IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) THE FUND FOR ANIMALS, et. al. ) ) Plaintiffs, ) ) v. ) ) GALE NORTON, et al. ) ) Defendants. ) ) Civ. No (EGS) ) GREATER YELLOWSTONE ) COALITION, et. al. ) ) Plaintiffs, ) ) v. ) ) GALE NORTON, et al. ) ) Defendants. ) ) FEDERAL DEFENDANTS RESPONSE TO THE COURT S ORDER TO SHOW CAUSE I. INTRODUCTION Federal Defendants 1/ hereby file their response to this Court s February 17, 2004 order to 1/ The Federal Defendants named in this consolidated action are Gale Norton, the Secretary of the Interior, Fran Mainella, the Director of the National Park Service ( NPS ), Karen Wade, the former Regional Director of the NPS, and Steve Williams, the Director of the Fish & Wildlife Service ( FWS ). Because the Court s December 16 Order did not address any claims or issues related to FWS and FWS has no role in implementing it, Director Williams cannot be held in contempt for violating it. The Court expressly declined to reach Plaintiffs Endangered Species Act claims in the December 16 Order, and those were the only claims in this case that involved FWS. See Spallone v. United States, 493 U.S. 265, (1990) (reversing contempt finding against individual city council members for city s violation of a consent decree because (continued...)

2 show cause why they should not be held in contempt for violation of this Court s order dated December 16, 2003 ( December 16 Order or D.C. Order ). Contempt is not warranted for several reasons. First, the Court s December 16 Order invalidated the 2003 Rule and reinstituted the 2001 Rule as a default rule. The Court s December 16 Order was not an injunction that required Federal Defendants to continue enforcing the 2001 Rule indefinitely, including after the United States District Court for the District of Wyoming entered its preliminary injunction on February 10, 2004 in International Snowmobile Manufacturers Ass n v. Norton, Case No B (D. Wy.) ( Wyoming preliminary injunction ) expressly prohibiting Federal Defendants from enforcing the 2001 Rule. Thus, Federal Defendants did not violate the December 16 Order by complying with the Wyoming preliminary injunction. 2/ Second, the December 16 Order is not the type of order upon which contempt can be predicated. Third, even if the December 16 Order could support a finding of contempt, none should be made where, as here, (1) it is impossible to comply with the injunction without violating a conflicting injunction issued by a coordinate court under the same statute, and (2) the federal defendants acted in good faith pursuant to, and in reliance upon, a coordinate federal district court (...continued) the violated provisions of consent decree were directed only to the city ). In addition, because Karen Wade no longer held the position of Regional Director when the Court issued its order, and does not hold that position now, the then and current Regional Director, Stephen P. Martin, should be substituted for Ms. Wade pursuant to Federal Rule of Civil Procedure 25(d)(1). 2/ In the event this Court now rejects Federal Defendants construction of the December 16 Order and holds instead that the December 16 Order is an injunction that prohibits Federal Defendants from complying with the Wyoming preliminary injunction, Federal Defendants respectfully request the Court to grant their Conditional Motion for Partial Relief from Judgment and Conditional Renewed Motion to Transfer, filed this date under separate cover. 2

3 order from the District of Wyoming. Finally, if this Court determines that a contempt finding is appropriate and that transfer and partial relief from judgment are not warranted, then this Court should provide Federal Defendants with an opportunity to eliminate the violation and avoid contempt, prior to a contempt finding. II. FACTUAL BACKGROUND On December 16, 2003, this Court entered final judgment in the above-captioned case challenging the legality of the National Park Service ( NPS ) March 25, 2003 Record of Decision ( 2003 ROD ) on winter use plans for Yellowstone and Grand Teton National Parks and the John D. Rockefeller, Jr., Memorial Parkway ( the Parks ), and the accompanying Supplemental Environmental Impact Statement ( SEIS ). In its December 16, 2003 Order, the Court ordered: 1) that the NPS s 2003 ROD, SEIS and final rule implementing the 2003 ROD be vacated and remanded; 2) that the 2001 Rule, as modified, by the 2002 Rule remain in effect until further Order of the Court; and 3) that the NPS respond to a 1999 rulemaking petition to ban recreational snowmobile use in park units nationwide by Plaintiff Bluewater Network no later than February 17, On December 9, 2003, Plaintiff-Intervenor State of Wyoming ( Wyoming ) in the International Snowmobile Mfrs. Assoc. v. Norton, ( Wyoming litigation ) moved the United States District Court for the District of Wyoming ( the Wyoming Court ) to reopen that previouslystayed litigation challenging NPS 2000 Record of Decision on Winter Use Plans at the Parks and NPS January 22, 2001 Final Rule. As a basis for reopening, Wyoming alleged the NPS failed to comply with the settlement agreement executed in June of 2001 by the parties to that litigation. By order dated December 31, 2003, the Wyoming Court granted the motion to reopen. See Exhibit 1. 3

