Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 29, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court __________________________________________
COLORADO MOTOR CARRIERS ASSOCIATION,
Plaintiff - Appellee/ Cross-Appellant,
v. Nos. 24-1017 & 24-1024
TOWN OF VAIL; POLICE CHIEF RYAN KENNEY,
Defendants - Appellants/ Cross-Appellees.
--------------------------------
COLORADO MUNICIPAL LEAGUE; AMERICAN TRUCKING ASSOCIATIONS, INC.,
Amici Curiae.
___________________________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:23-CV-02752-CNS-STV) ____________________________________________
David J. Goldfarb (Josh A. Marks and Abbey Derechin, with him on the briefs), Berg Hill Greenleaf Ruscitti, LLP, Boulder, Colorado, for Defendants-Appellants/Cross-Appellees.
James Anthony Eckhart, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, Indiana (Shannon McClellan Cohen, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, Indiana, and Adam Carl Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 2
Smedstad, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Seattle, Washington, with him on the briefs), for Plaintiff-Appellee/Cross- Appellant.
Rachel Bender, Colorado Municipal League, Denver, Colorado, filed an amicus curiae brief on behalf of Colorado Municipal League, in support of Defendants-Appellants/Cross-Appellees.
Richard Pianka, ATA Litigation Center, Washington D.C., filed an amicus curiae brief on behalf of American Trucking Associations, Inc., in support of Plaintiff-Appellee/Cross-Appellant.
____________________________________________
Before BACHARACH, PHILLIPS, and FEDERICO, Circuit Judges. _____________________________________________
BACHARACH, Circuit Judge. _____________________________________________
This appeal involves a local ordinance restricting motor vehicles in a
town’s pedestrian areas. To resolve the appeal, we address two issues.
The first issue involves interpretation of federal statutes. These
statutes ordinarily preempt local trucking regulations, but exceptions exist
for motor vehicle safety. Do these exceptions allow a town to regulate
trucking companies that frequently deliver goods in a pedestrian mall? We
answer yes.
The second issue involves a preliminary injunction. A court can issue
this kind of injunction only when a claimant proves irreparable injury. Can
a district court discount the risk of irreparable injury when a claimant
waits over a year before suing? We answer yes.
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Background
In 2022, the Town of Vail adopted an ordinance barring most vehicles
from pedestrian malls. But exceptions existed. One was for high-volume
commercial carriers, defined as carriers delivering commercial goods (not
including food and beverages) to multiple recipients more than five days
per week. Another exception allowed a contractor (approved by the Town)
to deliver commercial goods in the pedestrian malls.
In 2023, the Town amended the ordinance by removing the exception
for high-volume commercial carriers. The amendment spurred a legal
challenge by the Colorado Motor Carriers Association, which represents
numerous trucking companies.
The Association requested a preliminary injunction. The district court
enjoined the amended ordinance, halting enforcement against high-volume
commercial carriers. But the court declined to enjoin the original
ordinance. The Town appealed the preliminary injunction, and the
Association cross-appealed the refusal to enjoin the original ordinance.
Discussion
I. Rulings on preliminary injunctions are reviewable for an abuse of discretion.
To obtain a preliminary injunction, the Association needed to satisfy
four elements:
1. It was likely to succeed on the merits.
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2. It would likely suffer irreparable injury without an injunction.
3. The balance of equities favored the Association.
4. An injunction would serve the public interest.
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). For the amended
ordinance, the district court found satisfaction of the four elements. For
the original ordinance, however, the court concluded that the Association
hadn’t shown irreparable injury.
We review rulings on preliminary injunctions under the abuse-of-
discretion standard. Free the Nipple-Fort Collins v. City of Fort Collins,
916 F.3d 792, 796 (10th Cir. 2019). This standard triggers
de novo review of a district court’s legal conclusions and
review of factual findings for clear error.
Id. at 796–97. Sometimes a claimant argues that a district court found facts
based on an improper legal standard. For these arguments, we engage in de
novo review. Osborn v. Durant Bank & Tr. Co. (In re Osborn), 24 F.3d
1199, 1203 (10th Cir. 1994).
II. The district court erred in enjoining the amended ordinance.
In our view, the amended ordinance likely satisfies the requirements
for the safety exceptions. So the district court erred in concluding that the
Association was likely to succeed on the merits.
