Opinion
NO. CT-02-5100-EFS
March 28, 2003
ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF INJUNCTION WITHOUT BOND PENDING APPEAL AND EXTENDING CURRENT INJUNCTION
A telephonic hearing was held on March 27, 2003, on Plaintiff Benton County's Motion for Extension of Injunction Without Bond Pending Appeal. (Ct. Rec. 42). Stephen DiJulio and Sharon Cates represented Benton County. Defendants were represented by John Almeida. After reading the submitted memoranda and relevant statutes, regulations, and case law, the Court is fully informed and denies Benton County's motion, but extends the current injunction for seven days. This written order memorializes and supplements the Court's oral ruling.
Benton County is appealing the Court's February 28, 2003, Order granting Defendant's motion for summary judgment and denying Plaintiff's motion for summary judgment and request for preliminary injunction, (Ct. Rec. 37). Benton County filed this motion to obtain an extension, during the pendency of the appeal, of the thirty-day injunction imposed by the Court's February 28, 2003, Order. Benton County also requests that the Court waive the bond requirement. Defendants respond that Denton County's motion should be denied as Benton County will not succeed on the merits of its appeal and the public interest does not favor the issuance of an injunction, (Ct. Rec. 61). If the Court grants the injunction pending appeal, Defendants argue that the Court should require Benton County to post at least a $9 million bond.
The federal appellate rules require an appealing party who is seeking an injunction to first move in the district court for injunctive relief, or to show that making such a motion would be impracticable. FED. R. APP. PROC. 8(a)(1), (2). Federal Rule of Civil Procedure 62(c) provides a district court with the discretion to grant an injunction during the pendency of an appeal. More specifically Rule 62(c) states:
When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
To obtain such an injunction pending appeal, Benton County has the burden of showing (1) a strong showing of likely success on the merits, (2) the balance of irreparable harm favors Benton County, and (3) the public interest favors granting the injunction. See Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 213-3, 95 L.Ed.2d 724 (1997); Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir. 1977). "The requirement of a `strong' showing of likelihood of success on the merits is more stringent than the `reasonable probability' standard that is applicable to an application for a preliminary injunction." Davis v. Meyers, 101 F.R.D. 67, 69 (D. Nov. 3-984). The last two factors "merge into a single equitable judgment in which the environmental concerns of the movants must be weighed against the societal interests which will be adversely affected by granting the relief requested." Gribble, 565 F.2d at 551, citing Reserve Mining Co. v. United States, 498 F.2d 1073, 1076-67 (8th Cir. 1974). An injunction is an equitable remedy which is be used to protect against injury, rather than to punish. Weinberger v. Romero-Barcelo, 456 U.S. 305, 310-12, 102 S.Ct. 1798, 1802-03 (1982).
Benton County argues that this standard is not the appropriate standard to apply. Denton County encouraged the Court to utilize the more lenient standard utilized for a preliminary injunction in a National Environmental Policy Act (NEPA) lawsuit. C.f. Am. Motorcyclist Assoc. v. Watt, 714 F.2d 962, 965 (9th Cir. 1983). However, a stronger standard is to be utilized for an injunction pending appeal because the Court has already ruled upon the merits. See Davis v. Meyers, 101 F.R.D. 67, 69 (D. Nov. 1984)
The Court finds that Benton County fails to meet the standard necessary to obtain an injunction pending appeal. During the February 25, 2003, hearing, Benton County's counsel clarified that Denton County is not substantively challenging the 1995 Environmental Analysis (EA) or Finding of No Significant Impact (FONSI). To be specific, Plaintiff's counsel stated:
these three affirmative defenses listed here, then are predicated on their viewpoint that are attacking the 1995 EA and FONSI in a substantive way, but Benton County is not doing that so all three of these affirmative defenses, statute of limitation, exhaustion of administrative remedy where there's a lot of talk in the briefing about the Vermont Yankee case, and to follow what Chief Judge Winmill did in the Coalition 2). case, and then the third item, scope of judicial reivew limited to the record before the agency at the time it made its decision, that's all talking about the 1995 EA.
Hearing Transcript at 10-11; see also Id. at 13. ("Because these affirmative defenses require as a predicate that Benton County be attacking the 1995 EA and FONSI in a substantive way and because Benton County is not, every one of these is just meaningless, irrelevant, and inapplicable to this case."). Benton County also did not argue that the 1995 EA or FONSI were not ripe for National Environmental Policy Act (NEPA) review when they were issued. Nevertheless, anticipating the possibility of appeal, the Court provided its analysis on the affirmative defenses of statute of limitations and administrative comment process in its February 28, 2003, Order. (Ct. Rec. 37.) In the February 28, 2003, Order, the Court found that challenges to the substance of the 1995 environmental analysis would be barred under both affirmative defenses.