4 On January 16, 2004, Wyoming filed a Motion for a Temporary Restraining Order and Preliminary Injunction and on January 20, 2004, the Plaintiff International Snowmobile Manufacturers Association et al. ( ISMA ) filed a Motion for a Preliminary Injunction in the Wyoming Court seeking to enjoin the NPS from enforcing the January 22, 2001, Final Rule. A hearing on Wyoming s motion was set for January 23rd. In opposition, the Federal Defendants argued submitted a written opposition to Wyoming s Motion on January 22, 2004, arguing that the 2000 EIS and ROD, as well as the 2001 implementing regulation, while not the current policy preference of the NPS, are nonetheless lawful exercises of agency authority inasmuch as these decisions fall within the broad discretion of the NPS to make determinations regarding winter use in the Parks. See Federal Defendants Response to Plaintiff-Intervenors Motion for Temporary Restraining Order and Preliminary Injunction ( Jan. 22nd Memorandum ), attached as Exhibit 2. Federal Defendants further argued that the 2001 regulation, as modified by the 2002 regulation, should remain in effect for the 2003/2004 winter season while further legal and administrative options were pursued by the NPS and the Wyoming Plaintiffs. Id. On January 21, 2004, the Court consolidated the hearing set for the following day to include ISMA s Motion for a Preliminary Injunction. On February 10, 2004, the Wyoming Court temporarily restrained the NPS from enforcing the 2001 Rule and directed the Service to implement winter use rules for the remainder of the season, in accordance with this decision, which will be fair to all parties. Exhibit 3, Wyo. Opinion at 35; see also id. at ( promulgate temporary rules for this 2004 snowmobile season that will be fair and equitable to the various stakeholders). In compliance with the Wyoming Court s Order, on February 11, the NPS issued a Yellowstone National Park Compendium 4

5 Amendment to provide emergency snowmobile restrictions for the Park. See Exhibit 4. A similar Compendium Amendment was issued on February 11, 2004 for Grand Teton National Park and the John D. Rockefeller, Jr., Memorial Parkway. See Exhibit 5. In issuing its Order restraining the NPS from enforcing the 2001 Rule and requiring the promulgation of a temporary rule, the Wyoming District Court specifically addressed and rejected the argument that its Order would directly conflict with this Court s Order of December 16, Accordingly, on February 11, 2004, Federal Defendants filed a Notice with this Court informing it of the Wyoming Opinion and setting forth an explanation as to why Federal Defendants believed compliance with the Wyoming Opinion would not conflict with this Court s December 16 Order. (the February 11 Notice). The following day, Plaintiff Fund for Animals filed a Notice of Violation And Request For A Status Hearing with this Court. Subsequently, the Court directed all parties to respond to the Fund for Animals Notice by February 13, 2004 and a hearing was held on February 17, After the hearing on February 17, 2004, the Court issued the Order to show cause why Federal Defendants should not be held in contempt ( Show Cause Order ). III. STANDARD OF REVIEW This Court has the inherent authority to enforce its orders through the exercise of its civil contempt powers. See Shillitani v. United States, 384 U.S. 364 (1966); Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993). That authority, however, is to be exercised sparingly, with restraint and discretion. Chambers v. NASCO, 501 U.S. 32, 44 (1991). [T]he extraordinary nature of the remedy of civil contempt leads courts to impose it with caution. S.E.C. v. Life Partners, Inc., 912 F. Supp. 4, 11 (D.D.C. 1996), quoting Joshi v. Professional Health Services, Inc., 817 F.2d 877, 879 n.2 (D.C. Cir. 1987). Further, in light of the 5

6 severity of the contempt sanction, it should not be resorted to if there are any grounds for doubt as to the wrongfulness of the defendants conduct. Life Partners, 912 F. Supp. at 11, citing MAC Corp. v. Williams Patent Crusher & Pulverizer Co., 767 F.2d 882, 885 (Fed. Cir. 1985). In order for a court to find contempt, it must be shown by clear and convincing evidence that: (1) a court order was in effect, (2) the order required certain conduct by the respondent, and (3) the respondent failed to comply with the court s order. Petties v. District of Columbia, 897 F.Supp. 626, 629 (D.D.C. 1995). In civil contemnor, the moving party has the burden of proving that the alleged contemnor has violated the Court s Order by clear and convincing evidence. NAACP v. Brock, 619 F. Supp. 846, 850 (D.D.C. 1985). In order to be held in contempt of court, a party must violate a definite and specific court order requiring [him] to perform or refrain from performing a particular act or acts with knowledge of that order. Life Partners, 912 F.Supp. at 11, quoting Whitfeld v. Pennington, 832 F.2d 909, 913 (5 th Cir. 1987). If the order in question contains any ambiguities, the court has to resolve those ambiguities in favor of the respondent. See United States v. Microsoft Corp., 980 F.Supp. 537, 541 (D.D.C. 1997), rev d on other grounds, 147 F.3d 935 (D.C. Cir. 1998) (citing Common Cause v. Nuclear Regulatory Comm n, 674 F.2d 921, (D.C. Cir. 1982)). Without a clear and unambiguous court order, therefore, there can be no finding of civil contempt. See Armstrong, 1 F.3d at A contempt order should not issue if the court finds no willful disobedience but only an incapacity to comply.... In a contempt proceeding, the court thus is obliged to consider carefully a claim by the alleged contemnor that compliance was impossible. Securities and Exchange Comm n v. Ormont Drug & Chemical Co., 739 F.2d 654, 656 (D.C. Cir. 1984) (citations and 6

