United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
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 
Application for a Temporary Restraining Order
(“TRO”). Upon consideration of the pleadings,
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
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.
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
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.
TRO Application is now ripe for resolution.
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  that he is likely to succeed on
the merits,  that he is likely to suffer irreparable harm
in the absence of preliminary relief,  that the balance of
equities tips in his favor, and  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.
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.
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.
Plaintiff Fails to Establish a Likelihood of Success on the
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