Sierra Club, Inc. v. Bostick

guilty have found the defendant of the government, there is sufficient evidence beyond crime a reasonable doubt.” Unit in, forcibly Ms. Dale acted at a mini- Irvin, 1254, ed States v. 1266 mum, resisting, impeding, intimidating and (10th Cir.2012). sufficiency- “We review interfering with both employees in the novo, challenges of-the-evidence de consid Clerk’s office and the Marshals. She de- ering both direct and circumstantial evi back; manded her documents she actually dence, all reasonable inferences there grabbed them partition; from across the from, light in the most favorable to the yelled she everyone, including accusing government.” United States v. Acostar- attempting them of to sabotage her case Gallardo, Cir.), her; kidnap and she resisted being — denied, U.S.-, cert. 132 S.Ct. removed from the Clerk’s office and being (2011). 181 L.Ed.2d 378 We will reverse taken to the U.S. holding Marshal’s area. sufficiency grounds only on of the evidence Golay Both Ms. and Ms. Schoonover testi- if jury “no rational could have found each fied were intimidated Ms. Dale’s beyond element of the crime a reasonable actions and that normal business in the Parada, doubt.” United States v. 577 Clerk’s office came stop. Deputy to a Cir.2009). “In eval Marshal Kline testified that he thought uating standard, the evidence under this Ms. Dalе was going to assault him. the court will not question jury’s credi short, ample there was support- evidence bility determinations or its conclusions ing Ms. Dale’s conviction on both Counts weight about the of the evidence.” United and 2. Lazcano-Villalobos, States v. (10th Cir.1999). CONCLUSION Ms. Dale argument focuses her on the reasons, For the foregoing we AFFIRM “forcibly” component of the first element the denial of Ms. Dale’s Rule 29 motion for of the offense described both counts. judgement acquittal and we AFFIRM “Specifically, argues she that there was no the conviction entered in this case. evidence of the force necessary to commit possible methods to violate the statute.” Appellant’s Br. at 10. As the out,

government points the district court jury

instructed the component:

To find the defendant guilty, you must beyond

find a reasonable doubt that she forcibly.

acted “forcibly” The term does require actually the defendant

touched the federal employ- officers or However, ees named above. without an CLUB, INC.; Energy SIERRA Clean touching, proof

actual that the defendant Oklahoma; Future East Texas Sub forcibly acted requires proof of a threat Regional Planning Commission, assaulted, resisted[,] of being opposed, Plaintiffs-Appellants, intimidated, impeded, with, or interfered coupled with apparent present ability

by the carry defendant to out the threat. Lieutenаnt General Thomas P. BOS Jury Instructions R. 2Vol. at 20-22. TICK, capacity his official evidence, Commanding all Considering General view- and Chief of ing it in light most Engineers Army Corps favorable to the of the U.S. Major J. General Michael

Engineers;

Walsh, capacity as U.S. in his official

Army Commanding for Civil General Operations; Emergency Colonel capac Teague, in his official

Michael

ity Tulsa District Commander Army Corps Engineers; Colo

U.S. Sallese, Christopher in his of W.

nel capacity District as Galveston

ficial Army Corps

Engineer Army Corps

Engineers; United States Defendants-Appellees, Engineers, LP; Keystone Pipeline

TransCanada Corporation; Interstate

Transcanada Association; American

Natural Gas Association; of Oil Association

Gas Lines; In

Pipe American Petroleum

stitute; Utility Group, Act In Water

tervenors-Appellees.

No. 12-6201. Appeals,

United States Court

Tenth Circuit.

9,Oct. 2013. Ancel, Environ-

Devorah Sierra Club Francisco, CA, Program, mental Law San Huber, Douglas Hayes, Eric Sierra Club Boulder, Program, Environmental Law Stidham, CO, Esq., Lang, G. Steven Sneed Tulsa, OK, Plaintiffs-Appellants. Mcfadden, Bair, Esq., Lane N. Mau- Ty Shilton, Mi- Rudolph, reen E. David C. Walter, (“CWA”), Depart- chele L. States and the United Administrative Proce- Justice, (“APA”) DC, Washington, ment of Robert dure Act Corps’s related to the Troester, J. Office of the States approval United of the construction of an oil pipe- OK, Attorney, City, Oklahoma for Defen- line to Cushing, run from Oklahoma to oil dants-Appellees. along refineries the Gulf Coast near Port (“Gulf Arthur, Pipeline”). Texas Coast Buente, Jr., David T. Lisa Elizabeth Appellants sought preliminary injunction Jones, Steenland, Jr., Sidley Peter Richard prevent construction of the Gulf Coast Austin, Brown, Karma B. Deidre Glasser Pipeline until the resolution of their suit. Duncan, Turner, Andrew Hunton & The district court denied Appellants’ re- Williams, DC, Washington, Stephen Lee quest preliminary injunction for a and this Jantzen, Patrick M. Esq., Ryan, Donald K. interlocutory appeal followed. Exercising Shandy, Whaley, Phillip Ryan Whaley G. 1292(a)(1), jurisdiction § under 28 U.S.C. OK, Shandy, City, Coldiron Oklahoma Lin- we affirm the district court’s denial of the Martin, Doerner, Saunders, da Crook Dan- preliminary injunction. Anderson, LLP, Tulsa, OK, iel & for Inter- venors-Appellees.

I HOLMES, KELLY Before and Circuit The Corps authority has the to issue MARTÍNEZ,* Judges, and Judge. District general permits individual and authorizing discharge dredged of or fill material * * ORDER AND JUDGMENT into the waters of the United States. See (e). HOLMES, 1344(a), § JEROME A. Judge. Corps’s reg- Circuit 33 U.S.C. The policies proce- ulations set forth the and Club, Inc., Plaintiffs-Appellants Sierra for required Corps gen- dures to issue Oklahoma, Energy Clean Future and East (“NWPs”). eral permits nationwide Regional Planning Texas Sub Commission February Corps reissued NWP (“Appellants”) sued Defendants-Appellees allows, alia, an NWP that inter “the Army Corps Engineers, United States of construction, maintenance, repair capacity Thomas Bostick his official as (77 utility Aplt.App. lines.” at 264 Fed. Commanding Engi- General and Chief 2012). 10,271, Reg. issued Feb. Army neers of the Corps Engi- U.S. neers, Corps February and three other members in Also in TransCanada Walsh, their capacities official announced to construct the Gulf plans —Michael Michael Teague, Christopher Pipeline pipeline Coast 485-mile oil —a (collectively, “Corps”)1 ‍​‌‌​​​​‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌​‌‌‌​​​​‌​‍designed Cushing, for viola- that was to run from Saliese — Policy along tions of the National Environmental Oklahoma to oil refineries the Gulf (“NEPA”), Arthur, Act Act near Port Texas. The Gulf Clean Water Coast * Martínez, Keystone Corp., The Honorable William J. 1. District TransCanada TransCanada LP, "TransCanada”), Judge, United Pipeline (collectively, States District Court for the Colorado, sitting by designation. Association, District of American Interstate Natural Gas ** Association, Lines, Pipe Gas Association of Oil judgment binding prec- This order and is not Institute, Utility edent, American Petroleum Wa- except under the doctrines of law of Group Intervenors-Appellees case, ter Act are judicata, estoppel. res and collateral cited, however, joint Because filed a brief with this suit. may persuasive It be for its “Appellees,” Corps, our references to for Appel- value consistent with Federal Rule of purposes appeal, of this include both the late Procedure 32.1 and Tenth Circuit Rule Corps Intervenors-Appellees. 32.1. (U.S. filed, cert. 82 U.S.L.W. tion originally proposed Pipeline 2013) (No. 13-354); Fundamen Sept. XL (“Keystone pipeline oil larger of a

