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John F. Coreoran
D . S . DISTRICT COUR'
P. 0 . Box 12 34
Roano ke, VA 24006

NOTICE OF ISSUANCE OF MANDATE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

August 15, 2003

MAHDATE

TO; Clerk, District Court/Agency

FROM : Lisa Jernigan

Deputy Clerk

RE : 02-2019 O'Brien v . Appomattox County

CA-02-43-6

HEREWITH IS THE MANDATE OF THIS COURT, ISSUED THIS DATE,
ON THE JUDGMENT ENTERED BY THE COURT ON 7/24/03.

( J Order and Certified Copy of Judgment
(X) Opinion and Certified Copy of Judgment
(X) Order on Costs
( ) Order dismissing appeal R42(b) or Local Rule 45
E ) Other:
( ) The record has been retained or use

t

in case number

A copy of the judgment is enclosed to counsel/pro se parties.

Cindy Lynn Squires
James Bruce Slaughter
Margaret Ann Neil Cosby
Lloyd Lee Byrd
Robert A . Dybing
John Adrian Gibney Jr .

(LL*

JUDGMENT

FILED: July 24, 2003

UNITED STATES COURT OF APPEALS

kor the

Fouzth C izcuït

NO . 02-2019

CA-02-43-6

1V>@W O 'BRIEN ; CHARLES S . BRAND ; DAN IEL A . CASH ; LOU IS
FOSTER ; GLOVER GILLIAM ; R . G . STEWART ; TRIPLE R FARMS ; ROGER
WALTON ; WINSTON WALTON ; ROBERT C . WINSTDN ; W AhD W FARM

Plaintiffs Appellees

V .

APPOMAIVDX COUNTY , VIRG INIA ; BOARD OF SUPERVISORS CF
APPOMATVDX CO
Administlatol of Appomattox County. Vizginia

UNTY VIRGINIA ; DARRELL A. CARROLL , JR ., County

,

Defendants Appellants

Appeal fzom the United States Distzict Couzt foz the

Westezn Distzict of vfzginia at Lynchbuzg

Tn accoldance with the wiitten oplnion of this Couzt filed this

day, the Couzt affizms the judgment of the Distzict Couzt.

A True y
Pa ' K = ù @*

, Te*

.

Dp u 21erk

..''

J

/s/ Patzicia S. Connoz

CLERK

U NPU BLISH ED

UNITED STATZS COURT OF APPEALS

FO R TH E FO U RTH CIRCU IT

TOMMV O 'BRIEN: CIIARLES S. BRANII'.
DAxIIu. A . CAsII-, Lotils F()sTER;
GUIVER GILI-IAM'. R. G . STIIWAR'r:
TRIPLS R FARMS; RI=ER W AI.nIN:
W lNs-r()N W Alm )x; ROBERT C.
W INSTON; W ANl) W FARM.

Plaintigs-Appellees.

AppoMArrox C(x;NTY. VIRGINIA'.
BOARD oF SUpERvlstlRs ()F
APPOMA'I-IT)X C()UNTY. VIRGINIA:
DARRELI- A. CARRoI-I., JR.. County
Administrator of Appom attgx
County. Virginia.

Defendants-Appellants.

No. 02-2019

Appeal from the United States District Court

for the W estern District of Virginia. at Lynchburg.

Norman K. M oon. District Judge.

(CA-02-43-6)

Argucd: April 1 , 2œ 3

Decidcd: July 24, 2œ 3

Before M ICHAEL and KING. Circuit Judgcs. and

Terry L. W OOTEN. Unitcd States District Judgc for thc

District of South Carolina, sitting by dcsignation.

Affirmed by unpublished per curiam opinion.

