UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiff,
Civil Action No. 23 - 3343 (SLS)
v.
Judge Sparkle L. Sooknanan
U.S. OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT,
et al.,
Defendants.
MEMORANDUM OPINION
On May 29, 2026, this Court vacated and set aside a 2020 Biological Opinion (BiOp) and
Incidental Take Statement (ITS) issued by the U.S. Fish and Wildlife Service, finding that they
failed to comply with the Endangered Species Act of 1973. See Ctr. for Biological Diversity v.
U.S. Off. of Surface Mining Reclamation & Enf’t (OSMRE), No. 23-cv-3343, 2026 WL 1506550,
at *1 (D.D.C. May 29, 2026); Order, ECF No. 54. On July 15, 2025, the Defendants appealed the
Court’s decision, ECF No. 56, and they now move for a stay pending appeal, ECF No. 57. For the
reasons below, the Court denies the Defendants’ motion.
LEGAL STANDARD
“A stay pending appeal is an extraordinary remedy.” M.M.V. v. Barr, 459 F. Supp. 3d 1, 4
(D.D.C. 2020) (citing Cuomo v. U.S. Nuclear Regul. Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985)).
“It is ‘an intrusion into the ordinary processes of administration and judicial review and
accordingly is not a matter of right.’” Id. (quoting Nken v. Holder, 556 U.S. 418, 427 (2009)). “It
is instead an exercise of judicial discretion, and [t]he propriety of its issue is dependent upon the circumstances of the particular case.” Nken, 556 U.S. at 433 (cleaned up). “The party requesting a
stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id.
at 433–34.
Courts must consider four factors in connection with a stay motion: “(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.” Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). For the first
factor, the D.C. Circuit has said that the chance of success on the merits must be “substantial.”
Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
Failure to satisfy this standard is “an arguably fatal flaw for a stay application.” Citizens for Resp.
& Ethics in Wash. v. FEC, 904 F.3d 1014, 1019 (D.C. Cir. 2018) (per curiam). For the second
factor, “[w]here there is a low likelihood of success on the merits, a movant must show a
proportionally greater irreparable injury[.]” M.M.V., 459 F. Supp. 3d at 4 (citing Cuomo, 772 F.2d
at 974). And the final two factors “merge when the Government is the opposing party.” Id. (quoting
Nken, 556 U.S. at 435).
DISCUSSION
The Defendants do not satisfy the high burden needed for a stay pending appeal. The Court
is not convinced that they are likely to succeed on the merits, that they will be irreparably injured
absent a stay, or that the balance of equities favors a stay.
A. Likelihood of Success on the Merits
For all the reasons explained in the Court’s previous Memorandum Opinion, ECF No. 53,
the Defendants cannot show a substantial likelihood of success on the merits. In urging the Court
to grant a stay, the Defendants simply recycle arguments advanced in their prior briefing. Compare
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Defs.’ Mem. in support of Mot. to Stay (Mot.), ECF No. 57-1; Defs.’ Reply in support of Mot. to
Stay (Reply), ECF No. 60, with Defs.’ Combined Opp’n to Pls.’ Mot. Summ. J. and Defs.’ CrossMot for Summ. J. (Summ. J. Cross-Mot.), ECF No. 45; Defs.’ Reply in support of Defs.’ CrossMot for Summ. J. (Summ. J. Reply), ECF No. 50.
In particular, the Defendants take issue with the Court’s reliance on Ctr. for Biological
Diversity v. Zeldin, 171 F.4th 356 (D.C. Cir. 2026). They argue that Zeldin does not control. But
the Court already considered and rejected that argument. The Defendants also reiterate that two
members of the Zeldin panel authored concurrences offering different rationales. But as the Court
explained, it “f[ound] both concurrences persuasive and s[aw] no compelling reason to disregard
them.” OSMRE, 2026 WL 1506550, at *14, n.4. The Defendants argue that the Court should have
instead adopted the rationale of the sole Zeldin dissenter. See Reply 5–6 (“[W]hile this Court found
Judge Pan’s and Judge Wilkins’ separate concurrences persuasive, the D.C. Circuit may not be so
persuaded due to the highly fractured nature of the panel’s decision and Judge Henderson’s strong
dissent. . . . The D.C. Circuit could agree with Defendants and Judge Henderson that SMCRA’s
structural safeguards are sufficiently protective[.]”). But it would make no sense to adopt the
reasoning of a dissenting opinion that could not support the Circuit’s “bottomline result.” Ramos
v. Louisiana, 590 U.S. 83, 125 no.6 (2020) (Kavanaugh, J., concurring). The Court acknowledges
that the degree of deference owed to a fractured panel decision is an “open question” in this Circuit.
