UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

STEWART PARK AND RESERVE COALITION,
INCORPORATED (SPARC); ORANGE COUNTY
FEDERATION OF SPORTSMEN’S CLUBS, INC.;
and SIERRA CLUB,

Plaintiffs,

v. No. 00-CV-1606(RFT)

RODNEY E. SLATER, as United States Secretary of
Transportation; UNITED STATES DEPARTMENT OF
TRANSPORTATION; KENNETH R. WYKLE, as
Administrator of the Federal Highway Administration;
HAROLD J. BROWN, as New York Division Administrator
of the Federal Highway Administration; FEDERAL
HIGHWAY ADMINISTRATION; LOUIS R. TOMSON, as
Chairman of the New York State Thruway Authority; NEW
YORK STATE THRUWAY AUTHORITY; JOSEPH H.
BOARDMAN, as Commissioner of the New York State
Department of Transportation; and NEW YORK STATE
DEPARTMENT OF TRANSPORTATION,

Defendants.

APPEARANCES: OF COUNSEL:
JOHN W. CAFFRY, ESQ.
Attorney for Plaintiffs
100 Bay Street
Glens Fall, New York 12801
HON. JOSEPH A. PAVONE JAMES C. WOODS, ESQ.
United States Attorney for the Assistant United States Attorney
Northern District of New York
Attorney for Federal Defendants
James T. Foley U.S. Courthouse
445 Broadway, Room 231
Albany, New York 12207-2924

HON. ELIOT SPITZER LISA M. BURIANEK, ESQ.
Attorney General for the Assistant Attorney General
State of New York
New York State Department of Law
Environmental Protection Bureau
The Capitol
Albany, New York 12224

RANDOLPH F. TREECE
U.S. MAGISTRATE JUDGE

MEMORANDUM-DECISION AND ORDER

Pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., and

the New York State Environmental Quality Review Act (“SEQRA”), N.Y. Envtl. Conserv. Law § 8-

101, et seq., plaintiffs brought this action challenging the sufficiency of a joint federal and state

environmental review regarding the proposed construction of an interstate highway exchange

between Interstate 84 (“I-84") and Drury Lane as well as improvements to connecting roads to

facilitate access to Stewart International Airport (“Stewart Airport”) Plaintiffs also alleged that the

Federal Defendants violated transportation laws, including section 4(f) of the Department of

Transportation Act of 1966, 49 U.S.C. § 303, and 23 U.S.C. § 111. By memorandum-decision and

order dated September 30, 2002, the undersigned granted Defendants’ motion for summary

judgment and denied Plaintiffs’ cross-motion for summary judgment and entered judgment for

Defendants on all claims. See Stewart Park and Reserve Coalition v. Slater, No. 00CV1606, 2002

WL 31163861 (N.D.N.Y. Sept. 30, 2002).¹

¹The factual background of this case is fully set forth in this decision, familiarity with which is presumed.

Presently pending is Plaintiffs’ motion for a stay of this Court’s September 30, 2002

judgment and an order barring Defendants from proceeding with construction, destruction or any

further development regarding the interchange and Stewart Airport as well as a waiver of the

requirement of a supersedeas bond pursuant to Fed. R. App. Proc. 8(a). Docket Nos. 73-75.

Defendants oppose the motion. Docket Nos. 78-80, 83. Plaintiffs also seek a temporary restraining

order pending this Court’s determination on their motion for a stay. Docket No. 81. For the reasons

that follow, Plaintiffs’ motion for a stay and an injuction pending their appeal to the U.S. Court of

Appeals for the Second Circuit is granted and their motion for a temporary restraining order is

denied as moot.

DISCUSSION

To determine whether a party is entitled to a stay pending appeal, the movant must

demonstrate: (1) a strong likelihood of success on the merits; (2) irreparable injury absent a stay; (3)

lack of injury to the other parties if a stay is granted; and (4) where the public interest lies. See

Hilton v. Braunskill, 481 U.S. 770, 776-77 (1987); see also Mohammed v. Reno, 309 F.3d 95, __,

2002 WL 31388971, at *3 (2d Cir. Oct. 24, 2002).² In support of their motion, Plaintiffs contend

²It is well settled that "preliminary injunctive relief is appropriate when the movant shows (a) irreparable harm and

(b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them

a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary

relief.” International Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996). Since the Hilton factors also

consider the factors used in determining whether preliminary injunctive relief is appropriate, this decision considers

both the motion for a stay and for a preliminary injunction together.

that: (1) they will succeed on appeal because this Court erred in interpreting federal transportation

laws and excessively deferred to the agencies on the NEPA and SEQRA counts; (2) they will suffer

irreparable injury absent a stay because construction of the Stewart Airport and I-84 Interchange

prior to an appeal would render this action moot; (3) Defendants will not be injured if a stay were

granted because they have not taken substantial steps toward commencing construction; and (4) the

public would benefit from continued use of the land for recreational purposes.

In opposition to the motion, Defendants’ main contention is that Plaintiffs have not

demonstrated a likelihood of success on the merits. Indeed, at first blush, it appears as if Plaintiffs

can only satisfy this first factor if the Court determines that the September 30, 2002 decision was in

error. Recently, however, the Second Circuit adopted the Sixth Circuit’s reasoning in evaluating the

four Hilton factors and held that “‘[t]he probability of success that must be demonstrated is

inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the stay.

