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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`
`
`Dilevon Lo, et al.,
`
`No. 2:21-cv-00999-KJM-AC
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`Plaintiffs,
`
`ORDER
`
`v.
`
`
`
`County of Siskiyou, et al.,
`
`Defendants.
`
`While this case is pending, this court enjoined Siskiyou County from enforcing two
`ordinances that would likely cut off the water supply to a predominantly Hmong community
`within its borders. Although the County cited legitimate concerns when it adopted these
`ordinances, such as preventing people from using scarce groundwater to grow marijuana illegally
`on a commercial scale, serious questions surrounded its intentions. The County has now
`modified the two ordinances by resolution, but not amendment, and has clarified the system of
`permits they created. It moves to dissolve the preliminary injunction blocking the two
`ordinances. The County’s changes resolve some concerns and reduce the chance people will go
`without water for their basic needs, but the County has not established the injunction is no longer
`warranted. The court denies the motion as explained below.
`Although the County has not shown that changes to its permitting ordinances currently
`justify revisions to or dissolution of the preliminary injunction, it has shown that a modified
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`preliminary injunction could potentially minimize the risks of irreparable harms to the plaintiffs
`and simultaneously loosen the injunction’s strictest terms. This matter is thus referred to a
`mandatory court-convened settlement conference to explore that possibility.
`
`I.
`
`BACKGROUND
`
`Although California law allows marijuana use and distribution in some circumstances,
`California cities and counties can restrict or prohibit marijuana use and distribution. Prelim. Inj.
`(Sept. 3, 2021) at 2 n.1, ECF No. 47. For several years, Siskiyou County has been attempting to
`reverse a burgeoning trend of commercial cannabis cultivation within its borders. See id. at 1–2.
`Large-scale cannabis cultivation in the County is impossible without large volumes of water for
`irrigation, and water has become more precious in recent years as a result of prolonged and often
`severe droughts. See id. at 7, 10. The County banned commercial cannabis cultivation in 2015,
`declared a state of emergency in 2018, and banned the use of groundwater for illegal cannabis
`cultivation in 2020. See id. at 2, 7–8.
`After the ordinances were adopted, violent crime spiked in many places where marijuana
`was illegally grown. See id. at 5, 10; see also LaRue Decl. ¶¶ 6–7, ECF No. 57-4 (reporting that
`violent crime has continued in recent months). Commercial growers flouting the County’s rules
`also used dangerous or illegal pesticides, herbicides, fertilizers, and other chemicals, and workers
`lived in dangerous and unsanitary conditions. See Prelim. Inj. at 5, 10. Some people who lived or
`worked at illegal grow sites died in unsafe structures as a result of carbon monoxide poisoning.
`See id. at 5. Traditional law enforcement efforts to curb these problems proved ineffective or
`prohibitively expensive. See id. at 2, 3.
`In 2021, after recognizing that most commercial cannabis growers irrigate their crops with
`well water delivered by truck, the County adopted two emergency ordinances. See id. at 8–10.
`One requires permits for groundwater extraction for use off parcel. See id. The other imposes a
`permit requirement for transporting groundwater by truck. See id. Groundwater extraction and
`trucking are misdemeanors without these permits, and unpermitted water trucks can be seized.
`See id.
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`These permitting ordinances had immediate effects as well, and not just on the illegal
`grow operations. Many of these operations are concentrated in an area known as the Mount
`Shasta Vista Subdivision, “MSV” or “Shasta Vista” for short. See id. at 3–4. Shasta Vista is
`predominantly Hmong. Id. at 5. Many Hmong people in Shasta Vista do not speak English as
`their first language, do not understand how to establish a residence legally, and harbor suspicions
`of government and authority due to historic persecution at the hands of communist authorities in
`Laos. See id. at 6. Many have thus built houses and other structures without the necessary
`permits and without access to a permanent source of useable water. See id. at 6–7. They depend
`on trucked groundwater for their basic needs—the very same groundwater that is subject to the
`County’s recent prohibitions. See id.
`For many of the same reasons Hmong people in Shasta Vista do not establish legal
`residences or obtain building permits, they could not or would not obtain water extraction and
`trucking permits. See id. The permit applications also required a great deal of specific
`information that would be difficult for most lay people to obtain. See id. at 11–12. For example,
`applicants were required to provide zoning information and assessor’s parcel numbers. See id.
`For these reasons, when the two permitting ordinances came into effect, many people in Shasta
`Vista were without water for drinking, bathing, growing food, raising livestock, and their other
`basic needs during the hottest months of the year. See id. at 11–15.
