Opinion
Case No. 2:01-CV-00316 PGC.
July 11, 2003.
ORDER DENYING MOTION FOR INJUNCTION
Before the court is plaintiff Utah Environmental Congress' ("UEC") Motion for Injunction Pending Appeal and Motion for Stay Upon Appeal (Doc. #48-1 and #48-2). For the reasons explained below, the court DENIES the motions.
BACKGROUND
On March 28, 2003, this court entered a Memorandum Opinion and Order dismissing UEC's cause of action against the defendants in this matter. This ruling affirmed the Record of Decision ("ROD") for the Monroe Mountain Ecosystem Restoration Project (the "Project"). In its Order, the court found that the Forest Service did not act arbitrarily and capriciously in the Project's validation of roadless areas. Further, the court found that the Forest Service had met the standard for collecting quantitative population data for certain Management Indicator Species, as outlined in a 2002 ruling in this district, Utah Environmental Congress v. Zeiroth. This court also affirmed the ROD on grounds that the Forest Service did not act arbitrarily or capriciously in measuring and ensuring diversity as required by law. Finally, this court found that the ROD met the statutory requirements of National Environmental Policy Act ("NEPA") and Multiple Use and Sustained Yield Act ("MUSYA"). On April 14, 2003, UEC filed a Notice of Appeal regarding this March 28, 2003 ruling. Now UEC asks this court to enjoin the Project pending the outcome of its appeal and for a stay upon appeal.
2190 F. Supp.2d 1265 (Utah 2002).
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure Rule 62(c), this court should consider the following factors in evaluating UEC's request for an injunction: (1) whether the applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent the injunction; (3) whether issuing the injunction will substantially injure other parties interested in the proceeding; and (4) the public interest. This standard for considering a stay pending appeal is essentially the same as for a preliminary injunction pursuant to Rule 65(a). In some circumstances, the Tenth Circuit has recognized a modified requirement as to the likelihood of success. In this circuit, if a movant shows that the last three criteria "tip decidedly" in its favor, then it does not need to show a substantial probability of success on the merits, but only that "there are questions going to the merits so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." This "modified standard," however, does not eliminate the moving party's requirement to demonstrate the validity of their arguments; rather, where the balance of harms is significantly in plaintiff's favor, the plaintiff's "right to a final decision, after a trial, [need not] be absolutely certain, [or] wholly without doubt." Further, a preliminary injunction (and thus an injunction pending appeal) is "`an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" As an extraordinary remedy, granting such an injunction is the exception rather than the rule, and the right to relief must be "clear and unequivocal." Moreover, an injunction is an equitable remedy, and does not automatically issue even if all the criteria indicate that an injunction is warranted.
See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); 11 Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE; CIVIL 2ND § 2904, at 501 (1995); see also Davis v. Meyers, 101 F.R.D. 67, 68-69 (D. Nev. 1984).
See Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001); Kikimura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001); See Battle v. Anderson, 564 F.2d 388, 397 (10th Cir. 1977); Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1982).
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246-47 (10th Cir. 2001); Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1194-95 (10th Cir. 1999); Anthony v. Texaco. Inc., 803 F.2d 593, 599 (10th Cir. 1986).
Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782 (10th Cir. 1964).
SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) ( quoting 11 Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE: CIVIL 2ND § 2948, at 428-29 nn. 19-21 (1973 Supp. 1991)).
See United States ex rel. The Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enterprise Management Consultants, Inc., 883 F.2d 886, 888 (10th Cir. 1989).
Prairie Band of Potawatomi Indians, 253 F.3d at 1246; Enterprise Management Consultants, Inc., 883 F.2d at 888-89.
See Cablevision of Boston, Inc. v. Public Improvement Comm'n. of the City of Boston, 38 F. Supp.2d 46, 53 (D. Mass. 1999).
To meet this standard, UEC must affirmatively demonstrate that it is likely to suffer irreparable harm during the pendency of the appeal before an injunction is warranted. Irreparable harm sufficient to support an injunction is not presumed merely because an applicant asserts environmental claims, and UEC bears the burden of justifying an injunction.
See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982).
See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442-43 (1974).
