USCA4 Appeal: 23-1592 Doc: 32-1 Filed: 07/06/2023 Pg: 1 of 9 Total Pages:(1 of 15)

No. 23-1592 (L)

(consolidated with No. 23-1594)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE WILDERNESS SOCIETY

Petitioner,

v.

UNITED STATES FOREST SERVICE, et al.,

Respondents,

&

MOUNTAIN VALLEY PIPELINE, LLC,

Intervenor

PETITIONER’S MOTION FOR TEMPORARY ADMINISTRATIVE STAY

Petitioner The Wilderness Society (“Petitioner”) moves for a temporary

administrative stay under Federal Rule of Appellate Procedure 27 to preserve the

status quo until the Court rules on Petitioner’s pending motion under Federal Rule

of Appellate Procedure 18(a) for a stay pending review. ECF No. 25-1. Yesterday,

Petitioner learned that high-impact construction will commence on the Jefferson

National Forest (the “Forest”) next Wednesday. Accordingly, a temporary

administrative stay is necessary to preserve the status quo while the Court receives

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briefing on Petitioner’s stay motion and to “permit time for the court to fully

consider” the motion. Sierra Club v. U.S. Army Corps of Eng’rs, No. 20-2039 (4th

Cir. Oct. 16, 2020) (order granting temporary administrative stay). As required by

Local Rule 27(a), counsel for Petitioner notified the other parties of Petitioner’s

intent to file this motion and was informed they oppose. In support of this motion,

Petitioner states as follows:

1. The purpose of a temporary administrative stay is to afford the Court

an opportunity to consider and decide a motion for a stay by preserving the status

quo until the Court rules. See Sierra Club v. U.S. Army Corps of Eng’rs, No. 20-

2039 (4th Cir. Oct. 16, 2020). By definition, a temporary administrative stay is

temporary and “remain[s] in effect until such time as the court has ruled” on the

substantive motion for a stay pending review. Id; see also Nat’l Urb. League v.

Ross, 977 F.3d 698, 700–01 (9th Cir. 2020) (“[A]n administrative stay ‘is only

intended to preserve the status quo until the substantive motion for a stay pending

appeal can be considered on the merits, and does not constitute in any way a

decision as to the merits of the motion for stay pending appeal.’” (quoting Doe #1

v. Trump, 944 F.3d 1222, 1223 (9th Cir. 2019)); Al Otro Lado v. Wolf, 945 F.3d

1223, 1224 (9th Cir. 2019) (same); Brady v. Nat’l Football League, 638 F.3d 1004,

1005 (8th Cir. 2011) (“The purpose of this administrative stay is to give the court

sufficient opportunity to consider the merits of the motion for a stay pending

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appeal.”); Twelve John Does v. D.C., 841 F.2d 1133, 1137 (D.C. Cir. 1988)

(describing “temporary administrative stay to permit time for full consideration of

the motions” for emergency stay pending appeal and summary reversal).

2. These consolidated petitions for review present claims challenging

approvals issued by Respondents Bureau of Land Management (“BLM”) and

United States Forest Service (“Forest Service”) that waive environmental

protections to accommodate the Mountain Valley Pipeline (“MVP”) and allow

Intervenor Mountain Valley Pipeline, LLC (“Mountain Valley”) to build its

pipeline across the Forest. See ECF No. 25-1 at 4.

3. The Forest Service and BLM (collectively the “Agencies”) issued the

challenged approvals on May 15 and 17, 2023, respectively. Id. Petitioner filed

these consolidated petitions for review two weeks later, naming the Agencies and

other federal officials as respondents (collectively “Federal Respondents”). See id.

The challenged approvals represent the Agencies’ third attempt to approve MVP

after this Court vacated their prior efforts in Sierra Club v. U.S. Forest Service, 897

F.3d 582 (4th Cir. 2018), and again in Wild Virginia v. U.S. Forest Service, 24 F.4th

915 (4th Cir. 2022).

4. No stay was necessary at the time these petitions were filed for two

reasons. First, Mountain Valley was prohibited from commencing construction on

the Forest because the company remained subject to a stop-work order from the

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Federal Energy Regulatory Commission. ECF No. 25-1 at 4. Second, Mountain

Valley was prohibited from commencing construction on the Forest until BLM

issued a right-of-way notice to proceed (“Notice to Proceed”). Id.

5. Last week, the Federal Energy Regulatory Commission issued an

order authorizing Mountain Valley to resume all construction activities, including

construction on the Forest. Id. at 5.