`Several Hmong people from Shasta Vista filed this lawsuit in June 2021, a few months
`after the groundwater restrictions went into effect. See generally Compl., ECF No. 1. They
`moved immediately for a temporary restraining order and a preliminary injunction, claiming the
`County’s ordinances deprived them of rights under the Fourteenth Amendment’s Due Process and
`Equal Protection clauses, among other things. See generally Mot., ECF No. 4. The court denied
`their request for a temporary restraining order but later granted their motion for a preliminary
`injunction. See generally Order Den. TRO at 8–11, ECF No. 11; Prelim. Inj., ECF No. 47.
`When the court issued the preliminary injunction, it held that the plaintiffs’ equal
`protection claim was the only claim likely enough to succeed so as to justify a preliminary
`injunction. See id. at 18–26. The challenged ordinances do not single out anyone by race, so the
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`plaintiffs’ only path to success would be to prove the ordinances had a “racially disproportionate
`impact” and were enacted with “racially discriminatory intent.” Id. at 21 (quoting Vill. of
`Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977)). The plaintiffs cited
`evidence showing the two ordinances exacted a heavy and disproportionate toll on Hmong people
`in Shasta Vista. See id. at 22. The court found they were likely to prevail on that point as the
`case continued. Id.
`Discriminatory intent was a far more difficult question to answer. Although the plaintiffs
`had not shown they were likely to prove, at the end of the day, that the County had acted with a
`racially discriminatory intent, the plaintiffs had raised “serious questions” about the County’s
`intentions, and in the Ninth Circuit those “serious questions” can justify a preliminary injunction.
`See, e.g., All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). For
`example, County officials knew that most Hmong families in Shasta Vista were living without a
`reliable water supply, but the County expected to grant only a handful of permits. Prelim. Inj. at
`24. The permits required applicants to supply a great deal of specific information, such as the
`assessor’s parcel number and zoning category, water needs, expected driving routes, and other
`minutiae, and the reasons for imposing such specific requirements were unclear. See id. at 11–12,
`25. County officials also had broad discretion to deny permits and faced no deadlines to act. Id.
`at 25. It was difficult to understand what purpose this burdensome and opaque permitting scheme
`might serve if not to deter Hmong people from applying for permits. Id. Anti-Asian vitriol,
`vigilantism, intimidation, and racially motivated violence has also beset Siskiyou County in
`recent years, and County officials used concerning language to describe their goals. See id. at 6,
`25–26. The court could not discount the possibility this language tacitly validated anti-Asian
`sentiments. See id. at 25–26. The County also knew about many illegal grow sites other than in
`Shasta Vista, but it had limited its water truck permitting ordinance to a few roads around Shasta
`Vista—exactly where the County’s Hmong population is concentrated. See id. at 26.
`It bears repeating that this evidence did not prove the County, its Board of Supervisors, or
`other officials intended to discriminate. Id. Rather, the plaintiffs had raised serious questions
`about the intentions behind the County’s permitting ordinances, and the court could not
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`immediately answer those questions. See id. The plaintiffs also proved they were likely to suffer
`irreparable harm, and the balance of hardships tipped sharply in their favor. They and many
`others would likely go without water for their basic needs if the two permitting ordinances
`remained in effect. See id. at 26–28. The court therefore granted their motion for a preliminary
`injunction and stopped the County from enforcing the two permitting ordinances until this case
`could be resolved.
`As it confirmed at hearing, the County has complied with the injunction and has stopped
`enforcing the two permitting ordinances. LaRue Decl. ¶ 15, ECF No. 57-4. Water truck
`deliveries have resumed. Id. Deliveries occur mostly at night, but daytime deliveries have
`increased in recent weeks. Id. The Sheriff’s Office “has received frequent reports from the
`public of massive amounts of groundwater being pumped from agricultural properties.” Id.
`Trucks line up to collect water from local ranchers, and although well owners are subject to fines,
`“the fines are no deterrent given the level of profit to the provider of water.” Id. Drought also
`has continued to plague Siskiyou County since the court granted the plaintiffs’ motion for a
`preliminary injunction, and California water agencies have restricted off-parcel groundwater use,
`but not if necessary to meet basic needs, such as growing food and cooking. See, e.g., Dean Decl.
`¶¶ 22–23 & Ex. C at 4, ECF No. 57-3.