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A. Preemption under the Federal Aviation Administration Authorization Act and the Airline Deregulation Act
In seeking a preliminary injunction, the Association alleged a
likelihood of success based on preemption of the Town’s ordinances under
the Federal Aviation Administration Authorization Act and the Airline
Deregulation Act. These Acts preempt most local regulations of routes and
services of commercial carriers. 49 U.S.C. §§ 14501(c)(1), 41713(b)(4)(A).
The Town does not deny that the original and amended ordinances
would ordinarily be preempted. But exceptions exist for ordinances
involving “safety regulatory authority . . . with respect to motor vehicles.”
49 U.S.C. §§ 14501(c)(2)(A), 41713(b)(4)(B)(i); see also City of Columbus
v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 442 (2002)
(concluding that the Federal Aviation Administration Authorization Act’s
safety exception extends to local regulations).
The applicability of these exceptions drives the inquiry on likelihood
of success. This inquiry involves statutory interpretation, which is a
question of law triggering de novo review. Rosette Inc. v. United States,
277 F.3d 1222, 1226 (10th Cir. 2002).
To interpret the safety exceptions, we consider their statutory
function, which is to preserve the states’ “preexisting and traditional . . .
police power over safety.” Ours Garage, 536 U.S. at 439. Given the
breadth of that police power, the safety exceptions are broad. See Miller v.
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C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1026 (9th Cir. 2020) (“In
general, . . . courts have construed the safety exception broadly.”). To
trigger the safety exceptions, the ordinance needs only to
regulate “with respect to motor vehicles” and
be “genuinely responsive to safety concerns.”
49 U.S.C. §§ 14501(c)(2)(A), 41713(b)(4)(B)(i) (“with respect to . . .”);
Ours Garage, 536 U.S. at 442 (“genuinely responsive to . . .”).
Despite the breadth of the exceptions, they require more than a
tenuous connection to motor vehicles. For example, in UPS v. Flores-
Galarza, the First Circuit considered Puerto Rico laws addressing evasion
of excise taxes. 385 F.3d 9, 11 (1st Cir. 2004). Under the Puerto Rico laws,
carriers bore duties involving licensing, bonding, and record-keeping. Id.
at 13. The First Circuit concluded that these statutory duties were
preempted because they didn’t involve the safety of motor vehicles. Id. at
13–14.
Even when an ordinance involves the safety of motor vehicles, the
Supreme Court has said that the exception in the Federal Aviation
Administration Authorization Act applies only if the regulation is
“genuinely responsive to safety concerns.” City of Columbus v. Ours
Garage & Wrecker Serv., Inc., 536 U.S. 424, 442 (2002).
The Association argues that this statement is no longer good law
because the Supreme Court later rejected both (1) a presumption against 6 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 7
preemption and (2) a limitation on preemption to regulations that are
economic in nature. We reject the Association’s argument. The Supreme
Court didn’t expressly anchor its language (genuinely responsive to safety
concerns) to either a presumption against preemption or a restrictive
understanding of the scope of preemption. And even if the language had
appeared “to rest on reasons rejected in some other line of decisions,” we
must “follow the case which directly controls, leaving to [the Supreme
Court] the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
The Association also argues that the Supreme Court didn’t purport to
create a standard when referring to a regulation’s responsiveness to safety
concerns. But four other circuits have said the opposite, relying on the
Supreme Court’s language in holding that the safety exceptions are
triggered when a regulation is genuinely responsive to safety concerns.
Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 145 (2d
Cir. 2006); United Motorcoach Ass’n, Inc. v. City of Austin, 851 F.3d 489,
494 (5th Cir. 2017); Cal. Tow Truck Ass’n v. City & Cnty. of San
Francisco, 693 F.3d 847, 859 (9th Cir. 2012); Galactic Towing, Inc. v. City
of Miami Beach, 341 F.3d 1249, 1252 (11th Cir. 2003). These holdings
make sense because a regulation that is genuinely responsive to safety
concerns must necessarily fall within a state’s safety regulatory authority.
49 U.S.C. §§ 14501(c)(2)(A), 41713(b)(4)(B)(i).
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The resulting issue is how to determine whether a local regulation is
genuinely responsive to safety concerns. For its part, the district court
applied the standard through a two-step process recognized in the Second,
Fifth, and Ninth Circuits. See Loyal Tire, 445 F.3d at 145; United
Motorcoach, 851 F.3d at 497; Cal. Tow, 693 F.3d at 860. In these circuits,
the court asks two questions:
1. Was the regulation motivated by legitimate safety concerns?
2. Does the record show a logical nexus between the regulation and safety?
See Loyal Tire, 445 F.3d at 145; United Motorcoach, 851 F.3d at 497; Cal.
