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LLC v. Zinke

United States District Court, District of Columbia

January 4, 2018

HEART 6 RANCH, LLC, Plaintiff
RYAN ZINKE, et al., Defendants


          COLLEEN KOLLAR-KOTELLY United States District Judge

         This is an Administrative Procedure Act (“APA”) case challenging the manner by which the National Park Service (“NPS”) has allocated the rights to provide oversnow vehicle (“OSV”) services in Yellowstone National Park. Before the Court is Plaintiff's [2] Application for a Temporary Restraining Order (“TRO”). Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as it currently stands, the Court DENIES Plaintiff's Application. Without making any final determination as to the merits of Plaintiff's claims, the Court concludes that, at this very early stage, Plaintiff has not demonstrated a likelihood of success. The Court is also not persuaded that Plaintiff would suffer irreparable injury in the absence of preliminary injunctive relief.

         I. BACKGROUND

         In 2013, NPS solicited offers from concessioners to provide OSV services in Yellowstone National Park. Compl., ECF No. 1, at ¶ 2. Concessioners were invited to bid on contracts to provide OSV services for ten years at the north, south, east or west entrances to the park. Id. A certain number of daily snowmobile and snowcoach trips, or “transportation events, ” were allocated to each contract. Id. Plaintiff, a purveyor of OSV services, submitted proposals for the ten contracts associated with the park's south entrance, but was not awarded any of them. Id. DTRS Jackson Hole, LLC, doing business as Four Seasons Resort Jackson Hole (“Four Seasons”), was awarded one of the ten contracts for which Plaintiff had bid. Id. ¶ 28. However, for unspecified reasons, Four Seasons subsequently terminated its contract with NPS. Id. ¶ 3. In its complaint, Plaintiff stated that it was not sure “what happened to the allocation of oversnow vehicle trips associated with the terminated contract, specifically whether NPS had awarded a replacement contract to another vendor, or had modified an existing concession contract to add an additional daily allocation.” Id. Plaintiff speculated that NPS had taken one of these two actions, and alleged that either violated the APA. Id. ¶ 9. Plaintiff claimed that it should have been awarded the terminated contract. Id. ¶ 10.

         Plaintiff filed this lawsuit on December 20, 2017, and simultaneously filed the pending Application for a TRO. The Court held a teleconference on the record with the parties later that day, during which it set a briefing schedule that was consented to by both parties. Defendants then filed their Opposition to Plaintiff's Application.

         In their Opposition, Defendants have explained how NPS reassigned the transportation events associated with the terminated Four Seasons contract. The terminated contract had given Four Seasons the right to provide two daily transportation events. See Decl. of Dale Rinehart, ECF No. 7-1, at ¶ 2. That contract was cancelled in October 2014, at the request of Four Seasons. Id. NPS did not reassign the two transportation events associated with the cancelled contract during the 2014-15 or 2015-16 winter seasons. Id. ¶ 3. They went unused. Id. Then, on October 19, 2016, NPS notified concessioners who already held contracts to provide OSV services in the park and told them that NPS had decided to reallocate the two transportation events on an “experimental basis” for one season. Id.; see also Defs.' Ex. 3, ECF No. 7-5. NPS solicited those concessioners to participate in a lottery to distribute the events. Id. In the solicitation, NPS indicated that the transportation events would be used to provide “one-way transportation to and from West Yellowstone and Old Faithful and to and from the South Entrance and Old Faithful.” Defs.' Ex. 3. In the end, one transportation event was added to a contract already held by an OSV concessioner at the South entrance, and another was reassigned to a contract at the West entrance to the park. Rinehart Decl. ¶ 3.

         Plaintiff's TRO Application is now ripe for resolution.


         A temporary restraining order or preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). “‘When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.'” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The four factors have typically been evaluated on a ‘sliding scale.'” Davis, 571 F.3d at 1291 (citation omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291-92.

         The Court notes that it is not clear whether this Circuit's sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court's decision in Winter. See Save Jobs USA v. US. Dep't of Homeland Sec., 105 F.Supp.3d 108, 112 (D.D.C. 2015). Several judges on the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.'” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the D.C. Circuit has yet to hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F.Supp.3d at 112. In any event, this Court need not resolve the viability of the sliding-scale approach today as the Court determines that “a preliminary injunction is not appropriate even under the less demanding sliding-scale analysis.” Sherley, 644 F.3d at 393.


         Plaintiff's Application for a TRO will be denied. Plaintiff has not demonstrated a likelihood of success on the merits, nor has it demonstrated that it will suffer irreparable harm in the absence of a TRO. The balance of equities and public interest factors are in equipoise, and accordingly do not support the granting of preliminary injunctive relief.

         A. Plaintiff Fails to Establish a Likelihood of Success on the Merits

         Plaintiff has not carried its burden of establishing a likelihood of success in this lawsuit. Before considering the merits of Plaintiff's APA claim, the Court first addresses Defendants' argument that no judicial review is available at all in this case. Defendants argue that Plaintiff lacks standing, that there has been no final agency action, and that the challenged conduct is “entirely within the discretion of the Director of the National Park ...

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