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Edward Watters, Dean v. C.L. (Butch) Otter

June 8, 2012

EDWARD WATTERS, DEAN GUNDERSON, STEVEN FARNWORTH, MATTHEW ALEXANDER NEWIRTH, INDIVIDUALS, AND OCCUPY BOISE, AN IDAHO UNINCORPORATED NONPROFIT ASSOCIATION,
PLAINTIFFS,
v.
C.L. (BUTCH) OTTER, IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF THE STATE OF IDAHO, TERESA LUNA, IN HER OFFICIAL CAPACITY OF THE DIRECTOR OF THE IDAHO DEPARTMENT OF ADMINISTRATION, AND COL. G. JERRY RUSSELL, IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF THE IDAHO STATE POLICE, DEFENDANTS.



The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it the State's motion to modify or clarify the Court's injunction issued on February 26, 2012. The Court heard oral argument on June 7, 2012, and took the motion under advisement. For the reasons set forth below the Court will grant the State's motion. Occupy Boise shall be allowed to maintain its symbolic tent city in accordance with the Court's February 26, 2012 injunction. But it shall temporarily vacate the grounds to allow the Idaho Department of Administration access so it may assess the damage and develop and implement a rehabilitation plan. Once that is completed, Occupy Boise shall be allowed to return to the Annex grounds subject to the routine grounds maintenance schedule.*fn1

BACKGROUND

In November 2011, Occupy Boise, in solidarity with the Occupy Wall Street movement, erected a tent city on the Capitol Annex grounds to protest income inequality. Occupy Boise placed the tent city on a public plaza in direct view of the Idaho Statehouse, the Idaho Supreme Court building, and other nearby government buildings. As part of their protest, Occupy Boise participants camped on the Annex grounds round-the-clock -- cooking, eating, and sleeping there.

On February 21, 2012, Governor Otter signed into law a bill banning camping on state grounds and issued a directive requiring Occupy Boise to remove the symbolic tent city from the Capitol Annex grounds by 5 p.m. on February 27, 2012. Occupy Boise moved to enjoin enforcement of the no-camping statutes and the Governor's edict directing the occupants to permanently vacate the site.

On February 26, 2012, the Court entered a decision enjoining the state from removing the symbolic tent city but denying Occupy Boise's request to enjoin the ban on camping. Since the Court entered the preliminary injunction, Occupy Boise participants no longer camp on the grounds, but the symbolic tent city remains.

According to the Department of Administration, which manages the Capital mall grounds, Occupy Boise's continued round-the-clock presence at the Annex prevents it from conducting seasonal maintenance. Between mid-March and November each year, each property within the mall area is usually mowed once a week. Id. ¶ 6. The Department mows the Capitol Annex on Wednesdays, weather permitting. Id. ¶ 6. Before mowing any area, the groundskeeper visually inspects the grounds for debris, as foreign objects can create significant safety hazards and damage the mowers. Id. ¶ 7.

In addition to weekly mowing, seasonal maintenance of the grounds includes regular watering. The Department has installed "an Acclima-brand moisture sensor system" to water the grassy areas in the Capitol mall. Id. ¶ 8. The system "senses the amount of water in the soil and automatically waters based on the soil moisture content." Id. The system saves the State money because it uses less water. Id. The Department has set up the watering system so that it waters in the night or early morning hours -- typically between 7:00 pm and 7:30 am. Id. ¶ 9. The Department has determined "this is the best time to block for watering and allows all zones to perform a complete cycle." Id. If grass areas are covered by tents or tarps, they will not receive adequate water. Id. The tarps or tents could also obstruct the sprinkler heads, which are of the "pop-up" variety; if not allowed to pop up, the sprinkler heads may be damaged or may flood the immediate areas. Id.

There are other maintenance needs on the Capitol mall. Id. ¶ 10. As part of seasonal maintenance, the Department fertilizes several times between March and November. Id. It also aerates the ground during the spring, and it must repair sprinkler heads from time to time. Id.

Because grass must be free of debris and other obstructions to be mowed, the Department needs Occupy Boise to remove its encampment every Wednesday to allow for weekly mowing. Likewise, because grass cannot be properly watered if covered by tents or tarps, the Department needs Occupy Boise to remove the encampment every night for watering. The Department may also require Occupy Boise to remove portions of the encampment to address other maintenance needs that arise from time to time.

Along with needed unobstructed access for routine maintenance, the Department asks Occupy Boise to clear the area so the Department may assess the "significant damage" to the grounds caused by the tent city and to develop and execute a rehabilitation plan. Id. ¶¶ 11-15. The Department regularly assesses the condition of the Capitol mall grounds. Id ¶ 13. Ric Johnston, the Facilities Services Manager in charge of overseeing management of the mall grounds, states that the presence of the Occupy Boise tents and structures has hampered his complete assessment of the grounds. Id. But from what he has observed, he predicts that the Department will need to re-seed or re-sod (or both) approximately 10,000 to 25,000 square feet of grass. Id.

At oral argument, counsel for the State clarified that the Department would need one week to assess the damage and an additional seven weeks to develop and implement a rehabilitation plan. If allowed, this would require Occupy Boise to vacate the Capitol Annex for eight weeks.

To accommodate these needs for repairs and maintenance, the State asks the Court to modify or clarify the injunction to allow the state unobstructed access to the Capitol Annex grounds to conduct repairs and routine maintenance. If the Court denies the motion to modify the injunction, the State requests that Occupy Boise post a bond of $10,000 to cover the costs of repairs ...


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