Southeast Alaska Conservation v. U.S. Army Corps ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUTHEAST ALASKA CONSERVATION 
COUNCIL; et al.,
Plaintiffs-Appellants, No. 06-35679
v. D.C. No.
UNITED STATES ARMY CORPS OF
ENGINEERS; et al.,
 CV-05-00012-J-JKS
District of Alaska,
Defendants-Appellees, Juneau
COEUR ALASKA, INC.; et al., ORDER
Defendant-Intervenors-
Appellees.

Filed December 8, 2006
Before: Procter Hug, Jr., A. Wallace Tashima, and
Susan P. Graber, Circuit Judges.
ORDER
Appellee Coeur Alaska, Inc.’s Urgent Motion Under Cir-
cuit Rule 27-3(b) to Vacate the Injunction Pending Appeal is
denied. The court granted Appellant Southeast Alaska Con-
servation 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. Gonza-
lez, 127 S. Ct. 5 (2006).
19441
19442 SOUTHEAST ALASKA CONSERVATION v. USACE
We conclude that Coeur Alaska’s challenge to the injunc-
tion, 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 find-
ings or indeed any reasoning of its own.” Id. at 8. Coeur Alas-
ka’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 situ-
ation 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 strong
likelihood of success on the merits, (2) the possibility of irrep-
arable 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,
SOUTHEAST ALASKA CONSERVATION v. USACE 19443
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 hard-
ships 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 prob-
ability 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 like-
lihood of success on the merits because it has argued persua-
sively that the Corps’ permit to Coeur Alaska violates the
Clean Water Act. Second, SEACC has demonstrated that con-
struction 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 consti-
tutes irreparable harm warranting an injunction. See Amoco
Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (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 dis-
posal of tailings into Lower Slate Lake is not scheduled to
begin until, at the earliest, next spring. Consequently, con-
struction activities need not begin immediately. Furthermore,
as discussed below, the court’s injunction allows Coeur
Alaska to implement measures necessary to stabilize the cof-
fer dam. Given the risk of irreparable harm to the environ-
ment, the balance of hardships tips decidedly in SEACC’s
19444 SOUTHEAST ALASKA CONSERVATION v. USACE
favor. Finally, the public interest strongly favors preventing
environmental harm. Although the public has an economic
interest in the mine, there is no reason to believe that the
delay in construction activities caused by the court’s injunc-
tion will reduce significantly any future economic benefit that
may result from the mine’s operation. Therefore, applying the
court’s sliding scale to the record, we conclude that an injunc-
tion pending appeal is appropriate in this case.
Our determination concerning the relative hardships does
not conflict with that of the district court. When considering
SEACC’s motion for accelerated briefing to the district court
relating to its motion for an injunction pending appeal, the
district court stated that an expedited consideration of
SEACC’s motion for an injunction pending appeal was not
warranted because no additional harm would occur if the
court followed a normal briefing schedule. The district court
did not actually consider the merits of SEACC’s motion. In
fact, the district court expressly did not address the balance of
hardships. Thus, the district court’s order merely addressed
timing of briefing to the district court and did not make find-
ings relevant to irreparable harm. SEACC’s motion to the dis-
trict court for an injunction pending appeal was withdrawn
when this court granted SEACC’s motion for an injunction
pending appeal, and thus no findings on the merits were
made.
To justify vacating the injunction (other than on the failure
to comply with Purcell’s specificity requirement), Coeur
Alaska must demonstrate that facts have changed sufficiently
since the court issued its order. See Sharp v. Weston, 233 F.3d
1166, 1170 (9th Cir. 2000). Coeur Alaska argued in its motion
that the court’s injunction prevents it from taking measures to
prevent environmental degradation. According to Coeur
Alaska, excessive precipitation this autumn has jeopardized
the integrity of a coffer dam constructed at the lake’s outfall
point, which could increase sediment levels in downstream
waters. But the court’s order granting SEACC’s motion for an
SOUTHEAST ALASKA CONSERVATION v. USACE 19445
injunction pending appeal allows Coeur Alaska to take the
steps necessary to prevent the alleged environmental harm.
The court’s order states: “Nothing in this injunction shall pro-
hibit measures needed to restore stream flows, stabilize soils,
or prevent erosion.” Accordingly, the injunction permits
Coeur Alaska to take measures necessary to stabilize the cof-
fer dam. Assuming Coeur Alaska’s factual assertions to be
true, Coeur Alaska has failed to demonstrate that construction
of a permanent dam is the only measure capable of averting
environmental harm. For example, Coeur Alaska could take
several lesser measures to prevent breaching of the coffer
dam, including installation of a spillway, or removal or reduc-
tion in height of the coffer dam itself. The court’s order per-
mits Coeur Alaska to take those measures. Thus, Coeur
Alaska has not met its burden to show that the injunction
should be vacated.
For these reasons, Coeur Alaska’s urgent motion to vacate
the injunction pending appeal is denied. The court directs all
parties, including the government, to meet and consider how
best to address the threat posed by weather conditions to the
integrity of the coffer dam.
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