Columbia Riverkeeper et al v. Pruitt et al

Filing 52

ORDER granting the United States' 47 Motion for Stay Pending Appeal. The Court's October 17, 2018, Order re: Motions for Summary Judgment (Dkt.# 39 ) is STAYED for the duration of the United States' appeal of that Order to the Ninth Circuit. Signed by Judge Ricardo S. Martinez. (PM)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10

COLUMBIA RIVERKEEPER, et al.,

11

Plaintiffs,

12

Case No. C17-289 RSM
ORDER GRANTING MOTION FOR
STAY PENDING APPEAL

v.

13

ANDREW WHEELER, et al.,

14
15
16
17
18
19
20
21

Defendants.
This matter comes before the Court on the United States’ Motion for Stay Pending
Appeal. Dkt. #47. Plaintiffs oppose this Motion. Dkt. #50.
This Court’s October 17, 2018, order on summary judgement determined that “EPA []
violated the CWA by failing to issue a TMDL for the Columbia and lower Snake Rivers” after
“Washington and Oregon [] clearly and unambiguously indicated that they will not produce a

22

TMDL for these waterways.” Dkt. # 39 at 14. The Court then gave the EPA “30 days . . . to

23

approve or disapprove the constructively submitted TMDL, and, if disapproved, 30 days after

24
25
26
27

the disapproval to issue a new TMDL. See 33 U.S.C. § 1313(d)(2).” Id. at 15. The EPA
recently disapproved Oregon and Washington’s constructively submitted TMDLs in accordance
with the Court’s order. See Dkt. # 47-1. However, rather than proceeding to issue the

28

ORDER GRANTING MOTION FOR STAY PENDING APPEAL - 1

1
2

temperature TMDL within the 30-day deadline set by the CWA and the Court’s Order, the EPA
is instead moving for a stay pending appeal of the Court’s Order.

3

A stay pending appeal is not a matter of right, but rather “an exercise of judicial

4

discretion” that depends upon “the circumstances of the particular case.” Nken v. Holder, 556

5
6
7

U.S. 418, 433, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009). The question of whether a stay
pending appeal is warranted requires consideration of four factors: “(1) whether the stay

8

applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the

9

applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will

10
11
12

substantially injure the other parties interested in the proceeding; and (4) where the public
interest lies.” Id. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L.

13

Ed. 2d 724 (1987)). “The party requesting a stay bears the burden of showing that the

14

circumstances justify an exercise of [this Court’s] discretion.” Id. at 433-34.

15
16

The United States has convinced the Court its appeal will raise “serious questions of law
in an area that is unclear,” and that this is a strong factor in favor of the requested relief. See

17
18

Dkt. #47 at 4 (citing Costco Wholesale Corp. v. Hoen, 2006 WL 2645183 (W.D. Wash. Sept.

19

14, 2006)); Dkt. #51 at 2–3. The EPA has also demonstrated irreparable injury absent a stay by

20

arguing that the Court’s requested relief would tax EPA resources devoted to other projects in a

21

way that would not be recoverable in further litigation. See id. At 6–7. The Court is further

22
23
24

convinced that the public interest may lie in granting a stay so as to avoid the possibility of a
hastily issued TMDL conflicting with further guidance from the Ninth Circuit.

25

Having reviewed the relevant briefing and the remainder of the record, the Court hereby

26

finds and ORDERS that the United States’ Motion for Stay Pending Appeal, Dkt. #47, is

27
28

ORDER GRANTING MOTION FOR STAY PENDING APPEAL - 2

1
2
3

GRANTED. The Court’s October 17, 2018, Order re: Motions for Summary Judgment (Dkt.
#39) is STAYED for the duration of the United States’ appeal of that Order to the Ninth Circuit.
DATED this 30th day of November 2018.

4
5
6
7

A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING MOTION FOR STAY PENDING APPEAL - 3