Summaries of Selected Opinions, 0117 COBJ, Vol. 46 No. 1 Pg. 99
U.S. Court of Appeals for the Tenth Circuit
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: ww.cobar.org (click on "Opinions/Rules/Statutes").
No. 15-2130. Diné Citizens Against Ruining Our Environment v. Jewell 10/27/2016 D.N.M. Judge McKay. Preliminary Injunction-Four Factors-Likelihood of Success-Modified Test Inconsistent with Supreme Court Law.
Plaintiffs sought a preliminary injunction to prevent oil drilling in the San Juan Basin Four factors are required to obtain a preliminary injunction (1) a substantial likelihood of success on the merits, (2) irreparable harm unless the injunction is entered, (3) the threatened injury outweighs the harm the injunction would cause to the opponent, and (4) the injunction will not adversely affect the public interest. The district court concluded that plaintiffs had shown irreparable harm, but had not met the other three factors, and denied the preliminary injunction
On appeal, plaintiffs argued that the district court erred in describing and applying the applicable test for determining whether they showed a substantial likelihood of success on the merits of their claims. Plaintiffs argued that the district court should have applied a modified test whereby if the three "harm" factors tip strongly in the plaintiffs favor, the likelihood of success factor can be satisfied by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation Plaintiffs relied on the Ninth Circuit's application of a modified preliminary injunction test under which plaintiffs who demonstrated a strong likelihood of prevailing on the merits could receive a preliminary injunction based only on a possibility, rather than a likelihood, of irreparable harm But the U.S. Supreme Court held that the Ninth Circuit had impermissibly deviated from the appropriate standard. The Tenth Circuit ruled that the modified test is inconsistent with Supreme Court law. Thus, the district court correctly required plaintiffs to show they were likely to succeed on the merits.
Plaintiffs also argued that the district court required them to meet an elevated burden closer to a "certainty" rather than a "reasonable likelihood" of success. The Tenth Circuit found no indication that the court deviated from the correct standard.
Plaintiffs next argued that the evidence they presented on the different types of environmental harms allegedly caused by horizontal drilling and multi-stage fracturing sufficiently demonstrated a likelihood of success on the merits. The Tenth Circuit determined that...
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