part Latter- Jesus Christ talist Church from designed to run that was Pipeline”) Horne, 1295, 1301 Day Saints v. TransCanada to the Gulf Coast. Canada (10th Cir.2012). of discretion “An abuse notifications pre-construction submitted its the trial court bases when occurs to three regarding the Gulf Coast conclusion of law on an erroneous decision Worth, Galveston, Fort Corps districts — in the no rational basis or where there is Pipeline was The Gulf Coast and Tulsa. Ziriax, Awad v. ruling.” for the evidence territory through run planned to (10th Cir.2012) (quot districts, and TransCa- Corps three these Bureau Workshop ing Wilderness verification sought nada 1220, 1223-24 Mgmt., Land of (10th Cir.2008)) During 12. under NWP proceed could (internal marks quotation 2012, ver- Corps each office July June and omitted). an of discretion “Under abuse Pipeline could that the Gulf Coast ified standard, not be court’s decision will a trial 12. NWP proceed under appellate court has a unless the disturbed in the Corps the United Appellants sued that the lower and firm conviction definite the Dis- District for Western States Court judgment or court made a clear error Oklahoma, validity challenging the trict of choice permissible exceeded the bounds of 12 and reissuance of NWP Corps’s of the Somerlott v. Cher in the circumstances.” that the Gulf Coast Corps’s verification the 1144, Distribs., Inc., 686 F.3d okee Nation Appel- under it. proceed could Pipeline (10th Cir.2012) (quoting Wright ex 1152 violated that these actions alleged lants Inc., Labs., Kan. v. Abbott rel. Trust Co. of CWA, NEPA, the APA in several (10th Cir.2001)) (inter 1226, 1235 259 F.3d preliminary for a They moved respects. omitted). marks “We quotation nal Corps’s seeking enjoin to injunction, an ‘abuse of dis previously characterized per- verifications would verifications. The arbitrary, capricious, whim cretion’ as ‘an of the Gulf Coast mit construction sical, manifestly judg unreasonable commence; in expected it to start Dep’t Agric., Wyoming ment.’” v. U.S. hearing, a Following 2012. August (10th Cir.2011) 1209, (quot 1227 661 F.3d Appellants’ motion for district court denied Foods, Tyson v. ing Attorney Gen. of Okla. injunction. The district preliminary a (10th Cir.2009)), Inc., 769, 776 565 F.3d — did court determined U.S.-, 144, denied, 133 S.Ct. cert. of success on the merits have a likelihood (2012). L.Ed.2d 233 184 factors did not equitable and that the other injunction a party seeking preliminary A injunction. This inter- granting favor equitable that all prove must four locutory followed. appeal specifically, in its favor: weigh factors “(1) likely to substantially it is prove II (2) merits; it on the will suffer succeed injunction if the is de- irreparable injury A (3) nied; injury outweighs threatened or denial of a “grant injury opposing party We review the will suffer (4) injunction injunc- for an abuse of dis preliminary injunction; under the Minetа, 1104, public v. 802 F.3d tion would not be adverse to cretion.” Davis USA, (10th Cir.2002); Inc. v. Mid- Hobby accord interest.” Beltronics 1110-11 Distrib., LLC, Stores, Sebelius, Inventory v. 723 F.3d west Lobby Inc. (10th Cir.2009); Cir.2013) (en 1067, banc), see Winter v. 1070 peti Council, Inc., Flowers, Natural Res. 555 U.S. lowstone Coal. Def. (2008) 7, 20, 129 365, 172 (10th Cir.2003)) (internal S.Ct. L.Ed.2d 249 quotation (“A plaintiff seeking preliminary injunc a omitted); Winter, marks see 555 U.S. at likely tion must establish that he is 22, 129 365 (“[Ijnjunetive S.Ct. relief [is] merits, succeed on the likely he is extraordinary an remedy may only be irreparable suffer harm in the absence upon awarded clear showing that relief, preliminary that the balance of equi plaintiff relief.”); is entitled to such Munaf favor, tips injunction ties his and that an Geren, 674, 689, 128 S.Ct. interest.”); public Conestoga (“A (2008) L.Ed.2d preliminary in Specialties Corp. Wood v. Sec’y junction is an ‘extraordinary and drastic Servs., Dep’t Health and Human remedy!;]’ it is never awarded as right.” (3d Cir.2013) (“A plaintiff seeking (citations omitted) (quoting 11A Charles criteria, must meet all four al., Wright Alan et Federal Practice & plaintiff’s ‘[a] failure to establish (2d ed.1995))). § Procedure at 129 preliminary element its favor renders (alteration injunction inappropriate.’” B added) original) (emphasis (quoting Nutra- analysis Our begins and ends with the Inc., Enters., Sweet Co. v. Vit-Mar preliminary injunction third factor —that (3d Cir.1999))), petition for is, Appellants’ whether injury “threatened (U.S. filed, 19, cert. 82 U.S.L.W. 3139 Sept. outweighs injury the the opposing party 2013) (No. 13-356); Fighters Black Fire Awad, will suffer injunction,” under the Dali., 63, (5th City Ass’n v. 905 F.2d 65 of 1125, or, 670 at F.3d as Cir.1990) (“The characterized denial of a preliminary Court, the Supreme whether “the balance injunction upheld will be where the movant equities tips favor,” of in [Appellants’] sufficiently has failed to establish one Winter, 20, added)). 555 at of the four U.S. 129 365. The (emphasis criteria.” S.Ct. “[Bjecause a district court preliminary injunction is an concluded that the threat- extraordinary remedy, ened right injuries the to relief environmental were out- must be unequivocal.” weighed by clear and Beltron financial harm that ics, 562 F.3d at (quoting 1070 Yel- injunction Greater would cause TransCanada.2 Be- parties 24(a), dispute pursuant 2. The do not that the harm to to Rule "it becomes a full permitted TransCanada —which was to inter participant just in the lawsuit and is treated conditions, right vene pur as of and without original party.” as if it were an Alvarado v. suant to Federal Rule of Civil Procedure Co., 803, (10th Penney J.C. 805 Cir. 24(a)(2) properly taken into account when —is 1993) (quoting Schneider v. Dumbarton Devel considering the balance of harms. Accord Inc., 1007, (D.C.Cir. opers, 1017 ingly, definitively opine we need not here on 1985)) (internal omitted); quotation marks proper. whether Argu such consideration is al., Wright sеe 7C Charles Alan et Federal ably, previously we have intimated as much. (3d § Practice & Procedure at 609 ed. Workshop, See Wilderness 531 F.3d at 1231 2007) ("Unless imposed, conditions have been (concluding balancing that the district court’s the intervenor is treated if the intervenor of harms that included consideration of the original party equal standing were an and has harm to an intervenor was not an abuse of original parties.”); with the Comanche In discretion); cf. 53 F.3d Nat’l Indian Youth Council v. An Hovis, dian Okla. Tribe drus, (10th Cir.1980) (con of (10th 1995) (holding, purposes Cir. for the sidering the "harm to the defendants and estoppel, collateral that an individual “be intervenors,” concluding that the “harm party And, came a in the federal district once impressive”). to the intervenors [was] view, juvenile explicitly proceeding,” she intervened in the consistent with that we have that, party right citing held when a proposition). intervenes as of Alvarado for this injunc- cifically, it found that the harm an Appellants that we conclude cause demonstrating signifi- their burden not carried tion would cause TransCanada re court’s determination the district that August of the by the time cant — factor was of harms garding the balance in excess spent had hearing, TransCanada discretion, dis we affirm the an abuse it was on the million $500 in preliminary court’s deniаl of trict delay further cost “undisputed w[ould] that Working junction. Weapons See Chem. each of thousands of dollars hundreds Army, Dep’t Inc. v. Grp., (Dist. Order, at 2001 day.” Aplt.App. Ct. Cir.1997) (“We ... 