J.G.G. v. Trump, 2025 WL 3198891, at *3 (D.C. Cir. Nov. 14, 2025).1 But whether or not the
Court is bound by the Zeldin concurrences, it finds them persuasive.
1
Generally, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” that “explain the result.” Marks v. United States, 430 U.S. 188, 193 (1977) (cleaned up). Thus, “when one of the opinions in a splintered Supreme Court decision has adopted a legal standard that would produce results with which a majority of the Court in that case necessarily would agree, that opinion controls.” United
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The Defendants also argue that the Court “abused its discretion in vacating the 2020 BiOp
and ITS in all 24 primacy states nationwide” instead of the states implicated in the Plaintiffs’
Amended Complaint. Mot. 9. But as the D.C. Circuit has aptly explained:
The Administrative Procedure Act permits suit to be brought by any person
“adversely affected or aggrieved by agency action.” In some cases the “agency
action” will consist of a rule of broad applicability; and if the plaintiff prevails, the
result is that the rule is invalidated, not simply that the court forbids its application
to a particular individual. Under these circumstances a single plaintiff, so long as
he is injured by the rule, may obtain “programmatic” relief that affects the rights of
parties not before the court. On the other hand, if a generally lawful policy is applied
in an illegal manner on a particular occasion, one who is injured is not thereby
entitled to challenge other applications of the rule.
Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (cleaned
up). Consistent with this principle, the D.C. Circuit has permitted partial vacatur of agency actions
only when an underlying “regulatory text” is either plainly divisible or “invalid as applied to one
state of facts and yet valid as applied to another.” NRDC v. Wheeler, 955 F.3d 68, 82 (D.C. Cir.
2020) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328–29 (2006)).
Faithful to the Circuit’s instructions, the Court carefully crafted a limited vacatur order in this case.
OSMRE, 2026 WL 1506550, at *15–16. But it is not appropriate to further limit the “programmatic
relief” guaranteed by the APA, Nat’l Min. Ass’n, 145 F.3d at 1409 (cleaned up), beyond those
situations where “valid applications” of the 2020 BiOP and ITS “can be separated from invalid
ones,” Wheeler, 955 F.3d at 82 (cleaned up). Indeed, the Defendants did not request that relief at
the merits stage. See Summ. J. Reply 15 (“[I]f the Court determines that vacatur is warranted, it
States v. Duvall, 740 F.3d 604, 610 (D.C. Cir. 2013) (Kavanaugh, J., concurring in denial of reh’g en banc). There is a dispute about whether this rule extends to decisions of the federal courts of appeals. Contrast Binderup v. Att’y Gen., 836 F.3d 336, 356 (3d Cir. 2016) (en banc) (holding that the Marks rule extends to decisions of the U.S. Court of Appeals), with United States v. Fischer, 64 F.4th 329, 341 n.5 (D.C. Cir. 2023) (opinion of Pan, J.) (suggesting the Marks rule may not apply to decisions of federal circuit courts), judgment vacated sub nom. Miller v. United States, 144 S. Ct. 2706 (2024).
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should be narrowly tailored to just those portions of the 2020 BiOp and ITS that concern OSM’s
oversight of states with primacy.”). And they do not now explain why that relief would make them
more likely to succeed on the merits.
Instead, the Defendants largely quarrel with the D.C. Circuit’s binding jurisprudence on
this subject—suggesting that APA remedies should be restrained by certain limitations governing
“equitable relief.” Mot. 9. But “there is good reason to think that Congress did not intend to
incorporate” all “‘background equitable principles’ into the APA.” Make the Rd. New York v.
Noem (Make the Rd.), 2025 WL 3563313, at *35 (D.C. Cir. Nov. 22, 2025) (quoting Corner Post,
Inc. v. Bd. of Governors of Fed. Reserve Sys., 603 U.S. 799, 838 (2024) (Kavanaugh, J.,
concurring)). “The text of § 706(2) directs federal courts to vacate agency actions in the same way
that appellate courts vacate the judgments of trial courts.” Corner Post, 603 U.S. at 838
(Kavanaugh, J., concurring). Thus, the APA “empower[s] the judiciary to act directly against the
challenged agency action” and “the ordinary result is that the rules are vacated—not that their
application to the individual petitioners is proscribed.” Make the Rd., 2025 WL 3563313, at *35,
37 (cleaned up). Accordingly, the Defendants do not establish that the Court erred on this basis.
For these reasons and those provided in the Court’s Memorandum Opinion, ECF No. 53,
the Defendants cannot show a substantial likelihood of success on the merits.
