Orr et al v. US EPA et al

Filing 14

ORDER denying Plaintiff's 10 Motion to Stay Judgment. Signed by District Judge Martin Reidinger on 6/7/2017. (kby)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00141-MR-DLH

WILLIAM ORR, CHARLES ORR,
CHARLES ORR, on behalf of Ina Orr
(his unborn daughter due mid June),
and YVONNE HEGNEY, individually
and on behalf of Roan Mountain, her
threatened and endangered species,

)
)
)
)
)
)
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Plaintiffs,
)
)
vs.
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U.S. EPA, U.S. FOREST SERVICE,
)
U.S. FISH AND WILDLIFE SERVICE, )
FRENCH BROAD ELECTRIC
)
MEMBERSHIP CORPORATION, and )
JEFF LOVEN, personally and as
)
General Manager,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff William Orr’s Motion to
Stay Judgment [Doc. 10].
The Plaintiffs William Orr, Charles Orr, and Yvonne Hegney
commenced this action on June 1, 2017, against the Environmental
Protection Agency (EPA), the United States Forest Service (USFS), the
United States Fish and Wildlife Service (USFWS), the French Broad Electric

Membership Corporation (FBE), and FBE’s General Manager Jeff Loven
(Loven), seeking to enjoin FBE and Loven from spraying certain EPAapproved herbicides on or near Roan Mountain. Specifically, the Plaintiffs
contended that the spraying of such herbicides would irreparably harm the
“critical habitats” and threatened/endangered species residing on Roan
Mountain, in violation of the Endangered Species Act, 16 U.S.C. § 1531, et
seq. (ESA). The Plaintiffs also challenged EPA’s administrative approval of
the use of such herbicides in applications that would threaten endangered
species. The Plaintiffs further sought an injunction requiring EPA, USFS, and
USFWS to enforce the provisions of the ESA in order to protect the critical
habitats and threatened/endangered species residing on Roan Mountain.
Finally, the Plaintiffs contended that FBE and Loven’s plan to spray EPAapproved herbicides on or near Roan Mountain violate the Plaintiffs’ First
Amendment “religious rights, health, lives, property, well being and ‘sacred’
way of life,” in violation of 42 U.S.C. § 1983. [Doc. 1 at 1-2].
On June 5, 2017, the Court dismissed the Plaintiffs’ claims under the
ESA without prejudice due to lack of subject matter jurisdiction because the
Plaintiffs had failed to provide the Defendants with 60 days’ notice as
required by the ESA. The Court dismissed the Plaintiffs’ claims under § 1983
with prejudice as legally baseless and therefore frivolous.
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[Doc. 8].

Thereafter, the Clerk entered a Judgment dismissing this action in its
entirety. [Doc. 9].
On June 6, 2017, the Plaintiff William Orr1 filed the present motion,
asking that the Court’s Judgment be stayed pending appeal. [Doc. 10].
Plaintiffs William Orr and Charles Orr then filed a Notice of Appeal to the
Fourth Circuit Court of Appeals. [Doc. 11].
As an initial matter, it is unclear what the Plaintiff wants to be stayed.
A stay pending appeal is typically entered in order preserve the status quo.
See Nken v. Holder, 556 U.S. 418, 429 (2009) (“[a] stay [pending appeal]
simply suspends judicial alteration of the status quo”) (citation omitted).
Here, the Plaintiff’s ESA claims were dismissed for lack of subject matter
jurisdiction and his § 1983 claims were dismissed for being frivolous. There
was no injunctive relief awarded. To the extent that the Plaintiff seeks a stay
to prevent the Defendants from taking some action, such a stay would
effectively function as a restraining order against the Defendants, which
would not be preserving the status quo.

1

The present motion to stay was filed by Plaintiff William Orr only. Plaintiff Charles Orr
does not join in William Orr’s motion. Prior to the dismissal of this action, Plaintiff Yvonne
Hegney filed a notice of voluntary dismissal of her claims. [Doc. 7].
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To the extent that the Plaintiff seeks relief under Rule 62 of the Federal
Rules of Civil Procedure, his motion also must be denied. Rule 62 provides,
in pertinent part, that when an appeal is taken from a final judgment denying
an injunction, a court may grant a stay of the judgment pending appeal on
terms for a bond or other terms that secure the opposing party’s rights. Fed.
R. Civ. P. 62(c). In reviewing a motion to stay, the Court must consider: “(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.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Here, the underlying action was dismissed because the Plaintiffs failed
to comply with a statutory notice requirement, which deprived this Court of
jurisdiction to entertain the Plaintiffs’ claims. The remaining claims asserted
by the Plaintiffs were dismissed as legally baseless.

Under these

circumstances, the Plaintiff cannot make a strong showing that he is likely to
succeed on the merits of any appeal. Further, it is unclear from the Plaintiff’s
motion to stay what irreparable injury he would suffer if the requested stay

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was not granted.2 For all of these reasons, the Plaintiff’s motion for a stay of
the Judgment pending appeal is denied.
IT IS, THEREORE, ORDERED that the Plaintiff’s Motion to Stay
Judgment [Doc. 10] is DENIED.
IT IS SO ORDERED.
Signed: June 7, 2017

2

As the Plaintiff failed to show a likelihood of success on the merits or the likelihood of
irreparable harm, the Court need not address the remaining factors identified in Hilton.
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