                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0929n.06

                                           No. 12-2217

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


HURON MOUNTAIN CLUB,                                      )
                                                          )                           FILED
       Plaintiff-Appellant,                               )                      Oct 30, 2013
v.                                                        )                 DEBORAH S. HUNT, Clerk
                                                          )
UNITED STATES ARMY CORPS OF ENGINEERS;                    )
MICHAEL C. DEROSIER; UNITED STATES                        )
DEPARTMENT OF THE INTERIOR; KEN SALAZAR;                  )
UNITED STATES FISH AND WILDLIFE SERVICE;                  )    ON APPEAL FROM THE
DANIEL M. ASHE; KENNECOTT EAGLE                           )    UNITED STATES DISTRICT
MINERALS COMPANY,                                         )    COURT FOR THE WESTERN
                                                          )    DISTRICT OF MICHIGAN
       Defendants-Appellees.                              )




BEFORE: GIBBONS and WHITE, Circuit Judges; GREER, District Judge.*

       HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Huron Mountain Club (“HMC”)

appeals the district court’s denial of its motion for injunctive relief, which sought to enjoin

Kennecott Eagle Minerals Company (“Kennecott”) from constructing and operating the Eagle Mine

(“Eagle Mine” or “the Mine”), a nickel and copper mine in Marquette, Michigan, and compel the

United States Army Corps of Engineers1 (the “Corps”) to “administer” the federal permitting


       *
       The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
       1
         HMC also named the United States Department of the Interior, and the United States Fish
and Wildlife Service (“FWS”), Michael Derosier, District Commander for the Detroit District Corps;
Ken Salazer, Secretary of the Department of the Interior; and Daniel Ashe, Director of FWS, in their
official capacities (collectively, “Federal Defendants”).
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programs under the Rivers and Harbors Act (“RHA”), 33 U.S.C. § 403, and the Clean Water Act

(“CWA”), 33 U.S.C. § 1344. We AFFIRM.

                                               I.

       Huron Mountain Club is a Michigan not-for-profit corporation formed as a retreat and

wildlife preserve. HMC owns approximately 19,000 acres in an area known as the Yellow Dog

Plains of Marquette County. This land includes an eleven-mile stretch of the Salmon Trout River

(“STR”), which empties into Lake Superior on the northwest corner of HMC’s property.

       Eagle Mine, a nickel and copper mine development, is located approximately 3.38 miles

upstream from HMC. The Eagle Mine site is owned by Kennecott, which is in the process of

constructing both surface and underground facilities over approximately 92 acres. Eagle Mine is

expected to produce approximately 230 million pounds of nickel, 230 million pounds of copper, and

minor amounts of other minerals. Part of the mining will take place beneath the STR and its

corresponding wetlands.

       In February 2006, Kennecott took the first steps towards its proposed mining development

by submitting a “Part 632” permit application for non-ferrous metallic mining to the Michigan

Department of Environment Quality (“MDEQ”), the state agency charged with issuing

environmentally related permits under state law. The permit application included an Environmental

Impact Assessment (EIA) and a detailed plan for mining and reclamation. Kennecott also submitted

applications for groundwater-discharge and air-use permits. In December 2007, after a series of

public hearings that included HMC’s objections to the project and agency review, the MDEQ

granted Kennecott Part 632 mining, groundwater-discharge, and air-use permits. HMC, along with

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other parties, petitioned for a contested case hearing regarding the Part 632 mining and groundwater-

discharge permits. After 42 days of testimony over a two-year period, the ALJ ruled in favor of

Kennecott, finding that Eagle Mine would not affect the STR or corresponding wetlands and was

not at risk for collapse. In January 2010, the MDEQ issued its Final Determination and Order

directing that Kennecott’s Part 632 permit be issued. In re Permits Issued to Kennecott Eagle

Minerals Co., Nos. GW1810162 & MP 01 2007, 2010 WL 276664 (Mich. Dept. Nat. Res. Jan. 14,

2010). HMC and its co-petitioners appealed the order to the Ingham County Circuit Court, which

affirmed the MDEQ’s decision to grant Kennecott the Part 632 permit. On November 21, 2011, the

Ingham County Circuit Court affirmed MDEQ’s decision to grant Kennecott’s Part 632 permit.

Nat’l Wildlife Fed’n v. Mich. Dep’t of Envtl. Quality, No. 11-123-AA (Mich. Cir. Ct., Ingham Cnty.

Nov. 21, 2011). HMC and the other Petitioners filed applications for leave to appeal with the

Michigan Court of Appeals. The court granted those applications and, at the time of briefing in this

action, the Petitioners were awaiting argument.