7 quotation omitted). Moreover, [t]he Court must consider whether there are any mitigating factors that hindered the party s compliance with the order of the court. This Circuit recognizes that good faith efforts or a party's inability to comply with a court's orders [may serve as] defenses that call for mitigation of contempt sanctions. NAACP v. McLaughlin, 703 F. Supp. 1014,1017 (1989); see also NAACP v. Brock, 619 F. Supp. 846, 850 (D.D.C.1985); WMATA v. Amalgamated Transit Union Local Division 689, 531 F.2d 617, 621 (D.C. Cir. 1976)( Evaluation of good faith efforts to comply, once raised, is necessary to determine the possibility of compliance ); Natural Resources Defense Counsel, Inc. v. Train, 510 F.2d 692, 713 (D.C. Cir.1975). IV. ARGUMENT A. The Federal Defendants Did Not Violate This Court s December 16, 2003 Order Federal Defendants did not violate this Court s December 16 Order, invalidating the 2003 Rule, but rather immediately implemented the restrictions of the 2001 Rule, consistent with the Court s Order declaring that the 2001 Rule should be in effect once the 2003 Rule was vacated and remanded to the National Park Service. For the reasons provided below, this Court s effective reinstatement of the 2001 Rule as a default rule did not take the form of a mandatory injunction. Accordingly, Federal Defendants did not violate this Court s Order when they complied with the preliminary injunction issued by the United States District Court for the District of Wyoming on February 10, This Court s December 16 Order Was Not A Mandatory Injunction, But Rather Was Directed To Filling The Regulatory Vacuum Created By This Court s Vacatur of the 2003 Regulation In its December 16 Order, this Court declared, in relevant part, that it was FURTHER ORDERED that, because the 2003 Final Rule is vacated and remanded, and pursuant to the Court s 7

8 authority in Small Refiner Lead Phase-Down Task Force v. U.S.E.P.A., 705 F.2d 506, 533 (D.C. Cir. 1983), the prior January 22, 2001, Final Rule, as modified by the November 18, 2002, Final Rule, shall remain in effect until further Order of the Court.... December 16 Order at 49 (footnote omitted). For the reasons discussed below, Federal Defendants do not understand this order to be a mandatory injunction. First, Federal Defendants understand this Court s reinstatement of the 2001 Rule as an effort to fill a regulatory vacuum created by this Court s vacatur of the 2003 Final Rule. Since the 2003 Rule superceded the previous 2001 Rule (as postponed by the 2002 Rule), this Court was faced with the question of what regulations, if any, would guide winter use in the affected Parks once the Court vacated the 2003 Rule. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F. 2d 506, 545 (D.C. Cir. 1983) ( When an agency replaces an existing rule with a new rule, and we vacate all or part of the new rule, we must decide whether the prior rule continues in effect or whether our action leaves no rule in effect. ). In its December 16 Order, this Court explained: 1) it was effectively reinstating the 2001 Rule because the 2003 Final Rule is vacated and remanded ; and 2) it was doing so pursuant to the Court s authority in Small Refiner Lead Phase-Down Task Force v. U.S.E.P.A., 705 F.2d 506, 553 (D.C. Cir. 1983).... December 16 Order at 49. Significantly, neither the occasion specifically identified by the Court the immediate regulatory vacuum created by the Court s vacatur of the 2003 Rule nor the authority relied upon by the Court for filling this vacuum the Small Refiner 3/ 3/ Indeed, it is significant that the Small Refiner Court actually did not revert back to the regulation previously in place, but rather left it to the agency to determine the replacement rule: We believe the better course is generally to vacate the new rule without reinstating the old rule. This avoids any problem of the court overstepping its authority, and leaves it to the agency to craft the best replacement rule... [w]e think it appropriate to follow this general rule here. Id. at (continued...) 8

9 case indicate that this Court was attempting to do more than determine how the regulatory vacuum should be filled. This Court did not address the merits of the 2001 Rule. Instead, by ordering reinstatement of the 2001 Rule as modified by the 2002 rule, this Court filled the regulatory vacuum created by vacating the 2003 Rule, rather than remanding to the NPS, and leaving it to craft a replacement rule. 4/ See, e.g. Small Refiner, 705 F.2d at 545. Federal Defendants complied with this Court s Order on December 17, 2003 when the NPS implemented the winter use requirements of the 2001 Rule in the Parks. See Exhibit 6, Yellowstone National Park, December 16, 2003 Press Release. Second, the United States District Court for the District of Wyoming ( Wyoming Court ) similarly does not understand this Court s December 16 Order to be a mandatory injunction requiring the NPS to implement the 2001 Rule. In its February 10, 2004 Order ( Wyoming Feb. 10 Order ), the Wyoming Court explained: This Court does not believe that the D.C. District Court issued a mandatory injunction in its December 16, 2003, Judgment and Memorandum Opinion. The D.C. District Court s Judgment and Memorandum Opinion ruled on cross motions for summary judgment and found the 2003 Rule, the 2003 Final EIS and the 2003 ROD invalid. After invalidating the 2003 Rule, the D.C. District Court replaced the 2003 Rule with the 2001 Snowcoach Rule as modified by the 2002 Rule. Wyoming February 10 Order at 11. The Wyoming Court went on recognize the different scope of 3/ (...continued) 545. Moreover, the court specifically declined to address the existence or scope of any exceptions to this general rule. Id., n / This Court rightly noted that the National Park Service itself had indicated that without promulgation of the new 2003 regulations, the 2001 regulations, as postponed by the 2002 regulations, would continue to regulate winter use in the Parks for the 2003/2004 winter season. Compare December 16 Order at 49, n. 18 and 68 Fed. Reg ,

