Chemical Weapons Working Group (CWWG) v. Department of the Army, 96-4166

• Decision Date: 06 December 1996
• Docket Number: No. 96-4166,96-4166
• Citation: 101 F.3d 1360
• Parties: , 27 Envtl. L. Rep. 20,569, 96 CJ C.A.R. 2006 CHEMICAL WEAPONS WORKING GROUP (CWWG); Sierra Club and Vietnam Veterans of America Foundation, Plaintiffs-Appellants, v. DEPARTMENT OF THE ARMY, United States Department of Defense and EG & G Defense Material, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1360

101 F.3d 1360

36 Fed.R.Serv.3d 35, 27 Envtl. L. Rep. 20,569,

96 CJ C.A.R. 2006

CHEMICAL WEAPONS WORKING GROUP (CWWG); Sierra Club and Vietnam Veterans of America Foundation Plaintiffs-Appellants, v. DEPARTMENT OF THE ARMY, United States Department of Defense and EG & G Defense Material, Defendants-Appellees.

No. 96-4166.

United States Court of Appeals, Tenth Circuit.

Dec. 6, 1996.

Randall N. Skanchy, R. Paul Van Dam, Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT, Richard E. Condit, Washington, DC, Mick G. Harrison, GreenLaw, Inc., Berea, KY, Randall M. Weiner, Land and Water Fund of the Rockies, Boulder, CO, Robert Guild, Columbia, SC, Robert Ukeiley, Denver, CO, for Plaintiffs-Appellants.

Robert L. Klarquist, Peter A. Appel, Lisa Ann Holden, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Stephen Roth, Office of U.S. Atty., Salt Lake City, UT, Robert H. Foster, U.S. Dept. of Justice, Environment and Natural Resource Div., Denver, CO, Alan D. Greenberg, U.S. Dept. of Justice, Environmental Enforcement Sec., Denver, CO, for Dept. of the Army, U.S. Dept. of Defense.

Michael A. Zody, Craig D. Galli, David Thudermann, Parsons, Behle & Latimer, Salt Lake City, UT, Robert H. Foster, U.S. Dept. of Justice, Environment and Natural Resource Div., Denver, CO, Lisa Ann Holden, U.S. Dept. of Justice, Environmental & Natural Resources Div., Washington, DC, for EG & G Defense Material.

Before BALDOCK, LUCERO, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Appellants have filed a motion for stay pending appeal requesting that this court enjoin all incineration activities at the Tooele Chemical Agent Disposal Facility (TOCDF) during the pendency of their appeal. They also have requested that their appeal be expedited. Appellees do not object to the request to expedite. Upon consideration, we deny the motion for stay pending appeal and grant the request to expedite.

Requests for stay pending appeal are governed by Fed.R.App.P. 8(a), which provides that an application for stay "must ordinarily be made in the first instance in the district court." A motion for relief may be made to this court, but the movant must show "that application to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the applicant requested." Id. Appellants concede that they have failed to seek a stay in the district court. Citing Populist Party v. Herschler, 746 F.2d 656, 657 n. 1 (10th Cir.1984), however, they contend that temporal urgency made it impracticable to first seek a stay in the district court.

The chronology of events in this case belies appellants' claim that resolution of the stay issue by this court is a matter of extreme urgency needing immediate resolution. The district court denied appellants' motion for preliminary injunction on August 13, 1996. Incineration began at the TOCDF on August 22, 1996. Appellants waited until October 11, 1996, to appeal from the district court's order and until October 18, 1996, to seek a stay pending appeal even though the events upon which they primarily premise the need for Rule 8 relief occurred on August 16 and 24, 1996, and appellants were aware of these events at least by August 30, 1996.

Appellants also contend that it was impracticable to present an application for stay to the district court because, in denying their motion for preliminary injunction, it had prejudged the issues. When the district court's order demonstrates commitment to a particular resolution, application for a stay from that same district court may be futile and hence impracticable. See McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir.1996); see also, e.g., Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir.1982) (district court's finding, in inmate civil rights action, that prisoner would be "safe" in Arkansas prison system obviated need for requesting stay of transfer order from same district court).

The futility theory, however, is inapplicable in this case. A careful review of appellants' motion for stay reveals that relief is sought predominantly on the basis of new evidence concerning events which occurred after the district court denied the motion for a preliminary injunction. This evidence has not yet been considered by the district court. It does not necessarily follow from the refusal to grant a preliminary injunction that the district court would also refuse injunctive relief pending appeal. See Bayless v. Martine, 430 F.2d 873, 879 n. 4 (5th Cir.1970). This is particularly so when the relief sought pending appeal is premised primarily on new evidence which the district court has not yet had a chance to consider. We will not assume that the district court would not properly consider the new evidence if a motion for stay or other appropriate motion were presented to it in the first instance.

Beyond the inapplicability of the futility theory, the fundamentally different roles of appellate and trial courts mandate consideration of the new evidence by the district court under Fed.R.Civ.P. 62(c) before Rule 8 proceedings in this court. The district court is the proper forum for presentation, testing and confrontation of the new evidence. Only upon completion of the district court's factfinding role, should this court consider any relief pending appeal. See In re Montes, 677 F.2d 415, 416 (5th Cir.1982); Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir.1981).

The dissent primarily takes issue with the majority's failure to refer appellants' motion for an injunction pending appeal to the district court. While this difference appears insignificant, its appearance is deceiving; the difference is fundamental. The dissent would mandate consideration of an injunction pending appeal by the district court and would dictate the specific issues for that court to address. This court's Order, on the other hand, allows the appellants to choose whether or not to seek an injunction in the district court. Equally important, the Order would allow the parties, the district court and the traditional processes of litigation to control any further proceedings in the district court pending appeal.

Accordingly, after careful and thorough consideration, appellants' motion for stay pending appeal is DENIED. Their motion to expedite the appeal is GRANTED.

LUCERO, Circuit Judge, dissenting.

I agree with my colleagues that this motion for stay pending appeal is based primarily upon events which occurred after the district court denied appellants' request for a preliminary...