Tow, 693 F.3d at 860. We follow that approach because it sensibly
addresses the genuineness of a response to safety concerns.
To answer the first question under this approach, the court considers
the text and legislative history, Cal. Tow, 693 F.3d at 859, along with
litigation statements to the extent that they shed light on the “‘surrounding
circumstances,’” Cal. Tow Truck Ass’n v. City & Cnty. of San Francisco,
797 F.3d 733, 749 (9th Cir. 2015) (quoting Cal. Tow, 693 F.3d at 864).
To answer the second question, the court determines whether the
record shows an “obvious and logical” nexus between the regulation and
safety. United Motorcoach Ass’n v. City of Austin, 851 F.3d 489, 498 (5th
Cir. 2017). For this determination, we recognize the legislature’s domain of
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policy-making; but we also consider whether the policy-making had
strayed into improper areas.
When the nexus to safety is obvious, we generally defer to local
regulators entrusted with the public interest in safety. See id. at 494
(rejecting a “searching standard” for the applicability of the safety
exceptions). And we don’t generally require extensive proof about the
effectiveness of a regulation. See VRC LLC v. City of Dallas, 460 F.3d 607,
610, 615–16 (5th Cir. 2006) (upholding a regulation despite an absence of
“documentary evidence, reports, or studies” of the safety issue); Cal. Tow
Truck Ass’n, 797 F.3d at 750 (noting that “the safety exception is
concerned with legislative intent, not legislative effectiveness” (emphasis
in original)).
But we apply closer scrutiny when safety concerns appear to be
pretextual. For example, a town might try to evade preemption through
economic regulations masked as safety measures. See VRC LLC, 460 F.3d
at 612 (stating that municipalities can’t “hide economic regulation under
the guise of safety regulation”). Or a town might discriminate against
particular carriers by subjecting them to onerous safety regulations. See
Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 148 (2d
Cir. 2006) (noting that the evidence for one safety justification was “thin
and post-hoc in nature, especially when considered in light of the extensive
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evidence of [a] discriminatory motivation”). In these circumstances, we
require a stronger showing of a nexus between the regulation and safety.
B. The amended ordinance regulates with respect to motor vehicles.
The Association argues that the amended ordinance doesn’t regulate
with respect to motor vehicles because applicability of the ordinance turns
on ownership of the vehicle rather than its type. For this argument, the
Association insists that
an approved contractor can use any kind of vehicle and
the Town is regulating who can use vehicles rather than the kind of vehicle that is permitted.
We reject this argument and conclude that the regulation applies with
respect to motor vehicles.
To address the Association’s argument, we focus on the meaning of
the statutory term with respect to. This clause is synonymous with the term
relating to. See Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016,
1030 (9th Cir. 2020) (“We have previously held that the phrase ‘with
respect to’ in the safety exception is synonymous with ‘relating to.’”). The
term relating to is broad, meaning “‘to stand in some relation; to have
bearing or concern; to pertain; refer; to bring into association with or
connection with.’” Morales v. Trans World Airlines, Inc., 504 U.S. 374,
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383 (1992) (quoting Black’s Law Dictionary 1158 (5th ed. 1979)). 1 So a
regulation applies with respect to motor vehicles if there’s a connection to
motor vehicles. Ye v. GlobalTranz Enters., Inc., 74 F.4th 453, 460 (7th Cir.
2023); Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1270–
71 (11th Cir. 2023).
On its face, the amended ordinance focuses on motor vehicles. For
example, § 7-11-3 is titled Vehicular Traffic and says that vehicular traffic
in the mall areas is generally prohibited. Appellant’s App’x vol. 2, at 308.
And § 7-11-4 creates exceptions for certain types of “vehicular traffic.” Id.
at 309. Given the language in these sections, the ordinance regulates with
respect to motor vehicles. So the amended ordinance likely satisfies the
first requirement for the safety exceptions.
C. The amended ordinance is genuinely responsive to safety concerns.
The Association also argues that irrespective of the Town’s intent,
the amended ordinance wasn’t genuinely responsive to safety concerns. The
district court agreed, concluding that the regulation wasn’t sufficiently
connected to safety. But the district court applied an overly demanding
standard for the second inquiry.
1 The Association elsewhere relies on the breadth of the term related to. Appellee’s First Br. at 42–43.
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1. The amended ordinance was motivated by legitimate safety concerns.