10 jurisdiction of the issues before it, on the one hand, and those properly before this Court, on the other: This Court wants to make clear that the issue in this case is not the validity or the wisdom of the D.C. District Court s December 16, 2003, Judgment and Memorandum Opinion. The issue in this case is the validity of the 2001 Snowcoach Rule, a matter over which this Court has had jurisdiction since December 6, These two issues are separate and distinct and there are no issues of judicial comity presented by this Court deciding the validity of the 2001 Snowcoach Rule. Id. at In its February 19, 2004 Order on Intervenors Greater Yellowstone Coalition Et Al. s Motion for Stay Pending Appeal And Expedited Briefing and Ruling (Wyo. Court s February 19 Order ), the Wyoming Court reiterated its understanding that this Court did not issue a mandatory injunction by its December 16 Order: It seems clear to this Court that the D.C. District Court was in a situation where it had just vacated an agency rule and it was trying to determine what rule or action would take its place, the prior rule or no regulation at all. In accordance with the language of Small Refiner, the D.C. District Court decided to replace the current rule with the existing rule, the 2001 Snowcoach Rule. This was not a mandatory injunction as GYC insists, but rather the opinion of the D.C. District Court that the 2001 Snowcoach Rule was the proper rule to institute in place of the invalidated 2003 Rule. Exhibit 7 at 4, Wyo. Court s February 19 Order. The Wyoming Court s determination that this Court did not issue a mandatory injunction by its December 16 Order was seminal to its determination that its preliminary injunction did not conflict with this Court s December 16 Order. See Wyoming February 10 Order at 11. Notably, the Wyoming Court has not yet made declarations concerning the legal effect of the 2001 Rule, but rather has entered an interlocutory injunction prohibiting the Federal Defendants from enforcing it. Third, the D.C. Circuit caselaw addressing the proper scope of remedies when a Court 10

11 vacates an agency s regulation, including the authority relied upon by this Court for effectively reinstating the 2001 Rule, supports the conclusion that this Court did not issue a mandatory injunction in its December 16 Order reinstating the 2001 Rule. While the D.C. Circuit has recognized at least three potential remedies a reviewing court may employ once it determines an agency regulation to be invalid in whole or part, to the best of Federal Defendants knowledge, none of these includes the option of issuing a mandatory injunction and thereby binding an agency to implement a previous regulation over which a court does not have jurisdiction. In Small Refiner, 705 F. 2d 506, the precedent relied upon by this Court for its authority to reinstate the 2001 Rule, 5/ the D.C. Circuit recognized that there were cases in which it would be improper for a court, after vacating a rule, to reinstate an old rule ( In at least some cases, we have no power to reinstate the prior rule and must remand to the agency to determine the appropriate replacement ), as well as other cases in which a court s order to vacate a rule would, automatically, reinstate a pre-existing rule ( On the other hand, we have sometimes assumed that a decision vacating a new rule will reinstate the old rule ). Id. at 545 (citations omitted). See also, Action on Smoking and Health v. Civil Aeronautics Bd., 713 F. 2d 795, 797 (D.C. Cir. 1983) ( Thus, by vacating or rescinding the recissions proposed by Er-1245, the judgment of this court had the effect of reinstating the rules previously in force... ); Select Specialty Hospital of Atlanta v. Thompson, 2003 WL at 10 (D.D.C. 2003) ( Select correctly states that when an agency rule is declared invalid, the prior rule will be used in its place. ). A third remedy recognized by the D.C. Circuit involves invalidating and remanding a rule without vacating it, thereby allowing the rule to remain in place while the agency provides the requisite explanation for those provisions of its 5/ See December 16 Order at 49; December 16 Judgment at 2. 11

12 regulation the reviewing court found lacking. See Checkosky v. SEC, 23 F. 3d 452, 462 et seq. (D.C. Cir. 1994). This caselaw supports the conclusion that the December 16 Order had the effect of reinstating the 2001 Rule as the remedy once the 2003 Rule was vacated, but provides no support for the proposition that this Court maintained jurisdiction over the 2001 Rule through a mandatory injunction. Indeed, issuance of a mandatory injunction requiring the NPS to indefinitely implement the 2001 Rule would have run directly contrary to the admonition in the Small Refiner case cautioning courts not to overstep their judicial role by improperly interfering in the administration of an agency s rules. 705 F.2d at 545 (leaving decision to agency to craft best replacement rule avoids any problem of the court overstepping its authority ). An injunction requiring the NPS to indefinitely implement the 2001 Rule would be especially improper in this case, where plaintiffs have never challenged the 2001 Rule, and this court has specifically determined that the 2001 rule is not properly before it. Fourth, this Court s previous Order of September 15, 2003 supports the conclusion that this Court did not issue a mandatory injunction by its December 16 Order. In its Order of September 15, 2003 ( September 15 Order ) denying the pending motions to transfer, this Court determined that the agency documents and decisions before it the 2003 SEIS and the 2003 ROD and their administrative records were entirely distinct from those challenged in the case before the Wyoming Court, which involved the 2000 EIS and ROD, and the 2001 Rule. See September 15 Order at This Court concluded that the relief offered in this case was unlikely to conflict with that offered by the Wyoming Court: Because APA review is limited to review of the administrative record to determine if the agency s action was arbitrary, capricious, or contrary to law, the judicial review of the administrative record 12

13 underlying the documents and decisions challenged here will likely have no effect on the review of the administrative record underlying the documents and decisions challenged in the Wyoming action. Id. at 10. 6/ This Court s decision to deny the motions to transfer, then, appears to be predicated on two related limitations of the Court s authority. First, the Court s jurisdiction was circumscribed by the pleadings before it and the specific agency documents challenged therein. Since the 2001 Rule and 2000 EIS/ROD were not challenged in this Court, and were in fact entirely distinct from the documents at issue in this case the 2003 documents there was unlikely to be a conflict with the action then pending in the Wyoming Court. Second, the scope of review in cases involving APA review of agency actions a determination as to whether the specific agency action and record at issue is arbitrary and capricious limits the Court s ability to order remedies involving other agency decisions not properly before it. Put another way, in determining the legal sufficiency of the 2003 regulations, this Court would neither consider the legal sufficiency of the 2001 rule nor its underlying documents, nor would it issue a remedy that conflicted with the pending legal review of the 2001 regulation by the Wyoming Court. Following this analysis, this Court did not issue a mandatory injunction in its December 16 Order. As such, the NPS compliance with the Wyoming Court s Order does not, contrary to Plaintiffs assertion, violate this Court s December 16 Order. 6/ In opposing the motions to transfer, Plaintiffs The Fund for Animals ( FFA ) similarly argued that this Court was not being asked to rule on the validity of the regulations challenged in Wyoming and therefore no relief afforded in this case would in any manner impact the Wyoming plaintiffs ability to seek whatever judicial remedies they wish to pursue. See Exhibit 8, Plaintiffs Opposition to Defendants Motion to Transfer. Since neither FFA, nor Plaintiffs The Greater Yellowstone Coalition ( GYC ), have challenged the 2001 regulations in this case, neither plaintiff has standing to challenge the enforcement, or non-enforcement, of that rule. See Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992). 13