2

09 Bltllsx v. Ai>Ix)MA'I-rt)x C()tlN'rY

T OUNSEL

A RG UED: Robcrt A. Dybing. SHUFORD. RUBIN & G IBNEY,
Richm ond, Virginia, for Appellants. James Bruce Slaughter, BEV ER-
IDGE & DIAM ON D, P.C., W ashington, D.C.. for ApN llees. O N
BRIEF: L. Lee Byrd, M argaret Ann Neil Cosby. SANDS, ANDER-
SON, M ARKS & M ILLER. P.C.. Richmond, Virginia, for Appel-
lants. Anthony L. M ichacls, Cindy L. Squircs, BEVERIDG E &
DIAM OND, P.C.. W ashington, D.C.. for Appellees.

Unpublishcd opinions arc not binding prcccdcnt in this circuit. Sec
Local Rulc 36(c).

O PIN ION

PER CURIAM :

On Junc 28. 2* 2. clevcn farmcrs and fanns from Appom attox
County. Virginia (collectively ''the Farmers'') liled suit against Appo-
mattox County, the County Board of Supcrvisors, and the County
Administralor (collectively ''thc County'') to challengc two County
ordinances that relate to the usc of biosolids-' Thc District Court for
the Western District of Virginia issued a prcliminary injunction
against the County prohibiting it from enforcing the biosolids ordi-
nanccs. The County apN als to this Court from thc cntry of the injunc-
tion order. m aintaining that it should lx vacatcd. As explained below.
the District Coun did not abusc its discretion, and wc affirm .

The Farmers are all eithcr residents of A ppomattox County who

'Biosolids am prim arily organic m atcrials produccd during w astcw atcr
tm atm cnt which m ay bc uscd to add or m plcnish nutricnts to thc soil.
They can bc uscd as a subslitutc for com m crcial lkrtilizcr on agricultural
land, forcsts, rangclands. or on disture d land in nccd of rcclamation.

O*BRIEN v. APN)MArr()x CIItJNTY
3
engage in farming act v
* i ities or busincss entitics that own or lease
fannland in Appom attox County. In the sum mcr of 2œ 1 , the Farmers
began a lcngthy pcrm itting process with the Virginia Department of
Health (''VD H'') to obtain pcnnits to apply biosolids to their farm-
land. The Farm ers provided dctailed infonnation to VDH about their
fields. soils. and proposcd use of biosolids in two scparate applica-
tions. VDH provided this information to thc County and the County
rcquested som e changes in the proposed use of biosolids, which were
accom modated. Pcrmits for Iand application of biosolids on thc Farm-
ers' land were issued on M arch 29, 2* 2.

Bcginning Septcmbcr 4, 2(:)1 v the County hcld a number of gublic
hcarings regarding the possibility of regulating the land applicatlon of
biosolidg. On Fcbruary 4. 2* 2, and M arch l 8, 2* 2. the County
Board of SuN rvisors adoptcd two ordinanccs that restricted and rcgu-
lated Iand application of biosolids. Despite the existence of the per-
mits, the Farmers alleged that the County's ordinances cffectively
prohibited the application of biosolids and they filed this Iawguit.

On July 15, 2* 2. thc Farmcrs sought a preliminary injunction bar-
ring the County from implementing or cnforcing ordinances that
interfere with land application of biosolids in Appom attox County. At
the evidentiary hearing before thc District Court on July 30. 2002, the
Farm ers presentcd thrce witnesses and six exhibits in support of the
preliminary injunction motion. The County cross-examined the Farm-
ers' witnesses and subm itted two exhibits. On August 2. 2* 2, the
District Court issued an opinion granting in parl and denying in part
the Fanners' motion for a prcliminary injunction. O 'Brien î?. Appo-
mattox Ctma/y, 21 3 F.supp.zd 627 (W .D.Va. Aug. 2. 2œ 2). In its
memorandum opinion, the District Court enjoined and prohibited the
County from enforcing the biosolids ordinances with regard to the
nam ed plaintirfs. but allowed a num e r of general restrictions on the
land application of- biosolids to remain in effect.

The County lilcd a timcly noticc of appcal.

