The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR STAY AND INJUNCTION PENDING APPEAL
Plaintiffs move under Federal Rule of Civil Procedure ("Rule") 62(c) for a stay and injunction enjoining "additional post-fire logging activities in the Panther Project area" pending appeal of the order denying their motion for preliminary injunction. (Pls.' Mem. in Supp. of Mot. for Stay ("Mot.") 1:14-17.) Plaintiffs argue "irreparable harm is occurring, and will continue to occur, in absence of a stay and injunction pending appeal." Id. at 1:11-12. Defendants and Defendant Intervenors filed oppositions to the motion on October 19, 2010.
Rule 62(c) prescribes: "[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves or denies an injunction, the court may suspend, modify, restore, or grant an injunction . . . " However, a stay pending appeal "is not a matter of right, even if irreparable injury might otherwise result." Nken v. Holder, 129 S.Ct. 1749, 1760 (2009). "It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case. The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion." Id. at 1761 (quotation, citations and internal brackets omitted).
The following factors should be considered in deciding whether to issue a stay pending appeal:
"(1) [W]hether 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."
Golden Gate Restaurant Ass'n v. City and County of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The Ninth Circuit applies these factors by "employ[ing] two interrelated legal tests that represent the outer reaches of a single continuum." Id. at 1115 (quotation omitted).
At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. . . . At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.
Id. at 1115-16 (quotations omitted). For purposes of injunctive relief, "[s]erious 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." Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991) (quotations and citations omitted).
"There is substantial overlap between these and the factors governing preliminary injunctions . . . because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined." Nken v. Holder, 129 S.Ct. at 1761.
A. Likelihood of Success on the Merits
Plaintiffs' motion to stay is based on the same three claims on which their preliminary injunction motion was premised: violation of the National Forest Management Act ("NFMA"); violation of the National Environmental Policy Act ("NEPA"); and violation of the Appeals Reform Act ("ARA"). (Mot. 1:14-19.) This ruling on Plaintiffs' Rule 62 motion only addresses Plaintiffs' arguments or citations to the Administrative Record ("AR" or "record") that have been made for the first time in the motion sub judice, and does not repeat discussion of issues specifically addressed in the preliminary injunction order.
Plaintiffs contend "the Forest Service overlooks the fact that natural regeneration is already occurring in the planning area and within Riparian Reserves," as support for their argument that the Project violates the National Forest Management Act by logging within Riparian Reserves when not required to meet Aquatic Conservation Strategy ("ACS") Objectives. (Mot. 4:6-7.) Plaintiffs explain, "[c]onsequently, even if the Forest Service could lawfully focus on conifer regeneration as a means to attain ACS Objectives, natural regeneration and the successional process of restoring riparian conditions is already underway." Id. at 4:8-10.
However, the record evidences the Forest Service's recognition that natural regeneration is occurring in a manner that will delay conifer regeneration. (AR 19 at 6, 46, 50-51, 126.) The Environmental Assessment states:
Alternative 1 -- No Action
Under this alternative no change from current management actions would occur in the project area. Sprouting hardwoods and highly competitive sclerophyllous brush species would quickly occupy most of project area. Reforestation will occur naturally but may take many decades to replace brushfields. . . . Given the high residual fuel loading, probable length of time required for site dominance by conifers and the fire history of the Klamath Province, it is likely that the area would reburn before trees with some degree of fire resistance were established, so the area ...