14 2. This Court s December 16 Order Lacks The Specificity Required For Injunctions Under Fed. R. Civ. Proc. 65(d) This Court s December 16 Order vacating the 2003 Rule and effectively reinstating the 2001 Rule lacked the specificity required for injunctions under the Federal Rules of Civil Procedure. Rule 65(d) requires in relevant part: Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained... The specificity required of Rule 65(d) applies both to the conduct or act(s) to be enjoined, as well as the parties which are the object of the injunction and those parties cannot be found to be in contempt of an order that does not meet these requirements. See Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (citations omitted). Moreover, prohibited conduct will not be implied from such orders; they are binding only to the extent they contain sufficient description of the prohibited or mandated acts. Ford v. Kammerer, 450 F.2d 279, 280 (3 rd Cir. 1971); See also Internat l Longshoremen s Ass n, Local 1291 v. Philadelphia Marine Trade Ass n, 389 U.S. 64, 76 (1967). Finally, the fair notice requirement of Rule 65(d) must be applied in light of the circumstances surrounding the injunction s entry; the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent. Common Cause v. Nuclear Reg. Comm n, 674 F.2d 921, 927 (D.C. Cir. 1982) (internal quotes omitted). In this case, the relevant portion of December 16 Order never specifically purported to enjoin the NPS to take affirmative action, nor prohibit it from taking action. Instead, once the Court vacated the 2003 Rule, it used the passive voice to reinstate the 2001 Rule by providing that the 2001 Rule (as modified by the 2002 Rule) shall remain in effect until further Order of the 14

15 Court. Notably, the Order did not direct either NPS, or any of the named Federal Defendants, to reinstate or implement the 2001 Rule, but rather simply noted that the 2001 shall remain in effect. This passive wording evinces a statement of fact, is not directed at any specific party, and is consistent with Federal Defendant s understanding of the operative phrase as a declaratory judgment indicating which regulation would fill the regulatory void created by vacating the 2003 Rule, but it is not consistent with the requirements of Rule 65(d). The phrase shall remain in effect simply lacks the necessary specificity as to both the act and the parties to be restrained. Moreover, neither the circumstances surrounding the issuance of the December 16 Order, nor the relief sought by the moving party, support the conclusion that the Order s phrase shall remain in effect until further Order of the Court constitutes an injunction within the meaning of Rule 65(d). See Common Cause, 674 F.2d at 927. As discussed above, this Court specifically indicated the circumstance or purpose of the 2001 Rule remaining in effect in the passage immediately preceding the phrase in question. As this Court noted, the 2001 Rule came back into effect because the 2003 Final Rule is vacated and remanded. December 16 Order at 49, December 16 Judgment at 2. Additionally, neither of the plaintiffs to this action have challenged the 2001 Rule, see FFA and GYC Consolidated Amended Complaint For Declaratory Injunctive Relief dated September 19, 2003, and neither party requested a mandatory injunction directing the NPS to implement the 2001 Rule. On the contrary, as discussed above, this Court has never claimed jurisdiction over the 2001 Rule, and has specifically recognized that the challenge to the 2001 Rule is properly before the Wyoming Court, not this Court. September 15 Order at Accordingly, neither the circumstances surrounding the issuance of the December 16 Order, nor the relief sought by the parties as confirmed by the jurisdiction recognized by this Court, support the conclusion that the December 16 Order constitutes an injunction within the meaning of Rule 65(d). See Fed. R. Civ. 15

16 P. 65(d); Philadelphia Marine Trade Ass n, 389 U.S. at 76; Armstrong, 1 F.3d at 1289; Ford, 450 F.2d at The NPS Did Not Violate This Court s December 16 Order By Complying With The Wyoming Court s February 10, 2004 Preliminary Injunction For the reasons discussed above, this Court s December 16 Order was not a mandatory injunction, but rather a judicial recognition of what rule would fill the regulatory vacuum created upon vacatur of the 2003 Rule. Moreover, the NPS satisfied this Court s December 16 Order when, on December 17, the NPS published procedures to manage winter access into the Parks in a manner consistent with the restrictions of the 2001 Rule. The NPS continued to implement this regimen until the Wyoming Court specifically enjoined the NPS from enforcing the 2001 Rule. The Wyoming Court ordered that the NPS be, and hereby is, temporarily restrained from enforcing the 2001 Snowcoach Rule in Yellowstone National Park, Grand Teton National Park and the John D. Rockefeller, Jr. Memorial Parkway, that the NPS is hereby required forthwith to promulgate temporary rules for this 2004 snowmobile season that will be fair and equitable... See Wyo. Court s February 10 Order at In compliance with this clear injunction, the NPS ceased enforcing the 2001 Rule on the morning of February 11, 2003 and published interim access restrictions for snowmobiles pursuant to the Superintendents compendium authority. See 36 C.F.R. 1.7(b). As such, the NPS complied with this Court s December 16 Order by putting into effect the restrictions from the 2001 Rule on December 17, 2003, and complied with the Wyoming Court s February 10 Order by ceasing to enforce the 2001 Rule on February 11, B. The December 16 Order Was Not The Type Of Order Upon Which Contempt Can Be Predicated Since It Did Not Clearly and Unambiguously Direct The Federal Defendants To Take Or Not Take Specific Actions. As discussed in section A.2 above, this Court s December 16 Order lacks the specificity 16

