Maughan et al v. Vilsack et al

Filing 48

MEMORANDUM DECISION AND ORDER Denying 42 MOTION for Preliminary Injunction Pending Appeal and Expedited Ruling filed by Western Watersheds Project, Ralph Maughan, Center for Biological Diversity, Wilderness Watch, Defenders of Wildlife. Signed by Judge Edward J. Lodge. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RALPH MAUGHAN, DEFENDERS OF
WILDLIFE, WESTERN WATERSHEDS
PROJECT, WILDERNESS WATCH, and
CENTER FOR BIOLOGICAL
DIVERSITY,

Case No. 4:14-CV-0007-EJL
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
TOM VILSACK, U.S. Secretary of
Agriculture; TOM TIDWELL, Chief U.S.
Forest Service; NORA RASURE,
Regional Forester of Region Four of the
U.S. Forest Service, KEITH LANNOM,
Payette National Forest Supervisor; and
VIRGIL MOORE, Director, Idaho
Department of Fish and Game,
Defendant.

Pending before the Court in the above entitled matter is the Plaintiffs’ Motion for
Preliminary Injunction Pending Appeal and Expedited Ruling. (Dkt. 42.) The Motion is made
pursuant to Federal Rule of Civil Procedure 62(c). The Federal Defendants filed a Response
in Opposition to the Motion. (Dkt. 47.) Plaintiffs ask that the Court grant an injunction
pending appeal to prohibit the Defendants from further implementation or facilitation of the
MEMORANDUM DECISION AND ORDER - 1

wolf management program that the Idaho Department of Fish and Game began in midDecember 2013. The Motion represents that the Defendants object to the requested injunction
but take no position on the request to expedite the ruling. The Court finds as follows.
DISCUSSION
On January 17, 2014, the Court issued its Order denying the Plaintiffs’ Motions for
Temporary Restraining Order and Preliminary Injunction. (Dkt. 40.) Plaintiffs filed the instant
Motion on the same day as well as their Notice of Appeal. (Dkt. 41, 42.) The Federal
Defendants oppose the Motion. (Dkt. 47.)
A notice of appeal generally deprives a district court of jurisdiction over the subject
of the appeal. Rule 62(c), however, provides an exception which allows the district court to
retain jurisdiction to “suspend, modify, restore, or grant an injunction during the pendency of
the appeal....” Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001) (citing Fed. R.
Civ. P. 62(c)).1 Thus, under Rule 62(c), “[t]he district court retains jurisdiction during the
pendency of an appeal to act to preserve the status quo.” Id. at 935 (quotation marks omitted).

1

Rule 62(c) provides:
While an appeal is pending from an interlocutory order or final judgment that grants,
dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an
injunction on terms for bond or other terms that secure the opposing party's rights. If the
judgment appealed from is rendered by a statutory three-judge district court, the order
must be made either:
(1) by that court sitting in open session; or
(2) by the assent of all its judges, as evidenced by their signatures.
Fed. R. Civ. P. 62(c).
MEMORANDUM DECISION AND ORDER - 2

However, this rule does not permit a district court to “materially alter the status of the case
on appeal.” Id.
Whether the Court grants or denies the requested injunction is “an exercise of judicial
discretion that is dependent upon the circumstances of the particular case.” Lair v. Bullock,
697 F.3d 1200, 1203 (9th Cir. 2012) (internal quotation marks omitted). In making such a
determination, the Court considers whether the party requesting the relief establishes each of
the following four factors:
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.
Id. (quoting Nken v. Holder, 556 U.S. 418, 433–34 (2009)).
1.

Likelihood of Success on the Merits
The party seeking relief is not required “to show that it is more likely than not that they

will win on the merits.” Lair, 697 F.3d at 1204. Rather, the movant need only show “that there
is a substantial case for relief on the merits.” Id. Stated differently, the movant must
demonstrate that there are “serious legal questions raised.” Id. “Serious questions are
substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for
more deliberative investigation.” Republic of the Phil. v. Marcos, 862 F.2d 1355, 1362 (9th
Cir.1988).
For the reasons discussed in the Court’s prior Order, the claims raised in the Amended
Complaint do not raise serious legal questions nor present a substantial case for relief on the

MEMORANDUM DECISION AND ORDER - 3

merits. (Dkt. 40.) Although Plaintiffs disagree, on the current record there does not appear to
have been a final agency action taken in this matter by the Federal Defendants that would give
rise to the claims pursuant to the Administrative Procedure Act. (Dkt. 40, 42.) Furthermore,
the Plaintiffs have not shown a likelihood of success on the substance of the claims
themselves. (Dkt. 40.)
2.

Irreparable Injury
The second factor of the Rule 62(c) analysis requires the petitioner “to show ... that

there is a probability of irreparable injury.” Lair, 697 F.3d at 1214; see also Leiva–Perez v.
Holder, 640 F.3d 962, 968 (9th Cir. 2011) (recognizing that a petitioner's “burden with regard
to irreparable harm is higher that it is on the likelihood of success prong, as [it] must show
that an irreparable injury is the more probable or likely outcome”).
Plaintiffs maintain that the Court did not give due weight to the irreparable harm that
the challenged wolf program is actively inflicting on the wilderness character of the Frank
Church-River of No Return Wilderness. (Dkt. 42.) The declaration filed in support of the
instant Motion attached a recent newspaper article indicating that the wolf program has
resulted in the killing of two additional wolves since the last briefing was filed; a total of nine
wolves have been killed since the program began in mid-December. (Dkt. 43.) In its prior
Order, however, the Court did consider the Plaintiffs’ argument concerning the irreparable
harm. (Dkt. 40.) For the reasons stated therein, the Court maintains that, even considering the
new material filed on this Motion, the Plaintiffs have not demonstrated that an immediate
irreparable harm is likely given the growth of the wolf population in the area and the number
MEMORANDUM DECISION AND ORDER - 4

of wolves presently living in the area at issue. Winter v. Natural Res. Def. Council, 555 U.S.
7, 23 (2008); (Dkt. 40.)
3.

Substantial Injury to Other Interested Parties and the Public Interest
Having determined that the Plaintiffs have failed to establish either the first or second

factors, the Court need not discuss the remaining factors in the Rule 62(c) analysis.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Motion (Dkt. 42) is
DENIED.

DATED: January 27, 2014

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 5