       Kennecott began construction of its surface facilities in April 2010 and began underground

construction in September 2011. As of April 2012, Kennecott had invested $331 million in the

Eagle Mine project, and employed 296 people at the mine site, the mill, and the main office

facilities. Kennecott estimates that it will invest an additional $1 billion in the Eagle Mine project

during construction and operation of the mine. Kennecott has not applied to the Corps or any other

federal agency for a federal permit for the project and no federal agency, including the Corps, has

brought any type of enforcement action against Kennecott related to the Eagle Mine.




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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.

       On May 6, 2012, HMC filed this action for preliminary injunctive relief against the Federal

Defendants under the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, and the Mandamus

and Venue Act (“Mandamus Act”), 28 U.S.C. § 1361. HMC sought an order compelling the Corps

to “fulfill its permitting responsibilities” under the RHA and CWA by requiring Kennecott to

“submit to permitting procedures and requirements.” HMC further sought injunctive relief pursuant

to the All Writs Act, 28 U.S.C. § 1651(a), or the court’s “inherent powers” prohibiting Kennecott’s

continued construction or operation of the Eagle Mine without first submitting to the federal

permitting procedures of the RHA and CWA. The district court denied HMC’s request for a

preliminary injunction and HMC timely appealed.

                                                  II.

       We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1292, which allows parties to

appeal interlocutory orders denying a request for an injunction. See § 1292(a)(1). When

determining whether to issue a preliminary injunction a court must consider: “(1) whether the

movant has a ‘strong’ likelihood of success on the merits; (2) whether the movant would otherwise

suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial

harm to others; and (4) whether the public interest would be served by issuance of a preliminary

injunction.” McPherson v. Mich. High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997) (en

banc) (citation omitted). We review the district court’s decision to deny HMC’s request for a

preliminary injunction for an abuse of discretion, deferring to the court’s findings of fact unless they

are clearly erroneous, and reviewing its legal conclusions de novo. Sw. Williamson Cnty. Cmty.

Ass’n, Inc. v. Slater, 243 F.3d 270, 277 (6th Cir. 2001) (citation omitted). The court’s determination

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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.

regarding HMC’s likelihood of success on the merits is a question of law that is reviewed de novo.

Babler v. Futhey, 618 F.3d 514, 520 (6th Cir. 2010). “However, the district court’s ultimate

determination as to whether the four preliminary injunction factors weigh in favor of granting or

denying preliminary injunctive relief is reviewed for abuse of discretion.” Id. (quoting Cleaning

Network, LLC v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007)).

                                                 III.

       Although HMC seeks to compel the Corps to act under the RHA and CWA, HMC did not

bring a citizen suit against Kennecott under the CWA. See 33 U.S.C. § 1365(a)(1) (“[A]ny citizen

may commence a civil action on his own behalf against any person . . . who is alleged to be in

violation of an effluent standard or limitation under this chapter [the CWA] . . . .”).2 Instead, HMC

brought this action under the APA and Mandamus Act, alleging that the Corps’ “decision” not to

“fulfill its permitting responsibilities” in regard to Kennecott’s purported violations of the RHA and

CWA is reviewable by the court. “When a petitioner seeks both mandamus relief and relief under

the APA, courts apply the same principles and standards both to determine jurisdiction and to assess

the merits.” Nelson v. United States, 107 F. App’x 469, 471 (6th Cir. 2004).

        We first consider HMC’s likelihood of success on the merits against the Corps. The APA

provides a right of judicial review for “agency action” made reviewable by another statute. See 5

U.S.C. §§ 702, 704, 706. Beyond providing a party the ability to challenge actions that an agency

has already taken, the APA also permits a party to compel agency action that is “unlawfully withheld




       2
        A private right of action is not available under the RHA.

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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.

or unreasonably delayed.” Id. § 706(1). However, claims against an agency for a failure to act are

available only under limited circumstances; specifically, “only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah

Wilderness Alliance (“SUWA”), 542 U.S. 55, 63 (2004) (emphasis in original); see 5

U.S.C. § 701(a)(2) (judicial review unavailable where the “agency action is committed to agency

discretion by law”).