At the first inquiry, we focus on the text and legislative history of the
amended ordinance. See p. 8, above.
The ordinances say that the Town
intended to address concerns including “the safety of pedestrian traffic,”
found that “a coordinated delivery system [would] address such concerns,” and
concluded that the earlier exemption for high-volume commercial carriers had undermined the purpose of the plan.
Appellant’s App’x vol. 2, at 308, 312–13. These statements of intent are
pertinent, but are not dispositive given their brevity. Loyal Tire & Auto
Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 146 (2d Cir. 2006).
The legislative history includes testimony by Police Chief Ryan
Kenney about his out-of-court statements. Chief Kenney testified in two
respects about how the Town had focused on safety.
First, he testified that the town manager had
considered changes in the delivery of goods and
directed the police department to lead the project because the primary concern involved safety.
This testimony indicates that safety was a genuine concern behind the
regulation.
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Second, Chief Kenney testified about a report showing that a pilot
program had promoted safety by restricting large trucks in the pedestrian
malls. This report suggests that the Town was trying to enhance safety.
The Town also presented evidence of Chief Kenney’s out-of-court
statements focusing on safety. For example, a UPS representative testified
that during a walking tour of the pedestrian mall, Chief Kenney had said
that the Town’s main concern was safety. And in an email to a FedEx
employee, Chief Kenney said that the Town’s goal had been “to provide a
safe pedestrian environment . . . .” Appellant’s App’x vol. 2, at 336. 2
The Association downplays this evidence, pointing out that (1) no
one had mentioned safety in some of the meetings and (2) town leaders had
instead referred repeatedly to improvements in the “guest experience.”
Chief Kenney explained that later meetings had sometimes omitted
mention of safety concerns because they were so well understood. For
example, he testified that town leaders had worked for decades on
“pedestrian safety” and removal of vehicles from the pedestrian malls.
Appellant’s App’x vol. 3, at 649. Given that history, Chief Kenney testified
2 The email came a few weeks after adoption of the amended ordinance. But the email is still pertinent to the Town’s safety motivations. See N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 535 (1982) (stating that the Supreme Court should not ignore “postenactment developments” bearing on the scope and purpose of a statute). 13 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 14
that the community had shifted its focus to operations because town
leaders had already recognized the need to enhance safety.
Chief Kenney also acknowledged that he hadn’t mentioned safety in a
memo discussing removal of the exception for high-volume commercial
carriers. He explained, however, that reference to safety wasn’t necessary
because town leaders had already recognized the safety risks from the
presence of high-volume commercial carriers.
The Association criticizes this explanation, pointing to Chief
Kenney’s numerous references to the “guest experience” in the pedestrian
malls. But he testified that as the police chief, he was using the term guest
experience to refer to the pedestrian’s “being” and “feeling safe.” Id. at
641.
In sum, we agree with the district court that the Town had a
legitimate concern with “safety relating to motor vehicles.” Appellant’s
App’x vol. 1, at 282. The Town surely had other concerns, such as the
appearance of the pedestrian malls. But the presence of additional goals
doesn’t erase the concern over safety. See Cal. Tow Truck Ass’n v. City &
Cnty. of San Francisco, 693 F.3d 847, 859–60 (9th Cir. 2012) (stating that
it’s not fatal if safety is coupled with another reason for a regulation). So
the amended ordinance likely satisfies the first inquiry.
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2. The amended ordinance bears a logical nexus to safety.
The second inquiry is whether a logical nexus exists between safety
and the amended ordinance. 3 The district court correctly identified this
inquiry, but misapplied it.
a. The district court misapplied the inquiry.
The district court purported to consider only the logic behind the
Town’s effort to enhance safety through the amended ordinance. But in
examining the logic behind the Town’s effort, the district court
shortchanged the primacy of local policymaking, substituting the court’s
own judgment about better ways to enhance safety. 4
In questioning the nexus, the district court noted that the amended
ordinance
3 We need not determine whether this inquiry involves a factual question, a legal question, or a mixed question of law and fact. Because we conclude that the district court misapplied the legal standard, we engage in de novo review. See Osborn v. Durant Bank & Tr. Co. (In re Osborn), 24 F.3d 1199, 1203 (10th Cir. 1994) (“[W]hen a lower court’s factual findings are premised on improper legal standards or on proper ones improperly applied, they are not entitled to the protection of the clearly erroneous standard, but are subject to de novo review.”). 4 The Association also argues that the amended ordinance constitutes improper economic regulation by giving the Town-approved contractor a monopoly within the pedestrian malls. But the Town’s evidence showed that the choice of a single contractor was not an end in itself. Rather, that choice constituted a means to achieve a safety objective. See Appellant’s App’x vol. 2, at 336, 480; Appellant’s App’x vol. 3, at 531–32, 644–47, 649. The Association thus hasn’t shown that safety was a likely pretext for economic regulation, and the failure to make that showing triggers deference to the Town’s policy choice. See pp. 9–10, above. 15 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 16
hadn’t created a blanket prohibition on large box trucks inside the pedestrian malls and
had retained the exceptions for other large vehicles like garbage trucks, armored money trucks, and public buses.
