but the district's failure to grant a plenary injunction in this case was an abuse of discretion for a number of reasons st the district court abused its discretion in concluding that the plaintiffs were unlikely to succeed on the merits to start with the district court decision doesn't in a way that violates the law in numerous respects yes so if that were all it would not support injunctive relief because it's a claim ultimately for damages and you could get a refund from any overcharge if you prevail the trial and your response that is i understand from your papers is well this might drive the company into bankruptcy but it's you know you know  support that other than a suspect lation and the trial this cases of mistaken coming up in a few months so it's hard for me to see why this is not really a matter of damages and therefore not supportive of injunctive relief to start with your honor it's not mere speculation that the plaintiffs here would be forced into bankruptcy by these extreme rate increases which are increases on their most important input in fact that the declaration is that were submitted to the district court demonstrate that bankruptcy is very likely the result of these this can't be proved or damages are not going to be an adequate remedy because by the time this trial is completed that bankruptcy would likely already have occurred and require to prove to demonstrate the harm prong of the preliminary injunction is that irreparable harm is is likely to occur and it's very clear that bankruptcy were installed and see if a business is an irreparable harm because once the business is gone the damages the refunds in this case are not sufficient to restore the business was there any finding by the judge of that you would be likely to go into bankruptcy so the judge just said our declarations were conclusory whatever that forth economic analysis in detail of exactly why this would drive you into bankruptcy the analysis is that these are the most important input costs for these businesses that these would place the businesses at an impossible economic disadvantage as compared to competition in less in areas with less expensive utility rates and that would force the business is to close so conclusory to so i here's here's what we have in the way of net worth here's how this would affect it an accountant could probably do this and you know a fairly short time but nothing like that was presented right now there's certainly  quantification of exactly how much that increase in rates would be there it's very clear that these are smaller businesses that are operating in just in grant county or in a few places around the country  and that the rate increases would not be bearable by these companies and so and again the standard is just that you have to show a likelihood irreparable harm not that it's definite or that you know there's some specific quantity of proof it has to be provided it just has to be that it's likely that you'll suffer irreparable harm and i think the declarations in this case clearly meet that standard in terms of the specifics of the rating crease there are several factors in the several elements of the rating crease at least two of which are unsupportable on the record st the plaintiffs are required to pay cross subsidy element which is simply a transfer of wealth from plaintiffs to the favorite customers of the p d that increases the rate by itself but a thirty two percent there's no factual justification for this well you know i mean i understand your argument but why isn't it a factual justification that we have the potentially hundreds  infrastructure changes and it's fair to make those who are potentially causing this pay for that i mean reasonable people might come to another approach but what is that  is arbitrary about those factual type determinations of higher rate maker so that it with respect to this specific element this is purely a cross subsidy the risk that you're talking about are covered by other elements of that rate are come into grant county and that element of the rate it is completely justified by that they supposed influx of new crypto miners in including causing updates to the system  see whether there was any case where washington had invalidated electrical rates as discriminatory or unreasonable in your freefall as storage all would seem to be owning a additional costs we're going to make a new class and here is here is the practical basis for creating this new class and so there has to be something terribly wrong about that and i didn't really see why that wasn't a practical basis for raising rates so here's what's terribly wrong about that this ignores the the new facilities policy program is requiring all new trans all new customers all new major customers to pay upfront for any new transmission that those costs are already covered by the beauties policy future if if these future cryptocurrency customers show up at all which is a major question because of the q policy they're going to be required to pay all the costs of upgrades to the transmission system that are required to serve their load so charging my plaintiffs who are current customers who don't benefit from that transmission upgrades and who don't cause the transmission upgrades is not only unfair to mike mike plaintiffs but also constitutes a double recovery so we're being forced to pay for transmission facilities that are only needed for future problem with the grandfathering argument is that the district court concluded that grandfathering is not permitted and that that obvious legal error caused her to overlook or even not not to address all the evidence that the the category on supposed business and