Marin Audubon Society v. Federal Aviation Administration, U.s. Department of Transportation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed February 28, 2025
No. 23-1067
MARIN AUDUBON SOCIETY, ET AL.,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF
TRANSPORTATION AND NATIONAL PARK SERVICE, U.S.
DEPARTMENT OF THE INTERIOR,
RESPONDENTS
On Joint Unopposed Motion to Stay Issuance of the Mandate
Todd Kim, Assistant Attorney General, U.S. Department of
Justice, and Justin D. Heminger and Jacob D. Ecker, Attorneys,
were on the joint unopposed motion to stay issuance of the
mandate for respondents.
Kirti Datla, Tosh Sagar, Linnet Davis-Stermitz, Paula N.
Dinerstein, and Peter T. Jenkins were on the joint unopposed
motion to stay issuance of the mandate for petitioners.
Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
RANDOLPH , with whom Circuit Judge HENDERSON joins.
Opinion concurring in the disposition filed by Chief Judge
SRINIVASAN .
RANDOLPH , Senior Circuit Judge, with whom Circuit Judge
HENDERSON joins:
In Marin Audubon Society v. FAA, 121 F.4th 902 (D.C. Cir.
2024), we determined that an air tour management plan for four
Bay Area national parks, adopted by the Federal Aviation
Administration and the National Park Service, should be vacated
pursuant to the Administrative Procedure Act, 5 U.S.C. §
706(2). 121 F.4th at 918–19; see also id. at 919–20 (Randolph,
J., concurring). We agreed with a group of organizations and one
area resident (Petitioners) that the Agencies’ NEPA analysis was
arbitrary and capricious. See id. at 917. In so holding we stated
that, “[i]f the Agencies and Petitioners desire to keep the current
Plan in place while the Agencies restart their NEPA review, the
parties may move for a stay of our mandate.” Id. at 918.
Before us now is a stay motion, filed jointly by Petitioners
and the Agencies pursuant to Federal Rule of Appellate
Procedure 41(b). See also D.C. Cir. R. 41; 28 U.S.C. § 1651. At
this stage, the merits of our decision are not at issue. Our court
recently denied joint petitions for rehearing and rehearing en
banc. See Orders, Marin Audubon, 121 F.4th 902, ECF Nos.
2097983, 2097987 (Jan. 31, 2025). Our panel decision therefore
stands. 1
1 See, e.g., Cox v. Dep’t. of Just., 111 F.4th 198, 209 (2d Cir.
2024); In re Zermeno-Gomez, 868 F.3d 1048, 1052 (9th Cir. 2017);
United States v. Little, 119 F.4th 750, 770 (10th Cir. 2024); Hunter v.
United States, No. 17-10575-EE, 2017 WL 11621371, at *2 (11th Cir.
Dec. 27, 2017).

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2
The parties request a stay only of the portion of the opinion
holding that the air tour management program must be “set
aside.” Marin Audubon, 121 F.4th at 918–19. They point out
that without a stay of the mandate, the prior interim system
would be revived on remand while the Agencies comply with
our decision. Under that system, “nearly twice as many flights
were authorized for two park units and even more for the other
two park units,” frustrating Petitioners’ goals to reduce
overflights. See Joint Mot. to Stay Issuance of the Mandate at 1
(Joint Mot.). Vacating the plan could “thus harm the very places
(the park units) and people (petitioners)” that Congress “meant
to protect.” Id.
Our court has regularly stayed vacatur judgments in cases
on review of agency action. We have done so to ameliorate that
remedy’s potentially harsh consequences, but have not explicitly
set out a governing standard. See, e.g., Indep. U.S. Tanker
Owners Comm’n v. Dole, 809 F.2d 847, 855 (D.C. Cir. 1987)
(vacating but, with limited analysis, “withhold[ing] issuance of
our mandate” for six months). Nevertheless, we are guided by
our answers to analogous questions in similar circumstances.
First, we regularly delay issuance of our mandates during
the pendency of a petition for certiorari. Such requests are
reviewed against the court’s long-standing principles governing
stays pending appeal. See, e.g., Va. Petrol. Jobbers v. Fed.
Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958); Wash.
Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d
841, 842–43 (D.C. Cir. 1977). In those circumstances, we
consider “(1) the likelihood that the party seeking the stay will
prevail on the merits of the appeal; (2) the likelihood that the
moving party will be irreparably harmed absent a stay; (3) the
prospect that others will be harmed if the court grants the stay;
and (4) the public interest in granting the stay.” Wis. Gas Co. v.
FERC, 758 F.2d 669, 673–74 (D.C. Cir. 1985).

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3
There is good reason to doubt whether that test should apply
here in full. Absent a pending motion for rehearing, a pending
motion for en banc review, or a pending petition for certiorari,
the first factor regarding success on the merits has no relevance.
As to the second factor, irreparable harm, we have consistently
granted stays when vacatur will prove to be disruptive to the
losing party—but without a showing of irreparable harm. See,
e.g., Tanker Owners, 809 F.2d at 855; Friends of the Earth, Inc.
v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006) (noting that “the
parties may move to stay” for practical reasons); Cement Kiln
Recycling Coal. v. EPA, 255 F.3d 855, 872 (D.C. Cir. 2001)
(contemplating a stay to permit development of an interim rule);
U.S. Tel. Ass’n v. FCC, 188 F.3d 521, 531 (D.C. Cir. 1999)
(explaining that the agency “may of course request a stay,”
which was subsequently granted, see Order Granting Mot. to
Stay Mandate, 188 F.3d 521, No. 97-1469 (June 21, 1999));
Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 924 (D.C.
Cir. 1998) (at the court’s suggestion the agency filed a Rule 41
motion to delay issuance of the mandate, a motion we granted,
see Order Granting Mot. to Stay Mandate, 139 F.3d 914, No. 97-
1044 (June 17, 1998)).
However, factors three and four—consideration of the
equities and the public interest—are certainly pertinent. Several
of our decisions have considered the practical effects on
petitioners, the agencies, and third parties when deciding
whether to stay a vacatur order. For example, in Chamber of
Commerce v. SEC, 443 F.3d 890 (D.C. Cir. 2006), we
recognized that the industry had already come into compliance
with the agency rule, so “immediate vacation . . . risk[ed]
substantial disruption” and could “sow confusion.” Id. at 909.
We accordingly withheld our mandate for ninety days. See id.
Likewise, Cboe Futures Exchange, LLC v. SEC, 77 F.4th 971
(D.C. Cir. 2023), emphasized that vacating a rule regulating