B. Irreparable Injury and Remaining Factors
Given the low likelihood of success on the merits, the Defendants “must show a
proportionally greater irreparable injury” to justify a stay. M.M.V., 459 F. Supp. 3d at 4 (citing
Cuomo, 772 F.2d at 974). They plainly have not done so. In fact, as the Plaintiffs point out, other
than in the legal standard section, the word “irreparable” does not even appear in the Defendants’
motion. See Mot. The Defendants explain this oversight by claiming that the irreparable injury and
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public interest factors merge when the Government is involved. Reply 9 (“To the extent that
Plaintiffs claim Defendants have not addressed the irreparable harm prong, that is incorrect,
because the irreparable harm and public interest prongs ‘merge when the Government is’ a party
to the stay application.” (citation omitted)). The Defendants are wrong.
Although the balance of the equities and public interest “merge when the Government is
[an] opposing party,” Nken, 556 U.S. at 435, the Court finds no support for the proposition that the
Government need not show irreparable harm when it seeks a stay. Indeed, “irreparable injury is
the sine qua non” and “most critical” factor in the stay inquiry. Ctr. for Biological Diversity v.
Regan, No. 21-cv-119, 2024 WL 1740078, at *4 (D.D.C. Apr. 23, 2024); Nken, 556 U.S. at 434.
The Government, like any other party, has the “burden of showing that it will face irreparable
injury” when seeking a stay. Make the Rd., 2025 WL 3563313, at *31. In this inquiry:
The key word . . . is irreparable. Mere injuries, however substantial, in terms of
money, time and energy necessarily expended in the absence of a stay are not
enough. The possibility that adequate compensatory or other corrective relief will
be available at a later date, in the ordinary course of litigation weighs heavily
against a claim of irreparable harm.
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297–98 (D.C. Cir. 2006) (quoting
Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).
Here, the Defendants claim that the Court’s vacatur has caused harm to the public interest.
They say that the Court’s Order “prospectively will have a substantial impact” on ongoing permit
applications and renewals under the Surface Mining Control and Reclamation Act “starting within
six months and expanding over the next two to five years.” Coccodrilli Decl. ¶ 4, ECF No. 57-4.
And they claim that the Court’s Order “has the potential to disrupt and delay any new permits, or
mandatory renewals, or and revisions that require ESA coverage, which causes significant cost
and operational impacts to access new coal seams.” Id.; see also Adams Decl. ¶¶ 19, 21, ECF
No. 57-3. But the Defendants do not take the next step of explaining why these harms are
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irreparable. Even if later “corrective relief” for these purported administrative burdens “expanding
over the next two to five years” would be unavailable by the time the D.C. Circuit resolves the
appeal in this case—a dubious proposition, at best—harms to “money, time and energy” of
regulated parties do not themselves justify a stay. Wis. Gas, 758 F.2d at 674 (citation omitted);
Coccodrilli Decl. ¶ 4.
The Defendants resist this characterization of their claimed injuries, arguing instead that
the “administrative burdens and [the agency’s] staffing limitations are causes of harm,” namely
“the disruption of energy security, economic security, and national defense that would result from
a reduction in coal production.” Id. at 14–15 (emphasis in original). They claim that “[a]ny delay
in permitting decisions correspondingly delays the availability of an otherwise reliable domestic
supply of energy resources that is necessary to meet the nation’s expanding energy needs, as well
as for time-sensitive national security applications.” Mot. 21. The Court is skeptical that the
Defendants can circumvent well-established jurisprudence recognizing that “administrative
burdens and staffing limitations” fail to constitute irreparable harms in this manner. Reply 14; see
Wis. Gas, 758 F.2d at 674. But their arguments do not carry the day in any event.
The Defendants stress that since the American economy is dependent on the electrical grid
and natural resources, impacts to the coal permitting process may harm jobs and prices for various
goods and services. Mot 20. And they emphasize that various domestic military installations,
including “Naval Station Norfolk, Fort Meade, Marine Corps Base Quantico, and WrightPatterson Air Force Base,” rely on the “the commercial electric distribution system,” and a “failure
of the commercial grid serving these sites directly threatens [the] ability to command forces
globally, execute cyber defense operations, and process national-level intelligence.” Id. at 21.
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Merely throwing around phrases like “national security” or “energy emergency” will not get the
Defendants the stay that they desire.
Of course, the Court does not doubt that a complete eradication of the Nation’s coal supply
or the “failure of the commercial [electrical] grid” would pose grave harms to national security
(and indeed, much more). Id. But the Defendants have no basis to assert that such a catastrophic
result is imminent. Indeed, it has been over two months since the Court entered its Order, and our
energy supply, mineral wealth, and national security apparatus all seem to be functioning. After
all, as the Defendants concede, our existing coal “stockpile buffer insulates power supply against
physical shortfalls.” Coccodrilli Decl. ¶ 18. At bottom, the Defendants only claim irreparable harm
by suggesting that the Government “cannot afford to chance whether [they] might be able to
recover in the future” from any potential “reduction in coal production.” Reply 9. Such speculation
does not amount to irreparable harm. “Bare allegations of what is likely to occur are of no value
since the court must decide whether the harm will in fact occur.” Wisc. Gas, 758 F.2d at 674
(emphasis in original).