17 required for injunctions under Rule 65(d) of the Federal Rules of Civil Procedure. Because it is not an injunction, the December 16 Order cannot, by definition, be the type of order upon which contempt may be predicated. Armstrong, 1 F.3d 1274, 1289 ( Even though a declaratory judgment has the force and effect of a final judgment, 28 U.S.C. 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but it is not contempt. ) (quoting Steffel v. Thompson, 415 U.S. 452, 471 (1974)). Even if this Court intended its December 16 Order to be a mandatory injunction, that intent was not sufficiently clear and unambiguous such that contempt may be based upon its violation. Armstrong, 1 F.3d at 1289 ( civil contempt will lie only if the putative contemnor has violated an order that is clear and unambiguous ) (quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1 st Cir. 1991). Here, the Court s December 16 Order lacks the necessary specificity both with regard to the activity to be enjoined and the parties which are to perform or restrain from such act(s). The Court never uses the word injunction or enjoin and never directs any party to take any specific action regarding the implementation of the 2001 Rule. Instead, the Court uses the passive voice to describe what will in fact follow from the Court s vacatur of the 2003 Rule the prior January 22, 2001 Rule, Final Rule, as modified by the November 18, 2002, Final Rule, shall remain in effect until further Order of the Court. December 16 Judgment at 2 (emphasis added). Moreover, the specific precedent cited by the Court as its authority for its December 16 Order, the Small Refiner case, does not involve the imposition of injunctive relief, but rather addresses the consequences that follow from courts orders vacating agency rules. Indeed, the Small Refiner case specifically cautions against a court overstepping its authority and interfering with the administration of a federal agency. See Small Refiner, 705 F.2d 506 at

18 Finally, as discussed in section A-1 above, a coordinate federal court, the U.S. District Court for the District Court for the District of Wyoming, has on two occasions specifically held that it does not understand this Court s December 16 Order to constitute a mandatory injunction. See Wyo. Court s February 10 Order at 11; Wyo. Court s February 19 Order at 4. Consequently, if the Court determines the December 16 Order to be a mandatory injunction, the Order is at very least unclear and ambiguous, and those ambiguities render the Order unsuitable as a predicate for contempt. Common Cause v. NRC, 674 F.2d 921, (D.C. Cir. 1982); Ford v. Kammerer, 450 F.2d 279, 280 (3 rd Cir. 1971). An order that is susceptible to more than one interpretation will fail[] to give adequate notice...of the nature of the prohibited activity and cannot satisfy the requirement of a clear and unambiguous order. Common Cause v. NRC, 674 F.2d 921, (D.C. Cir. 1982). Given the uncertainties regarding both the act(s) which were to be performed, as well as ambiguity surrounding the parties to perform these acts, the December 16 Order is not the type of order on which contempt may be predicated. C. Even if the D.C. Order could support a finding of contempt, none should be made here. If this Court determines that the December 16 Order was an injunction that clearly and unambiguously directed the Federal Defendants to continue enforcing the 2001 Rule, and that this Court s Order was violated by Federal Defendants compliance with the Wyoming Court s Order, contempt should still not be found here for several reasons. First, it would be impossible to comply with this Court s Order without violating the February 10 Order issued by the Wyoming District Court under the same statutes. Second, Federal Defendants demonstrated good faith efforts to comply with this Court s Order, to the extent possible under the circumstances presented by the two courts irreconcilable orders. Federal Defendants evinced good faith by beginning immediately to enforce the 2001 Rule after this Court entered its injunction, and by continuing to do so until the 18

19 Wyoming Court entered its injunction. Federal Defendants further evinced good faith by reasonably relying upon the determinations of a coordinate federal court. Finally, Federal Defendants evinced good faith by continuing to comply with the spirit of this Court s Order, even after the Wyoming Court entered its injunction. 1. Contempt Should Not Be Found Where, As Here, It Is Impossible To Comply With The Injunction At Issue Without Violating A Conflicting Injunction Issued By A Coordinate Court Under The Same Statute. Contempt should not be found where it is impossible to comply with the injunction at issue without violating a conflicting injunction issued by a coordinate court under the same statute. Courts in this district have earlier considered whether to hold federal agencies in contempt in such circumstances in a series of cases against the Department of Labor concerning its certification of Virginia apple growers under the Immigration and Nationality Act, 8 U.S.C et seq. Those courts twice held that contempt was inappropriate. NAACP v. McLaughlin, 703 F. Supp (D.D.C. 1989); NAACP v. Brock, 619 F. Supp. 846 (D.D.C. 1985). In McLaughlin, the court explained as follows: The Court concludes that the [Department of Labor] found itself in a Catch-22" situation when it tried to adhere to the terms of this Court s Order in [earlier litigation] because the orders entered by the United States District Court for the Western District of Virginia presented the [Department of Labor] with irreconcilable obligations.... The [Department of Labor] was in the unenviable position of deciding which order to follow; either way, the [Department of Labor] risked being held in contempt for violating a court order. 703 F. Supp. at (emphasis added); see also Brock, 619 F. Supp. at 850 (describing the same agency predicament as an unenviable position, resting on the horns of a dilemma ). Although the earlier of the two decisions indicated that the impossibility defense was not, strictly speaking, applicable because of the fact that the [Department of Labor] had a choice of which injunction to violate both cases nevertheless held that contempt was inappropriate in such circumstances. 19