II-

This Coun reviews the grant or denial of a preliminary injunction
for abusc of discrction. rccognizing that preliminary injunction: are

0 * BRIPLN v. APix)MA7-r()x C()tJN'rY

4
''extraordinary remedies involvi/g the cxercise of vcry far-reaching
power to lx) granted only sparingly and in limited circum stanccs.''
Microstrategy. Inc. Iz. M otorola, Inc.. 245 F.3d 335, 339 (4th Cir.
2œ 1 ) (internal quotation marks omitted). Wc accept the District
Court's findings of l-acl absenl clear errorv bul rcview its lcgal conclu-
sions de novo. Giovani Carandolu, & #. v. Bason. 303 F.3d 507, 51 1
(4th Cir. 2œ 2). This standard is ''not a rule of N rfunclory apN llalc
review but one of careful scrutiny.'' Direx lâ'rcel, Iad. v. Breakthrough
Med. Corp, 952 F.2d 802. 8 15 (4th Cir. l 99 l ).

111.

In this Circuit. the entry of a preliminary injunction is governcd by
the four-part test set forth in Blackwelder Furniture C(). ofstatesville,
lnc. v. Seilig M.fg. C0., lnc.. 550 F.2d l 89 (4th Cir. 19771. The four
Blackwelder factors are: ( l ) the likelihood of irrcparablc harm to thc
plaintiff if the preliminary injunction is dcnied, (2) thc Iikelihood of
harm to the defendant if the rcquested relief is grantcdv (3) the Iikeli-
hood that the plaintiff will succecd on thc merits. and (4) thc public
interest. Rum Creek Coal Sales, /;lc. v. Caperton. 926 F.2d 353, 359
(4th Cir. l 99l ) (internal quotation marks omittcd).

In applying Blackwelder. a coun must first ''balancc thc likelihood
of irreparable harm to the plaintiff againsl 1hr likclihood of harm to
the defendant.'' M icrostrategy. lnc.. 245 F.3d at 339 (quoting Black-
welder, 550 F.2d at l 95). lf this balance of hardships ''tips decidedly
in favor of the plaintift'' Rum Creek Coal Sales. 926 F.2d at 359, then
it will typically ''be enou#h that the plaintiff has raised questions
going to the m erits so senous, substantial. difllcult and doubtful, as
to m ake them fair ground for Iitigation and thus for more deliberatc
investigation-'' Blackwelder. 550 F.2d at 195 (internal quotation
marks omittcd). But if the balance of hardships is substantially equal
betwcen the plaintiff and defendant. then ''thc probability of success
begins to assume real significancc. and interim relief is m ore likely
to require a clear showing of a likelihood of succcss.'' Direx, 952 F.2d
at 808 (intcmal quotation marks omittcd).

In its mem orandum opinion. the Digtrict Court found that thc
Farmers ''will suffer im mcdiate, signincant, and açute iceparable
harms if their motion for an injunction is denied.'' lkpntmy O 'Brien,

0 : BRIEN v. AplxlMAn'ox COUNTY

5
Wcounty Virginia, et rzl., Civ. No. 6:02-(5 $3
et aI. v. Appomattox
(W .D.Va. August 2. 2* 2) (J.A. 510). First. without preliminary
relief, the Farmers would surfer cconom ic Iosses that they may or
may not l>e able to recover through N nding litigation. These eco-
nomic losses include Iost profits from re uced crop yields and the
cxpense of rcplacin! biosolids, which are free. with commercial fertil-
izers. Second, an inlury to thc cnvironment from the increased usc of
chem ical fertilizers would accompany a ban on biosolids. And thirdm
the Fanners would be forced to dclay thc potential long-term Y nelits
to the soil that biosolids m ay provide.