2012). Moreover, the dis- Aug. dated denial of Plain affirm the district court’s not Appellants noted that did trict court preliminary for a request tiffs’ ability post “they suggest ha[d] of harms find of its balance basis any of the irretrievable a bond to cover Plain obviating the need to address ing, they ultimately lose.” Id. loss should prelimi arguments justifying a tiffs’ other the scale Weighing on the other side of instance.”); see also nary injunction in this concern were the environmental harms of Servs., Jones, Inc. v. Graduate Okla. Herff Inc., The district court was Appellants. Fed.Appx. Cir. these magnitude impressed 2007) preliminary of a (affirming the denial stated, essence, it “In Specifically, harms. injunction solely ground on the a loss of waters of the this is all over court did not abuse its discretion district ... than one acre States of less United harms determining that the balance of pipeline,” over the entire distance of pre party pursuing weighed against Winter, “have failed to show Appellants and that liminary injunction); cf. 23-24, plain (noting 129 S.Ct. 365 have more than a project will factor the balance of harms tiffs’ failure on minimal оn the environment.” Id. impact requested require[d] “alone denial sum, ruled that at 2002-03. the court added)). injunctive (emphasis relief’ carry their had failed to burden fac- showing that the balance of harms determined that the The district court in their favor.3 Spe- tipped tor Appellees. balance of harms favors brief, definite, that, succinct, judge need make although the district '[T]he 3. We note findings upon the findings pertinent were to allow for and conclusions court's sufficient matters; meaningful appellate necessity review. Federal Rule of no contested there is court, 52(a) requires a district Civil Procedure particularization detail or overelaboration of ” interlocutory granting denying or an when advisory (quoting 52 of facts.' Fed.R.Civ.P. findings injunction, make of fact and con to Amendments)). committee’s note on 1946 possible law "sufficient to make clusions of Although sufficiency of the district Kuyk meaningful appellate FTC review.” v. findings par- either court’s was not raised endall, Cir.2004) (en 371 F.3d regarding ty, inquire we were constrained 52(a), banc). comply with Rule a district To " matter, satisfy ourselves that there is an findings be 'sufficient to court’s of fact must adequate for our review. See Prairie basis gen indicate the factual basis for the court’s Pierce, Band Potawatomi Indians v. facts' so as to eral conclusion as to ultimate (10th Cir.2001) (noting that F.3d 'meaningful review’ of the issues facilitate a compelled to the issue be- we "are address Dep’t v. Human presented.” N.M. Wolfe cause, findings and adequate without of fact Servs., (10th Cir.1995) law, gen- appellate review is in Dist., conclusions of Cnty. Valley (quoting v. Mesa Sch. Otero possible”). And we are on Cir.1977)); eral not satisfied see Although the district court’s find- this score. PacifiCorp, Wyo., L.P. OCI (10th Cir.2007) ("Rule 52(a) ings respect balance of harms with to the does findings expansive, were not were sufficient to require the district court to set out 52(a). obligations excruciating comply with its under Rule detail.... and conclusions us, Appellants’ failure to would flow from Before construction of the Gulf demonstrate that the district abused Pipeline, they attempt to mini- harms, balancing its discretion mize the harms an would impose alone, standing is fatal to their cause. Appellees. example, on For relying on the words, other to show that the district court Impact Environmental pre- Statement error, Appellants committed reversible had pared Keystone for the XL Pipeline, Ap- ruling to demonstrate court’s pellants argue that environmental harms against them on the bаlance harms fac- from the Gulf Coast include tor—an criterion for obtaining essential soils, “harm ground- surface water and preliminary injunction an abuse of —was water, wetlands, wildlife, vegetation, fish- Appellants’ showing discretion. And in eries, use, special land recreation and in- regard woefully is deficient. More areas, areas, quality terest visual air specifically, Appellants expressly do not noise significant and the rise of maintain that of the district court’s spills.” Aplt. Opening Br. at 53. On the factual findings support made of its hand, other with respect to the harm an balancing support were without in the rec- injunction would inflict Appellees, Ap- on Awad, ord. See 670 F.3d at 1125. Nor do harm, pellants maintain that financial as a Appellants contend that the district court’s matter, all, general weigh cannot at see id. balancing of the harms “exceeded the (“Economic at 53 harm not irreparable permissible bounds of choice in the circum- provide adequate and does not basis for stances,” Somerlott, 686 F.3d at 1152 relief.”), denying injunctive 1235) Labs., (quoting Abbott specific financial harm of TransCanada (internal omitted), quotation marks or that appreciable weight should not be accorded whimsical, “arbitrary, capricious, it was “self-inflicted,” because it was id. at 54 see manifestly judg- unreasonable [evinced a] (“TransCanada’s injuries are ‘self-inflicted’ ment,” Wyoming, (quot- 661 F.3d at 1227 and it assumed the risk that it would not 776) (inter- Foods, ing Tyson 565 F.3d at permits receive its expected.”). as soon as omitted). quotation nal marks However, matter, Instead, Appel- an initial principally focus injunctive their view of the environmental harms that assertion that relief can- lants’ conclusion, ("Rule 52(a) require complete See id. at 1246 does not or a court’s failure to See, particularization 'over-elaboration of detail or specifically e.g., a relevant address issue. facts'....”) Shoes, (quoting Knapp Inc. (holding id. at 1204-05 the district Sylvania Mfg. Corp., Shoe 15 1228 findings court’s were insufficient because it (1st Cir.1994)). The district court identified found,” only “why stated "what but not [it] salient, thought weight the harms it attributed did”); Pierce, ruled as it 253 F.3d at [it] 1245- them, and concluded that the balance did (finding 46 that the district court failed to granting injunction. not favor This is suf- 52(a) comply ‍​‌‌​​​​‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌​‌‌‌​​​​‌​‍obligations with its Rule when it ficient and consonant with the well-settled merely respect stated its conclusion with principle only that the district court "need preliminary injunction each of the four fac- brief, definite, findings pertinent make and tors); Foulston, 441 F.3d Aid Womenv. cf. upon conclusions the contested matters." (10th Cir.2006) (finding 1120-21 that omitted) (citation Wyo., OCI (internal 479 F.3d at 1204 its discretion be- district court abused omitted). quotation marks In con- whether there cause it "did not even evaluate trast, instances where we have concluded that injury,” irreparable would be and with re- findings a district court’s were insufficient for harms, spect it "did not even to the balance of meaningful appellate frequently review identify any possible harm to the Defendants” involved a court's mere statement of its ulti- "vague” regarding made a statement accompanying mate conclusion without an plaintiff). harm supporting articulation of the factual basis sums, Appel- significant weighing cost TransCanada based on not be denied court Supreme The that the district suggested mistaken. lants have economic harm is financial harm recognized that “failed to note that Trans- has erred because it Court environmental weighed against into can be funds and entered spent these Canada outweigh in certain instances harm —and Pipeline] contracts build Gulf Coast [to v. Vill. Gam Amoco Prod. Co. it. See Aplt. receiving Corps approval.”4 before 531, 545, bell, 107 S.Ct. This, say Appellants, Br. at 54. Opening (1987) (“And on the other side L.Ed.2d financial harm “self-in- Appellеes’ makes was the fact that of harms of the balance not be accorded flicted” and thus it should committed company petitioners had the oil Assuming in the balance of harms. weight exploration million to approximately $70 argument arguendo Appellants’ have lost without ... which would error, legal an assertion of see amounts to been recovery exploration had chance of (“The district court commit- Aplt. Br. at Indeed, recog too have we enjoined.”). in and abused its discretion legal ted error fi appropriateness weighing nized the (initial capitals weighing equities[.]” against environmental harm. harm nancial omitted)), find that no underlining we F.3d at Workshop, See Wilderness error occurred. such (concluding that the district court did below, sup- there is some As we discuss according great in not abuse its discretion in circuit and judicial in decisions our balancing port of harms to the weight in the er and also notion that “self-inflict- gas production interest elsewhere for the public’s interests, over the threat weight certain financial accorded ed” harm should not be injuries); However, see also ened environmental Appel- of harms. the balance Davis, (concluding 302 F.3d at any cases that lants do not direct us to ... environmental harms out- “the disregard facts to would cause us on these legitimately incurred weighted] [finan harms as “self- financial TransCanada’s resulting injunc ... from an costs cial] rely on principally Appellants inflicted.” tion”). Davis, where, the balance of assessing harms, that much of the we concluded attempt to minimize harms