But before the amended ordinance, high-volume commercial carriers had
used 2–6 large box trucks every day in the pedestrian malls. Given that
volume and consistency, the Town could reasonably conclude that
the safety benefits of restricting access for high-volume commercial carriers would outweigh the costs, given the feasibility of an alternative delivery system, and
the costs would be too severe if the Town were to bar all big vehicles from the pedestrian malls.
Those conclusions wouldn’t sever the connection between the
amended ordinance and safety; to the contrary, these conclusions would
simply reflect regulatory discretion. In connection with that discretion,
Chief Kenney testified that town leaders had been exploring ways to
remove garbage trucks from the pedestrian malls. Given this testimony, the
connection to safety isn’t lost just because a more expansive restriction
might have been more effective. See FCC v. Beach Commc’ns, Inc., 508
U.S. 307, 316 (1993) (stating that “the legislature must be allowed leeway
to approach a perceived problem incrementally”); see also Cal. Tow Truck
Ass’n v. City & Cnty. of San Francisco, 807 F.3d 1008, 1024–25 (9th Cir.
2015) (rejecting a challenge involving a logical nexus to safety because the
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safety exception applies even if another method might have been more
appropriate).
The district court also noted the lack of evidence of pedestrian
injuries caused by high-volume commercial carriers operating in the
pedestrian malls. But even when this evidence is absent, we defer to
regulators based on their experience. For example, the Fifth Circuit has
upheld regulations for signage on towing companies based in part on
testimony by a city official that (1) “there was a real problem with
confrontation between citizens and tow truck drivers” and (2) “the signs
had been helpful” in addressing the problem. VRC LLC v. City of Dallas,
460 F.3d 607, 615 (5th Cir. 2006). The Fifth Circuit didn’t require
“documentary evidence, reports, or studies of the phenomenon;” the
official’s testimony “from his experience” was sufficient. Id. at 610, 615.
The Fifth Circuit’s approach is sensible: We’re not policymakers, but
the Town’s leaders are. Those leaders presumably enjoy expertise when
deciding how to address safety concerns. Recognition of that expertise
leaves us little room to second-guess the leadership’s policy choices based
on our policy preferences. See Chhetri v. United States, 823 F.3d 577, 588
(11th Cir. 2016) (“[I]t is beyond dispute that ‘government regulators’
safety determinations’ for motor carriers ‘involve[] consideration of public
policy.’” (quoting Pornomo v. United States, 814 F.3d 681, 688 (4th Cir.
2016))).
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b. A logical nexus exists to safety.
Recognizing that expertise, we conclude that the amended ordinance
likely bears a logical nexus to safety.
Before the amended ordinance, high-volume commercial carriers had
frequently used big box trucks in the pedestrian malls. Addressing the use
of the big box trucks, town leaders testified that
the pedestrian malls hadn’t been designed for vehicle traffic and lacked typical traffic controls,
delivery trucks had encountered crowds and other obstacles when navigating the pedestrian malls,
pedestrians had often felt little need to pay close attention to vehicles because the areas had been set aside for pedestrians,
a delivery truck had “sideswiped” a pedestrian, and
there had been other “close calls.”
Appellant’s App’x vol. 3, at 609, 660, 662. Against this factual
background, Chief Kenney testified that he had assessed “a very high
potential of . . . a serious accident . . . .” Id. at 662.
Prompted in part by that safety concern, the Town eliminated the
exception for high-volume commercial carriers. Through this change, the
carriers—like other non-exempt groups—would need to make deliveries to
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the pedestrian malls by foot or through a Town-approved contractor. 5 The
Town based this preference on the contractor ’s use of motorized carts that
were smaller than a traditional box truck, as shown in this photograph of
the two vehicles:
Appellant’s App’x vol. 2, at 335. And Chief Kenney testified that the carts
had enhanced safety because their drivers were “eye to eye with
pedestrians” and had “a very good view for navigating a pedestrian mall.”