`When the court granted the motion for a preliminary injunction, it noted the County could
`move to dissolve that injunction if it adopted “new ordinances that do not impose the same
`burdens,” if it imposed “simple permit requirements that do not weigh unfairly on Hmong
`community members,” or if it ensured “people in Shasta Vista will have a safe and adequate
`source of water other than trucked groundwater while this case is pending.” Prelim. Inj. at 27–28.
`Taking that cue, the County modified the two ordinances through resolutions of its Board of
`Supervisors. See Siskiyou Cty. Code §§ 3-4.1501 to .1506 & 3.5-13.101 to .109. The full text of
`the permanent ordinances is included in an appendix to this order for ease of reference. The
`County’s Board of Supervisors also expanded the truck-permitting ordinance county-wide. Haupt
`Decl. ¶ 3, ECF No. 57-5. A resolution now also exempts trucks from the permit requirement if
`they comply with potable water transport regulations. Id. Finally, County officials simplified
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`permit applications and clarified application requirements. See generally Dean Decl. & Exs. A–
`B, ECF No. 57-3.
`In addition, the County represents it has made clear the plaintiffs may apply for permits to
`drill wells on their land in Shasta Vista. Mem. at 11–12, ECF No. 57-1. There is no moratorium
`on well drilling, as some have believed in the past. See Prelim. Inj. at 7 (citing Griset Decl. ¶ 8,
`ECF No. 9-11). But at least two Hmong people in Shasta Vista have run into roadblocks when
`attempting to apply for permits. Koua Lee, a plaintiff who owns land in Shasta Vista, says he
`applied for a well-drilling permit five years ago, but the permit has gone nowhere. Koua Lee
`Decl. ¶ 6, ECF No. 62-1. In February 2022, he went to the County office to renew his permit
`application, but the people he spoke to told him the County has no well inspector and there is a
`long list of applications, “so it will be a couple years from now before [the County] can get it
`approved.” Id. Khue Cha, another plaintiff and Shasta Vista property owner, says the County has
`not allowed him and others to apply for any permits since a 2021 wildfire. See Khue Cha Decl.
`¶ 10, ECF No. 62-2; see also Schenone Decl. ¶¶ 3–10, ECF No. 31-4 (describing the fire and
`evacuation).
`The County now moves to dissolve the preliminary injunction, citing the changes and
`clarifications summarized above. See generally Mot., ECF No. 57; Mem., ECF No. 57-1. The
`plaintiffs oppose that motion, see generally Opp’n, ECF No. 61, as do the ACLU of Northern
`California and Asian Law Caucus, whom the court has again permitted to participate as amici, see
`Amicus Br., ECF No. 60-1; Order, ECF No. 68. The County filed a reply, ECF No. 67, and the
`court held a hearing on April 15, 2022, see Minutes, ECF No. 72. Allison Margolin and Geoffrey
`Gallegos appeared for the plaintiffs. Scott Donald appeared for the County. John Do, Stanley
`Young, and Emi Young appeared for the amici.
`Some of the County’s legal arguments could be interpreted as contending that the
`injunction or the whole case is now moot. See Mem. at 9–10. The County clarified at hearing it
`does not contend the case is moot, rather only that the injunction is. Regardless of how the
`County characterizes its arguments, this court must ensure it has subject matter jurisdiction, both
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`to hear the case and to impose injunctive relief. See MetroPCS Cal., LLC v. Picker, 970 F.3d
`1106, 1117 (9th Cir. 2020). The court begins with this threshold jurisdictional question.
`
`II.
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`JURISDICTION
`
`Private people and businesses cannot normally moot the claims against them by changing
`their conduct. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
`(2000). If they could, courts would have no choice but to leave them to return to their “old
`ways.” Id. (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982)).
`But when government officials are sued and then change their conduct, federal courts grant them
`greater “solicitude.” Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d
`1195, 1198 (9th Cir. 2019) (en banc) (quoting Am. Cargo Transp., Inc. v. United States, 625 F.3d
`1176, 1180 (9th Cir. 2010)). Although “there is always the possibility of bad faith and a change
`of heart,” courts “presume the government is acting in good faith.” Am. Cargo Transp., 625 F.3d
`at 1180. “For this reason, the repeal, amendment, or expiration of challenged legislation is
`generally enough to render a case moot and appropriate for dismissal.” Glazing Health &
`Welfare, 941 F.3d at 1198.
