United States District Court, W.D. North Carolina, Asheville Division
WILLIAM ORR, CHARLES ORR, CHARLES ORR, on behalf of Ina Orr his unborn daughter due mid June, and YVONNE HEGNEY, individually and on behalf of Roan Mountain, her threatened and endangered species, Plaintiffs,
U.S. EPA, U.S. FOREST SERVICE, U.S. FISH AND WILDLIFE SERVICE, FRENCH BROAD ELECTRIC MEMBERSHIP CORPORATION, and JEFF LOVEN, personally and as General Manager, Defendants.
Reidinger, United States District Judge
MATTER is before the Court on Plaintiff William
Orr's Motion to Stay Judgment [Doc. 10].
Plaintiffs William Orr, Charles Orr, and Yvonne Hegney
commenced this action on June 1, 2017, against the
Environmental Protection Agency (EPA), the United States
Forest Service (USFS), the United States Fish and Wildlife
Service (USFWS), the French Broad Electric Membership
Corporation (FBE), and FBE's General Manager Jeff Loven
(Loven), seeking to enjoin FBE and Loven from spraying
certain EPA-approved herbicides on or near Roan Mountain.
Specifically, the Plaintiffs contended that the spraying of
such herbicides would irreparably harm the "critical
habitats" and threatened/endangered species residing on
Roan Mountain, in violation of the Endangered Species Act, 16
U.S.C. § 1531, et seq. (ESA). The Plaintiffs also
challenged EPA's administrative approval of the use of
such herbicides in applications that would threaten
endangered species. The Plaintiffs further sought an
injunction requiring EPA, USFS, and USFWS to enforce the
provisions of the ESA in order to protect the critical
habitats and threatened/endangered species residing on Roan
Mountain. Finally, the Plaintiffs contended that FBE and
Loven's plan to spray EPA-approved herbicides on or near
Roan Mountain violate the Plaintiffs' First Amendment
"religious rights, health, lives, property, well being
and 'sacred' way of life, " in violation of 42
U.S.C. § 1983. [Doc. 1 at 1-2].
5, 2017, the Court dismissed the Plaintiffs' claims under
the ESA without prejudice due to lack of subject matter
jurisdiction because the Plaintiffs had failed to provide the
Defendants with 60 days' notice as required by the ESA.
The Court dismissed the Plaintiffs' claims under §
1983 with prejudice as legally baseless and therefore
frivolous. [Doc. 8]. Thereafter, the Clerk entered a Judgment
dismissing this action in its entirety. [Doc. 9].
6, 2017, the Plaintiff William Orr filed the present motion,
asking that the Court's Judgment be stayed pending
appeal. [Doc. 10]. Plaintiffs William Orr and Charles Orr
then filed a Notice of Appeal to the Fourth Circuit Court of
Appeals. [Doc. 11].
initial matter, it is unclear what the Plaintiff wants to be
stayed. A stay pending appeal is typically entered in order
preserve the status quo. See Nken v. Holder, 556
U.S. 418, 429 (2009) ("[a] stay [pending appeal] simply
suspends judicial alteration of the status quo")
(citation omitted). Here, the Plaintiff's ESA claims were
dismissed for lack of subject matter jurisdiction and his
§ 1983 claims were dismissed for being frivolous. There
was no injunctive relief awarded. To the extent that the
Plaintiff seeks a stay to prevent the Defendants from taking
some action, such a stay would effectively function as a
restraining order against the Defendants, which would not be
preserving the status quo.
extent that the Plaintiff seeks relief under Rule 62 of the
Federal Rules of Civil Procedure, his motion also must be
denied. Rule 62 provides, in pertinent part, that when an
appeal is taken from a final judgment denying an injunction,
a court may grant a stay of the judgment pending appeal on
terms for a bond or other terms that secure the opposing
party's rights. Fed.R.Civ.P. 62(c). In reviewing a motion
to stay, the Court must consider: "(1) whether the stay
applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies." Hilton v. Braunskill, 481 U.S.
770, 776 (1987).
the underlying action was dismissed because the Plaintiffs
failed to comply with a statutory notice requirement, which
deprived this Court of jurisdiction to entertain the
Plaintiffs' claims. The remaining claims asserted by the
Plaintiffs were dismissed as legally baseless. Under these
circumstances, the Plaintiff cannot make a strong showing
that he is likely to succeed on the merits of any appeal.
Further, it is unclear from the Plaintiff's motion to
stay what irreparable injury he would suffer if the requested
stay was not granted. For all of these reasons, the
Plaintiff's motion for a stay of the Judgment pending
appeal is denied.
THEREORE, ORDERED that the Plaintiffs Motion to Stay Judgment
[Doc. 10] is DENIED.
 The present motion to stay was filed
by Plaintiff William Orr only. Plaintiff Charles Orr does not
join in William Orr's motion. Prior to the dismissal of
this action, Plaintiff Yvonne Hegney filed a notice of
voluntary dismissal of her claims. [Doc. 7].
 As the Plaintiff failed to show a
likelihood of success on the merits or the likelihood of
irreparable harm, the Court need not address the remaining