FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOUTHEAST ALASKA CONSERVATION 

COUNCIL; et al.,

Plaintiffs-Appellants, No. 06-35679

v. D.C. No.

UNITED STATES ARMY CORPS OF CV-05-00012-J-JKS 

ENGINEERS District of Alaska, ; et al.,

Defendants-Appellees, Juneau

COEUR ALASKA, INC.; et al., ORDER

Defendant-IntervenorsAppellees. 

Filed December 8, 2006

Before: Procter Hug, Jr., A. Wallace Tashima, and

Susan P. Graber, Circuit Judges.

ORDER

Appellee Coeur Alaska, Inc.’s Urgent Motion Under Circuit Rule 27-3(b) to Vacate the Injunction Pending Appeal is

denied. The court granted Appellant Southeast Alaska Conservation Council’s (“SEACC”) Emergency Motion Under

Circuit Rule 27-3 on August 24, 2006, at which time the court

issued an injunction pending appeal. The court’s order

enjoined Coeur Alaska, the U.S. Army Corps of Engineers

(“Corps”), and the U.S. Forest Service from activities relating

to the construction of a disposal facility at Lower Slate Lake.

On November 7, 2006, Coeur Alaska filed its motion to

vacate the injunction due to weather conditions and in light of

the U.S. Supreme Court’s recent decision in Purcell v. Gonzalez, 127 S. Ct. 5 (2006). 

19441
We conclude that Coeur Alaska’s challenge to the injunction, to the extent that it is based on Purcell, is untimely. See

9th Cir. R. 27-10(a). Even if the form of the injunction were

subject to challenge now, we conclude that Purcell does not

require the court to vacate its injunction. Thus, we confirm

issuance of the injunction until the court decides the merits of

this case and the mandate issues. 

In Purcell, the Supreme Court vacated a “bare order”

issued by this court that conflicted with a district court’s later

factual findings. Id. at 7-8. In that case, the Supreme Court

stated that this court had failed “to provide any factual findings or indeed any reasoning of its own.” Id. at 8. Coeur Alaska’s remedy for failure of the injunction to meet Purcell’s

specificity requirement was, as was done in Purcell itself, to

petition to the Supreme Court for certiorari relief, which

Coeur Alaska did not do. Moreover, the Supreme Court gave

no indication that this court could not have corrected the situation by offering a justification for its injunction at a later

point. Accordingly, even if the court’s injunction in this case

was insufficient in its level of detail, we will remedy that lack

of detail by explaining our reasons for granting the injunction.

An injunction pending appeal is appropriate in this case. In

deciding whether to grant an injunction pending appeal, the

court “ ‘balances the plaintiff’s likelihood of success against

the relative hardship to the parties.’ ” Ranchers Cattlemen

Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t

of Agric., 415 F.3d 1078, 1092 (9th Cir. 2005) (quoting Clear

Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810,

813 (9th Cir. 2003)). This court has recognized two different

sets of criteria for preliminary injunctive relief. Under the

“traditional test,” the moving party must show: “ ‘(1) a strong

likelihood of success on the merits, (2) the possibility of irreparable injury to the plaintiff if preliminary relief is not

granted, (3) a balance of hardships favoring the plaintiff, and

(4) advancement of the public interest (in certain cases).’ ” Id.

(quoting Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113,

19442 SOUTHEAST ALASKA CONSERVATION v. USACE
1120 (9th Cir. 2005)). The “alternative test” requires that the

moving party demonstrate “ ‘either a combination of probable

success on the merits and the possibility of irreparable injury

or that serious questions are raised and the balance of hardships tips sharply in his favor.’ ” Id. (quoting 408 F.3d at

1120). As this court has explained many times, “ ‘[t]hese two

formulations represent two points on a sliding scale in which

the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but

rather outer reaches of a single continuum.’ ” Id. at 1092-93

(quoting 408 F.3d at 1120). 