ANALYSIS
I. UEC HAS FAILED TO DEMONSTRATE A REASONABLE PROBABILITY OF SUCCESS OF THE MERITS.
UEC has failed to prove that it is likely to succeed on the merits of its appeal. UEC's brief provides little argument and evidence to demonstrate that the court misapplied the appropriate standard in this matter. UEC attempts to establish that the court's opinion in this case is contrary to Judge Kimball's holding in Zieroth. Although Judge Kimball's Zieroth decision is not binding in this matter, this court stated that it follows Zieroth's approach as persuasive and found, nevertheless, that reversal was inappropriate in this case because the Forest Service had met its obligations by either collecting appropriate quantitative population data for the five MIS at issue or having a valid reason for not collecting such data. Although UEC disagrees with this court's decision, this disagreement is insufficient to prove a probability of success on the merits. Therefore, UEC is not entitled to injunctive relief on this ground.
See March 27, 2003 Opinion at p. 18; see also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 431 n. 10 (1996).
See March 27, 2003 Opinion at p. 18.
II. UEC HAS FAILED TO DEMONSTRATE THAT IT WILL BE IRREPARABLY HARMED IF THIS COURT DENIES AN INJUNCTION.
To obtain an injunction pending appeal, UEC must demonstrate that it will suffer irreparable harm unless the requested injunction is issued. The likelihood of success on the merits is only one of the factors to be considered when deciding on injunctive relief; irreparable injury is equally important. UEC must show an injury "that is neither remote nor speculative, but actual and imminent." The Tenth Circuit has held that the irreparable harm necessary to justify injunctive relief "must be both certain and great," and not "merely serious or substantial."
See Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999).
See GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
Christie-Spencer Corp. v. Hausman Realty Co., Inc., 118 F. Supp.2d 408, 423 (S.D.N.Y. 2000).
Prairie Band of Potawatomi Indians, 253 F.3d at 1250 (citations omitted).
"An injunction should issue only where the intervention of a court of equity `is essential in order effectually to protect property rights against injuries otherwise irremediable.'" Therefore, UEC is not entitled to a preliminary injunction unless it makes a "clear showing of immediate irreparable injury." To prove this, UEC "must `demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following trial [here, resolution of the appeal].'"
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (quoting Cavanaugh v. Looney, 248 U.S. 453, 456 (1919)).
ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3rd Cir. 1987); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3rd Cir. 1989).
Acierno v. New Castle County, 40 F.3d 645, 653 (3rd Cir. 1994) (quoting Instant Air Freight Co., 882 F.2d at 801).
Although UEC cites Amoco Production Co. v. Village of Gambell for the proposition that an injury may be presumed by the nature of this case, the court rejects this argument. In Amoco, the Supreme Court stated that "the balance of harms will usually favor the issuance of an injunction to protect the environment." Nothing in Amoco absolves environmental plaintiffs of the burden of affirmatively demonstrating that in the absence of an injunction they will suffer irreparable harm. The Amoco court affirmed this "fundamental principle that an injunction is an equitable remedy that does not issue as of course" and upheld the district court's denial of a preliminary injunction on balance of harm grounds despite finding a strong likelihood of success of the merits. Therefore, UEC must submit demonstrable proof that it is likely to be harmed by implementation of the Project. It has not. Also, the protect-the-environment principle provides little guidance here, where both sides argue the environment is best protected by adopting their position. In any event, UEC's mere allegation regarding the potential for environmental harm without evidence supporting the existence of an actual and imminent injury is not sufficient to establish that implementation of the Project will cause it irreparable harm.
480 U.S. 531, 545 (1987).
Id. at 542 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982)).
III. THE BALANCE OF HARDSHIPS FAVORS FEDERAL DEFENDANTS AND WEIGHS AGAINST INJUNCTION.
The court finds that the third factor — the balance of hardships between the parties — weights in favor of the federal defendants. When examining this factor, the court has considered the competing claims of injury and balances the hardships on each party of either granting or withholding the requested relief. To justify a stay pending appeal, UEC must demonstrate that the balance of hardships "tips decidedly" in its favor. It has not done so.
See Pappan Enterprises v. Hardees, 143 F.3d 800, 805 (3rd Cir. 1998).
Provo River Coalition v. Pena, 925 F. Supp. 1518, 1525 (Utah 1996).
In the Administrative Record, the Forest Service has provided substantial evidence to support the need to proceed with the Project. As explained in the record, the Project has reduced fire activity that has caused significant changes to the vegetative cover types traditionally found on Monroe Mountain, resulting in loss of aspen acreage, declining forest health and timber mortality due to insects and disease. Thus, the Forest Service determined that proactive treatments to restore and sustain rapidly declining ecosystems and bio-diversity were needed on Monroe Mountain. Therefore, enjoining the Project harms the Government's ability to address numerous forest health concerns.
