Alaska Survival v. Surface Transportation Board , 704 F.3d 615 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA SURVIVAL; SIERRA CLUB; No. 12-70218
COOK INLETKEEPER,
Petitioners, STB No.
FD-35095
v.
SURFACE TRANSPORTATION BOARD ; ORDER
UNITED STATES OF AMERICA ,
Respondents,
ALASKA RAILROAD CORPORATION ;
MATANUSKA -SUSITNA BOROUGH ;
STATE OF ALASKA ,
Respondents-Intervenors.
On Petition for Review of an Order of the
Surface Transportation Board
Argued and Submitted
November 8, 2012–San Francisco, California
Filed November 28, 2012
Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit
Judges, and Kevin Thomas Duffy, District Judge.*
*
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
2 ALASKA SURVIVAL V . SURFACE TRANSP . BD .
SUMMARY**
Stay Order
In a published order, the panel granted a motion to lift the
court’s October 1, 2012 order granting a stay of the Surface
Transportation Board’s November 21, 2011 order, and denied
a petition for review of the Board’s order. The panel stated
that an opinion on the merits of denial of the petition for
review will follow in due course.
The panel commented briefly on its reasoning for lifting
the stay, and concluded that petitioners no longer satisfied the
standard for issuance of a stay. This court initially
determined that petitioners raised a “serious question”
regarding whether the Board complied with the National
Environmental Policy Act in determining the “purpose and
need” of a proposed rail line and that the balance of hardships
tipped in petitioners’ favor. However, upon further review of
the record, the panel concluded that the Board’s “purpose and
need” statement complied with the Act and that petitioners no
longer raised “serious questions” on this point; and the
balance of hardships no longer tipped sharply in the
petitioners’ favor.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALASKA SURVIVAL V . SURFACE TRANSP . BD . 3
COUNSEL
James B. Dougherty (argued), Washington, D.C.; Jessica
Yarnall Loarie, Sierra Club, San Francisco, California for
Petitioners.
Theodore L. Hunt (argued), Raymond A. Atkins, Evelyn G.
Kitay, Surface Transportation Board, Washington, D.C.;
Mary Gabrielle Sprague, Robert B. Nicholson, and John P.
Fonte, Department of Justice, Washington D.C., for
Respondents.
Jay C. Johnson (argued) and Kathryn Kusske Floyd, Dorsey
& Whitney LLP, Washington D.C., for Respondents-
Intervenors Alaska Railroad Corporation and Matanuska-
Susitna Borough.
Michael C. Geraghty and Sean P. Lynch, State of Alaska,
Department of Law, Juneau, Alaska for Respondent-
Intervenor the State of Alaska.
ORDER
Respondents-Intervenors Alaska Railroad Corporation
and Matanuska-Susitna Borough’s motion to lift this court’s
October 1, 2012, order granting a stay of the Surface
Transportation Board’s (STB’s) November 21, 2011, order is
GRANTED. Leiva-Perez v. Holder, 640 F.3d 962, 964, 966
(9th Cir. 2011) (stating the relevant standard); Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32, 1135
(9th Cir. 2011) (same). Additionally, the petition for review
of the STB’s order is DENIED. An opinion on the merits of
denial of the petition for review will follow in due course.
4 ALASKA SURVIVAL V . SURFACE TRANSP . BD .
However, we think it appropriate to comment briefly now on
our reasoning for lifting the stay.
Based on the merits briefing and the oral argument held
before us, we conclude that Petitioners no longer satisfy the
standard for issuance of a stay. See United States v. Houser,
804 F.2d 565, 568 (9th Cir. 1986) (discussing a merits panel’s
authority to reconsider a motions panel’s decision). This
court initially determined that Petitioners raised a “serious
question” regarding whether the STB complied with the
National Environmental Policy Act (NEPA) in determining
the “purpose and need” of the proposed rail line and that the
balance of hardships tipped sharply in Petitioners’ favor.
Order, Alaska Survival v. Surface Transp. Bd., No. 12-70218
(9th Cir. Oct. 1, 2012). After further review of the record, we
have concluded that the STB’s “purpose and need” statement
complied with NEPA and that Petitioners no longer raise
“serious questions” on this point.
Moreover, the balance of hardships no longer tips sharply
in the Petitioners’ favor. Further delay of this project will
prevent the award of construction contracts, postpone the
hiring of construction employees, and significantly increase
costs. See Earth Island Inst. v. Carlton, 626 F.3d 462, 475
(9th Cir. 2010) (noting that economic harm may be a factor
in considering the balance of hardships). Because this project
is funded largely with taxpayer dollars, these increased costs
of construction, which the Respondents-Intervenors in
moving to lift the stay estimated at $10–12 million, will
burden the public upon continued delay. By contrast, the
weight to be given Petitioners’ assertions of hardship because
of environmental harm is weakened by this court’s decision
to deny the petition for review, which will allow the project
to move forward. Because we have concluded that the
ALASKA SURVIVAL V . SURFACE TRANSP . BD . 5
agency acted in accord with law and that its decision is not
arbitrary and capricious, it is for the STB and not for our
court to balance the justifications of planned economic
progress in improved rail service against the possibilities of
environmental harm from building and operating the rail line.
The time to file a petition for rehearing or a petition for
rehearing en banc of this court’s denial of the petition for
review will begin to run when the subsequent opinion is filed.
The time to file a petition for rehearing or a petition for
rehearing en banc of the court’s decision to grant the motion
to lift the stay will run as of the date of this order.