Applying this test, SEACC has demonstrated the need for

an injunction pending appeal. First, SEACC has shown a likelihood of success on the merits because it has argued persuasively that the Corps’ permit to Coeur Alaska violates the

Clean Water Act. Second, SEACC has demonstrated that construction of a permanent dam at Lower Slate Lake will

adversely affect the environment by destroying trees and other

vegetation, and by killing aquatic life. Coeur Alaska has not

disputed these facts. Ongoing harm to the environment constitutes irreparable harm warranting an injunction. See Amoco

Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).

When a project “ ‘may significantly degrade some human

environmental factor,’ injunctive relief is appropriate.” Nat’l

Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 737

(9th Cir. 2001) (quoting Alaska Wilderness Recreation &

Tourism Ass’n v. Morrison, 67 F.3d 723, 732 (9th Cir. 1995)).

Third, the balance of hardships favors SEACC. Coeur Alaska

admitted to this court in its brief in response to SEACC’s

emergency motion for an injunction pending appeal that disposal of tailings into Lower Slate Lake is not scheduled to

begin until, at the earliest, next spring. Consequently, construction activities need not begin immediately. Furthermore,

as discussed below, the court’s injunction allows Coeur

Alaska to implement measures necessary to stabilize the coffer dam. Given the risk of irreparable harm to the environment, the balance of hardships tips decidedly in SEACC’s

SOUTHEAST ALASKA CONSERVATION v. USACE 19443
favor. Finally, the public interest strongly favors preventing

environmental harm. Although the public has an economic

interest in the mine, there is no reason to believe that the

delay in construction activities caused by the court’s injunction will reduce significantly any future economic benefit that

may result from the mine’s operation. Therefore, applying the

court’s sliding scale to the record, we conclude that an injunction pending appeal is appropriate in this case. 

Our determination concerning the relative hardships does

not conflict with that of the district court. When considering

SEACC’s motion for accelerated briefing to the district court

relating to its motion for an injunction pending appeal, the

district court stated that an expedited consideration of

SEACC’s motion for an injunction pending appeal was not

warranted because no additional harm would occur if the

court followed a normal briefing schedule. The district court

did not actually consider the merits of SEACC’s motion. In

fact, the district court expressly did not address the balance of

hardships. Thus, the district court’s order merely addressed

timing of briefing to the district court and did not make findings relevant to irreparable harm. SEACC’s motion to the district court for an injunction pending appeal was withdrawn

when this court granted SEACC’s motion for an injunction

pending appeal, and thus no findings on the merits were

made. 

To justify vacating the injunction (other than on the failure

to comply with Purcell’s specificity requirement), Coeur

Alaska must demonstrate that facts have changed sufficiently

since the court issued its order. See Sharp v. Weston, 233 F.3d

1166, 1170 (9th Cir. 2000). Coeur Alaska argued in its motion

that the court’s injunction prevents it from taking measures to

prevent environmental degradation. According to Coeur

Alaska, excessive precipitation this autumn has jeopardized

the integrity of a coffer dam constructed at the lake’s outfall

point, which could increase sediment levels in downstream

waters. But the court’s order granting SEACC’s motion for an

19444 SOUTHEAST ALASKA CONSERVATION v. USACE
injunction pending appeal allows Coeur Alaska to take the

steps necessary to prevent the alleged environmental harm.

The court’s order states: “Nothing in this injunction shall prohibit measures needed to restore stream flows, stabilize soils,

or prevent erosion.” Accordingly, the injunction permits

Coeur Alaska to take measures necessary to stabilize the coffer dam. Assuming Coeur Alaska’s factual assertions to be

true, Coeur Alaska has failed to demonstrate that construction

of a permanent dam is the only measure capable of averting

environmental harm. For example, Coeur Alaska could take

several lesser measures to prevent breaching of the coffer

dam, including installation of a spillway, or removal or reduction in height of the coffer dam itself. The court’s order permits Coeur Alaska to take those measures. Thus, Coeur

Alaska has not met its burden to show that the injunction

should be vacated. 

For these reasons, Coeur Alaska’s urgent motion to vacate

the injunction pending appeal is denied. The court directs all

parties, including the government, to meet and consider how

best to address the threat posed by weather conditions to the

integrity of the coffer dam. 

SOUTHEAST ALASKA CONSERVATION v. USACE 19445


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