In their harm to the state defendants— financial injunction would inflict preliminary injunction who opposed to chal- Appellants endeavor Appellees, —which con- entry their into certain caused reasoning. After lenge the district court’s tracts, appreciable not be accorded should that the district court found acknowledging See weight because it was “self-inflicted.” already over spent had TransCanada 1112-13, Appellants’ F.3d at 1116. on the Gulf million $500 Davis, (if however, misguided. reliance on implemented) would that the raised, arguments or are inade- that are 4. also state that the district quately appellant’s opening recognize presented, in an it "failed to erred because Furthermore, event, brief.”). Appel- mitigate could its harm TransCanada mitigation about does noth- working portions project while lants’ observation on other ing directly question the distriсt injunction in to call into prohibited an construction undisputed finding that TransCanada aquatic Aplt. Opening at 12. court’s areas.” Br. However, already expended $500 million had more that Appellants make no effort to devel- error; project by time of the they the the op of do not men- on this contention injunction, imple- hearing, if again briefing. Accordingly, and that the tion it in their mented, See, great a deal e.g., would cost TransCanda we decline to consider it. Bronson Swensen, (10th Cir.2007) money, running hundreds of thou- of into the F.3d ("[W]e per day. routinely of dollars have declined to consider sands reading of Davis reveals that case that Davis cites in support A close (in us to brand the state defendants’ what led holding “self-inflicted” is a decision an label, and context) harm with the “self-inflicted” unrelated by commercial the it, weigh was the fact that the decline Third wrong Circuit focused on the harm-inducing contractual conduct those fulness vel non of the conduct claimed to defendants, preceded which the decisions have the produced financial harm at issue agency sought of the federal defendant in deciding disregard whether enjoined, predicated be on the federal “self-serving.” harm as See En Pappаn actions, agency’s improper impro- and the ters., Inc., Sys., Inc. v. Hardee’s Food priety of those actions was attributable to (3d Cir.1998); see also we the state defendants. As characterized Davis, (relying Pap- 302 F.3d at 1116 on Davis, in the situation “the state [defen- Enters.). In pan Pappan the Enterprises, in ‘jumped involved this case dants] ha[d] ultimately Third Circuit declined to disre gun’ the environmental issues be [to gard the financial harm of the defendants by agency decided the federal defendant] seeking the preliminary injunction as into entering obligations contractual “self-inflicted,” because the court could not anticipated pro agen- forma [federal directly tie the asserted financial harm to sense, cy] result. In this the state defen- any legally cognizable misconduct de largely responsible dants are for their own Enters., Pappan fendants. See 143 F.3d added). (emphasis harm.” Id. at 1116 (“We at 806-07 believe that [defendants’] expected “pro The state defendants for- self-inflicted.”). irreparable injury is not they ma result” because had been know- sum, that, surprising In it should not be ingly collaborating agency with the federal engaging quintessentially equitable improperly “prejudged defendant while it harms, balancing task of we took into 1112; the NEPA issuеs.” Id. at see Forest account in Davis whether the financial Serv., Guardians v. Fish & Wildlife harms at wrongful issue stemmed from (10th Cir.2010) (detailing conduct, in deciding whether could be Davis, holding noting facts and properly disregarded as “self-inflicted.” agency that “Davis indicates that if an Inst. Cetacean Research v. Sea predetermines analysis by the NEPA com- Cf. Shepherd Soc’y, Conservation outcome, mitting agency itself to an (9th Cir.2013) (“An injunction likely has failed to take a hard look at the equitable remedy. an While the Winter consequences environmental of its actions pertinent assessing pro due to its bias in favor of that outcome factors ‘are and, therefore, relief,’ arbitrarily priety any injunctive has acted traditional capriciously”). laches, equitable considerations such as may duress and unclean hands militate words, In other defendants’ harm-induc- against issuing that other ing disregarded contractual conduct was (em requirements.” wise meets Wmfer’s (at pri- as “self-inflicted” in least Davis added) (citations omitted) phasis (quoting marily) knowingly predicat- because it was Winter, 365)); 555 U.S. at 129 S.Ct. upon agency ed federal defendant’s McDermott, Shondel v. improper wrongful predeter- conduct (7th Cir.1985) (“Today, ‘unclean hands’ decisions, mining its environmental really just еquity means that in as in law simply because the conduct occurred fault, defendant’s, plaintiffs like the prior agency’s to the federal environmen- may question be relevant to the of what if support reading tal decisions. of this Davis, to.”); noteworthy only any remedy plaintiff it is is entitled holding harm was “self-inflicted” Irizarry, Davis’s Monjitas, Inc. Vaqueria Tres Cir.2009) (“[W]e by animated misconduct con- (1st principally are There- present are not here. cerns that relief equitable who seek skeptical of those fore, its hold- Sieira Club based insofar as engaged in they themselves have when Davis, legally distinguishable. it is ing on misconduct.”). factual circum- also involved Sierra Club inapposite; light, in this Davis is Viewed than markedly are different stances miscon suggestion no of similar there is There, party in this case. those found Corps and the here. duct TransCanada injunction began actual con- opposing argue do not Appellants particular, In year plant over one power struction of ar entered into contractual TransCanada permit was issued and was before a CWA prior Corps’s approval to the rangements that this construction Corps warned expec Pipeline with of the Gulf Coast See “at own risk.” [their] would be dоne pro approval would be “a tation that here, contrast, In while id. at 996-97. is, product result” —that forma mobilization for construc- TransCanada’s pre predetermination Corps’s improper Pipeline began prior Gulf tion of the relevant issues. Sil judgment of the Cf. authorization, undisput- Corps’s to the Forest Club v. U.S. verton Snowmobile that TransCana- ed evidence demonstrates Serv., n. 2 F.3d Cir. construction of the begin did not actual da 2006) be (discerning predetermination no Corps until all three offices after agencies preexisting “the had no cause Accordingly, construction. approved had any group”); user see also agreement with factually distinguish- Sierra is also Club (“Th[e] high 661 F.3d at 1264 Wyoming, sum, acknowledge although we able. in Forest standard articulated Guardians deci- support judicial that there is some dif predetermination clear that is makes for the in our circuit and elsewhere sions subjective impar from mere ferent kind harm should not idea that “self-inflicted” Guardians, 611 tiality.” (quoting Forest weight in the balance be accorded 714) (internal quotation marks F.3d at harms, point Appellants do not us omitted)). Therefore, reliance Appellants’ disregard that would lead us to cases misguided. on Davis is financial harms as “self- TransCanada’s inflicted” here. their “self-in support also Eighth with the argument flicted” Circuit’s essentially left Consequently, we are Army decision Sierra Club in- argument by Appellants with Eng’rs, 645 F.3d 978 Cir. Corps of the various harms volves a recitation 2011). There, Eight held that Circuit each side of the scale. In our falling on court did not abuse its discre the district view, to a tacit argument such an amounts in favor of an balancing tion in the harms for us to balance the harms anew. request because the injunction, part, at least This, properly we will not do. Our focus is party opposing financial harm to balancing the district court’s on whether “largely discretion; self inflicted.” See harms manifested an abuse of decision, however, That in the record simply pointing id. at 996-97. to evidence ac factually distinguishable; balancing legally support that would a different good enough. reliance on Sierra is not See Win- cordingly, Appellants’ the harms front, Stovall, legal On the Tribe Neb. v. misplaced. nebago is also Club (10th Cir.2003) that a exclusively upon (stating relied Davis Sierra Club “argument concerning the balance party’s harm conclusion. Id. for its “self-inflicted” merit, discussed, ... ef- And, [because it] of harms lacks we have at 997. a in fectively only opin- difference of the method which the District rais[es] Court outсome”). discretion, ion as to its exercises not the substantive outcome the District Court reaches. If the words, reviewing In other when a dis District Court takes into account the rele balancing trict court’s of the harms for an vant ... considerations and accommodates discretion, charge abuse of our is to them in a way, reasonable then the Dis balancing determine whether the that the trict Court’s judgment will not be an abuse performed district court was within the discretion, regardless of its of whether an choices, range permissible not whether appellate court would have reached the balancing our own would to lead a differ instance”); same outcome in the first Zer Cent., ent result. See N. Inc. v. Re/Max Y., Inc., 163, vos v. Verizon N. 252 F.3d Cook, (7th Cir.2001) 272 F.3d (2d Cir.2001) (“When 168-69 a district (“The question judge for us is whether the is vested with discretion as to a permissible exceeded the bounds of choice matter, certain it is not required by law to granting or denying preliminary [in a in Rather, make particular decision. junction], not what we would have done if empowered district court to make a shoes.”) we (quoting had been his Wis. decision-of choosing falls within a —that Network, Music Inc. v. Muzak Ltd. P’ship, decisions.”); range permissible Unit (7th Cir.1993) (internal cf. 5 F.3d Lambert, ed v. States omitted)); Oil, quotation marks Chem. & (11th Cir.1983) (“A review of the record Union, AFL-CIO, Atomic Int’l Workers reveals that although the district court Co., Local 2-286 Amoco Oil might injunction, have issued an a denial (10th Cir.1989) (“[Abuse 697, 703 of discre discretion.”). clearly was within its requires carefully review that we ex tion] Thus, amine the district Appellants woefully court’s exercise of its failed discretion, may ... carry but ‘we substitute their demonstrating burden of how our own judgment for that of the trial balancing district court’s of harms court.’”) (omission original) (quoting amounted to an abuse of its discretion. said, event, Tri-State Generation Shoshone River That our review of the Power, Inc., 354-55 suggests record the district court’s Cir.1986)); see also v. Inmates balancing was well within the bounds of its Rufo Jail, 367, 393-94, Cnty. discretion. The district court concluded Suffolk 867.(1992) S.Ct. 116 L.Ed.2d the environmental harm was “mini- (O’Connor, J., concurring) (describing ap mal” and that the financial harm to pellate equitable review of significant. decrees as “nec TransCanada Further- more, essarily a task that entails substantial dis the court made factual find- specific cretion, one, particularly in a case like ings support these that have conclusions record, where the District Court must make com clear in the support Appellants plex requiring decisions argue contrary. sensitive bal dо not to the In this result, ancing of a host of factors. regard, highlight key As an we two of the factual First, appellate court primarily findings. should examine we focus the district note, Indeed, Winter, Supreme Supreme 5. As Court has mandate. assuming stated that if environmental harm is ‘‘suffi- Court even held that there were harms, ciently likely, irreparable ... the balance of harms will environmental the district usually finding favor the issuance of court abused its discretion in Gambell, protect outweighed Navy’s the environment.” Vill. interests in realistic 23-31, training. 480 U.S. at 107 S.Ct. 1396. But this is See 555 U.S. S.Ct. observation, ‍​‌‌​​​​‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌​‌‌‌​​​​‌​‍merely an not an inexorable 365. Winter, 129 S.Ct. 365. at has TransCanada finding that court’s denies this extraor- a district court million on the When of spent in excess $500 will overturn its deci- delay dinary remedy, cost we further will and “that pipeline and firm day.” only have a definite of dollar each sion if we of thousands hundreds outside the into the the decision was Appellees put conviction that Aplt.App. at 2001. Somerlott, had choice. See they permissible that zone of undisputed evidence record Appellants have failed million on the Gulf 686 F.3d at 1152. already spent $800 demonstrating carry their burden of that an to Pipeline and Coast of thou- determination least hundreds of the district court’s cost them at would departеd factor from day. See id at balance of harms per of dollars sands (Decl. Jones, ineluctably leads to July filed This failure Robert E. this zone. of (Decl. deci- of the district court’s 2012); at 995 of David our affirmance also id see 31, 2012); at July id sion. Penning, L. filed Führer, (Decl. July E. filed of Paul Ill 2012). reasons, AFFIRM we foregoing For the

