Southeast Alaska Conservation Council, Inc. v. Watson

No. J81-12 Civil (D. Alaska May 24, 1982)

The court clarifies its prior order, 12 ELR 20658, enjoining the Forest Service from authorizing certain mining activities pending preparation of an environmental impact statement. It enumerates specific mining activities that may be undertaken by U.S. Borax in the Misty Fjords National Monument. The court has the authority to issue such an order, even though its decision has been appealed, pursuant to Rule 62(c) of the Federal Rules of Civil Procedure.

[Other rulings in the case are reported at 12 ELR 20187 and 20188 — Ed.]

Counsel are listed at 12 ELR 20187.

[12 ELR 20924]

VON DER HEYDT, J.:

Memorandum and Order

THIS CAUSE comes before the court on motion of intervenor-defendants (U.S. Borax) for an order clarifying terms of the injunction entered 2 April 1982. Docket #178. In essence, U.S. Borax seeks clarification of the injunction because it is uncertain whether certain activities have been enjoined and it fears being accused of violating the injunction for engaging in these activities.

Initially, the courts notes that a timely notice of appeal has been filed by U.S. Borax and the appeal involves the court's injunction. Once a timely notice of appeal is filed, generally the rule is that jurisdiction of all matters involved in the appeal lies exclusively with the appellate court. See Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005, 1010 (9th Cir. 1981). Nonetheless, FED. R. CIV. P. 62(c) "is an exception to that general rule and a recognition of the long established right of the trial court, after an appeal, to make orders appropriate to preserve the status quo while the case is pending in the appellate court." United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir. 1951) (emphasis in original text). Here, Rule 62(c) allows the court to clarify that certain activities are not enjoined in order to preserve the status quo pending appeal. Ie.g., United Parcel Service v. United States Postal Service, 475 F. Supp. 1158, 1163-64 (E.D. Penn. 1979) (court cannot use Rule 62(c) to alter injunction).

Accordingly, IT IS ORDERED:

THAT the following activities may be authorized by the Forest [12 ELR 20925] Service, and as so authorized may be undertaken by interven-or-defendants:

(1) Survey activity, including survey of Blossom River access road.

(2) Removal by helicopter from the Quartz Hill area of split adit round samples presently stored at the Quartz Hill area.

(3) Removal by helicopter from the Quartz Hill area of split round samples presently stored at the Quartz Hill area.

DATED at Anchorage, Alaska, this 24th day of May, 1982.