       HMC’s request for review of the Corps’ purported “inaction” is not likely to succeed because

HMC has not shown that the RHA and CWA dictate any “discrete action” the Corps is “required”

to take with regard to parties who have not submitted RHA and CWA permit applications and in the

absence of a request for a jurisdictional determination. See SUWA, 542 U.S. at 63. Section 10 of

the RHA provides:

       [I]t shall not be lawful to excavate or fill, or in any manner to alter or modify the
       course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal,
       lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the
       channel of any navigable water of the United States, unless the work has been
       recommended by the Chief of Engineers and authorized by the Secretary of the Army
       prior to beginning the same.

33 U.S.C. § 403. HMC asserts that this text imposes a plainly-stated duty on the Corps to issue

permits before any person can engage in regulated activity. Appellant’s Br. at 45. However, the

language of section 10 reveals no such duty, plainly stated or otherwise. The statute does not require

the Corps to order the filing of a permit application when an individual engages in work that could

be subject to the RHA. Instead, as the district court found, the burden under section 10 is on the

individual or entity doing work that is potentially regulated by the RHA, who proceeds without a



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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.

permit at its own peril. Section 10 does not direct the Corps to seek out individuals who might be

violating the RHA and, as HMC acknowledges, “the section does not operate as a mere directive for

the Corps to ‘enforce’ the RHA, because ‘Enforcement’ is covered in an entirely separate section

of the RHA.” Appellant’s Br. at 45. Thus, the action HMC seeks from the Corps is neither discrete

nor mandatory.3

       Section 404 of the CWA likewise lacks language compelling the Corps to administer the

CWA permitting program, and in fact includes language that explicitly leaves the process of issuing

permits to the Corps’ discretion. Section 404 states: “The Secretary [of the Army] may issue

permits, after notice and opportunity for public hearings for the discharge of dredged or fill material

into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344 (emphasis added). HMC

seeks to explain away the discretionary language of section 404 by asserting that the text simply

conveys that “because a person applies for a permit does not mean that the Corps ‘must’ or ‘shall’

issue the permit.” Appellant’s Br. at 51. Although this reading may be correct, it does nothing to

support HMC’s contention that the Corps has a non-discretionary duty under the CWA to administer

the CWA permitting program by seeking out potential violators and forcing them to submit an

application. It is clear from the text of the CWA that Congress did not contemplate placing the

burden on the agency to initiate the permit process, but rather to process permit applications once




       3
        HMC also relies on the Corps’ regulation, 33 C.F.R. § 322.3(c)(2) for the proposition that
section 10 operates as a “congressional permitting mandate.” Appellant’s Br. at 46. However,
§ 322.3(c)(2) considers the obligation of other federal agencies, not private parties, to obtain RHA
permitting before engaging in activities covered by the RHA and is therefore inapposite.

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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.

filed. Cf. Rapanos v. United States, 547 U.S. 715, 721 (2006) (plurality) (the Corps “exercises the

discretion of an enlightened despot” in issuing discharge permits).

       Further, HMC attempts to tread a fine line between the Corps’ decision not to bring an

enforcement action against Kennecott—a decision that HMC acknowledges is discretionary and

hence not reviewable under the APA—and the Corps’ purported decision to “ignore its

congressionally mandated responsibilities to administer the RHA and CWA permitting programs

when the facts of the case prove that the Corps’ jurisdiction has been triggered.” Appellant’s Br.

at 47 (emphasis in original). However, HMC is vague regarding what the Corps is required to do

to “administer the RHA and CWA permitting programs” if not bring an enforcement action against

Kennecott. To the extent HMC contends that the Corps is obligated to make a decision whether

Kennecott’s actions violate federal law in the absence of a permitting application or request for a

jurisdictional assessment,4 it offers no support for that position based on the statutes’ text or case

law. As HMC acknowledges, no other court has considered whether a federal agency has complied

with the “permitting mandates” of the RHA or CWA—perhaps because no such mandate exists

under the text of the statute. See Appellant’s Br. at 10.

       Instead, HMC relies on the Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821

(1985), a case that, on its face, weighs against HMC. In Chaney, prison inmates sentenced to death

by lethal injection of certain drugs requested that the Food and Drug Administration (FDA) eitherp




       4
        The Corps’ Regulatory Guidance Letter No. 08-02 provides guidance regarding the process
of obtaining a jurisdictional determination from the Corps.


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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.

approve the drugs as “safe and effective” for human execution or bring an enforcement action

against the States utilizing the drugs to execute inmates. Id. at 823–24. The FDA declined to bring

an enforcement action and the inmates sought review of the FDA’s refusal under the APA. Id. at

824–25. The Court found the FDA’s decision not to take enforcement action was unreviewable

under the APA, holding that agency inaction was generally “committed to agency discretion by

law,” and thus unsuitable for judicial review. Id. at 838; see Matthews v. Town of Greeneville, 932

F.2d 968 (6th Cir. 1991) (table).