regulatory risks that are supposedly unique to cryptocurrency but the bechard is absolutely clear that they're not unique to cryptocurrency all the large businesses that are served by grant county face those risks in particular the cryptocurrency or excuse me the polysilicon industry if you compare the charts of volatility that are in our brief there's really no distinction between the cryptocurrency industry and the polysilicon industry in terms of the risks that approach it presents to grant county in terms of the volatility of the price of the ultimate output of that industry and so it was arbitrary to say represents risks that are not represented by other industries and charge us a the the appellant's in this case to quote a rate increase of this magnitude would render we have his operations in grant county uneconomical and force we have to cease operations we hash a substantial investment county would be destroyed that is the extent of the evidence that the district court had for a liar with regard to the harm that was likely to occur in the event injunction was granted in this case and under the law that we've cited that is clearly not the standard the supreme court of the united states has said that monetary damages alone are not sufficient  to to to establish irreparable harm and if if all that is required is a conclusory statement that an entity may suffer these damages may go out of business may the nothing is impossible but this case presents a extreme case of nearly insurmountable hurdles for the appellants for good reason we start out with the fact that they're seeking a preliminary injunction which is as you know an extraordinary and drastic remedy rarely given and for good reason the case this case hasn't been adjudicated no substantive motions have been heard no trial has occurred no evidence has been presented other than in the form of the record which was significant and the parties declarations the jurisdiction st jurisdiction has not been triggered because this is this is not power that's moving in interstate commerce it's not regulatory rate making where there's a gap in the state's authority the district court seems to me really overrode the language in the documentation but as i understand your argument also is even if the section applies there's still no private right of action for ratepayers our position i think fundamentally for the purposes of this appeal of this preliminary injunction matter is that it's an interesting intellectual argument as to whether the federal power act applies or not but as the court ultimately concluded for the purposes of determining whether a preliminary injunction should issue the standard that would be in effect is one of unreasonable standard for reasonable assen the federalist and if there is some official like this is that correct that's that's correct your honor for again for the purposes of determining the outcome of this motion the court can assume that the standard is the same that is both washington law and the federal power act limit limit a rate maker's ability to engage in discriminatory rate making unreasonable discriminatory rate making so so what the court did reasonably was to say look i don't need to get to the this issue about whether the federal power act applies or not because  the standard is the same and looking at the record it is clear that the the grant county public utility district did not engage in discriminatory that is they did not abuse their discretion based on the record before the court at the time of the motion let me just ask one more question about the outlook of if section twenty and it applies mid columbia river owned by the p d could enter into interstate commerce and be subject to further regulation but not this power rates we're talking about here are retail rates the power is generated  went off on her reading of the yakama nation case not on anything to do with whether in fact this was strictly in trust state i believe that's correct your honor we  this court and that was the focus of our argument below i was simply responding to the court's question but again i would at this stage the court's conclusion that it could use the standard the unreasonable discriminatory standards set forth in the f p a for purposes of argument leads to the same result and that is that there was no arbitrary rate making that occurred here and that's certainly an issue that the district court will have to wrestle with as we move forward in this case two motions practice or otherwise sixty s when the smaller cultural community consisting primarily of farmers and residents and small businesses you know byrd lee went for certain financing permitted and built dams on the river and those those dams have been providing a source of inexpensive and reliable power for many years but in recent years entities that have been chasing relatively cheap power have moved  county and the present a challenge is to the county to the p t a should say and this is a this is what the this is what this case all comes back to and that is that in two thousand and seventeen rather had been a bow wave of cryptocurrency miners including some of the plaintiffs who had come into the county there were there was an overwhelming and unprecedented number of inquiries from cryptocurrency miners for which authority as provided under r t w fifty poor four sixteen point zero four which provides it with the full an exclusive authority to sell and regulate control the use of distribute distribution rate services prices etc very broad authority they were forced the puti the puti commission was forced to act and it acted in two ways st of all it was confronted with such a large number of