Southeast Alaska v. U.S. Army Corps

• Decision Date: 08 December 2006
• Docket Number: No. 06-35679.,06-35679.
• Parties: SOUTHEAST ALASKA CONSERVATION COUNCIL; et al., Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; et al., Defendants-Appellees, Coeur Alaska, Inc.; et al., Defendant-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

472 F.3d 1097

SOUTHEAST ALASKA CONSERVATION COUNCIL; et al., Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; et al., Defendants-Appellees Coeur Alaska, Inc.; et al., Defendant-Intervenors-Appellees.

No. 06-35679.

United States Court of Appeals, Ninth Circuit.

December 8, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas S. Waldo, Esq., Earthjustice Legal Defense Fund, Inc., Juneau, AK, Plaintiffs-Appellants.

John T. Stahr, Esq., Aaron P. Avila, Esq., U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, Mark A. Nitczynski, Esq., Office of the U.S. Attorney Federal Bldg. & U.S. Courthouse, Anchorage, AK, Richard L. Pomeroy, Esq., for Defendant-Appellee.

John C. Berghoff, Jr., Esq., Mayer Brown Rowe & Maw, LLP, Chicago, IL, Robert A. Maynard, Esq., Perkins Coie, LLP, Boise, ID, David C. Crosby, Esq., David C. Crosby, P.C., Ruth Hamilton Heese, Esq., Office of the Alaska Attorney General, Juneau, AK, Cameron M. Leonard, Office of the Alaska Attorney General, Fairbanks, AK, for Defendant-Intervenor-Appellee.

Before: HUG, TASHIMA, and GRABER, Circuit Judges.

ORDER

Appellee Coeur Alaska, Inc.'s Urgent Motion Under Circuit Rule 27-3(b) to Vacate the Injunction Pending Appeal is denied. The court granted Appellant Southeast Alaska Conservation Council's ("SEACC") Emergency Motion Under Circuit Rule 27-3 on August 24, 2006, at which time the court issued an injunction pending appeal. The court's order enjoined Coeur Alaska, the U.S. Army Corps of Engineers ("Corps"), and the U.S. Forest Service from activities relating to the construction of a disposal facility at Lower Slate Lake. On November 7, 2006, Coeur Alaska filed its motion to vacate the injunction due to weather conditions and in light of the U.S. Supreme Court's recent decision in Purcell v. Gonzalez, ___ U.S. ___, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006).

We conclude that Coeur Alaska's challenge to the injunction, to the extent that it is based on Purcell, is untimely. See 9th Cir. R. 27-10(a). Even if the form of the injunction were subject to challenge now, we conclude that Purcell does not require the court to vacate its injunction. Thus, we confirm issuance of the injunction until the court decides the merits of this case and the mandate issues.

In Purcell, the Supreme Court vacated a "bare order" issued by this court that conflicted with a district court's later factual findings. Id. at 7-8. In that case, the Supreme Court stated that this court had failed "to provide any factual findings or indeed any reasoning of its own." Id. at 8. Coeur Alaska's remedy for failure of the injunction to meet Purcell's specificity requirement was, as was done in Purcell itself, to petition to the Supreme Court for certiorari relief, which Coeur Alaska did not do. Moreover, the Supreme Court gave no indication that this court could not have corrected the situation by offering a justification for its injunction at a later point. Accordingly, even if the court's injunction in this case was insufficient in its level of detail, we will remedy that lack of detail by explaining our reasons for granting the injunction.

An injunction pending appeal is appropriate in this case. In deciding whether to grant an injunction pending appeal, the court "`balances the plaintiff's likelihood of success against the relative hardship to the parties.'" Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 415 F.3d 1078, 1092 (9th Cir.2005) (quoting Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003)). This court has recognized two different sets of criteria for preliminary injunctive relief. Under the "traditional test," the moving party must show: "`(1) a ong likelihood of success on the merits, (2) the possibility of irreparable injury to the plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).'" Id. (quoting Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir.2005)). The "alternative test" requires that the moving party demonstrate "`either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.'" Id. (quoting 408 F.3d at 1120). As this court has explained many times, "`[t]hese two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum.'" Id. at 1092-93 (quoting 408 F.3d at 1120).

Applying this test, SEACC has demonstrated the need for an injunction pending appeal. First, SEACC has shown a likelihood of success on the merits because it has argued persuasively that the Corps' permit to Coeur Alaska violates the Clean Water Act. Second, SEACC has demonstrated that construction of a permanent dam at Lower Slate Lake will adversely affect the environment by destroying trees and other vegetation, and by killing aquatic life. Coeur Alaska has not disputed these facts. Ongoing harm to the environment constitutes irreparable harm warranting an injunction. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). When a project "`may significantly degrade some human environmental factor,' injunctive relief is appropriate." Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 737 (9th Cir.2001) (quoting Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 732 (9th Cir.1995)). Third, the balance of hardships favors SEACC. Coeur Alaska admitted to this court in its brief in response to SEACC's emergency motion for an injunction pending appeal that disposal of tailings into Lower Slate Lake is not scheduled to begin until, at the earliest, next spring. Consequently, construction activities need not begin...