`Sometimes, however, a case might not be moot even if a challenged law or ordinance has
`been repealed or modified. “For example, in City of Mesquite v. Aladdin’s Castle, Inc., the
`Supreme Court refused to dismiss an appeal as moot where a city had revised a challenged
`ordinance but was reasonably expected to reenact offending provisions because it had announced
`its intention to do so.” Id. (citing 455 U.S. at 289 & n.11). A controversy might also remain
`alive, and the court would have jurisdiction to resolve it, if the law or ordinance the plaintiff
`originally challenged has been replaced with a similar law or ordinance that imposes a similar but
`lesser burden. See Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville,
`508 U.S. 656, 662–63 (1993).
`The Ninth Circuit recently clarified the rule for deciding whether a case against a
`governmental defendant fits the exception to the presumption of good faith. The court presumes
`“the repeal, amendment, or expiration of legislation will render an action challenging the
`legislation moot, unless there is a reasonable expectation that the legislative body will reenact the
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`challenged provision or one similar to it.” Glazing Health & Welfare, 941 F.3d at 1199. “The
`party challenging the presumption of mootness need not show that the enactment of the same or
`similar legislation is a virtual certainty, only that there is a reasonable expectation of
`reenactment.” Id. (quotation marks omitted). This determination “must be founded in the
`record, . . . rather than on speculation alone.” Id.
`To the plaintiffs, Siskiyou County’s permitting ordinances are just as objectionable today
`as they were when this case began. Although the County has modified the ordinances by
`resolution, and although County officials have revised and simplified permitting requirements, if
`Hmong people in Shasta Vista cannot obtain the necessary permits, they will probably not have
`water to grow food, raise animals, cook, clean, or bathe. In this sense, they are in the same
`situation as the plaintiffs the Supreme Court wrote about in Associated General Contractors, 508
`U.S. at 662–63. As in this case, the plaintiffs there had challenged a local ordinance, and the
`government had repealed and replaced it while the litigation was pending. See id. at 658–59. The
`new ordinance might have been somewhat less objectionable to them, but it caused them the same
`disadvantage, albeit to a “lesser degree.” See id. at 662-63.
`Here, given the limitations in the County’s changes, the court has jurisdiction to uphold
`the injunction or to dissolve or modify it.
`
`III. DISSOLVING OR MODIFYING THE PRELIMINARY INJUNCTION
`
`“The power of a court of equity to modify a decree of injunctive relief is long-established,
`broad, and flexible.” Brown v. Plata, 563 U.S. 493, 542 (2011) (citation omitted). When a party
`asks to modify or dissolve an injunction, the court considers whether “a significant change in
`facts or law warrants revision or dissolution.” Karnoski v. Trump, 926 F.3d 1180, 1198 (9th Cir.
`2019) (per curiam) (quoting Sharp v. Weston, 233 F.3d 116, 1170 (2000)). “[A] motion to
`modify a preliminary injunction is meant only to relieve inequities that arise after the original
`order.” Credit Suisse First Bos. Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005) (quoting
`Favia v. Ind. Univ. of Pa., 7 F.3d 332, 228 (3d. Cir. 1993)). It “must rest on grounds that could
`not have been raised before.” Alto v. Black, 738 F.3d 1111, 1120 (9th Cir. 2013). Otherwise a
`party could “regain its lost opportunity” to appeal a preliminary injunction “simply by making a
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`motion to modify or dissolve the injunction, having the motion denied, and appealing the denial.”
`Karnoski, 926 F.3d at 1198 (quoting Gon. v. First State Ins. Co., 871 F.2d 863, 866 (9th Cir.
`1989)). For that reason, this court will not revisit its prior decision to impose a preliminary
`injunction. Nor will the court consider now, for the first time, any evidence and arguments the
`parties could have presented before but did not.
`The legal test for dissolving or modifying an injunction has two parts: the moving party
`must show not only that the facts or the law have changed significantly, but also that in light of
`these changes, the injunction should be dissolved or modified under the legal standard that
`governed the issuance of the injunction in the first place. See Karnoski, 926 F.3d at 1198 & n.14.
`The court considers whether any changes are “significant,” and if so, whether the changes
`“warrant[] revision or dissolution of the injunction.” Sharp, 233 F.3d at 1170.
`
`A.