20 McLaughlin, 703 F. Supp. at ; Brock, 619 F.Supp. at Federal Defendants are aware of only one instance where a court in this district has determined to hold a federal agency in contempt for complying with a coordinate court s injunction that conflicts with its own. See American Rivers v. U.S. Army Corps of Engineers, 274 F. Supp. 2d 62, 69 (D.D.C. 2003). However, in American Rivers, the court reasoned, in part, that contempt was appropriate because the injunction that the federal defendants had chosen to violate was based on a statute reflecting the highest of [congressional] priorities, the Endangered Species Act, implying that the federal defendants had chosen poorly to give a navigation-based injunction priority over an endangered species-protecting injunction.... Id. at It acknowledged, however, that where conflicting injunctions are issued under the same statute, it represents the kind of conflict that has excused non-compliance with court orders. Id. at 67 n.4 (citing NAACP v. Brock, 619 F. Supp. 846 (D.D.C.1985) and Feller v. Brock, 802 F.2d 722 (4th Cir.1986) (two conflicting court orders were both issued under the Immigration and Nationality Act)). Here, if this Court rules that the December 16 Order enjoined the Federal Defendants to continue enforcing the 2001 Rule, contrary to the interpretation of the Federal Defendants and the Wyoming Court, it will follow ineluctably that the Federal Defendants are faced with irreconcilable orders entered by coordinate federal district courts under the same statutes the National Environmental Policy Act ( NEPA ) and the Administrative Procedures Act ( APA ). This Court s Order mandates that the 2001 Rule stay in effect, and the Wyoming Court s Order enjoins the Federal Defendants from enforcing that rule. Had the NPS continued to enforce the 2001 Rule, it would have been in clear violation of the Wyoming Court s Order. Given this scenario, the NPS faced contempt sanctions no matter how it chose to act. This presents precisely the kind of dilemma that has excused non-compliance. See McLaughlin, 703 F. Supp. at ; Brock, 619 F.Supp. 20

21 at ; cf. American Rivers 274 F.Supp. 2d at 67 n.4. Therefore, even if this Court determines that the NPS violated a clear and unambiguous mandatory injunction, the Court should nevertheless decline to hold Federal Defendants in contempt. 2. Contempt Should Not Be Found Where, As Here, Federal Defendants Have Made Good Faith Efforts To Comply With This Court s Order, to the Extent Possible under the Circumstances Presented by Two Irreconcilable Orders. This Circuit recognizes that good faith efforts or a party's inability to comply with a court's orders [may serve as] defenses that call for mitigation of contempt sanctions. NAACP v. McLaughlin, 703 F. Supp. 1014,1017 (D.D.C. 1989); see also WMATA v. Amalgamated Transit Union Local Division 689, 531 F.2d 617, 621 (D.C. Cir. 1976) ( Evaluation of good faith efforts to comply, once raised, is necessary to determine the possibility of compliance ). The Court notes that under a good faith analysis is one which calls for the Court to balance the violating party's rights with the need to prevent that party from flouting the law. NAACP v. Brock, 619 F. Supp. 846, 850 (D.D.C.1985) (citing Maggio v. Zeitz, 333 U.S. 56, 77 (1948)). a) Federal Defendants Evinced Good Faith by Putting into Effect the Provisions of the 2001 Rule Immediately after this Court Entered its Injunction. Here, the NPS has demonstrated their commitment to this Court s Order by putting into effect the provisions of the 2001 Rule immediately after this Court entered its December 16 Order. After this Court issued its Order on the evening of December 16, 2003, the NPS immediately ceased implementing the vacated rule and opened the Park the very next morning under the 2001 Rule. Moreover, Federal Defendants interpreted the Rule conservatively and applied it in a manner designed to address the Court s concerns about environmental impacts. For example, the snowmobiles rented at the Old Faithful Lodge were counted against the daily limits for the entire Park even though this was ambiguous in the 2001 Rule. See Exhibit 9. In addition, snowmobilers 21

22 who lodged overnight in the Parks were counted against the daily limit the following day even though this was not addressed in the 2001 Rule. See Exhibit 9. Morever, the NPS continued to implement the 2001 Rule every day following this Court s Order until a coordinate federal court enjoined its implementation. This action does not amount to flouting [of] the law that warrants contempt. See Brock, 619 F. Supp. at 850. b) Federal Defendants Evinced Good Faith by Reasonably Relying Upon the Determinations of a Coordinate Federal Court. When Federal Defendants ceased enforcing the 2001 Rule, they did so in reliance upon the Wyoming Court s determination that compliance with its preliminary injunction would not conflict with the D.C. Order. Specifically, the Wyoming Court stated that it does not believe that the D.C. District Court issued a mandatory injunction but rather that it replaced the 2003 Rule with the 2001Snowcoach Rule. February 10 Order at 11. It rejected defendant-intervenor Greater Yellowstone Coalition s argument that the Wyoming Court s injunction would directly conflict with this Court s December 16 order. Id. More recently, the Wyoming Court clarified its position on why it determined that compliance its Order would not conflict with the D.C. Court Order. See, e.g., Exhibit 7, Wyo. February 19 Order. The Wyoming Court stated, [i]t is also this Court s view that it was within the power of this Court to grant the preliminary injunction without interfering with the D.C. District Court s Order. The D.C. District Court replaced the 2003 Rule with the Clinton Administration 2001 Snowcoach Rule, and the D.C. Court was aware that the validity of the Snowcoach Rule was in question in this Court. Id at 6-7. In reaching this conclusion, the Wyoming Court determined that: the D.C. District Court was in a situation where it had just vacated an agency rule and it was trying to determine what rule or action would take its place, the prior rule or no regulation at all. In accordance with the language of Small Refiner, the D.C. District Court decided to replace the current rule with the existing rule, the 2001 Snowcoach Rule. This was not a 22