Second, finding court’s as for the district Appellants’ court’s denial the district a loss of waters of that “this is all over injunction. request preliminary for a ... than one acre of less United States pipeline,” over the entire distance MARTÍNEZ, Judge, dissenting. District Corps’s anal- we reference id that demon- ysis Pipeline of the Gulf view, of the test my prong In loss of waters permanent strated the total that the district court injunctive relief would length over the entire permit detail analyzed in sufficient water losses acres and other Ap- be 0.68 review was the meaningful appellate (not- temporary. See id at 1728 would be on the mer- likelihood of success pellants’ will be perma- acres of water ing that 0.63 I believe that the district its. Because district); id at nently lost in the Galveston analysis Appellant’s likelihood court’s an error in the Tulsa dis- (correcting flawed, and that on the merits was success noting letter and original approval trict’s insufficient to allow the court the record is permanent basis, water loss that 0.05 acres of any other I would re- to affirm on district); id at 1821 will occur in the Tulsa court. mand this case to district permanent will be no (noting that there Therefore, respectfully I dissent. district). in the Fort Worth water loss I

Thus, support in the rec- there was clear key court find- for these two district ord the district Appellants contend sum, “the district court ings. In because by concluding were court erred findings support specific made [factual] of their likely to succeed on merits the balance of [regarding its conclusion on alternate claim. Because it affirms harms], to the level of none of which rises majority does not discuss grounds, error[,][t]he ... well with- clear court was bulk of which form the arguments, these Stovall, in the of its discretion.” bounds set forth argued appeal. As the issues 341 F.3d at 1206. below, I believe on their conclusion, injunc- shown a likelihood of success we reiterate that Envi- failure to conduct an extraordinary remedy; a claims that the tive relief is an re- or an Environmen- only provide such ronmental Assessment district court should for the Gulf Coast Impact it tal Statement right when a is clear. See party’s lief NEPA, 1501.4(a). § ly violated and that excluded. 40 C.F.R. If agency reаdily to consider the cumulative cannot determine whether Corps’ failure 2,228 an action falls into one of approvals categories, these impact granting then it prepare vio- must an environmental applications TransCanada’s NWP (“EA”). 1501.4(b), §§ assessment Id. lated the CWA and the APA. 1508.9.