6. On July 3, 2023, Petitioner filed a motion for a stay pending review

under Federal Rule of Appellate Procedure 18(a). ECF No. 25-1. As set forth in

Petitioner’s motion, a stay pending review is necessary to avoid the irreparable

harm that would result from construction while the case is heard in the ordinary

course. Id. at 1, 5, 18–20. Petitioner has shown that a stay is warranted under the

four-factor test articulated in Nken v. Holder, 556 U.S. 418, 425–26 (2009). See

generally ECF No. 25-1. The Court ordered Federal Respondents and Mountain

Valley to file responses by July 10, 2023. ECF No. 26.

7. To the best of Petitioner’s knowledge at the time of the motion for a

stay pending review, BLM had not yet issued the Notice to Proceed—the final

prerequisite to construction on the Forest—but Petitioner explained it was “only a

matter of time.” ECF No. 25-1 at 5. Petitioner’s motion for a stay pending review

informed the Court that Petitioner was “not currently requesting a temporary

administrative stay” because BLM had not yet issued the Notice to Proceed, but

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Petitioner noted that a request for a temporary administrative stay “may become

necessary when the [N]otice to [P]roceed issues.” Id. at n.3.

8. The time has now come. Yesterday afternoon, counsel for the

Agencies provided counsel for Petitioner a copy of the Notice to Proceed.

See Ex. 1. At that time, Petitioner learned that BLM issued the Notice to Proceed

sometime on July 3, 2023.

9. The Notice to Proceed includes an attachment outlining Mountain

Valley’s anticipated work schedule for construction on the Forest. See Ex. 1,

Attachment A at 2 & Table 1. According to that schedule, yesterday was the first

day that Mountain Valley planned to start construction on the Forest. Id. Further,

Mountain Valley anticipates high-impact construction starting next Wednesday,

July 12, 2023, when it will begin grading on Brush Mountain. Id.

10. A temporary administrative stay is necessary because Mountain

Valley’s construction schedule reveals that high-impact construction on the Forest

will commence before Petitioner’s motion for a stay is fully briefed and without

affording the Court a meaningful opportunity to rule on it. As Petitioner stated in

its motion for stay, the parties could not agree on a briefing schedule that would

include a respite from construction on the Forest during the pendency of that

motion. ECF No. 25-1 at n.3. Federal Respondents and Mountain Valley have been

ordered to file responses to Petitioner’s motion for a stay by Monday, July 10,

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2023. ECF No. 26. Petitioner will make every effort to accelerate briefing.

Petitioner anticipates filing a notice of intent to file a reply under Local Rule

27(d)(2), and Petitioner commits to filing any such reply by Wednesday, July 12,

2023. Further, Petitioner anticipates that its notice of intent to file a reply will not

request that the Court refrain from ruling until the reply is filed. However, even

under this expedited schedule, high-impact construction is likely to begin before

the Court has “time … to fully consider” the motion. Sierra Club v. U.S. Army

Corps of Eng’rs, No. 20-2039 (4th Cir. Oct. 16, 2020).

11. Construction on the Forest stopped in 2018 after this Court vacated

the Agencies’ first attempt to approve MVP. See ECF No. 25-10 at ¶ 3 (describing

orders governing construction on the Forest). That status quo will now be upended

absent a temporary administrative stay.

12. Accordingly, Petitioner respectfully requests that the Court grant this

motion and enter a temporary administrative stay to remain in effect until the Court

rules on Petitioner’s motion for a stay pending review, ECF No. 25-1.

DATED: July 6, 2023

Respectfully submitted,

/s/ Spencer Gall

Spencer Gall
Gregory Buppert
Southern Environmental Law Center
120 Garrett Street, Suite 400

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Charlottesville, VA 22902
Telephone: (434) 977-4090
Email: sgall@selcva.org

Counsel for The Wilderness Society

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g)(1), I certify that this motion complies with

the type-volume limitations of Fed. R. App. P. 27(d)(2)(A). This motion contains

1,239 words, excluding the parts of the motion excluded by Fed. R. App. P.

27(d)(2) and 32(f).

I further certify that this response complies with the type-face requirements

of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.

32(a)(6) because this motion has been prepared in Times New Roman 14-point

font using Microsoft Word.

/s/ Spencer Gall

Spencer Gall
Southern Environmental Law Center
USCA4 Appeal: 23-1592 Doc: 32-1 Filed: 07/06/2023 Pg: 9 of 9 Total Pages:(9 of 15)

CERTIFICATE OF SERVICE

I certify that on July 6, 2023, I electronically filed the foregoing with the

Clerk of Court for the United States Court of Appeals for the Fourth Circuit by

using the appellate CM/ECF system. The participants in this case are registered

CM/ECF users and service will be accomplished by the appellate CM/ECF system.

See Fed. R. App. P. Local Rule 25(a)(4).

/s/ Spencer Gall

Spencer Gall
Southern Environmental Law Center
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Exhibit 1
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