Conservation Congress v. United States Forest Service et al

Filing 64

ORDER signed by Judge Lawrence K. Karlton on 7/31/12 DENYING 57 Motion for Preliminary Injunction. Plaintiff is, however, GRANTED a limited injunction of 21 days from the date of issuance of this order to seek an injunction pending appeal from the Ninth Circuit, pursuant to FRAP 8(a)(2). (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS and
KLAMATH FOREST ALLIANCE,
NO. CIV. S-11-2605 LKK/EFB

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Plaintiffs,
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v.
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UNITED STATES FOREST
SERVICE,

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Defendant,

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and

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O R D E R

SIERRA PACIFIC INDUSTRIES,
Proposed Defendant
Intervenor.

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/
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On June 19, 2012, this court denied Plaintiff’s motion for a

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preliminary injunction.

Order, ECF No. 53.

On June 21, 2012,

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Plaintiff filed a notice of appeal of this court’s order denying

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the preliminary injunction.

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No. 54.

Notice of Interlocutory Appeal, ECF

Pending before the court is Plaintiff’s motion for an

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injunction pending appeal.

Pl’s Mot., ECF No. 57.

I. STANDARD FOR AN INJUNCTION PENDING APPEAL

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Injunctions pending appeal are governed by Fed. R. Civ. P.

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62(c), which provides that: “While an appeal is pending from an

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interlocutory order or final judgment that grants, dissolves, or

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denies an injunction, the court may suspend, modify, restore, or

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grant an injunction in terms for bond or other terms that secure

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the opposing party’s rights.”

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Under Rule 62(c), the factors regulating the issuance of

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the injunction or stay are “(1) whether the stay applicant has

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made a strong showing that he is likely to succeed on the

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merits; (2) whether the applicant will be irreparably injured

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absent a stay; (3) whether issuance of the stay will

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substantially injure the other parties interested in the

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proceeding; and (4) where the public interest lies.”

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Braunskill, 481 U.S. 770, 776 (1987); Humane Society of U.S. v.

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Gutierrez, 527 F.3d 788, 789-90 (9th Cir. 2008).

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Circuit has recognized that the issues of likelihood of success

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on the merits and irreparable injury represent two points on a

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sliding scale in which the required degree of irreparable harm

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increases as the probability of success decreases.

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Society of U.S., 527 F.3d at 790 (citing Golden Gate Restaurant

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Ass’n v. City and County of San Francisco, 512 F.3d 1112, 1115

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(9th Cir. 2008)).

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Hilton v.

The Ninth

Humane

Rule 62(c) creates an exception to the principle that the
filing of a notice of appeal confers jurisdiction on the
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appellate court and divests the district court of jurisdiction

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over the matters at issue on appeal.

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district court no broader power than it has always inherently

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possessed to preserve the status quo during the pendency of an

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appeal; it ‘does not restore jurisdiction to the district court

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to adjudicate anew the merits of the case.’”

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Council, Inc. v. Southwest Marine, Inc., 242 F.3d 1163, 1166

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(9th Cir. 2001) (internal citations omitted); see also Small ex.

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rel. NLRB v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n

“This Rule grants the

Natural Res. Def.

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Local 200, AFL-CIO, 611 F.3d 483, 495 (9th Cir. 2010).

Thus,

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any action taken pursuant to Rule 62(c) “may not materially

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alter the status of the case on appeal”–-that is, the court can

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only issue an injunction pending appeal that preserves the

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status quo.

Natural Res. Def. Council, Inc., 242 F.3d at 1166.

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II. ANALYSIS

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As provided in this court’s June 19, 2012 order denying

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Plaintiff’s motion for a preliminary injunction, this court has

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determined that Plaintiff has failed to establish a probability

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of success, or “fair chance of success,” on the merits of its

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claim that the Federal Defendants violated the ESA consultation

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requirements.

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Form, Inc. v. United Press Intern., Inc., 686 F.2d 750, 753 (9th

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Cir. 1982) (“The ‘irreducible minimum’ . . . is that the moving

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party demonstrate ‘a fair chance of success on the merits’ . . .

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.

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(internal citations omitted).

See Order, ECF No. 53, at 30-31; see also Sports

‘No chance of success at all . . . will not suffice.’”)
Because the court finds that
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Plaintiff fails to show a fair chance of success on the merits,

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the court also finds that Plaintiff fails to meet the

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requirements for a Rule 62(c) injunction pending appeal.

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However, the court grants Plaintiff a limited injunction of

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twenty-one (21) days to seek an injunction pending appeal from

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the Ninth Circuit, pursuant to Federal Rule of Appellate

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Procedure 8(a)(2).

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injunction, Defendants are enjoined from logging in critical

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habitat.

During the pendency of this limited

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III. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for an

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injunction pending appeal is DENIED.

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GRANTED a limited injunction of twenty-one (21) days from the

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date of issuance of this order to seek an injunction pending

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appeal from the Ninth Circuit, pursuant to Federal Rule of

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Appellate Procedure 8(a)(2).

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IT IS SO ORDERED.

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DATED: July 31, 2012.

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Plaintiff is, however,