Simply stated, more of one excuses less of the other.’” Mohammed, 2002 WL 31388971, at *4

(quoting Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153

(6th Cir. 1991)). Here, absent a stay and injunctive relief, Defendants will likely proceed with the

planned construction of the I-84 Interchange and Stewart Airport. Tynan Aff. (Docket No. 79), ¶

10. It is evident that such construction will irreparably harm Plaintiffs and render this action moot.

In light of the nature of injury to Plaintiffs absent a stay, they do not need to demonstrate a high

likelihood of success on appeal.

On appeal, the Second Circuit will review the Court’s September 30, 2002 decision de novo.

See Village of Grand View v. Skinner, 947 F.2d 651, 656 (2d Cir. 1991). Thus, Defendants’

assertion that this Court made factual determinations that Plaintiffs cannot overcome on appeal

assumes too much. While the Court rejected Plaintiffs’ interpretation of federal law as well as their

experts’ statistics, the Second Circuit’s independent analysis of the administrative record could be

vastly different. In light of the nature of injury and the standard of review on appeal, Plaintiffs have

satisfied the first two factors of the Hilton test.

With respect to the injury to the Defendants if a stay were granted, Defendants assert that the

State of New York could lose approximately $15 million in savings. Specifically, the State has

accepted contract bids for the proposed construction. Tynan Aff., ¶ 5. The low bid was in the

amount of $42,568,837.00. Id. at ¶ 6. The highest of six bids was $58,629,011.00. Id. Pursuant to

the agreement, the low bidder may withdraw its bid. Id. at ¶ 7. Defendants contend that a stay may

prompt the low bidder to withdraw its bid, in which case, the State would award the contract to the

next lowest bidder. If this occurred, the State could lose a savings of up to $15 million. It is worth

noting that the State advertised for bidding in August 2002, and the bid opening was on September

12, 2002, prior to this Court’s ruling on September 30, 2002. Id. at ¶ 5. Since Defendants began the

bidding process while litigation was ongoing, any injury incurred by the State was at its own doing.³

³Defendants also contend that the low bidder could be injured by fines if it does not

complete construction by October 2004. The low bidder is not a party to this motion and any injury

to this third-party is irrelevant for purposes of this analysis.

Thus, any injury to Defendants will not result from a stay, but from the State’s hastiness. Therefore,

Plaintiffs have established the third factor of the Hilton test.

With respect to the public interest factor, Plaintiffs assert that they satisfy this factor because

the public can continue to use Stewart Park for recreational purposes. Defendants contend that the

public interest is served by construction of better roads and improved access to Stewart Airport. In

essence, the parties are asking this Court to determine an issue long plaguing policymakers, i.e.,

open space versus development. Defendants, however, concede that the construction will not be

completed until October 2004; thus, the public cannot be served by the improved access to Stewart

Airport prior to any ruling by the Second Circuit. The public, however, can continue to use the open

space at least until the Second Circuit’s decision on the appeal. Therefore, under these

circumstances, the public is best served by granting the stay.

Accordingly, Plaintiffs have met the standard for a stay.⁴

⁴Defendants also contend that since Plaintiffs did not seek a preliminary injunction prior to

this Court’s September 30, 2002 decision, there is no status quo that needs preserving. Defendants,

however, concede that construction is imminent, a factor that was not present throughout this

litigation. Therefore, Defendants’ contention is rejected.

Finally, Plaintiffs also seek a waiver of the supersedeas bond requirement. Plaintiffs have

failed to provide any analysis or case law explaining why they should not be required to post a bond.

In contrast, Defendants assert that a bond should be required because of the potential financial loss

to the State by the stay. Despite Plaintiffs failure to assert any argument on this issue, this Court

finds a bond is not required. First, one purpose of a supersedeas bond is to guarantee a party’s

ability to satisfy a money judgment. See Cayuga Indian Nation of N.Y. v. Pataki, 188 F. Supp. 2d

223, 255 (N.D.N.Y. 2002). There is no money judgment at stake here. Further, as discussed above,

any financial injury suffered by the State is at its own hands.

Accordingly, Plaintiffs’ motion for a waiver of the supersedeas bond requirement is granted.

WHEREFORE, it is hereby

ORDERED that Plaintiffs’ motion for a stay of the Court’s September 30, 2002 judgment

and for an injunction pending an appeal to the U.S. Court of Appeals for the Second Circuit is

GRANTED; Defendants are enjoined from proceeding with construction, destruction or any further

development regarding the I-84 and I-87 Interchanges and Stewart Airport pending a decision on the

appeal;

ORDERED that Plaintiffs’ motion to waive the supersedeas bond requirement is

GRANTED; and it is

ORDERED that Plaintiffs’ application for a temporary restraining order pending a decision

on their motion for a stay is DENIED as moot.

IT IS SO ORDERED.

Dated: November 21, 2002

Albany, New York

____________________________________

UNITED STATES MAGISTRATE JUDGE

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