increase it simply had to come up with a way to prioritize how to count to treat them so the argument that plaintiffs are all existing customers and they're paying their way now a who have several like characteristics that is they present economic risk based on their operations there they confront regulatory risk and together they comprise a concentration of demand from the utility that reasonably puts them in the same category that is a rate class and rate classes you know are  are derived from those unique characteristics and it doesn't mean they have to be identical that is you know we there are a group classes there may be potato farmers in that rate class or maybe apple farmers in that rate class they may face different kinds of challenges in their in their various culture enterprises but they're similar enough that the the acting within its discretion under the law can group them together and charge them the same rate and that's precisely what happened here so the fact that somebody had their their foot in the door st doesn't necessarily mean that they shouldn't appropriately be placed in a different rate class with others who are engaged in the same business and in the estimation of the p d pose the same risk that's precisely what happened here so when this challenge  when they were confronted with this challenge of all these applications or i should say expressions of interest from cryptocurrency miners in two thousand and seventeen they exercise they being the exercised its authority under the law to establish a q poll of see which mr christiansen referred to briefly at the outset of his argument that q policy in effect put scripta currency do that and they did it and then they engaged in a nine months nine to twelve month process to determine how to best deal with the unique challenges that are posed by this particular industry that resulted in this stablish of the emerging industries rate class and rate schedule seventeen that's the subject of this challenge the result was that the plaintiffs and other cryptic currency miners were exposed to higher rates  nobody likes to pay higher rates he said don't think so but that doesn't make the decision of the pew d arbitrary and capricious and it doesn't  create a constitutionally protected interest such that this rises to the level of the not dial up of federal or state due process right and the state the district court  correctly concluded that given the high standard for which it had to evaluate the law and its application to the facts here that they that this these pla rate that has been recognized by any federal court and therefore they are not entitle for the preliminary relief they're seeking they were correct that is the district court was correct it did not abuse its discretion and we would ask this court very there are five different elements of this rate if you look across subsidy that plaintiffs are being forced to disgorge that's more than half the rate and there's no basis for that rate other than the transfer of wealth from plaintiffs to defendants their plaintiffs to their favored industries within grant county the only justification that we could find in the record is the staff's perception that the type of customer what our customers and governments want in terms of discounts and premiums is the basis for this that's it that's a political judgment not substantial evidence that justifies this rate increase that's more than half of this rate increase that's a confiscatory rate increase which violates the plaintiff's due process right under a century of of precedent laid out in our briefs and that means even if you disregard the economic harm and the threat of bankruptcy to the plaintiffs that there's irreparable injury to their their constitutional rights just based eight says the utilities are off authorized to provide your syllabi services at reduced rates but only for low income and senior citizens there's no authorization to provide reduced rates to favored customers in the irrigation industry  residential customers which is what the p d is doing here so just viewing that element in isolation this rate is arbitrary and capricious produces irreparable harm we satisfied all the elements of the of point in every injunction standard here to address your honor's questions on section eight hundred and thirteen of the federal power act it is triggered when any part of the power sold from licensed hydroelectric project is sold in interstate  interest do you disagree with that i disagree with that the power anytime the power travels in interstate commerce it affects interstate commerce that is the power being generated and sold to your clients traveling in well the power travels where travel as it travels on an interstate grid the power that plaintiffs are served with could come from anywhere on that interstate grid and the triggering event for section eight  and just discriminatory rates declares them to be unlawful the only question is who gets to enforce that the rest of the section talks about if there is state regulation then st doesn't have jurisdiction and that's the only question that the octomom the other cases that grant relies on address the rest of the provision says in the case where there is state regulation for it doesn't have anything to do with it but it provides an explicit statutory remedy that provides  for judicial review in the us district courts the same as happened under the interstate commerce back act back in the day that's exactly the power that we're exercising here so yes section eight hundred and thirteen dollars applies it applies a much stronger nondiscriminatory non number two grand county is submitted we are adjourned for this