United States District Court, D. Utah
WESTERN WATERSHEDS PROJECT; COTTONWOOD ENVIRONMENTAL LAW CENTER, Plaintiffs,
RYAN ZINKE, in his official capacity as Secretary of the Interior; NATIONAL PARK SERVICE, Defendants.
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S
MOTION FOR STAY AND INJUNCTION PENDING APPEAL
N. Parrish United States District Court Judge.
November 23, 2016, the court issued a Memorandum Decision and
Order affirming the National Park Service's decision to
categorically exclude the three-year Special Use Permit
authorizing cattle grazing on the Hartnet Allotment in
Capitol Reef National Park (“Capitol Reef”) from
further NEPA analysis. [Docket No. 116]. Plaintiff Cottonwood
Environmental Law Center (“Cottonwood”) has
appealed the court's decision to the Tenth Circuit Court
of Appeals. [Docket No. 118]. On March 15, 2017, Cottonwood
filed a Motion for Stay and Injunction Pending Appeal (the
“Motion”). [Docket No. 125]. Cottonwood
specifically seeks a stay and injunction pending appeal
requiring Defendants to remove cattle from the Hartnet
Allotment by April 15, 2017. Because of the time-sensitive
nature of Cottonwood's Motion, the court ordered
Defendants to file their response on March 22, 2017, and
Cottonwood to file its reply by March 29. After reviewing the
parties' memoranda and the applicable law, the court
DENIES Cottonwood's Motion.
brings its Motion seeking a stay and injunction under
Fed.R.Civ.P. 62 and Fed. R. App. P. 8. But the Federal Rules
of Appellate Procedure do not govern procedure in this court.
Fed. R. App. P. 1(a) (“These rules govern procedure in
the United States courts of appeals. When these rules provide
for filing a motion or other document in the district court,
the procedure must comply with the practice of the district
Civ. P. 62 provides: “While 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 on terms for
bond or other terms that secure the opposing party's
rights.” (emphasis added). In its Memorandum in Support
of its Motion, Cottonwood conceded that it has never sought
injunctive relief in this case. [Docket No. 125 at 1 n.1].
But in its Reply Brief, Cottonwood retracted that concession
and claimed to have previously requested injunctive relief,
referencing its December 10, 2015 Reply Brief in support of
its motion for summary judgment. [Docket No. 130 at 4 n.1].
In a footnote in Cottonwood's December 10, 2015 Reply
Brief, Cottonwood requested that “[i]f this [c]ourt
decides against vacating the permit, Plaintiffs respectfully
request permanent injunctive relief.” [Docket No. 72 at
one-line request for injunctive relief contained in a reply
memorandum was procedurally improper. DUCivR 7-1(b) states
that “[n]o motion . . . may be included in a response
or reply memorandum. Such motions must be made in a separate
document.” Further, Cottonwood made no effort in its
footnoted request to establish the elements required to show
it was entitled to injunctive relief. Potawatomi Indian
Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886,
888-89 (10th Cir.1989) (“Plaintiffs have the burden of
clearly establishing the need for injunctive relief. The
traditional elements of injunctive relief are as follows: (1)
whether plaintiff has a substantial likelihood of success on
the merits; (2) whether, in the absence of injunctive relief,
plaintiff faces the threat of irreparable injury; (3) whether
plaintiffs potential injury outweighs any damage to
defendants; and (4) whether the injunction will be adverse to
the public interest.”). Thus, Cottonwood never properly
moved the court for injunctive relief and there was never an
“interlocutory order or final judgment that grant[ed],
dissolve[d], or denie[d] an injunction” as required
under Fed.R.Civ.P. 62.
Cottonwood's Memorandum in Support of its Motion, it
concedes that “[t]his [c]ourt has previously denied an
environmental [p]laintiff s motion for an injunction pending
appeal when it did not previously seek injunctive
relief.” [Id]. See S. Utah Wilderness All. v.
Bankert, No. 2:07-CV-292-TC, 2007 WL 3053289, at *1 (D.
Utah Oct. 18, 2007) (unpublished). Cottonwood offers no
argument why the result in this case should differ from that
in Bankert and the court sees no why it should. As
discussed above, Cottonwood did not previously seek
injunctive relief and the court's November 23, 2016
Memorandum Decision and Order did not address a request for
an injunction. The Motion, therefore, is procedurally
improper and must be denied.
the Motion were procedurally proper, it fails to meet the
requirements for an injunction pending appeal. For the court
to consider a request for a stay or an injunction pending
appeal, the movant must “demonstrate a clear and
unequivocal right to relief by addressing “(a) the
likelihood of success on appeal; (b) the threat of
irreparable harm if the stay or injunction is not granted;
(c) the absence of harm to opposing parties if the stay or
injunction is granted; and (d) any risk of harm to the public
interest.” Homans v. City of Albuquerque, 264
F.3d 1240, 1243 (10th Cir. 2001) (citations omitted).
Cottonwood argues that it has a likelihood of success on
appeal, but only repeats arguments that this court has
already considered and rejected in its November 23, 2016
Memorandum Decision and Order. Cottonwood claims that it is
likely to succeed on the merits of its appeal if it can show
that cattle grazing will have any impact that may affect
certain endangered plant species. But the court has already
determined that Cottonwood failed to make that showing and
that the record did not support such a finding. Therefore
Cottonwood has not demonstrated that it has a likelihood of
success on appeal.
also fails to demonstrate the threat of irreparable harm.
Cottonwood asserts that cattle grazing in Capitol Reef causes
irreparable harm to its members' aesthetic, recreational,
and conversation interests. Cottonwood also argues that
cattle grazing poses irreparable injury to the environment
within Capitol Reef. But these claims of irreparable harm are
undermined by Cottonwood's delay in seeking injunctive
relief. As noted, Cottonwood never properly requested
injunctive relief at any point in this case until it filed
the Motion. And Cottonwood further delayed filing its Motion
until almost four months after the court's November 23,
2016 Memorandum Decision and Order,  and over three months after
filing its notice of appeal. “[D]elay in seeking
[injunctive] relief cuts against finding irreparable
injury.” Kan. Health Care Ass'n v. Kan.
Dep't of Soc. & Rehab. Servs., 31 F.3d 1536,
1543-44 (10th Cir. 1994) (quotation and citation omitted).
Furthermore, Cottonwood has failed to demonstrate that it
will be irreparably harmed during the 45-day period between
April 15 and the expiration of the Special Use Permit on June
1, 2017. In short, Cottonwood has failed to demonstrate the
threat of irreparable harm.
accordance with the foregoing, the court HEREBY ORDERS that
Cottonwood's Motion for Stay and Injunction Pending
Appeal is DENIED.
 S.M.R. Jewell no longer serves as
Secretary of the Interior. Ryan Zinke is automatically
substituted pursuant to Fed.R.Civ.P. 25(d).
 In its Reply Brief in Support of its
Motion, Cottonwood modifies its request to require Defendants
to remove the cattle by April 15, 2017. Instead, it asks for
an order requiring Defendants to use their best efforts to
remove the cattle by April 15, 2017.
 The court rules on the basis of the
written memoranda of the parties pursuant to DUCivR