Appellant’s App’x vol. 3, at 666–67.
The safety advantages are likely considered logical when the
pedestrian malls are compared to other pedestrian areas, such as an airport
5 The Association suggests that the U.S. Constitution didn’t allow the Town to award a local monopoly to a single contractor. But our issue involves the scope of the safety exceptions, not the constitutionality of the exception for deliveries by an approved contractor.
19 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 20
terminal. Like a pedestrian mall, an airport terminal lacks designated lanes
of travel and bears heavy foot traffic moving in different directions.
Pedestrians may not expect vehicles, but they’re sometimes present. In an
airport terminal, a small motorized cart wouldn’t ordinarily appear out of
place or pose a significant safety risk; but a box truck might. The same
might be true of a box truck in a pedestrian mall.
The Association argues that the amended ordinance doesn’t actually
address this safety concern because the Town-approved contractor could
use large vehicles in the pedestrian malls. But this argument disregards
Chief Kenney’s testimony that the approved contractor agreed to use only
its small motorized carts.
According to Chief Kenney’s testimony, this restriction appeared in
the contract between the Town and the contractor; and the Association
presented no contrary evidence. Of course, the contractor could
conceivably breach that contract by shifting from small motorized carts to
box trucks. But such a breach would jeopardize the contractor ’s exemption
from the ordinance. And without that exemption, the contractor couldn’t
even drive its small motorized carts inside the pedestrian malls.
By obtaining a contractual commitment to use small motorized carts
and banning box trucks, the Town tried not only to reduce dangers to
pedestrians but also to ease the movement of emergency vehicles. In fact,
Chief Kenney and Fire Chief Mark Novak testified that delivery trucks had
20 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 21
impeded emergency vehicles, delaying responses. Granted, Fire Chief
Novak testified that he didn’t know of any such incidents since the Town
had imposed restrictions on delivery trucks. But given the frequent
presence of box trucks used by high-volume commercial carriers, removing
them from the pedestrian malls would logically reduce the obstructions to
emergency vehicles.
In sum, the amended ordinance likely bears a logical nexus to the
Town’s safety concerns.
* * *
The amended ordinance likely satisfies both requirements for
coverage under the safety exceptions. The district court thus erred in
concluding that the Association had shown a likelihood of success on the
merits. As a result of that error, the court abused its discretion in enjoining
the amended ordinance.
III. The district court didn’t err in declining to enjoin the original ordinance.
The district court declined to enjoin the original ordinance,
concluding that the Association hadn’t shown irreparable injury. We review
this ruling for an abuse of discretion. See Discussion–Part I, above.
The district court didn’t abuse its discretion, so we affirm the denial
of a preliminary injunction against enforcement of the original ordinance.
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A. Courts disfavor preliminary injunctions changing the status quo.
The purpose of a preliminary injunction is to preserve the status quo
as it existed before the dispute arose. Schrier v. Univ. of Colo., 427 F.3d
1253, 1258–59 (10th Cir. 2005). In this case, the dispute arose when the
Association sued after more than a year of experience under the original
ordinance. So the status quo was the period between the enactment of the
original ordinance and the amended ordinance.
The Association argues that the district court shouldn’t have
concluded that it lacked authority to issue an injunction that would disrupt
the status quo. But the court didn’t say that it lacked authority. The court
simply said that the requested relief was inconsistent with the “limited
purpose” of a preliminary injunction. Id. at 1258.
We generally disfavor preliminary injunctions that disturb the status
quo. Id. at 1258–59. So the Association needed to meet a “heightened
standard” by making a “stronger showing” on the elements of a preliminary
injunction. Fish v. Kobach, 840 F.3d 710, 723–24 (10th Cir. 2016); see
Discussion–Part I, above (identifying the elements).
B. The court could reasonably decline to find irreparable injury based on the Association’s delay.
After identifying the status quo, the district court noted that the
original ordinance had been in place for more than a year before the
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Association sued. Based on that delay, the court concluded that the
Association hadn’t shown irreparable injury.
The Association argues that the district court erred by treating the
delay as dispositive. The delay doesn’t automatically bar a preliminary
injunction. See Fish v. Kobach, 840 F.3d 710, 753 (10th Cir. 2016) (noting
that “delay is only one factor to be considered among others . . . and [that]
there is no categorical rule that delay bars the issuance of an injunction”).
