Apache Stronghold v. United States of America ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Apache Stronghold, ) No. CV-21-00050-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) United States of America, et al., ) 12 ) 13 Defendants. ) ) 14 ) 15 On February 12, 2021, this Court denied Plaintiff’s Motion for Temporary 16 Restraining Order and Preliminary Injunction (“PI”) (Docs. 7 & 57). Plaintiff now requests 17 the Court stay the Order denying the PI and grant an injunction pending its appeal to the 18 Ninth Circuit pursuant to Federal Rule of Civil Procedure 62(d) and Federal Rule of 19 Appellate Procedure 8(a)(1), or in the alternative, grant a limited 60-day injunction to “give 20 the Ninth Circuit an opportunity to address Plaintiff’s request for an emergency injunction 21 on a less time-compressed schedule.” (Doc. 61 at 2, 8). 22 Injunctions pending appeal are governed by Rule 62(d), which provides that: “While 23 an appeal is pending from an interlocutory order or final judgment that grants, dissolves, 24 or denies an injunction, the court may suspend, modify, restore, or grant an injunction in 25 terms for bond or other terms that secure the opposing party’s rights.” In evaluating a 26 motion for an injunction pending appeal, the Court considers the same Winter factors 27 considered for the preliminary injunction motions: (1) likelihood of success on the merits, 28 (2) likelihood of irreparable harm in the absence of preliminary relief, (3) the balance of 1 equities, and (4) the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 2 (2008). However, the four factors may be evaluated on a sliding scale under this Circuit’s 3 “serious questions” test: “[a] preliminary injunction is appropriate when a plaintiff 4 demonstrates that serious questions going to the merits were raised and the balance of 5 hardships tips sharply in the plaintiff’s favor.” All. for the Wild Rockies v. Cottrell, 632 F. 6 3d 1127, 1134- 35 (9th Cir. 2011). 7 Because the legal standard is the same, this Court reincorporates the analysis set 8 forth in its Order denying Plaintiff’s Motion for Preliminary Injunction (Doc. 57). 9 Accordingly, Plaintiff is not entitled to a Rule 62(d) injunction pending appeal because it 10 has not demonstrated a likelihood of success on, or serious questions going to, the merits 11 of its claims. See Krieger v. Nationwide Mut. Ins. Co., No. CV-11-1059-PHX-DGC, 2011 12 WL 3760876, at *1 (D. Ariz. Aug. 25, 2011) (“Because Plaintiff has failed to show a 13 likelihood of success on the merits or the existence of serious questions, the Court will not 14 issue a preliminary injunction. The Court need not address the other requirements for 15 preliminary injunctive relief.”). 16 Further, because the land exchange will not occur for at least 16 days, the Court 17 need not grant a limited injunction to allow Plaintiff to seek a stay from the Ninth Circuit. 18 See, e.g., Conservation Cong. v. U.S. Forest Serv., 803 F. Supp. 2d 1126, 1134 (E.D. Cal. 19 2011) (granting plaintiffs a mere 10-day stay to allow time for an appeal to the Ninth Circuit 20 despite not raising serious questions to the merits of their claims); W. Land Exch. Project 21 v. Dombeck, 47 F. Supp. 2d 1216, 1217 (D. Or. 1999) (granting a 60-day injunction only 22 because “nothing will prevent the government from transferring the public lands to Crown 23 Pacific and nothing will prevent Crown Pacific from immediately logging the forest 24 stands”). Here, the Forest Service has stated under penalty of perjury that the conveyance 25 will not occur until March 11, 2021 at the earliest. (Doc. 18-1 at ¶ 11). If Plaintiff wants 26 the Ninth Circuit to address Plaintiff’s request on a “less time-compressed schedule,” it can 27 seek a stay of the order denying the PI from the Ninth Circuit pursuant to Federal Rule of 28 Appellate Procedure 8(a)(2). Accordingly, 1 IT IS ORDERED that Plaintiff's Emergency Motion to Stay (Doc. 61) is denied. 2 Dated this 22nd day of February, 2021. 3 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28