See Fire History Study, Administrative Record ("AR") Vol. 5 at 0002076; Environmental Analysis, AR Vol. 1 at 0000361, 0000363.
See FEIS, AR Vol. 2 at 000485 (I-3-5).
See Erickson Declaration at ¶ 3.
The record establishes that the primary goal of the Project is to address the decline of aspen, which (second only to riparian ecosystems) have a greater diversity of plants and animals than other systems in the Interior West. Implementation of the Project will have multiple benefits to the forest environment. For example, the Fire/Fuels effects' section of the FEIS discloses details of how vegetative changes over the past 150 years have increased the risk of fire and are causing damages in fires regimes. Additionally, the mixed conifer stands of Monroe Mountain are dominated by spruce. Forest health aerial detection surveys indicate that the spruce beetle is currently at epidemic levels within the project area. Therefore, the conversion of mixed conifer/aspen stands to aspen dominated communities that will result from implementation of the Project will reduce the risk of large, intense episodes of wildland fire and the spread of spruce beetle. Enjoining the Project will delay the Government's ability to address these issues and could well result in a decline in the overall health of the forest.
See Project Status Update, AR Vol. 1 at 0000014. See also Power Point Presentation, AR Vol. 1 at 0000072.
See Sept. 25, 1999, Field Trip Handouts, AR Vol. 1 at 0000431, 0000436. See also Video Presentation, AR Vol. 6 at 0003644.
See FEIS, AR Vol. 2 at 0000485 (III-49-52).
See FEIS, AR Vol. 2 at 000485 (I-8).
See Aerial Detection Results, AR Vol. 7 at 0003651.
See Erickson Declaration at ¶ 5.
Even if the court assumes that the UEC would suffer harm if an injunction is not granted, "an injunction is not appropriate here, where the best that can be said is that both sides suffer." Therefore, the balance of harms weighs against an injunction.
Rankin v. Thone, 512 F. Supp. 507, 510 (Neb. 1980).
IV. GRANTING AN INJUNCTION IS NOT IN THE PUBLIC INTEREST.
Finally, the court finds that an injunction is not in the public interest. The public interest standard is a separate consideration in determining whether to grant equitable relief. When deciding whether to issue an injunction, courts must "pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Therefore, to succeed in its motion, UEC must prove that it is in the public interest for the court to enjoin the Project.
See Romero-Barcelo. 456 U.S. at 312-313.
See Amoco, 480 U.S. at 545 (citing Romero-Barcelo, 456 U.S. at 311).
Romero-Barcelo, 456 U.S. at 312.
See e.g., Calvin Klein Cosmetics Corp. v. Lenox Laboratories, 815 F.2d 500, 503 (8th Cir. 1987).
To support its public interest argument, UEC states that the Project encompasses a "truly a unique public resource, open space and forest recreation . . . [and that] there is no public interest in rushing logging projects in sensitive, high-altitude forests and roadless areas." No doubt, this is true. However, in this case there are a number of countervailing public interest goals that will be stalled by an injunction. Specifically, the Project's express goals are to:
Plaintiff's Motion for Injunction Pending Appeal and Motion for Stay Upon Appeal at 4.
1. Restore the abundance of aspen ecosystems where losses occurred because of changed disturbance regimes and increased ungulate pressure.
2. Work towards improving watershed conditions that favor long-term improvement of riparian areas and water quality.
3. Reduce the risk of large, intense episodes of wildland fire in the mixed conifer/aspen stands.
4. Reduce the potential of epidemic level spruce beetle outbreaks in spruce/fir stands.
5. Contribute to the restoration of the grass/forb ecosystems to improve habitat for wildlife and livestock; and to
6. Provide timber products to support local economy, while performing ecosystem restoration.
AR 0000485 at S-3.
Needless to say, these goals all further important public concerns. As the federal defendants point out, the economic analysis for the Project analyzes both the Stewardship End Result Contracting Distribution Program and the National Timber Forest Sale Program, which both show that the Project will benefit the local economy in critical ways. When the court evaluates this, as well as the public interest reducing the epidemic spruce beetle outbreaks, and allowing other Project goals to proceed without delay, it concludes that the public interest is better served by not enjoining the Project.
See FEIS, AR Vol. 2 at 000485 (III-86-90).
CONCLUSION
For all these reasons, the court DENIES plaintiff Utah Environmental Congress' ("UEC") Motion for Injunction Pending Appeal and Motion for Stay Upon Appeal (Doc. #48-1 and #48-2). The clerk of the court is directed to close this case.