depend on
whether businesses were a nuisance); Hackler, 377 S.W.2d at 875–77 (finding that
city could regulate, but not prohibit, rock blasting within city limits because rock
blasting was not a nuisance per se); City of Texarkana v. Brachfield, 183 S.W.2d 304,
306–07 (Ark. 1944) (finding that a city could regulate a hotel located within the city);
City of Little Rock v. Reinman, 155 S.W. 105, 106–08 (Ark. 1913) (finding that city
could regulate livery stables located in the city even though the activity did not
constitute a nuisance). In those cases, the city's statutory authority for regulating the
activity within its corporate limits did not depend on whether that activity constituted
a nuisance. Here, the City's statutory authority extends one mile beyond its corporate
limits but only to abate a nuisance. Thus, the City can only regulate an activity beyond
its corporate limits if the activity is, in fact, a nuisance. See Ward v. City of Little
Rock, 41 Ark. 526, 529–30 (1883) (holding that a statute giving the city authority to
abate a nuisance does not give the city authority to condemn an act that "does not
come within the legal notion of a nuisance").
Under Arkansas law, a rock quarry is only a nuisance if a court of competent
authority determines that it is a nuisance. The Arkansas Supreme Court has recognized
that while a rock quarry may, under some circumstances, constitute a nuisance, it is
not a nuisance per se—that is, it cannot be said to constitute a nuisance under all
circumstances. See Hackler, 377 S.W.2d at 877; Jones v. Kelley Trust Co., 18 S.W.2d
356, 358 (Ark. 1929). In turn, the Arkansas Supreme Court has long held that if an
activity is not a nuisance per se, a city has no authority to legislatively declare that
activity a nuisance absent express legislative authority to do so. See Green Star
Supermarket, Inc. v. Stacy, 411 S.W.2d 871, 873 (Ark. 1967); City of Piggott v. Eblen,
366 S.W.2d 192, 195 (Ark. 1963) (citing cases); City of Springdale v. Chandler, 257
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S.W.2d 934, 935 (Ark. 1953); Town of Dardanelle v. Gillespie, 172 S.W. 1036, 1037
(Ark. 1915). Instead, whether a given activity is a nuisance "is a question to be
judicially determined in each case." City of Arkadelphia v. Clark, 11 S.W. 957, 958
(Ark. 1889).
In the present case, § 14-54-103(1) only grants authority to "cause any nuisance
to be abated." There is no express authority to determine by ordinance whether
something is a nuisance per se beyond the city's boundaries. Thus, the Ordinance's
"Finding of Nuisance and Need for Abatement" did not confer on the City the
authority to regulate the Quarry under § 14-54-103(1). Absent a judicial determination
that the Quarry's activities constitute a nuisance, the City has no statutory authority
to regulate the Quarry in the guise of abating a nuisance. Accordingly, the district
court did not err in finding that Rogers Group was likely to succeed on the merits of
its suit.
B. Irreparable Harm
Next, the City argues that the district court erred in granting the preliminary
injunction because Rogers Group failed to demonstrate that it would be irreparably
harmed if the Ordinance were allowed to go into effect. The City argues that the dump
truck regulations are the only provisions of the Ordinance that alter the Quarry's status
quo. Because of the severability provision in the Ordinance, the City contends that a
preliminary injunction, if any, should be limited to those regulations. The City asserts
that any other harm that Rogers Group alleged was "wholly speculative" and cannot
justify a preliminary injunction. On this point, the City notes that Matson, Roger's
Group's Vice President of Aggregate Operations, acknowledged that the Quarry could
continue operating at the same levels under the Ordinance. Matson stated that the
Quarry's current operations were "sufficiently profitable," but that the restrictions
might hinder future growth.
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"Regardless of the strength of its claim on the merits, a movant for a
preliminary injunction should show a threat of irreparable harm." Gen. Motors Corp.
v. Harry Brown's, LLC, 563 F.3d 312, 318 (8th Cir. 2009). "Failure to show
irreparable harm is an independently sufficient ground upon which to deny a
preliminary injunction." Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003).
"Irreparable harm occurs when a party has no adequate remedy at law, typically
because its injuries cannot be fully compensated through an award of damages." Gen.
Motors, 563 F.3d at 319. We have previously held that a district court did not err
when finding that a loss of goodwill among customers was sufficient to establish a
threat of irreparable harm. Med. Shoppe Int'l, Inc. v. S.B.S. Pill Dr., Inc., 336 F.3d
801, 805 (8th Cir. 2003). While a district court may choose to require more than a loss
of goodwill to demonstrate irreparable harm, the district court ultimately has
discretion to determine "whether an alleged harm requires more substantial proof."
Gen. Motors, 563 F.3d at 319–20.
Here, the district court determined that Rogers Group established a threat of
irreparable harm, finding that Rogers Group would suffer a loss of goodwill if forced
to operate under the Ordinance's restrictions. While Matson did admit that the Quarry
currently operated at a level the Ordinance permitted, he also testified that the
Ordinance would prevent the Quarry from expanding. Without the ability to expand
its operations, Rogers Group cannot bid on larger projects or accept projects on short
notice. The ability to grow and accommodate its customers' demands, Matson
testified, is critical to the Quarry's commercial viability. In addition, Matson testified
that the dump truck restrictions would drive away customers. He further stated that
even if Rogers Group ultimately prevails in the present action, any customers the
Quarry loses—if and when the Ordinance goes into effect—would be unlikely to
return once the Ordinance's restrictions are lifted. Based on this evidence, we conclude
that the district court did not clearly err in finding that Rogers Group established a
threat of irreparable harm.
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III. Conclusion
For the foregoing reasons, we affirm.
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