(a) Standards and procedures for obtaining a stay. An appellant under § 4.170 may petition for a stay of a BLM grazing decision by filing the petition for a stay with DCHD concurrently with the notice of appeal. Filings must be made in accordance with §§ 4.102 and 4.103. Except as otherwise provided by statute or other pertinent regulation, the following requirements apply:

(1) Stay criteria. The appellant must demonstrate that issuance of a stay is warranted based on the following three criteria:

(i) Irreparable harm. The appellant will likely be irreparably harmed by implementation of the grazing decision pending resolution of the appeal, and the harm will be avoided by granting the stay;

(ii) Balance of harms. The irreparable harm to the appellant absent a stay exceeds the harm to the United States or other parties from a stay being granted; and

(iii) Likelihood of success. The appellant is likely to succeed on the merits.

(2) Burden of proof. The person or entity seeking a stay bears the burden of demonstrating that a stay should be granted, in whole or in part, under all three criteria set forth in paragraph (a)(1) of this section.

(3) Service. The petition for a stay, along with the notice of appeal, must be served in accordance with § 4.102, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information on the following:

(i) Each person or entity named in the BLM grazing decision;

(ii) The appropriate official of the Office of the Solicitor; and

(iii) The BLM office that issued the decision.

(b) Response to petition for a stay. If a petition for a stay has been filed, then:

(1) Any BLM response to the petition for a stay must be filed, along with any other documents that BLM wishes the ALJ to consider when adjudicating the petition for a stay, no later than 14 days after receiving a copy of the notice of appeal and petition for a stay. BLM must also serve a copy of its response on all other parties to the appeal in accordance with § 4.102, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information.

(2) Any other person or entity who wishes to respond to the petition for a stay may file a motion to intervene in the appeal under § 4.108, together with a response to the petition for a stay, no later than 14 days after being served with a copy of the notice of appeal and petition for a stay. A copy of the motion to intervene and response must be served on all other parties to the appeal in accordance with § 4.102, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information on the following:

(i) Each party to the proceeding;

(ii) The appropriate official of the Office of the Solicitor; and

(iii) The BLM office that issued the decision.

(3) The failure to file a response will not be construed as an admission that the petition for a stay should be granted.

(c) Replies. No replies or further briefing related to the petition for a stay will be accepted unless authorized by the ALJ.

(d) Effect of consent or lack of opposition. The ALJ may summarily grant a petition for a stay, in whole or in part, without considering the criteria in paragraph (a)(1) if all parties to the appeal consent to the stay or file responses to the petition affirmatively stating no opposition to the stay.

(e) Deadline for ruling. The ALJ will grant or deny a petition for a stay, in whole or in part, within 45 days of the expiration of the time for filing a notice of appeal.