`
`“Significant” Change
`
`The court begins with what is unchanged. Although the County’s ordinances matured
`from urgency ordinances into permanent ordinances, the County has identified no practical
`difference between urgency and permanent ordinances, and the court is not aware of any
`difference that makes the preliminary injunction unjust. Nor do the terms of the current
`ordinances differ meaningfully from the terms of the urgency ordinances the court considered
`before. The backdrop against which this litigation has played out is also unchanged in most
`respects. No one disagrees, for example, that illegal cannabis grow sites continue to thrive, that
`people in Shasta Vista still depend on trucked groundwater both to satisfy basic needs and to
`irrigate commercial cannabis crops, that drought conditions persist, or that violent crime has not
`abated.
`The parties do disagree, ardently, about whether County officials were motivated by race
`in their adoption of the ordinances. Regardless of how acrimonious this dispute has become, the
`court need not resolve it now. The evidence the parties rely on in contesting the County’s
`intentions does not illustrate what has changed since this court issued the preliminary injunction;
`it is evidence about what the County and its officials knew and did before. The court will not
`reconsider its decision to impose a preliminary injunction, and it will not weigh evidence and
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`arguments that could have been raised before but were not. See Karnoski, 926 F.3d at 1198; Alto,
`738 F.3d at 1120. Summary judgment and trial are more appropriate forums for relitigating these
`disputes.
`Some circumstances have changed, however, since this court entered the preliminary
`injunction, as summarized above. First, both the truck ordinance and the extraction ordinance
`now apply throughout the County, whereas the truck ordinance was previously enforced only on
`roads near Shasta Vista. Second, the Board of Supervisors has clarified in a resolution that trucks
`carrying potable water are not subject to the permit ordinances. Third, the County’s permit
`applications are simpler and clearer in several ways. These changes, discussed in more detail
`below, respond to some of the primary criticisms the plaintiffs raised to justify their original
`request for a preliminary injunction. They also lessen the burdens of applying for a permit. For
`these reasons, they are “significant” in the necessary sense. See, e.g., Karnoski, 926 F.3d at 1199
`(holding modifications to challenged military policy were “significant” in part because they
`responded to criticisms previously raised and changed how policy operated). The question, then,
`is whether these changes warrant any modifications to the preliminary injunction or its
`dissolution.
`
`B.
`
`Revision or Dissolution
`
`Ordinarily, when a court is deciding on a clean slate whether to issue a preliminary
`injunction, the moving plaintiffs must show (1) they are “likely to succeed on the merits” and
`(2) “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of
`equities tips in [their] favor” and (4) “an injunction is in the public interest.” Winter v. Nat. Res.
`Def. Council, Inc., 555 U.S. 7, 20 (2008). “Alternatively, ‘serious questions going to the merits
`and a balance of hardships that tips sharply towards the plaintiff can support issuance of a
`preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable
`injury and that the injunction is in the public interest.” City & Cty. of San Francisco v. U.S.
`Citizenship & Immigr. Servs., 944 F.3d 773, 789 (9th Cir. 2019) (quoting All. for the Wild
`Rockies, 632 F.3d at 1135).
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`But if the court is not writing on a clean slate—if a plaintiff has carried its burden and a
`preliminary injunction is already in place—a defendant who seeks to dissolve the injunction is the
`one who must demonstrate its entitlement to that relief. Karnoski, 926 F.3d at 1198. The Ninth
`Circuit has not explained clearly what that burden entails. In Karnoski, the most recent published
`opinion applying this test, the circuit initially described a district court’s task using quite
`permissive language. The district court “should be guided by the same criteria that govern the
`issuance of a preliminary injunction,” it wrote, and it identified “factors” for the district court to
`consider. Id. at 1198–99 & n.14. After the panel elaborated on these “factors,” however, it used
`much more restrictive language, and it emphasized the plaintiff’s burden instead:
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`[T]he district court . . . must apply the “traditional” standard for
`injunctive relief to determine whether dissolution of the injunction is
`warranted, addressing: (1) whether Plaintiffs have made a sufficient
`showing of a likelihood of success on the merits; (2) whether
`Plaintiffs will be irreparably harmed absent interim relief; (3)
`whether the issuance of an injunction will substantially injure other
`parties; and (4) where the public interest lies.
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`Id. at 1202. The circuit then offered citations to cases interpreting the standard for motions for
`stays pending appeal and permanent injunctions, but not preliminary injunctions. See id. (citing
`Nken v. Holder, 556 U.S. 418, 434 (2009); City & County of San Francisco v. Trump, 897 F.3d
`1225, 1243 (9th Cir. 2018); and Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017)).