23 mandatory injunction as GYC insists, but rather the opinion of the D.C. District Court that the 2001 Snowcoach Rule was the proper rule to institute in place of the invalidated 2003 Rule... Id. at 4. The Wyoming Court found further support for the conclusion that this Court did not issue a mandatory injunction by the fact that the D.C. District Court does not speak of the action as a mandatory injunction. Id at 4. In reliance upon the Wyoming Court s determination that compliance with its order would not interfere with the D.C. Court Order, Federal Defendants ceased enforcement of the 2001 Rule and promulgated the Superintendent s Compendium. See Exhibit 4, 5. Under these circumstances, the NPS cannot be found to have acted in bad faith by ceasing enforcement of the 2001 Rule. For the same reason, Federal Defendants did not evince bad faith by filing a notice with this Court instead of a motion. In reliance upon the Wyoming Court s determination that complying with its preliminary injunction would not conflict with the D.C. Order, Federal Defendants reasonably concluded that a motion for relief was not necessary. Under the interpretation that there was no conflict to seek relief from, there was no basis to file a motion with the Court. Rather, upon receipt of the February 10 Wyoming Court Order (issued after business hours), Federal Defendants filed a notice with this Court less than twenty-four hours later, informing the Court of the Wyoming Court Opinion and setting forth a reasonable explanation as to why they concluded that no conflict exists. See generally, February 11 Notice. Federal Defendants note that the Wyoming Court specifically rejected Federal Defendants request for forty-eight hours to implement the preliminary injunction, thus requiring immediate performance by the NPS. c) Federal Defendants Evinced Good Faith by Continuing to Comply With The Spirit of This Court s Order, Even After the Wyoming Court Entered its Injunction. Finally, contempt should not be found where, as here, the Federal Defendants have made 23

24 good faith efforts to comply with the spirit of the injunction, to the extent possible under the circumstances presented by the two irreconcilable orders. See Brock, 619 F. Supp. at As discussed above, in Brock, the Department of Labor faced irreconcilable orders from a D.C. court and a West Virginia court. Faced with that dilemma, the Department of Labor followed the West Virginia Order but in doing so, included conditions similar to those contained in the D.C. court order. Id. The D.C. court determined that the Department of Labor s efforts to adhere to its order to the extent possible without violating the supervening injunction constituted good faith efforts to comply with its order and, therefore, the court declined to find the Department of Labor in contempt. Id. at ( [w]hile the plaintiffs and this Court may disagree with some of the Department of Labor s decisions in this litigation, the record, when considered as a whole, reflects a good faith effort on the part of the Department of Labor to comply with the letter and spirit of the [Court s previous] order. Therefore, the Court exercises its discretion and finds that the Department of Labor is not in contempt of that Order. ). Here, the NPS took substantial good faith efforts to ensure that park resources would be protected and that the provisions set forth for the remainder of this winter season would closely follow those ordered by this Court. In fact, the actual on the ground activities at the Parks today look almost identical to the activities that occurred before the 2001 Rule had been enjoined. For instance, under both the 2001 Rule and the Emergency Compendium promulgated after the 2001 Rule was enjoined, to enter the Park every snowmobiler must either be accompanied by a trained guide or must be a trained guide, oversnow vehicles are prohibited from traveling between the hours of 9 p.m. and 7 a.m. MST, and snowmobiles are limited to designated park roads. Compare 66 Fed. Reg (2001), as modified in, 67 Fed. Reg (2002) with Emergency Compendium, Exhibit 4, 5. These provisions were not required by the Wyoming Court Order. See Exhibit 3. 24

25 Nevertheless, recognizing this Court s concern about the effect of snowmobile use on wildlife and park resources, the NPS voluntarily chose to reinstitute these provisions from the 2001 Rule in the Emergency Compendium. In fact, the only real difference between the 2001 Rule and the Emergency Compendium is the modest increase in the daily number of snowmobiles authorized to enter the Park. See Exhibit 4, 5. However, even that difference has not realistically resulted in any on the ground changes because the actual number of snowmobiles entering the Park has just barely exceeded the 2001 Rule daily limits on a few occasions at two entrances. See Exhibit 10 (for a chart detailing the number of daily Park visitors this winter). The daily average of snowmobiles entering the Park this winter season has been 348 per day, which is substantially less than the 493 daily limit allowed under the 2001 Rule. See id. Furthermore, any additional snowmobiles entering the Park in excess of the 2001 Rule limits are required to use best available technology, i.e. cleaner and quieter machines, a provision that was not required under the 2001 Rule. See Exhibit 4,5, Superintendent s Compendium. These actions, in this particular situation where the NPS has been found subject to two irreconcilable federal district court orders, demonstrate that the NPS has made good faith efforts to comply with the spirit of this Court s order to ensure park resources and wildlife are protected. As such, Federal Defendants actions do not support a finding of contempt, even if the Court disagrees with some of Federal Defendants decisions in this litigation. See Brock, 619 F.Supp. at D. If This Court Determines That A Contempt Finding Is Appropriate, The NPS Should Have An Opportunity To Eliminate The Violation, And Avoid Contempt, Prior To A Finding Of Contempt. A party should be given an opportunity to purge itself of contempt prior to the imposition of any penalties. See S.E.C. v. Bilzerian, 112 F. Supp. 2d 12, 16 (D.D.C. 2000) (contempt penalty 25