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Chemical Weapons Working Group v. Department of the Army

ELR Citation: 27 ELR 20569
Nos. 96-4166, 101 F.3d 1360/(10th Cir., 12/06/1996) motion to stay denied

The court denies appellants' motion to enjoin all incineration activities at the Tooele Chemical Agent Disposal Facility (TOCDF) while they appeal a district court's denial of their request for a preliminary injunction. The chronology of events in this case belies appellants' claim that the court's resolution of the stay issue is a matter of extreme urgency needing immediate resolution. The district court denied appellants' motion for a preliminary injunction on August 13, 1996; incineration began at the TOCDF on August 22, 1996; and appellants were aware of the events on which they primarily base the need for a stay by August 30, 1996; however, they did not appeal the district court's order or seek a stay pending appeal until almost two months later. The court rejects appellants' argument that it was impracticable to present an application for stay to the district court because, in denying their motion for a preliminary injunction, it had prejudged the issues. A careful review of appellants' motion for stay reveals that relief is sought predominantly on the basis of new evidence concerning events that occurred after the district court denied the motion for a preliminary injunction. This evidence has not yet been considered by the district court and it does not necessarily follow from the refusal to grant a preliminary injunction that the district court would also refuse injunctive relief pending appeal. Further, the fundamentally different roles of appellate and trial courts mandate consideration of the new evidence by the district court under Fed. R. Civ. P. 62(c). The district court is the proper forum for presentation, testing, and confrontation of new evidence. Only on completion of the district court's fact-finding role should the appellate court consider any relief pending appeal.

[The district court's decision is published at 27 ELR 20022].

Counsel for Plaintiffs
Randall N. Skanchy
Jones, Waldo, Holbrook & McDonough
1500 First Interstate Plaza
170 S. Main St., Salt Lake City UT 84101
(801) 521-3200

Counsel for Defendants
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before BALDOCK, LUCERO, and MURPHY, Circuit Judges.