Environmental Defense Fund, Inc. v. Cecil D. Andrus

Ninth Circuit

Environmental Defense Fund, Inc. v. Cecil D. Andrus

625 F.2d 861, 30 Fed. R. Serv. 2d 331, 1980 U.S. App. LEXIS 15251

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 31, 1980

Docket80-4322

StatusPublished

This text of 625 F.2d 861 (Environmental Defense Fund, Inc. v. Cecil D. Andrus) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Environmental Defense Fund, Inc. v. Cecil D. Andrus, 625 F.2d 861, 30 Fed. R. Serv. 2d 331, 1980 U.S. App. LEXIS 15251 (9th Cir. 1980).

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Opinion

625 F.2d 861

ENVIRONMENTAL DEFENSE FUND, INC., a nonprofit New York
Corporation, Sierra Club, Society for California
Archaeology, Environmental Traveling Companions, Friends of
the River and Californians for Preservation Action,
Plaintiff/Appellants,
v.
Cecil D. ANDRUS, Secretary of the Interior of the United
States, et al., Defendant/Appellees.

No. 80-4322.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted July 8, 1980.
Decided July 31, 1980.

Robert B. Thum, San Francisco, Cal., for plaintiff/appellants.

Francis M. Goldsberry, II, Sacramento, Cal., Thomas J. Shephard, Stockton, Cal., for defendant/appellees.

Before BROWNING, CHOY and FARRIS, Circuit Judges.

ORDER

Appellees' motion to dismiss the appeal is denied. The denial of a request for a temporary restraining order is appealable where, as here, the denial followed a full adversary hearing and, in the absence of review, the appellants would be effectively foreclosed from pursuing further interlocutory relief. In such cases the denial of the temporary restraining order is tantamount to the denial of a preliminary injunction. See Levesque v. Maine, 587 F.2d 78 (1st Cir. 1978).

Because important public policy issues are involved and time is of the essence, we exercise our option under Fed.R.App.P. 2 to suspend the normal requirements of appellate procedure and reach the merits of this appeal. Our sole inquiry on review is whether the district court abused its discretion in denying relief. Miss universe, Inc. v. Flesher, 605 F.2d 1130, 1133 (9th Cir. 1979). Although the matter is not entirely free from doubt, we are not prepared to say the district court abused its discretion or erred as a matter of law in concluding that appellants' showing of probable success on the merits was insufficient to entitle them to preliminary injunctive relief.

This court's stay order of June 26, 1980, is hereby vacated and the cause affirmed.

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625 F.2d 861

ENVIRONMENTAL DEFENSE FUND, INC., a nonprofit New York
Corporation, Sierra Club, Society for California
Archaeology, Environmental Traveling Companions, Friends of
the River and Californians for Preservation Action,
Plaintiff/Appellants,
v.
Cecil D. ANDRUS, Secretary of the Interior of the United
States, et al., Defendant/Appellees.

No. 80-4322.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted July 8, 1980.
Decided July 31, 1980.

Robert B. Thum, San Francisco, Cal., for plaintiff/appellants.

Francis M. Goldsberry, II, Sacramento, Cal., Thomas J. Shephard, Stockton, Cal., for defendant/appellees.

Before BROWNING, CHOY and FARRIS, Circuit Judges.

ORDER

Appellees' motion to dismiss the appeal is denied. The denial of a request for a temporary restraining order is appealable where, as here, the denial followed a full adversary hearing and, in the absence of review, the appellants would be effectively foreclosed from pursuing further interlocutory relief. In such cases the denial of the temporary restraining order is tantamount to the denial of a preliminary injunction. See Levesque v. Maine, 587 F.2d 78 (1st Cir. 1978).

Because important public policy issues are involved and time is of the essence, we exercise our option under Fed.R.App.P. 2 to suspend the normal requirements of appellate procedure and reach the merits of this appeal. Our sole inquiry on review is whether the district court abused its discretion in denying relief. Miss universe, Inc. v. Flesher, 605 F.2d 1130, 1133 (9th Cir. 1979). Although the matter is not entirely free from doubt, we are not prepared to say the district court abused its discretion or erred as a matter of law in concluding that appellants' showing of probable success on the merits was insufficient to entitle them to preliminary injunctive relief.

This court's stay order of June 26, 1980, is hereby vacated and the cause affirmed.

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