Stepping back, the Plaintiffs provide another reason why the Defendants’ speculation about
coal supply does not warrant a stay. On July 14, 2026, the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service “issued a final rule rescinding the definition of ‘harm’ under
the ESA” and “remov[ing] from the definition” of take “‘significant habitat modification or
degradation where it actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering.’” Pl.’s Opp’n 2, ECF. No. 59 (citing
Rescinding the Definition of “Harm” Under the Endangered Species Act, 91 Fed. Reg. 43300 (July
14, 2026) (to be codified at 50 C.F.R. pts. 17, 222)). Per the interpretation endorsed by the
regulation, “for any action to be considered a prohibited ‘take’ it must be the result of an
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‘affirmative act . . . directed immediately and intentionally against a particular animal.’” Id. at 19
(citation omitted). The Plaintiffs explain the upshot of this:
[T]he effect of that change is that, unless and until the . . . rulemaking is found
unlawful and vacated by a federal court or a new interpretation of “harm” is
promulgated, many—if not all—of the incidental take coverage-based
complications set forth by Defendants through their motion and supporting
declarations will almost certainly fail to materialize during the pendency of
Defendants’ appeal. This is because, as detailed in the 2020 BiOp as well as other
record documents, almost all of the “harm” leading to take related to coal mine
permitting concerns effects on listed species from habitat destruction and
modification.
Id. at 3.
The Defendants urge the Court to disregard this change—which will go into effect next
month—without explaining how existing coal mining would constitute a “take” under the rule and
thus be impacted by the Court’s decision at all during the appeal. See Reply 10–12. Rather, they
predominantly ask the Court to ignore “the rule change” because it “is the subject of separate
ongoing litigation” that might prevail. Reply 11. But courts do not regularly presume that federal
regulations will be found unlawful, as the Defendants seem to suggest. And it is the Defendants’
burden to show that there is a “clear and present need for equitable relief to prevent irreparable
harm” now, not at some later date. See Chaplaincy of Full Gospel Churches, 454 F.3d at 297
(cleaned up). So they may not rely on a potential court ruling in another case to meet that burden.
See Nken, 556 U.S. at 434.
Curiously, the Defendants attempt to use the new rule affirmatively, arguing that “even if
Plaintiffs were correct that the 2020 ITS will become legally unnecessary once the rule change
takes effect,” then “that would defeat their opposition to a stay pending appeal.” Reply 11. Their
argument goes like this: “If, as Plaintiffs contend, vacating the 2020 ITS has no effect on coal
mining, by that same token reinstating it has no effect either. Plaintiffs’ attempt to simultaneously
maintain that vacating the 2020 ITS has no effect but that reinstating it would cause Plaintiffs
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‘substantial injury’ cannot be reconciled.” Id. at 11–12. This is a fair point about the balance of the
equities. But the fact remains that “[t]he party requesting a stay bears the burden of showing that
the circumstances justify an exercise of that discretion.” Nken, 556 U.S. at 433–34 (cleaned up).
So even assuming that the Court’s Order harms neither the Plaintiffs nor the Defendants, it does
not mean that a stay is warranted. If the moving party fails to show irreparable harm, the burden
does not shift to the opposing party to show some countermanding harm. Rather, “[a] stay is an
intrusion into the ordinary processes of administration and judicial review” that requires an
affirmative showing by the movant. Id. at 427 (cleaned up).
Ultimately, the Defendants have failed to show irreparable harm. And even if their
purported, speculative harms could be sufficient, the upcoming rule change suggests a strong
“possibility that adequate compensatory or other corrective relief will be available at a later date,
in the ordinary course of litigation.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297–98
(cleaned up).
As to the remaining factors, the balance of equities and the public interest commonly
“merge” when the Government is a party. See Nken, 556 U.S. at 435. And “the ‘perpetuation of
unlawful agency action’” by retaining the unlawful portions of the 2020 BiOp and ITS “does not
serve the ‘public interest.’” League of Women Voters v. DHS, No. 25-cv-3501, 2026 WL 1972055,
at *7 (D.D.C. July 8, 2026) (quoting League of Women Voters of United States v. Newby, 838 F.3d
1, 12 (D.C. Cir. 2016)). Thus, none of the remaining factors support a stay.
* * *
In sum, all the factors weigh against granting a stay. The Court thus declines to stay its
May 29, 2026, Order. ECF No. 54.
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CONCLUSION
For the foregoing reasons, the Court denies the Defendants’ Motion for Stay Pending
Appeal, ECF No. 57.
A separate order will issue.
SPARKLE L. SOOKNANAN
United States District Judge
Date: August 19, 2026
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