But a delay can justify the denial of a preliminary injunction. Ng v. Bd. of
Regents, 64 F.4th 992, 997–98 (8th Cir. 2023). The key question is
“whether the delay was reasonable” or instead “a decision by the party to
‘sit on its rights.’” Fish, 840 F.3d at 753 (quoting RoDa Drilling Co. v.
Siegal, 552 F.3d 1203, 1212 (10th Cir. 2009)). An unreasonable delay
“undercuts a finding of irreparable harm.” Id. So the district court didn’t
abuse its discretion in deciding that the delay had undercut the
Association’s claim of irreparable injury.
The Association presents only one justification for the delay, alleging
that the Town
initially treated one of the Association’s members (FedEx Freight) as exempt from the original ordinance and
started enforcing the original ordinance against that member after the court had temporarily halted enforcement of the amended ordinance.
23 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 24
This alleged change in enforcement might have justified a delay by FedEx
Freight. But the Association sought relief for all of its members, not just
FedEx Freight. And the Association didn’t allege similar changes for any
other members. So the district court didn’t abuse its discretion by
concluding that the delay had “belie[d] [the Association’s] contention of
irreparable harm.” Appellant’s App’x vol. 1, at 288. 6
Because the district court didn’t abuse its discretion in concluding
that the Association hadn’t shown a likelihood of irreparable injury, the
court didn’t err in refusing to enjoin the original ordinance.
6 The Association also argues that when express preemption is involved, a finding of likelihood of success triggers a presumption that the movant has satisfied the three other elements. For this argument, the Association quotes part of a sentence from the Fifth Circuit’s opinion in Trans World Airlines, Inc. v. Mattox, 897 F.2d 773, 783 (5th Cir. 1990). We reject this argument for two reasons.
First, the argument stems from a misreading of Trans World. The quoted sentence reads in full: “Under the facts of this case we believe the finding with respect to likelihood of success carries with it a determination that the other three requirements have been satisfied.” Id. (emphasis added). Given the entirety of the sentence, we don’t read Trans World as recognizing a presumption of irreparable injury whenever a movant shows likely success on the merits.
Second, even if a presumption applied, the district court could conclude that the Town had rebutted the presumption based on the Association’s delay. 24 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 25
Conclusion
For the amended ordinance, we reverse the district court’s decision
and remand with instructions to dissolve the preliminary injunction. But
we affirm the district court’s ruling as to the original ordinance.
25 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 26
24-1017, 24-1024, Colorado Motor Carriers Association v. Town of Vail, et al. PHILLIPS, J., dissenting.
I agree with the majority’s two-step framework for analyzing whether a
local motor-vehicle regulation is “genuinely responsive to safety concerns” and
thus excepted from federal preemption. The first step asks whether safety
concerns motivated the regulation. The second step asks whether the regulation
has a logical nexus to those safety concerns. The district court analyzed both
steps.
At the first step, the district court found that the Amended Ordinance
was, at least in part, motivated by legitimate safety concerns. In making that
finding, the district court suggested that the Town’s “chief concern” for the
Amended Ordinance was aesthetics, not safety. Colorado Motor Carriers Ass’n
v. Town of Vail, No. 1:23-CV-02752-CNS-STV, 2023 WL 8702074, at *9
(D. Colo. Dec. 15, 2023) (“CMCA”). But the district court nonetheless found a
safety motivation because Police Chief Ryan Kenney testified that the Town
had passed the Amended Ordinance to protect against hazards caused by large
delivery vehicles in the Pedestrian Mall Areas. Id. Like the majority, I agree
with the district court’s finding that the Town asserted a legitimate safety
motivation for the Amended Ordinance.
At the second step—whether there is a logical nexus between the
regulation and safety—the district court concluded that the Town had “not
shown a clear nexus between the Amended Ordinance’s exclusion of HVCCs Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 27
from the Pedestrian Mall Areas and the need to ensure the safety of pedestrians
in those areas[.]” Id. at *10. Thus, the district court determined that the
Amended Ordinance was not “genuinely responsive to safety concerns.” Id.
