Conservation Groups Urge Tenth Circuit To Maintain Longstanding Preliminary Injunction Test

On behalf of more than a dozen national, regional, and local conservation organizations that regularly litigate in the U.S. Court of Appeals for the Tenth Circuit to protect vulnerable public lands, wildlife and animals, and natural resources located in Colorado, Utah, New Mexico, Wyoming, Kansas, and Oklahoma, our firm filed an amici curiae brief in support of a pending request asking the full court of all active Tenth Circuit judges (or alternatively a panel of three judges) to rehear the question of the appropriate legal standard that plaintiffs must satisfy before obtaining a preliminary injunction.  Bucking decades of precedent from the U.S. Supreme Court, other federal courts of appeal, and even the Tenth Circuit’s own longstanding rulings, a three-judge panel recently determined that plaintiffs may only obtain preliminary injunctions where they can conclusively demonstrate at an early stage of the proceedings that they are likely to success on the merits at the end of the case.  In so doing, the panel eliminated a decades-long test, in which plaintiffs could demonstrate the need for a preliminary injunction by establishing that there are “serious questions” as to whether a defendant’s action was lawful under the circumstances while also proving that the other injunction factors (i.e., irreparable harm, the equities, and public interest) strongly support an injunction.  Given the exceptional importance of this question in a Circuit where many public lands and natural resources issues are resolved—and the circuit split caused by the panel’s ruling—our brief requests that the Court reconsider this issue to, among other things, ensure that an overly stringent standard does not frustrate effective judicial review of federal agency actions that often proceed on rapid schedules that overtake the ability of courts to issue final merits dispositions before such actions become moot.  The brief can be found here.