`On remand in Karnoski, the parties agreed to vacate the preliminary injunction, so the
`district court had no need to confront the uncertainties in the circuit’s instructions. Other district
`courts have since interpreted those instructions differently. One has required the moving party to
`prove it is entitled to relief from the preliminary injunction under all four of the relevant criteria,
`whether those criteria are imposed directly or through the alternative test for cases of “serious
`questions.” See CW Baice Ltd. v. Wisdomobile Grp. Ltd., No. 20-03526, 2021 WL 3053147, at
`*4 (N.D. Cal. July 20, 2021). This interpretation creates a conjunctive test: the defendant must
`prove an injunction is unwarranted under each of the four criteria. See id. By contrast, another
`district court read Karnoski as holding that a party seeking to dissolve a preliminary injunction
`will prevail if it shows the plaintiffs cannot now satisfy all four parts of the test. See Index
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`Newspapers LLC v. City of Portland, No. 20-1035, 2022 WL 72124, at *9 (D. Or. Jan. 7, 2022).
`This interpretation creates a disjunctive test; the defendant may prevail by disproving any one or
`more of the four criteria. See id.
`Although no district court appears to have said so, a third interpretation is also plausible.
`To borrow the terms of Karnoski, it would be reasonable to conclude that a district court may be
`“guided by” the “traditional” standard for injunctive relief and “address[]” each part of that
`standard without applying the standard mechanically or as a checklist. 926 F.3d at 1199, 1202.
`This more flexible interpretation recognizes district courts’ “wide” discretion to ensure their
`injunctions are just and to fit those injunctions to the evolving circumstances of each case. See,
`e.g., Brown, 563 U.S. at 542; see also, e.g., Sys. Fed’n No. 91, Ry. Emp. Dep’t, AFL-CIO v.
`Wright, 364 U.S. 642, 648 (1961); A&M Recs., Inc. v. Napster, Inc., 284 F.3d 1091, 1098 (9th
`Cir. 2002).
`The plaintiffs and amici argue the result would be the same no matter which test the court
`applies. Indeed, many motions to modify or dissolve injunctions will probably not stand or fall
`on the choice of test. Cf. CW Baice, 2021 3053147 at *4–7 (expressing the test in conjunctive
`terms but continuing to address each of the four parts even after the defendants fell short of the
`first part). The court is loath to assume merely that one or another interpretation is correct in light
`of the sensitive and difficult conflicts in this case and so confronts the question directly here in
`the interests of clarity and certainty.
`It might be tempting to conclude that a district court should use a flexible version of the
`preliminary injunction test, one that treats the four traditional prerequisites to a preliminary
`injunction like factors in a multi-part test. District courts do have wide discretion to dissolve or
`modify injunctions, but “[d]iscretion is not whim, and limiting discretion according to legal
`standards helps promote the basic principle of justice that like cases should be decided alike.”
`Martin v. Franklin Cap. Corp., 546 U.S. 132, 139 (2005). A preliminary injunction is also “an
`extraordinary remedy never awarded as of right,” Winter, 555 U.S. at 24, a “drastic” form of
`relief, Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation omitted). The legal standard a court
`applies to motions for preliminary injunctions ensures this extraordinary remedy is employed
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`only in appropriate circumstances. Together, the four parts of the established test balance the
`competing interests that “arise whenever a court order may allow or disallow anticipated action
`before the legality of that action has been conclusively determined.” Nken, 556 U.S. at 434. On
`one side of this balance is the likelihood the plaintiffs will eventually prevail, but before then will
`suffer an irreparable harm unless the court preserves the status quo. See Winter, 555 U.S. at 20;
`Munaf, 553 U.S. at 690. On the other side is the harm that would likely come to those who
`oppose the injunction, and to the broader public, if the court enjoins them while the plaintiffs
`attempt to prove their case. See Winter, 555 U.S. at 24.
`Viewing the question in this way demonstrates why a defendant who seeks to modify or
`dissolve an injunction should not be required to prove that each element of the four-part test
`weighs in its favor. For one, if circumstances change, a continuing injunction might prove to be
`unjust even though the plaintiff is no less likely to prevail at the end of the day. That might be
`true, for example, if the intervening change drastically exacerbates the injunction’s negative
`consequences for the defendants and the greater public. A defendant who seeks to modify or
`dissolve the injunction in this situation should not be forced to prove the plaintiff is now also
`unlikely to succeed on the merits. A preliminary injunction might be unjust even if the plaintiff’s
`success is likely. Alternatively, an injunction might no longer be warranted if the plaintiff is
`much less likely to prevail, but would suffer the same irreparabl