ICWA Tip: Winter v. Natural Resources Defense Counsel

Hopefully all the 1Ls at NYU have found Winter v. Natural Resources Defense Counsel already, but if you haven’t, go read it.  Winter makes a pretty important adjustment to the requirements for a preliminary injunction.

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.

The moving party is no longer requires to show that they will suffer irreparable harm, but only that they are likely to.  This is obvious a lot of help to the Tribe, for which the harms they are arguing are largely hypothetical.

If you are arguing for the tribe, make sure you point out that this case changes the standards.  It is not enough to simply put the new standard in your brief.  There is a good chance your judge will gloss over it and not really notice that there has been a change.  Remember, your judge may be just an attorney, and that attorney may not have argued a preliminary injunction case since Winter came out two years ago.  Make sure it is clear not just what the new standard is, but that the standard has recently changed.

For the State, there’s not really a lot you can get from this.  Just continue to focus on making the burden of proof an uphill battle for the Tribe.  Argue that the harm won’t be irreparable, and make sure the Tribe is showing that the harm isn’t just a possibility, but is in fact likely.

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3 Responses to “ICWA Tip: Winter v. Natural Resources Defense Counsel”

  1. bl2y (no relation) Says:

    Not to mention that the “judge” may be an attorney who practices transactional law and never has and never will argue a preliminary injunction case.

  2. bl1y Says:

    Not to mention the “judge” may be an NYU alumnus who received a shitty legal education and wouldn’t know how to read a legal brief to save his life.

  3. mouse Says:

    You’re kidding right? Winter /raised/ the preliminary injunction standard – before Winter the moving party only had to show a “possibility” of harm. That the lower court had too lax of a preliminary injunction standard was the whole point of Winter at SCOTUS.

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