A An EA a public “concise document” “provide[s] that sufficient evidence and requires agencies NEPA federal to con analysis determining pre- for whether to consequences sider the environmental of an pare finding significant or of no [EIS] public partic their actions and to allow 1508.9(a). § impact.” Id. The EA must ipation decision-making process. in the direct, indirect, address the and cumula- Transp. Dep’t Better v. Utahns for of impacts proposed tive of the action. Id. 1152, 1162 Transp., 305 F.3d Cir. 1508.9(b); 1508.7, § 1508.8, §§ see also id. 2002) that NEPA (stating “require[s] If project 1508.9. the EA reveals that the agencies environmentally sig to consider will have a significant quality effect on the action.”). aspects proposed nificant of a environment, of the human Corps then the NEPA particular does not mandate sub detailed, prepare must written EIS. 42 results, requires stantive but rather feder 4332(2)(C). § agency U.S.C If the deter- agencies al to take a “hard look” at the mines that its proposed action will not consеquences environmental of an action significant have a on the effect environ- and to disseminate relevant environmental ment, EIS, then it need not an prepare information public for comment so that the may Finding and instead issue a of No general public may participant be an active (“FONSI”). Significant Impact 40 C.F.R. in the decision-making process. Citizens’ 1508.4, § § A 1508.13. FONSI must be To Canyons Krueger, Comm. Save Our by a supported reasoning statement of Cir.2008); Utah § evidence. Id. 1508.13. Russell, Cong. Envtl. (10th Cir.2008) (“NEPA pro dictates the Corps contend that the vio- by agencies cess which federal must exam lated NEPA EA failing prepare an impacts, ine environmental but does not or Pipeline. EIS for Gulf Coast The impose agency substantive limits on con Corps responds arguing first duct.”). Therefore, merely guards NEPA obligations apply only adop- NEPA to the against “uninformed —rather than un NWP, tion aof and not to the verification agency action.” Robertson v. Me applicability particu- of the of a to a NWP wise— Council, thow Valley Citizens project. requiring lar It contends that 332, 351, 109 S.Ct. 104 L.Ed.2d 351 process pre-certification full NEPA at the (1989). stage streamlining purpose defeats the process. the NWP ends, requires

Towards those NEPA contention, agencies preрare federal environmental In support Appellees of this (“EIS”) impact “major rely Snoqualmie Valley statements Fed- Preservation significantly affecting qual- Army Corps Engineers, eral actions Alliance v. U.S. (9th Cir.2012), ity of the human environment.” 42 U.S.C. which 4332(2)(C). NEPA, § comply To with an Ninth Circuit noted that each NWP must agency undergo process pro- must first consider whether a NEPA when it is proposed normally action is one that re- mulgated, process such “ensures EIS, quires categorical- any activity or whether it is under that nationwide permit. a DA requires States environ- United ‘minimal adverse will have permit ” origin and destination of Neither the Howev- Id. at 1160-61. mental effects.’ from the navi- nor its route to and cable the issu- er, Valley involved Snoqualmie water, the route except applies gable location. single for a ance of three NWPs configuration of the to the location case, the use of Corps approved In this or re- crossing, are within the control 2,227 my crossings. water 12 for NWP Corps Engineers. sponsibility of the view, makes significant distinction this not be included in Those matters would Valley of little use here. Giv- Snoqualmie which, case, analysis this scope project, there is magnitude en the impacts specific of the would address Corрs requiring little doubt crossing. cable pre- at the analysis a NEPA undertake activities that re- Conversely, for those not defeat the stage authorization would major permit portion a DA for a gen- quire streamlining purpose NWPs utility transmission transportation eral. Corps permit bears project, so that the only contends that it Corps The also and destination as well upon origin the Pipe- of the Gulf Coast permitting controls the project the route of the outside as crossings, water and issuance line’s boundaries, regulatory scope the Corps signifi- crossing at a water is not a NWP analysis portions should include those “major a Federal enough cant to constitute the boundaries of project of the outside invoke NEPA. It is well-estab- action” and Corps regulatory ju- the section 10/404 requiring that not all construction lished example, if risdiction. To use the same “federalized” so approval federal becomes line of the 50-mile transmission 30 miles Winnebago NEPA. See Tribe as to invoke of the crossed wetlands other “waters Ray, Neb. v. of Cir.1980). States,” scope analysis the United mind, Depart- in With this the of the whole 50- impacts should reflect Army adopted regulations has ment of the mile line. transmission guidance projеct as to when a provide Id. Part falls under NEPA. See 33 C.F.R. B.

app. Pipeline Gulf is 485 miles The Coast 2,227 long, required Corps and the to issue provi- regulations particular These crossings. This means permits for water regulated when the activi- apply sions that crosses Pipeline that the Gulf Coast Unit- project, a link in the overall such as ty is five in each ed States waters almost times 7(b). § Id. the issue here. pipeline mile, every once 1150 feet. As or about regulations provides This section of the such, Pipeline the Gulf is much more Coast that, determining scope project, in the of a comparable example to the second set only spe- not the Corps the must consider re- regulations forth in the cited —which activity requires Department cific a which of the entire trans- quires consideration Army permit, “any but also other mission line—than the first. within the portion project of the of the responsibility Corps control or a Applying regulations, these district (or Engineers agencies).” other Federal Corps held that the court Texas has 7(b)(3). regulations provide § The Id. impact to consider the of the required following examples: prepare pipeline, entire 900 mile project. Spiller EA for the See a electrical trans- or EIS example,

For 50-mile Walker, Dist. LEXIS 18341 crossing a 1 mile wide mission cable 1/4 (W.D.Tex.1998). The court considered navigable is a water of the river impact cumulative of the involvement of all totality Given the of the circumstances agencies federal case, and noted that “the feder- in this I believe Corps’ involve- al government controls the pipeline entire ment the Gulf Coast Pipeline was a construction, process: operation safety “major Federal action” required inspection, petroleum sales of the prod- comprehensive NEPA analysis for pro- ucts, and accident cleanup. ject. Therefore, It is only in my judgment Ap- arbitrary capricious pellants to assert this com- have shown a likelihood of success bination of on the major actions is not merits with respect Federal to their claim action, but blatantly it that the prepare flies failure to face EAan or EIS common sense.” for the Id. at *52. The Gulf Coast Spiller awas violation of NEPA. also held that the Corps’ role granting a permits number of for construc-