Thc County argucs that granting the preliminary injunction motion
will cause them certain. irreparable harms. S> cifically, the County
argucs that citizens of Apgomattox County will be cxposcd to strong
and offensive Y ors assoclated w ith the application of biosolids. Fur-
thtr, the County cites possible adverse health effects assœ iated with
biosolid use. The District Court wcighed these concerns and deter-
mined that ''instead of suffering any immediate. irreparable harm, (the
Countyl onlk facelsl thc potential for uncertain, future injuries - the
fear of posslble, adviràe health effects.'' Tommy O 'Brien. et al. v-
Appomattox County. Virginia, et J1.. Civ. No. 6:02-4XM.3 (W .D.Va.
August 2. 2* 2) (J.A. 51 0). Applying the first two factors of the
Blackwelder analysis. the District Coun determined that the County*s
prosm ctive fears are not as certain. identifiable, or as severe as the
dnm ages claimed by the Farm ers and that the balance tips strongly in
the Farmers' favor. In light of the widespread use of biosolids in Vir-
ginia and elsewhere in the United States, the regulations and exam ina-
tions undertaken by the Virginia General Assem bly and the United
States Environmcntal Protcction Agency (''U.S. EPA''), and the
studies by the scientific com m unity, the fear of possible, adverse
health effects is too attenuatcd at this time to outweigh the likelihood
of harm to the Farmers. W c therefore concludt that in balancing thcse
potential hardships. the District Court did not err in linding that thc
balance tipN d ''strongly'' in favor of the Farmcrs.

Having established that the balancc of hardships clearly weighed in
favor of the Farmers, the ncxt question is the Farmers' likelihood of
success on the m eriz. Pursuant to the law in this Circuit, if the bal-
ance of harm tips strongly in favor of the plaintiff, a preliminary
injunction will be granted ''if the plaintiff has raiscd questions going

0 9 BRIIZ..N v. ApIxaMA'ln'()x C()t1N'I'Y

6
to the merits so serious. substaMial. difficult and doubtful. as to make
them fair ground for Iitigation and thus for morc deliY rate investiga-
tion.'' Rum Creek Coal Sales. 926 F.2d at 359. In other words. the
plaintifcs case m ust present a ''substantial qucstion.'' In its m emoran-
dum opinion, the District Court reviewed the Virginia Suprem e
Court's œ cision in Blanton v. Amelia [email protected] the legislation enacted
by the Virginia Gencral A ssembly limiting the role of counties in rcg-
ulating biosolids. and the cffect of these ordinances on land-
application of biosolids. In light of the recent decisions by thc Vir-
ginia Suprcme Court and thc Virginia Gcncral Asscm bly, we cannot
conclude that thc District Court erred in determ ining that the claims
and evidence providcd by the Farmers raise such scrious. substantial.
and difficult issues that they warrant more deliberatc investigation.

Finally. the District Court determ ined that O cause the VDH and
the U.S. EPA currently rejulate the land-application of biosolids and
will continue to do so dunng the pendency of this litigation, the pub-
lic interest favors the granting of the injunction until a determination
on the merits can be completed. W e conclude that the District Court
did not abuse its discretion in rh ching this conclusion.

IV.

Having rcviewed the record, the parties' briefs. and the Black-
welder factors. and having had thc Y nefi! of oral argumcnt. we con-
clude that the District Court did not abuse its discretion in awarding
the Farmers the preliminary injunction against the County. Accord-
ingly. wt affirm .

'Blanton v. Amelia County. 540 S.E.2d 869 (Va. 2(4)1 ).

AFFIRM ED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

August 15, 2003

No . 02-2019

CA-02-43-6

TOMMY O 'BRIEN; CHARLES S. BRAND; DANIEL A . CASH; LOUIS
FOSTER; GLOVER GILLIAM ; R. G . STEWART; TRIPLE R FARMS; ROGER
WALTON; WINSTON WALTON ; ROBERT C . WINSTON; W AND W FARM

Plaintiffs - Appellees

APPOMATTOX COUNTY, VIRGINIA ; BOARD OF :UPERVISORS OF
APPOMATTOX COUNTY, VIRGINIA ; DARRELL A . CARROLL, JR w County
Administrator of Appomattox County, Virginia

Defendants - Appellants

O R D E R

Appellees have filed a bill of costs.

The Court awards $245.00 in costs. An itemized statement of

costs is attached to this order. A certified copy of this order

shall issue to the clerk of the district court for inclusion in this

Court 's mandate .

For the Court - By Direction

Patricia s. Connor

CLERK

A Tn l- e y, T--
Pa ' a K
B

0 * .

Depu Clerk