United States v. 2008-02-19 | 08-55054 | NRDC, INC. VWINTER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 NATURAL RESOURCES DEFENSE
COUNCIL, INC.; THE INTERNATIONAL
FUND FOR ANIMAL WELFARE;
CETACEAN SOCIETY INTERNATIONAL;
LEAGUE FOR COASTAL PROTECTION;
OCEAN FUTURES SOCIETY; JEAN-
MICHEL COUSTEAU,
Plaintiffs-Appellees, No. 08-55054
v. D.C. No.
CV-07-00335-FMCDONALD C. WINTER, Secretary of Central Districtthe Navy; UNITED STATES of California,DEPARTMENT OF THE NAVY; CARLOS  Santa AnaM. GUTIERREZ, Secretary of the
Department of Commerce; ORDER DENYING
NATIONAL MARINE FISHERIES EMERGENCY
SERVICES; WILLIAM HOGARTH, MOTION FOR
Assistant Administrator for STAY
Fisheries of the National
Oceanographic and Atmospheric
Administration; CONRAD C.
LAUTENBACHER, JR., Administrator
of the National Oceanographic and
Atmospheric Administration,
Defendants-Appellants. 
Filed February 19, 2008
Before: Betty B. Fletcher, Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.
1581

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ORDER
The Navy files an emergency motion for a partial stay of
the preliminary injunction imposed by the district court’s Jan-
uary 3, 2008 order as amended by its January 10, 2008 order.
The motion follows the district court’s February 4, 2008 order
denying the Navy’s application to vacate or partially stay the
preliminary injunction and lifting the temporary partial stay
imposed by the district court on January 17, 2008. The Navy
seeks a stay because its next training exercises to be con-
ducted off the coast of southern California are scheduled to
begin in March and it contends that the preliminary injunction
prevents it from adequately conducting those exercises.1
The Navy’s motion for a stay is denied in light of the
court’s February 8, 2008 sua sponte order expediting the
appeal of the district court’s imposition of a preliminary
injunction. The Navy has informed the court that its next
exercises are scheduled to begin in early to mid-March.2 This
1While initially only one exercise was scheduled to be conducted in
March, the Navy now informs the court that “in response to very recent,
real world events” a second exercise has been scheduled for the same
period in March. The Navy does not elucidate whether the second exercise
is one of the originally scheduled fourteen exercises that has been pushed
forward or whether it is an additional, fifteenth exercise that the Navy did
not take into account in its Environmental Assessment (EA). The court
notes that if the exercise is a fifteenth exercise accounted for in neither the
Navy’s EA nor the Council on Environmental Quality’s January 15, 2008
“Emergency Alternative Arrangements,” it would seem that conducting
the exercise may well violate NEPA. The court further notes that even if
the exercise is one of the originally scheduled fourteen exercises, the
cumulative effect of conducting two exercises simultaneously may result
in a greater impact on the environment than originally estimated by the
Navy in its EA.
2The Navy refuses to provide the court with the precise start of the exer-
cises on the ground that they are classified. However, while the Navy
informed the district court on January 30, 2008, that its next exercise was
scheduled to begin “mid-March,” it now contends that its next exercises
are scheduled for “early to mid-March.” Assuming the Navy has been
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court’s order expediting the appeal required the Navy to file
a brief on or before February 15, 2008, requires Appellees to
file an answering brief on or before February 22, 2008, and
sets oral argument for February 27, 2008. This schedule will
allow the court to render its decision well in advance of the
commencement of the Navy’s exercises. Accordingly, there is
no need to grant a stay. The Navy’s motion shall be denied
without prejudice such that it may be renewed in case the
court has not rendered a decision on or before March 3, 2008.
The court is mindful of both the Navy’s desire to know as
soon as possible whether it may proceed with its exercises so
as not to expend resources unnecessarily if the preliminary
injunction is upheld as well as the need to allow sufficient
time for the parties to seek relief before the Supreme Court.
The court is confident that by denying the Navy’s motion for
stay today and by rendering a decision in the underlying
appeal by March 3, 2008, the court provides adequate time to
the Navy to avoid unnecessary expenditures and to the parties
to seek any necessary relief before the Supreme Court. If the
court has not rendered a decision by March 3, 2008, and the
Navy renews its motion for a stay, the court will act on the
Navy’s motion within 24 hours.
The denial of the Navy’s motion is further supported by the
fact that the court, as it previously determined, finds it desir-
able to rule directly on the merits of the preliminary injunc-
tion instead of first issuing an opinion on the motion for a
stay. Because the Navy intends to conduct at least eight more
truthful with both the district court and this court, it appears that the Navy
may have recently changed the start date of its next exercise (in addition
to recently scheduling a second exercise for early to mid-March). The
Navy’s apparent flexibility with respect to the start dates of its exercises
further confirms that, as explained below, the Navy will have sufficient
time to take any necessary further action before commencing its next exer-
cise if the court renders a decision on the merits of the underlying appeal
on or before March 3, 2008.
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training exercises between now and January 2009, it behooves
the parties, the district court and this court to have the prelimi-
nary injunction reviewed on the merits as soon as possible so
that there will be certainty as to the restrictions imposed on
the scheduled exercises. Deciding directly the merits of the
preliminary injunction will spare the parties, the district court,
and this court substantial time, resources and uncertainty.
A direct review on the merits is particularly desirable here
because the analysis involved in considering a motion for a
stay would be similar to, and therefore largely duplicative of,
the analysis involved in a review on the merits of a prelimi-
nary injunction. Compare Golden Gate Restaurant Assoc. v.
City and County of San Francisco, ___ F.3d ___, 2008 WL
90078, *1 (9th Cir. Jan. 9, 2008) (explaining that the factors
regulating the issuance of a stay are “(1) whether the stay
applicant has made a strong showing that he is likely to suc-
ceed on the merits; (2) whether the applicant will be irrepara-
bly injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceed-
ing; and (4) where the public interest lies”), with Freecycle
Network, Inc. v. Oey, 505 F.3d 989, 902 (9th Cir. 2007)
(explaining that a preliminary injunction may be granted if a
plaintiff shows “(1) a strong likelihood of success on the mer-
its, (2) the possibility of irreparable injury to plaintiff if pre-
liminary relief is not granted, (3) a balance of hardships
favoring the plaintiff, and (4) advancement of the public inter-
est (in certain cases)”). The court prefers to perform such
analysis once and in a manner that will expeditiously and
finally resolve all outstanding issues in the proceeding.
For the reasons stated above, the Navy’s emergency motion
for a partial stay of the preliminary injunction is DENIED
without prejudice to renewal if this court’s decision is delayed
beyond March 3, 2008.
1584 NATURAL RESOURCES DEFENSE COUNCIL v. WINTER

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