During the telephonic hearing on the current injunction motion, Benton's County's counsel again confirmed that Benton County is not challenging the substance of the 1995 EA or FONSI. Again, Benton County did not argue that the 1995 EA or FONSI were not ripe for judicial review at the time they were issued. Benton County is challenging the substance of the 2001 Programmatic Environmental Impact Statement (PEIS). This 2001 PEIS incorporated the 1995 EA and FONSI deactivation analysis by reference and did not provide additional deactivation analysis. In order to challenge the 1995 EA or FONSI, these challenges must have been made during the six-year statute of limitations and issues brought to DOE's attention during the public comment process. Benton County did not contend that merely incorporating by reference the 1995 EA or FONSI in the 2001 PEIS would provide an opportunity to challenge the substance of the 1995 EA or FONSI. Benton County has not provided legal authority to make a strong showing that the Court's rulings regarding these affirmative defenses are erroneous. Benton County also argues that equitable laches should not be applied; however, Defendants did not allege equitable laches as an affirmative defense. Consequently, the Court need not address this issue.
The Court addressed the issues of whether deactivation and decommissioning are connected actions and whether supplementation of DOE's environmental analysis is required in its Order denying Benton County's summary judgment motion and request for preliminary injunction. (Ct. Rec. 37.) Benton County has not presented any new case law or other law showing that this Court's February 28, 2003, Order denying the preliminary injunction was erroneous. Accordingly, Benton County has failed to show that it is likely to succeed on the merits upon appeal.
A modification was made to the DOE Contract with Fluor Hanford Company: Contract No. DE-AC06-96-RL-13200, p. C-89 (March 17, 2003). The Court finds that this modification clarifies the fact that no final plan for decommissioning has been made, and that the parties are merely "planning to make a final plan." Accordingly, the Court's finding that supplementation is not required is not clearly erroneous.
After considering Benton County's ability to succeed upon appeal, the Court must analyze whether the balance of hardships and the public interest weighs in favor of Benton County. Benton County acknowledges that one of its ultimate goals is to have the FFTF utilized to create medical isotopes. If the liquid sodium is drained, it will be economically impracticable to restart this "one-of-a-kind" facility. This hardship is different than that faced by a typical plaintiff bringing a NEPA lawsuit. The typical plaintiff asserting NEPA violations is seeking an injunction to prevent damage to the environment, not to a man-made facility. E.g. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 5221, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); City of South Pasadena v. Slater, 56 F. Supp.2d 1106, 1143 (C.D. 1999). Damage to the environment is often irreversible, whereas, "damage" to a building can be fixed, even though it may be expensive. Here, the alleged irreparable harm is the economic impracticability to utilize the FFTF facility for the medical isotope mission, a possibility that has existed since 1995 without realization, if the liquid sodium is drained. Benton County also argues that the public will be at risk if the "green fuel" is not irradiated prior to the deactivation of the FFTF, citing terrorist threat.
If an injunction is imposed, DOE will be burdened economically by having to continue to maintain and operate the FFTF in its current "standby" condition, which costs approximately $3 million a month. Denton County does not dispute this amount. The federal government has maintained the FFTF in this "standby" condition for several years, with no mission and at considerable expense. This economic burden is ultimately borne by the American taxpayers. Accordingly, if the Court grants the injunction the public will be burdened economically. With these injuries in mind, the Court finds that the balance of hardships is evenly balanced. Due to the fact that the balance of hardships is even and Benton County has failed to make a strong showing that it is likely to succeed on appeal, the Court determines that an injunction pending appeal is inappropriate.
The court understands that the question of whether the FFTF should be used to produce medical isotopes for cancer research and treatment must be answered by the Executive and, perhaps, the Legislative branches of government, and not by the judicial branch.
Benton County has filed a Notice of Appeal to the Ninth Circuit, (Ct. Rec. 53). Even though the Court finds that Benton County fails to meet the standard necessary for an injunction pending appeal, the Court finds that Benton County should have an opportunity to seek injunctive relief from the Ninth Circuit prior to the drainage of the liquid sodium. Accordingly, the Court extends the current injunction seven days from the date of the hearing, to April 3, 2003, at 5:00 p.m. The Court finds that imposition of a bond is not necessary for this short time period.
IT IS HEREBY ORDERED:
(1) plaintiff Denton County's Motion f or Extension of Injunction Without Bond Pending Appeal, (Ct. Rec. 42), is DENIED.
(2) The Court extends the current injunction imposed by the February 28, 2003, Order. The injunction will terminate on April 3, 2003, at 5:00 p.m. IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide copies to counsel.