The People Of The State Of California v. Northwestern Pacific Railroad Company

726 F.2d 505 The PEOPLE OF the STATE OF CALIFORNIA and the Public Utilities Commission of the State of California, Plaintiffs-Appellees, v. NORTHWESTERN PACIFIC RAILROAD COMPANY, a corporation; and Southern Pacific Transportation Company, a corporation, Defendants-Appellants. No. 84-1600. United States Court of Appeals, Ninth Circuit. Feb. 13, 1984. Dissenting Opinion Feb. 17, 1984. Mark Fogelman, San Francisco, Cal., for plaintiffs-appellees. Michael A. Smith, Ann F. Hasse, Gary A. Laakso, San Francisco, Cal., for defendants-appellants. ORDER Before KENNEDY, PREGERSON and NELSON, Circuit Judges. 1 Appellants' emergency motion for stay pending appeal is denied. 2 Appellants have failed to make a showing of probability of success on the merits. The balance of hardship favor the plaintiffs and the public interest supports denial of a stay. The district court did not abuse its discretion in granting a preliminary injunction. 3 KENNEDY, Circuit Judge, would grant the stay and may file a separate dissent. KENNEDY, Circuit Judge, dissenting: 4 The case before us illustrates the danger of district court action in the shadow of a proceeding before an administrative agency. On January 17,…