tion has “such crucial impact on the B construction ... Pipeline many at so points as-applied their along challenge ap- that it can ” proval of the Gulf Pipeline, be described Coast ‘major Appel- Federal action.’ lants argue that Corps Id. at *40-41. violated ‍​‌‌​​​​‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌​‌‌‌​​​​‌​‍the of NWP 12 by conditions failing to ade- Considering the permits number of is- quately consider the impact of cumulative sued the Corps relative to the overall approving 2,227 the use of the NWP 12 size of the Gulf Pipeline, it is patent- project. times for the ly Appellees ludicrous for to characterize 12 requires NWP Corps’ that the the verifi- Corps’ in subject involvement the pro- cation project of a pre-con- a ject minimal, as which or to maintain that the (as struction notice is filed there was in Corps’ involves permitting only a “link” in case) must “include an evaluation of the Gulf Pipeline. Coast As the Ninth the individual crossings to determine Circuit has held: they whether individually satisfy the terms Although Corps’ the permitting authori- NWP(s), and conditions the as well as ty is limited to those aspects of a devel- cumulative by effects caused all of the opment directly jurisdictional affect crossings authorized The Gulf NWP.” waters, it responsibility has under Pipeline passes through three NEPA to all of analyze the environmen- Corps’ Galveston, Worth, Fort districts — tal consequences of project. Put an- pre-construction Tulsa—and notifica- other way, it is development’s while the tions were filed in each. Each of these impact on jurisdictional waters de- districts issued a brief letter authorizing termines the scope Corps’ permit- the the proposed action. Appellants contend ting authority, it impact is the that none of these three verifications takes permit on the environment at large (or, indeed, into consideration any do determines the Corps’ NEPA responsi- reference) them even the sections of the bility. Corps’ The responsibility under the in other two Corps districts. NEPA to the consider environmental Of even greater import, Appellants argue, consequences permit a even extends is the fact that none administra- of these impact environmental effects with no tive letters consider the im- cumulative jurisdictional waters at all. pacts of project the entire a whole. As Sonoran, Flowers, Save Our result, Inc. v. contend, 408 a Corps the 1113,1122 (9th Cir.2005). F.3d violated NWP 12 this case. by each approval prepared The letters of contends that its Corps the response, basis for provide do not reasoned district because were sufficient letters

verification Despite analysis. any impaсts cumulative legal stan- applicable forth the they set contrary, to the contention Corps’ dard, impacts includes a cumulative which agency simply cannot law is clear that assessment, Corps and states that recite and then legal standard state that all conditions a “determination” made that such it made a “determination” Br. at 42. Aple. Response were satisfied. I.R.S., See Hull v. criteria were satisfied. acknowledges that the verifica- Corps The Cir.2011) (10th F.3d 1177-78 terse, that an but contends tion letters are suffice if explanation “will not (agency’s findings to recite its required is not agency conclusory, merely are agency’s claims also Corps form. The any particular standards, if are statutory or reciting that, explanation even if the contends Siddi sweeping.”); see also vague too insufficient, error is is such the letters Holder, 736, 745 Cir. qui record shows that immaterial because the 2012) (“the law governing recitation of of the Gulf Coast impact the cumulative from its obli not excuse the AAO does be minimal. Pipeline would each the law to the facts of gation apply arbitrary capricious “Because the case.”); Maritime Lines Inc. v. Fed. rationality of an focuses on the standard (D.C.Cir.1978) Comm’n, rather decision-making process agency’s (deference agency inappropriate rationality the actual deci than on the arbitrary capricious stan under the sion, agen that an is well-established ‘[i]t agency “does not set forth dard when the all, on the upheld, must be if at cy’s action convincing reasons for its determination agency itself.’” basis articulated validity to allow the [of sufficient detail determined.”). Commodity Corp., Credit Olenhouse to be decision] Cir.1994) (quoting deficiency in the ad- Recognizing v. State Farm Mut. Motor Vehicle Mfrs. to the cu- regard ministrative record with Ins., 29, 50, 103 Auto. S.Ct. at- impacts analysis, Corps mulative (1983)). “Thus, the L.Ed.2d 443 77 presented affidavits to tempts rely on must agency which the acted grounds upon stating that the Districts the district court in, by, clearly disclosed and sustained be the regarding with each other conferred v. Forest the record.” Colorado Wild U.S. But this manner of impacts. cumulative Cir.2006). (10th Serv., 1204, 435 F.3d 1213 litigation maneuvering creat- tactical —of by the of decision created The record evidentiary record before ing post hoc of in agency plain must make its course in clearly missing that was the trial court Id. analysis, reasoning. and its quiry, its agen- the record before the administrative by counsel “After-the-fact rationalizatiоn soundly rejected by both cy been —has non argument in or will not cure briefs Supreme the See this court and Court. by agency prin with these compliance v. Volpe, to Pres. Park Citizens Overton agency 419, 814, If the has failed to ciples.” 402, Id. 28 401 91 S.Ct. (1971) for its ac explanation (barring agency a reasoned from provide L.Ed.2d 136 tion, containing “post if limitations in the administrative hoc relying on affidavits that were impossible record make it to conclude rationalizations” for its actions litigation process); reasoned deci product during action was the created (10th Babbitt, 880, court cannot 998 F.2d 882 sion-making, reviewing Lewis Cir.1993) (district Olenhouse, reviewing 42 F.3d at simply affirm. “may rely litigation not agency action 1575.

901 provide post activity permittee satisfy hoc rationaliza- if that and the affidavits all action”). conditions.”). of the NWP’s terms and agency’s tions for the Therefore, view, my in the Appellants Rather, be agency’s “the action must have shown a likelihood success on the by reviewed on the basis articulated respect merits with to their contention that agency proceed- and on the evidence and Corps violated the APA and the CWA ings agency before the at the time it act- when it authorized construction of the Gulf Thomas, Congress v. еd.” Am. Min. Pipeline through approval Coast Cir.1985); F.2d see also 2,227 issuances of 12. NWP Shalala, Hosp. Inova Alexandria (4th Cir.2001) (“[T]he F.3d re- II quired explanation must be articulated above, set Appel- As forth I find that action.”). agency at the time of its lants have shown a likelihood of success on integrity pro- “The of the administrative and, therefore, the merits have satisfied judged by place cess must be what took their respect burden with to the first proceedings the administrative as reflected prong injunctive of the standard for relief. on the administrative record unaided However, to prevail on their motion for affidavit proof reviewing court.” relief, preliminary injunctive Freeman, Garvey v. 610-11 show, required only they are (10th Cir.1968) (citations omitted); see also succeed, were likely but also that Commodity Olenhouse v. Credit Corp., suffer irreparable injury, would (10th Cir.1994) (“[T]he favor, balance of the tipped harms their grounds upon agency which the acted must and that an would not be ad- in, clearly be by, disclosed and sustained USA, public verse to interest. Beltronics record.”). Distrib., LLC, Inventory Inc. v. Midwest Cir.2009). Be- case, the Corps failed to suffi- I cause find that the district court did not ciently reasoning articulate its for conclud- adequately any address factor оther than 2,227 ing that the authorization of uses of merits, I likelihood of success on the would NWP 12 to construct the Gulf Pipe- remand to the district court for further line would cause minimal cumulative proceedings. Indep. See Downie v. Driv- impact. There is no mention the admin- Plan, ers Ass’n Pension istrative record of collaboration be- (10th Cir.1991) (remanding where tween regard the Districts with to the findings “the absence of leaves us with no impact length cumulative of the entire judge means which to the exercise the Gulf Pipeline. Coast There are also no discretion.”). the court’s specific findings support Corps’ of the Pipeline, conclusion that the Gulf Coast denying The district Ap- court’s order whole, would have minimal cumulative restraining motion for pellant’s temporary impact. The failure to consider the cumu- this, pages long. order is sixteen Of more lative effects of all of the water crossings pages than twelve are devoted to whether Pipeline involved in the Gulf Coast violates Appellants likely were to succeed on the 12, and, therefore, the terms of NWP the concluding merits. After approval the 12 use of NWP for con- had not shown a likelihood of success on merits, struction of Pipeline the Gulf Coast violat- the the district court stated: “As 330.1(c) (“An above, § the ed law. See 33 C.F.R. result of the the finds that Court activity only is authorized an have failed to establish are under NWP Plaintiffs 1204). I F.3d at believe Wyo., 479 relief under Rule OCI injunctive to