       HMC argues that the instant case is distinguishable from Chaney, focusing on a footnote in

Chaney that states:

       We do not have in this case a refusal by the agency to institute proceedings based
       solely on the belief that it lacks jurisdiction. Nor do we have a situation where it
       could justifiably be found that the agency has “consciously and expressly adopted
       a general policy” that is so extreme as to amount to an abdication of its statutory
       responsibilities. See, e.g., Adams v. Richardson, 156 U.S. App. D.C. 267, 480 F.2d
       1159 (1973) (en banc). Although we express no opinion on whether such decisions
       would be unreviewable under § 701(a)(2), we note that in those situations the statute
       conferring authority on the agency might indicate that such decisions were not
       “committed to agency discretion.”

Chaney, 470 U.S. at 833 n.4. HMC argues that here, the Corps is refusing to institute proceedings

based solely on the belief that it lacks jurisdiction, and thus the enforcement principles discussed

in Chaney are inapplicable. Appellant’s Br. at 43. HMC’s argument is unpersuasive for two

reasons. First, the Chaney footnote does not state that where an agency engages in non-enforcement

solely because of a purported lack of jurisdiction its actions are per se reviewable under the APA,

but rather that the case did not address such a situation. Chaney, 470 U.S. at 833 n.4 (agency non-

enforcement decision based solely on a belief that it lacks jurisdiction “might indicate that such

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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.
decisions were not ‘committed to agency discretion’”) (emphasis added); id. at 839 (Brennan, J.,

concurring) (“[T]he Court properly does not decide today that nonenforcement decisions are

unreviewable in cases where . . . an agency flatly claims that it has no statutory jurisdiction to reach

certain conduct.”). Second, unlike the situation contemplated in Chaney, the Corps has not

determined that it lacks jurisdiction. Accordingly, it is speculative that the Corps “refus[ed] to

institute proceedings” (“proceedings” being a vague term, as enforcement proceedings are not at

issue) solely based on a determination of lack of jurisdiction.5

       Thus, HMC has not shown a likelihood of prevailing on the merits against the Corps on its

claim that the RHA and CWA impose a nondiscretionary duty to “administer” or “implement” their

permitting programs that requires them to force permitting requests. As the district court concluded,

HMC’s request for a preliminary injunction seeks to compel action that falls squarely within the

discretionary and enforcement decisions that are unreviewable under the APA. Because the district

court did not err in determining that HMC does not have a likelihood of succeeding on its claim that

review of the Corps’ inaction is proper under the APA, we need not consider the underlying merits

of its position regarding section 10 of the RHA and section 404 of the CWA; even assuming that




       5
         Estate of Smith v. Heckler, 747 F.2d 583 (10th Cir. 1984), further cited for support by HMC,
does not hold to the contrary. In Estate of Smith, the Tenth Circuit found that the Medicaid Act
obligated the Secretary of Health and Human Services to keep informed about the quality of care
being provided at nursing facilities and required that the Secretary promulgate regulations and a
certain type of enforcement system that assisted her in this process. Id. at 590. Here, the Corps has
promulgated regulations furthering the aim of identifying and punishing violators of the RHA and
CWA, which they can utilize at their discretion, and HMC does not challenge this enforcement
system.

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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.
Kennecott is violating the RHA and CWA, the Corps’ decision to bring (or not bring) an

enforcement action is discretionary and not subject to review by this court.6

                                                  IV.

        We turn next to the issue of HMC’s claims against Kennecott. HMC does not purport to

bring a citizen suit under the CWA, 33 U.S.C. § 1365(a)(1). Rather, HMC sought injunctive relief

against Kennecott pursuant to the All Writs Act, 28 U.S.C. § 1651, or the federal courts’ “inherent

powers.” The All Writs Act provides that Article III courts generally “may issue all writs necessary

or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of

law.” 28 U.S.C. § 1651(a); see In re Life Investors Ins. Co. of Amer., 589 F.3d 319, 330 (6th Cir.

2009). The statute does not provide federal courts with an independent source of jurisdiction to

issue writs, but only with the authority to issue writs “in aid of their respective jurisdictions.” Baze

v. Parker, 632 F.3d 338, 345 (6th Cir. 2011) (citations omitted). We have held that the statute should

only be used “sparingly and only in the most critical and exigent circumstances.” In re Life

Investors Ins. Co. of Amer., 589 F.3d at 330 (quoting Wisc. Right to Life, Inc. v. Fed. Election

Comm’n, 542 U.S. 1305, 1306 (2004) (Rehnquist, C.J., in chambers)).