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4
financial markets raised “concerns with assuring adequate time
for investors to unwind transactions.” Id. at 982. And while
those concerns “d[id] not counsel against ordering vacatur
altogether,” we thought it advisable to “build[] in a grace
period” of three months before the vacatur order took effect. Id.
In these circumstances, our stay practice somewhat
resembles the remand-without-vacatur cases where vacatur will
leave the prevailing party worse-off. This occurs, as here, when
a petitioner wins on the theory that an agency’s proposed rule
does not go far enough to regulate conduct. See, e.g., Env’t Def.
Fund, Inc. v. Adm’r, 898 F.2d 183, 190 (D.C. Cir. 1990)
(“[V]acat[ur] . . . would at least temporarily defeat petitioner’s
purpose, the enhanced protection of the environmental values
covered by the PSD provisions.”); NACS v. Bd. of Governors,
746 F.3d 474, 493 (D.C. Cir. 2014) (declining to vacate a rule
capping debit card transaction fees, which petitioners challenged
as too high, because vacatur would cause fees to rise even
higher). In these types of cases, our court applies the test set out
in Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission,
988 F.2d 146 (D.C. Cir. 1993), which examines “the seriousness
of the order’s deficiencies” as well as “the disruptive
consequences of an interim change that may itself be changed.”
Id. at 150–51 (quoting Int’l Union, United Mine Workers of Am.
v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C.
Cir. 1990)). As with our stay cases, these decisions recognize
that vacating agency action can occasionally raise practical
difficulties.
Like the stay test, however, the Allied-Signal approach
cannot be applied wholesale to the present motion. Under Allied-
Signal, the principal question is whether we should vacate the
flawed agency action. But here, we have already determined that
vacatur is the appropriate remedy under the APA. “Staying the
mandate presupposes the opposite presumption of remand

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5
without vacatur” because “it assumes that the underlying agency
action is substantively deficient.” Haw. Longline Ass’n v. Nat’l
Marine Fisheries Serv., 288 F. Supp. 2d 7, 11 (D.D.C. 2003).
Instead, granting a stay motion is grounded in “equitable
considerations” and is designed to “relieve[] the parties from the
onerous results of the court’s holding until the agency can redo
its analysis.” Id.
The parties have outlined disruptive and potentially
injurious effects of vacatur during remand proceedings. Having
reviewed the briefs and affidavits submitted, we are persuaded
that immediate vacatur could entail disruptive consequences that
tilt both the equities and public interest factors in favor of a stay.
The Agencies have lodged affidavits stating that they will
need 12 months to bring themselves into compliance with our
decision. 2 We therefore withhold issuance of the mandate until
2 The length of the stay may also be warranted in light of recent
executive action. As the Marin Audubon opinion discussed, the
Council on Environmental Quality sought to derive regulatory
authority from Executive Order 11991, 42 Fed. Reg. 26,967 (May 25,
1977), issued by President Carter. See 121 F.4th at 910–11. The
parties have informed the court that President Trump has since issued
Executive Order 14154, 90 Fed. Reg. 8353 (Jan. 29, 2025), which
revokes Executive Order 11991 and requires the Council’s Chairman
to propose rescinding the Council’s regulations, some of which were
at issue in Marin Audubon. See id. at 8355 (“Executive Order 11991
of May 24, 1977 . . . is hereby revoked.”); id. (“[W]ithin 30 days of
the date of this order, the Chairman of the Council on Environmental
Quality (CEQ) shall . . . propose rescinding CEQ’s NEPA regulations
found at 40 CFR 1500 et seq.”).
CEQ has issued an interim final rule, effective April 11, 2025,
removing the CEQ regulations implementing NEPA from the Code of
Federal Regulations. See Removal of National Environmental Policy
Act Implementing Regulations, 90 Fed. Reg. 10610 (Feb. 25, 2025).

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12 months from the date of this Order, at which time the
Agencies and Petitioners shall advise the court of the status of
the proceedings on remand.
So ordered.

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SRINIVASAN, Chief Judge, concurring in the disposition:
I would have granted remand without vacatur as set forth
in my previous opinion concurring in part and dissenting in
part, see Marin Audubon Soc’y v. FAA, 121 F.4th 902, 920
(D.C. Cir. 2024) (Srinivasan, C.J., dissenting in part), and I
now concur in the grant of the joint motion to stay the mandate
for substantially the same reasons—i.e., that vacatur without
any stay of the mandate would have the effect of putting the
prevailing parties in a worse position vis-à-vis the protections
at issue than if they had not brought their challenge, see id. at
922–23 (Srinivasan, C.J., dissenting in part).

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