(citation modified). Unlike the majority, I agree with the district court at this
second step. And in my view, the majority largely ignores the district court’s
analysis. So here’s the district court’s logical-nexus reasoning:
[T]he Amended Ordinance does not purport to regulate the passage of motor vehicles through the Pedestrian Mall Areas based on the relative risks they pose to pedestrians, but instead based on the owner of the vehicle or the purpose for which the vehicle is used. As CMCA has aptly put it, “the motor vehicles owned by CMCA’s Members cannot access the Pedestrian Mall Areas when used by CMCA’s Members to make deliveries. But those same vehicles could be used to enter or exit a parking structure to access a business or residence. Or they could be used by property owners and their guests to actively load or unload. They could be used by 106 West Logistics. And they could be used by anyone else so long as Vail authorized it via a valid Town-issued permit.” Tellingly, Chief Kenney conceded that if two of the exact same type of vehicle attempted to enter the Pedestrian Mall Areas to deliver goods—one operated by 106 West Logistics and the other operated by an HVCC like FedEx or UPS—only the vehicle operated by the Town’s exclusive contractor, 106 West Logistics, would be allowed inside.
Id. (citation modified). In short, the district court first recognized that the
Amended Ordinance allows 106 West Logistics to drive the same sort of large
delivery vehicles into the Pedestrian Mall Areas as before the Amended
Ordinance. Indeed, the Amended Ordinance restricts neither delivery-vehicle
size nor delivery-vehicle frequency. Instead, it regulates “based on the owner
of the vehicle[.]” Id. The district court continued:
2 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 28
No one on behalf of the Town has endeavored to explain why pedestrians in the Pedestrian Mall Areas are safer around motor vehicles operated by 106 West Logistics than they are around identical vehicles operated by other commercial carriers. This question is especially pressing in view of the facts that two of the largest HVCCs, FedEx and UPS, had never been cited for traffic violations in the Pedestrian Mall Areas, never injured a pedestrian in the Pedestrian Mall Areas, and had trained its delivery drivers extensively in safe motor vehicle operation. There was also no testimony that drivers for 106 West Logistics had a better or even comparable safety record than any of the major HVCCs with respect to pedestrians. Furthermore, no one on behalf of the Town has explained why it is unacceptably risky for HVCC trucks to operate in the Pedestrian Mall Areas, while other motor vehicles of similar types and sizes—such as public transportation buses, armored money vehicles, and waste and recycling collection trucks—do not pose such risks and remain free to drive through those areas. In short, the Town has provided no satisfactory explanation for why the Amended Ordinance—which removes HVCC vehicles from the Pedestrian Mall Areas but abides the presence of other similar vehicles—is supposed to make pedestrians in those areas any safer.
Id. (citation modified).
The majority claims that the district court misapplied the logical-nexus
inquiry by “shortchang[ing] the primacy of local policymaking” and
“substituting the court’s own judgment about better ways to enhance safety.”
Maj. Op. at 15. Thus, the majority faults the district court for not blanketly
deferring to the Town’s safety motivations. But I see nothing in the majority
opinion that disputes the district court’s key nexus point—that the Amended
Ordinance allows 106 West Logistics to drive the same large delivery vehicles
into the Pedestrian Mall Areas as others did before the Amended Ordinance.
Likewise, the majority does not dispute that any Town-approved contractor
3 Appellate Case: 24-1017 Document: 74-1 Date Filed: 08/29/2025 Page: 29
could drive more large delivery vehicles into the Pedestrian Mall Areas than
before the Amended Ordinance. Because the majority does not dispute these
points, I understand the majority as tacitly ruling that when an otherwise-
preempted regulation has an identifiable safety motivation, we must defer to
local policymaking authority even if the regulation by its terms and effect in
fact lacks a logical nexus to safety.
In contrast, I agree with the district court that the Amended Ordinance
lacks a logical nexus to the Town’s safety motivation (curing hazards posed by
large delivery vehicles in the Pedestrian Mall Areas), because the Amended
Ordinance permits as many of the “exact same” large delivery vehicles to enter
the Pedestrian Mall Areas as before the regulation. 1 CMCA, 2023 WL 8702074,
at *10. Thus, I agree with the district court’s preliminary conclusion that the
Amended Ordinance falls outside the safety exceptions to federal preemption.
So I respectfully dissent.
1 I recognize that Police Chief Kenney testified that the Town contractually requires 106 West Logistics to use small delivery vehicles in the Pedestrian Mall Areas. Assuming such a contract exists, the Town could change it tomorrow. Or the Town could create new contracts with other companies. For example, the Town could allow FedEx to drive large delivery vehicles into the Pedestrian Mall Areas, but not UPS. And anyway, the Amended Ordinance sets the bounds in the Town, not a given contract. Cf. United States v. Stevens, 559 U.S. 460, 480 (2010) (“We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”). 4