        6
        HMC also requested as part of its preliminary injunctive relief that the Federal Defendants
compel Kennecott to submit to environmental and cultural investigations, consultations, and
assessments under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, the
Endangered Species Act (“ESA”), 16 U.S.C. § 1531, and the National Historic Preservation Act
(“NHPA”), 16 U.S.C. § 470a. As HMC acknowledges, its claims under the NEPA, the NHPA, and
the ESA against the other Federal Defendants are derivative of its claims under the RHA and CWA.
See Appellant’s Br. at 59. Because the district court did not err in concluding that HMC is not likely
to succeed on the merits on its RHA and CWA claims, HMC likewise does not have a likelihood of
success on these derivative claims.

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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.
       HMC fails to discuss the basis of its All Writs Act claim in its opening brief to this court, and

“it is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.” Benge v. Johnson, 474 F.3d 236, 245

(6th Cir. 2007). In any event, as we agree with the district court’s conclusion that HMC is not likely

to succeed on its claim that the APA or Mandamus Act provides an independent source of

jurisdiction against the Federal Defendants, we conclude the court did not err in declining to grant

preliminary relief against Kennecott under the All Writs Act. HMC has failed to show that the

issuance of injunctive relief would be “necessary or appropriate to effectuate and prevent the

frustration of orders [the court] has previously issued in its exercise of jurisdiction otherwise

obtained.” United States v. Perry, 360 F.3d 519, 533 (6th Cir. 2004) (quoting United States v. N.Y.

Tel. Co., 434 U.S. 159, 172 (1977)) (emphasis added).

                                                  V.

       We turn next to the issue of irreparable harm purportedly caused by the Federal Defendants’

failure to conduct required environmental evaluations under the NEPA, NHPA, and ESA.

Appellant’s Br. at 64–65. As we agree with the district court’s conclusion that HMC is not likely

to succeed in its RHA and CWA claims against the Federal Defendants, and HMC acknowledges

that its claims under the NEPA, NHPA, and ESA are dependent on the success of those claims, there

is also an insufficient showing of harm from a violation of HMC’s procedural rights.

       HMC further alleges that it will be harmed by the alleged environmental “impacts” of the

Eagle Mine project. Appellant’s Br. at 64–65. The Ingham County Circuit Court affirmed the

MDEQ’s finding that the environmental harms HMC alleges are not likely to occur. Although state


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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.
and federal interests are not identical, where Michigan has previously determined that the

environmental harms are not likely to occur and is engaged in continued monitoring of the Eagle

Mine’s construction and development, we find no error in the district court’s determination that

HMC failed to show that it will suffer irreparable harm.

       In addition, HMC did not file this federal action until six years after HMC’s initial state

challenge to Kennecott’s construction of the Mine. “[A]n unreasonable delay in filing for injunctive

relief will weigh against a finding of irreparable harm.” Allied Erecting & Dismantling Co., Inc. v.

Genesis Equip. & Mfg., Inc., 511 F. App’x 398, 405 (6th Cir. 2013). HMC asserts that the delay was

not intentional, and that “[i]t was not until Kennecott began its subsurface work that it registered

with HMC the STR might have characteristics, which implicate federal jurisdiction.” Appellant’s

Reply Br. at 37. However, as the district court pointed out, the plans to excavate under the STR

were clear from the outset and HMC did not allege federal law violations until after it failed to halt

construction of the Mine through state channels. Thus, the court did not err by considering HMC’s

delay in filing this federal action as a factor weighing against injunctive relief.

       Accordingly, the district court did not err in determining that HMC will not suffer

irreparable harm from the Federal Defendants’ lack of action.

                                                 VI.

       Finally, HMC contends that the balance of harms weighs in favor of preliminary injunctive

relief. As discussed above, HMC is unlikely to succeed on the merits regarding its claim that the

Corps has failed to comply with a mandatory, discrete duty under the RHA and CWA. Thus, a

preliminary injunction would not, as HMC claims, require federal agencies “to fulfill their legitimate


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Huron Mountain Club v. U.S. Army Corps of Eng’rs, et al.
government functions.” Appellant’s Br. at 68. The district court did not abuse its discretion by

determining that the balance of harms weighed against the grant of a preliminary injunction against

the Federal Defendants.

                                               VII.

       Accordingly, we affirm the district court’s denial of HMC’s motion for injunctive relief.




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