entitled district court’s remiss, majority has overstated the 65(a). be howev- The would Court simply noted findings. The district court in this er, equities if it did not address if con- (Dist. cost to TransCanada Order, the substantial Ct. at Aplt.App. case.” Pipeline is de- of the Gulf Coast 2012). struction 5, The district court’s Aug. dated finding that allow- layed, compared to its remaining equitable three of the discussion proceed to would ing Pipeline paragraphs a mere three factors is impact “minimal on the environment.” meaningful legal length, it is bereft (Dist. Order, dated at 2002 Ct. Aplt.App. and does presented, of the issues analysis 2012). Aug. legal or citations. any factual not contain remarkably cursory discus- I believe this equities, of the In its brief discussion meaningful permit to sion is insufficient included no discussion of the district court review, under the appellate particularly injury nature of environmental irreparable discretion standard. relevant abuse of that, where such general or the fact alleged, “the balance of injury has been lengthy out in a majority points As the an usually favor the issuance of harms will 52(a) footnote, require does not Rule protect to the environment.” findings and court to set out its district Gambell, Amoco Prod. v. Vill. See Co. excruciating detail. See conclusions in 531, 545, 1396, 94 107 S.Ct. Advisory Notes of Com- Fed.R.Civ.P. (1987) (“Environmental inju- L.Ed.2d 542 (“the judge Amendments mittee on 1946 nature, adequately be ry, by its can seldom brief, definite, pertinent only make need by money damages and is often remedied upon the contest- findings and conclusions ie., duration, long or at least of permanent matters; necessity no for over- ed there is Cnty. Bd. irreparable.”); Catron particularization of detail or elaboration Serv., 75 Fish & Comm’rs U.S. facts.”). hand, Wildlife other has On the Court Cir.1996) (“An (10th envi- F.3d “cautioned that too little detail frustrates usually enduring is of an injury ronmental by requiring review meaningful appellate nature, seldom remedied permanent guess why this court to parties generally considered money damages its conclusion.” the district court reached irreparable.”). Wyo., PacifiCorp, L.P. v. OCI Cir.2007). (10th A district Moreover, the district court focused on many recite “as of the required court is to loss of waters that permanent subsidiary necessary permit facts as us result after construction of the Gulf would it steps by determine the which reached complete, and failed Roberts v. Metro. its ultimate conclusion.” harm significant the real and address Co., Ins. by the actual construction of caused Life Cir.1987) States, (citing Snyder v. United clearing of trees and pipeline, including Cir.1982)) (inter- filling wet- vegetation, removing topsoil, omitted). quotations lands, roads, nal clearing building access right-of- construction eighty-five foot holds that the district majority The length pipeline. way for analysis equi- of the balance of the court’s 52(a) balancing court’s it The district Rule because “identi- ties satisfies fact that salient, completely ignores also attrib- harms thought fied the harms it incur its economic them, chose to and concluded that TransCanada weight uted for by entering in- into contracts ser- granting not favor harm the balance did 891, Pipeline was vices before the Gulf Coast Maj. Op. (quoting n. 3 junction.”

903 them); of the controversial approved, light even discussed see also Flexible Inc., See v. Mine Pipeline. Sys., nature of the Davis Lift, Inc. v. Precision Lifeline (10th Cir.2002) 1104, ta, (9th Cir.2011) (“We 302 F.3d 654 F.3d (finding weighed that balance of the harms believe better course is to remand to “ ‘jumped who against state defendants allow requi- the district court to make the on the environmental issues gun’ site factual regarding determinations ir- entering obligations into contractual reparable apply harm and factual those result.”); anticipated proa Utahns findings to the four-factor framework to forma Dep’t Tramp., Better v. Transp. U.S. injunctive determine whether relief is war- for 2001) Nov. WL Cir. ranted.”); Sherman, 451 F.3d Lankford (holding that state was at fault for its (8th Cir.2006) (remanding where harm when it was aware of controversial only district court considered likelihood of project nature of the and chose to enter success on the merits because dis- “[t]he nonetheless). obligations into contractual trict court is in the position best evalu- reasons, ate all of the evidence weigh

For these I believe the district the fac- analysis respect equita- court’s with to the tors to determine whether the issue.”). ble factors than other likelihood of success should on the merits insufficient us to deter- majority’s The discussion on the balanc- properly mine whether the district court ing usurps harms the district court’s regard. exercised its discretion in this fact-finder, only role not but also as Notably, the court operating district initially court which should be exercis- incredibly under difficult circumstances ing its discretion to determine whether Appellants’ Temporary Motion for Re- injunctive appropriate. eBay relief is Seе straining Preliminary Injunc- Order and L.L.C., MercExchange, Inc. v. tion was filed weeks before construc- 388, 394, S.Ct. L.Ed.2d 641 tion on the Gulf Coast was set to (2006) (vacating the decision of the court of commence. As a fellow district court appeals ordering a remand so that the I judge, appreciate the attention that the equitable district court could address the gave nearly district court this case under preliminary injunction); elements of a impossible light time constraints. of its Stryker Corp., Acumed LLC v. finding Appellants had not met their (Fed.Cir.2007) (“If 800, 811 we were to respect burden with to likelihood of suc- to reach a weigh the evidence ourselves merits, on the cess there was no need for relief, injunctive conclusion on we would analyze remaining the district court to effectively exercising be our own discretion However, equitable three factors. because equity. as if we were the first-line court of I would find that have shown belongs exclusively That role to the dis- likely are to succeed on the solely to review trict court. Our task is merits, it would become on re- necessary for an abuse the district court’s decisions mand for the district court to consider the discretion.”); Prods., Lawson Inc. Moreover, remaining equitable factors. Avnet, Inc., 1437-38 my view the have the district should Cir.1986) (remanding to the district court opportunity to undertake this assessment equitable for consideration of the elements analysis in the first instance. See injunction because “the preliminary of a Hurley, Kikumura v. (10th Cir.2001) to an appellate process is not well suited (remanding for consider- of a appreciation shadings of the subtle public balancing ation of the interest and balancing equities). of interests because the district court had case” involved in the III the district my conclusion

Given finding its discretion abused meet their burden of did not

Appellants on the mer- likelihood of success

showing a court’s

its, the district I would reverse ‍​‌‌​​​​‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌​‌‌‌​​​​‌​‍Re- Temporary Motion for

denial of the Preliminary Injunc- Order and

straining that the

tion, remand with instructions and in the first in- court determine

district met their whether

stance remaining respect with

burden equitable factors.

three America, STATES

UNITED

Plaintiff-Appellee, Waters, Kyle Evan Epperley, Linda A. HOWARD, Defendant- Darren Glen Attorney, States Mus- Office of United Appellant. OK, kogee, Plaintiff-Appellee. for No. 13-7014. Folsom, III, ESQ., Adrian Robert Carl Ridenour, Pub- Office of the Federal Allen Appeals, States Court United Defender, OK, Defen- Muskogee, lic Tenth Circuit. dant-Appellant. Oct. 2013. ANDERSON, TYMKOVICH, Before BACHARACH, Judges.

and Circuit * AND ORDER JUDGMENT ANDERSON, H. STEPHEN Circuit Judge. appellate examining

After briefs record, unani- panel has determined * generally the citation of judgment binding prece- The court disfavors is not This order dent, nevertheless, except under the doctrines of law judgments; order orders case, estoppel. judicata, and collateral res

Case Details

Case Name: Sierra Club, Inc. v. Bostick

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 9, 2013

Citation: 539 F. App'x 885

Docket Number: 12-6201

Court Abbreviation: 10th Cir.