Case No. 2:04CV643DAK.United States District Court, D. Utah, Central Division.
June 17, 2005
ORDER
DALE KIMBALL, District Judge
This matter is before the court on Plaintiff’s Motion to Stay Pending Appeal. Rule 62(d) of the Federal Rules of Civil Procedure provides that a party may obtain a stay upon appeal by giving a supersedeas bond approved by the court. Rule 8 of the Federal Rules of Appellate Procedure provides that a party may obtain a stay or injunction pending appeal.
Plaintiff states that the purpose of a stay or injunction pending appeal is to preserve the status quo pending appellate determination. However, in this case, the timber harvest project Plaintiff’s seek to enjoin is scheduled to begin as soon as July of 2005. Therefore, Plaintiff’s need an injunction pending appeal to prevent the project from beginning as scheduled. Under Rule 62(c) of the Federal Rules of Civil Procedure, a court has discretion in granting an injunction during the pendency of the appeal. In making its determination, the court should evaluate: (1) whether Plaintiff has made a showing that it is likely to succeed on the merits of its appeal; (2) whether Plaintiff will be irreparably injured absent an injunction; (3) whether the issuance of an injunction would substantially injure other parties interested in the proceeding;
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and (4) the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Obviously, the court’s view on whether to grant an injunction pending appeal is influenced by its previous review and determination of the merits of this action. The court does not believe that UEC is likely to succeed on the merits of its appeal. The court finds no basis for revisiting its previous order or for concluding that the court of appeals will reverse such order. Similarly, the court does not foresee irreparable injury as a result of the project going forward. Plaintiff’s request for an injunction fails to recognize the harm that could occur as a result of a spread of the spruce beetle infestation should the project not go forward as scheduled. The court cannot conclude that Plaintiff’s alleged harm outweighs Defendant’s alleged harm.
For the reasons stated above, the court denies Plaintiff’s motion to stay pending appeal. Accordingly, under Rule 8(a)(2) of the Federal Rules of Appellate Procedure, Plaintiff may move for a stay or injunction in the court of appeals given this court’s denial of the motion.