United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiffs have filed separate motions asking the Court to issue an injunction pending appeal. Docs. 169, 177. Plaintiffs also seek an expedited ruling. Id. No party has requested oral argument. The motions are fully briefed. For the reasons that follow, the Court will enter this expedited order and deny the motions.
Plaintiffs Havasupai Tribe, Grand Canyon Trust, Center for Biological Diversity, and the Sierra Club brought suit against Defendants United States Forest Service and Michael Williams, Supervisor of the Kaibab National Forest (the "Forest Service"), challenging mining operations at the Canyon Mine under the National Environmental Policy Act ("NEPA") and the National Historic Preservation Act ("NHPA"). Canyon Mine is owned and operated by Energy Fuels Resources (USA), Inc. and EFR Arizona Strip, LLC (collectively, "Energy Fuels").
On April 7, 2015, the Court denied Plaintiffs' motion for summary judgment and granted Defendants' motions for summary judgment on all claims. Doc. 166. Plaintiffs have appealed that decision, and now seek an injunction to prohibit mining while the appeal is pending.
II. Legal Standard.
"[I]njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). The standard for evaluating injunctions pending appeal is the same as the standard for evaluating preliminary injunctions. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983). The movant "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of... relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555 U.S. at 20. Alternatively, if the movant "can only show that there are serious questions going to the merits' - a lesser showing than the likelihood of success on the merits - then [an] injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, ' and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)) (emphasis in original).
The Court notes that it has already denied a request for a preliminary injunction in this case. Doc. 86. Plaintiffs nonetheless argue that they are likely to succeed on the merits of their appeal or, alternatively, that they have raised serious questions on each of their claims. Plaintiffs argue that mining will cause irreparable harm and that the balance of hardships tips sharply in their favor. Defendants dispute these claims.
A. Likelihood of Success and Serious Questions.
The likelihood of success standard is easily understood. "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 Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1952)). "Serious questions need not promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits.'" Id. (quoting Nat'l Wildlife Fed'n v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985)) (emphasis added). The question for the Court to decide, therefore, is whether Plaintiffs have shown either a likelihood of success or a fair chance of success on the merits of their appeal.
Plaintiffs' claims are brought under the Administrative Procedure Act ("APA"), which requires a plaintiff challenging an agency action to show that the action was arbitrary and capricious or not in accordance with the law. "This standard of review is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.'" Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)).
1. Claim One.
Before approving the Plan of Operations for the Canyon Mine in 1986, the Forest Service completed a full NEPA Environmental Impact Statement ("EIS"). A.R. 461-693. On September 26, 1986, the Forest Service issued a Record of Decision ("ROD") approving a Plan of Operations for the Canyon Mine. A.R. 915-29. Administrative appeals followed (A.R. ...