Alaska Survival v. Surface Transportation Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA SURVIVAL; SIERRA CLUB; No. 12-70218

COOK INLETKEEPER,

Petitioners, STB No.

FD-35095

v.

SURFACE TRANSPORTATION BOARD ; ORDER

UNITED STATES OF AMERICA ,

Respondents,

ALASKA RAILROAD CORPORATION ;

MATANUSKA -SUSITNA BOROUGH ;

STATE OF ALASKA ,

Respondents-Intervenors.

On Petition for Review of an Order of the

Surface Transportation Board

Argued and Submitted

November 8, 2012–San Francisco, California

Filed November 28, 2012

Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit

Judges, and Kevin Thomas Duffy, District Judge.*

*

The Honorable Kevin Thomas Duffy, United States District Judge for

the Southern District of New York, sitting by designation.

2 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

SUMMARY**

Stay Order

In a published order, the panel granted a motion to lift the

court’s October 1, 2012 order granting a stay of the Surface

Transportation Board’s November 21, 2011 order, and denied

a petition for review of the Board’s order. The panel stated

that an opinion on the merits of denial of the petition for

review will follow in due course.

The panel commented briefly on its reasoning for lifting

the stay, and concluded that petitioners no longer satisfied the

standard for issuance of a stay. This court initially

determined that petitioners raised a “serious question”

regarding whether the Board complied with the National

Environmental Policy Act in determining the “purpose and

need” of a proposed rail line and that the balance of hardships

tipped in petitioners’ favor. However, upon further review of

the record, the panel concluded that the Board’s “purpose and

need” statement complied with the Act and that petitioners no

longer raised “serious questions” on this point; and the

balance of hardships no longer tipped sharply in the

petitioners’ favor.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 3

COUNSEL

James B. Dougherty (argued), Washington, D.C.; Jessica

Yarnall Loarie, Sierra Club, San Francisco, California for

Petitioners.

Theodore L. Hunt (argued), Raymond A. Atkins, Evelyn G.

Kitay, Surface Transportation Board, Washington, D.C.;

Mary Gabrielle Sprague, Robert B. Nicholson, and John P.

Fonte, Department of Justice, Washington D.C., for

Respondents.

Jay C. Johnson (argued) and Kathryn Kusske Floyd, Dorsey

& Whitney LLP, Washington D.C., for Respondents-

Intervenors Alaska Railroad Corporation and Matanuska-

Susitna Borough.

Michael C. Geraghty and Sean P. Lynch, State of Alaska,

Department of Law, Juneau, Alaska for Respondent-

Intervenor the State of Alaska.

ORDER

Respondents-Intervenors Alaska Railroad Corporation

and Matanuska-Susitna Borough’s motion to lift this court’s

October 1, 2012, order granting a stay of the Surface

Transportation Board’s (STB’s) November 21, 2011, order is

GRANTED. Leiva-Perez v. Holder, 640 F.3d 962, 964, 966

(9th Cir. 2011) (stating the relevant standard); Alliance for

the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32, 1135

(9th Cir. 2011) (same). Additionally, the petition for review

of the STB’s order is DENIED. An opinion on the merits of

denial of the petition for review will follow in due course.

4 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

However, we think it appropriate to comment briefly now on

our reasoning for lifting the stay.

Based on the merits briefing and the oral argument held

before us, we conclude that Petitioners no longer satisfy the

standard for issuance of a stay. See United States v. Houser,

804 F.2d 565, 568 (9th Cir. 1986) (discussing a merits panel’s

authority to reconsider a motions panel’s decision). This

court initially determined that Petitioners raised a “serious

question” regarding whether the STB complied with the

National Environmental Policy Act (NEPA) in determining

the “purpose and need” of the proposed rail line and that the

balance of hardships tipped sharply in Petitioners’ favor.

Order, Alaska Survival v. Surface Transp. Bd., No. 12-70218

(9th Cir. Oct. 1, 2012). After further review of the record, we

have concluded that the STB’s “purpose and need” statement

complied with NEPA and that Petitioners no longer raise

“serious questions” on this point.

Moreover, the balance of hardships no longer tips sharply

in the Petitioners’ favor. Further delay of this project will

prevent the award of construction contracts, postpone the

hiring of construction employees, and significantly increase

costs. See Earth Island Inst. v. Carlton, 626 F.3d 462, 475

(9th Cir. 2010) (noting that economic harm may be a factor

in considering the balance of hardships). Because this project

is funded largely with taxpayer dollars, these increased costs

of construction, which the Respondents-Intervenors in

moving to lift the stay estimated at $10–12 million, will

burden the public upon continued delay. By contrast, the

weight to be given Petitioners’ assertions of hardship because

of environmental harm is weakened by this court’s decision

to deny the petition for review, which will allow the project

to move forward. Because we have concluded that the

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 5

agency acted in accord with law and that its decision is not

arbitrary and capricious, it is for the STB and not for our

court to balance the justifications of planned economic

progress in improved rail service against the possibilities of

environmental harm from building and operating the rail line.

The time to file a petition for rehearing or a petition for

rehearing en banc of this court’s denial of the petition for

review will begin to run when the subsequent opinion is filed.

The time to file a petition for rehearing or a petition for

rehearing en banc of the court’s decision to grant the motion

to lift the stay will run as of the date of this order.