ALLIANCE FOR WILD ROCKIES v. Cottrell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD ROCKIES; 

NATIVE ECOSYSTEMS COUNCIL,

Plaintiffs-Appellants,

No. 09-35756

v.

D.C. No.

JANE L. COTTRELL, in her official  9:09-cv-00107-

capacity as acting Regional DWM

Forester; UNITED STATES FOREST

OPINION

SERVICE, an agency of the United

States Department of Agriculture,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

February 2, 2010—Seattle, Washington

Filed July 28, 2010

Before: William A. Fletcher and Johnnie B. Rawlinson,

Circuit Judges, and Michael W. Mosman,* District Judge.

Opinion by Judge William A. Fletcher;

Concurrence by Judge Mosman

*The Honorable Michael W. Mosman, United States District Judge for

the District of Oregon, sitting by designation.

10855

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10859

COUNSEL

Matthew Kellogg Bishop; WESTERN ENVIRONMENTAL

LAW CENTER, Helena, Montana, Susan Jane McKibben

Brown, WESTERN ENVIRONMENTAL LAW CENTER,

Portland, Oregon, for the appellants.

John Emad Arbab, U.S. DEPARTMENT OF JUSTICE,

Washington, D.C., Mark Steger Smith, OFFICE OF THE

U.S. ATTORNEY, Billings, Montana, for the appellee.

OPINION

W. FLETCHER, Circuit Judge:

Alliance for the Wild Rockies (“AWR”) appeals the district

court’s denial of its motion for a preliminary injunction. AWR

seeks to enjoin a timber salvage sale proposed by the United

States Forest Service. Citing Winter v. Natural Resources

Defense Council, 129 S. Ct. 365 (2008), the district court held

that AWR had not shown the requisite likelihood of irrepara-

ble injury and success on the merits. After hearing oral argu-

ment, we issued an order reversing the district court and

directing it to issue the preliminary injunction. Alliance for

Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287

10860 ALLIANCE FOR WILD ROCKIES v. COTTRELL

(9th Cir. June 24, 2010). In this opinion, we now set forth the

reasons for our reversal, and we take this opportunity to clar-

ify an aspect of the post-Winter standard for a preliminary

injunction.

I. Background

In August and September of 2007, the Rat Creek Wildfire

burned about 27,000 acres in the Beaverhead-Deerlodge

National Forest in Montana. On July 1, 2009, almost two

years later, the Chief Forester of the Forest Service made an

Emergency Situation Determination for the Rat Creek Sal-

vage Project (“the Project”). The Emergency Situation Deter-

mination permitted the immediate commencement of the

Project’s logging without any of the delays that might have

resulted from the Forest Service’s administrative appeals pro-

cess.

The Project permits salvage logging of trees on approxi-

mately 1,652 of the 27,000 acres that were burned. The log-

ging will take place (and to some degree has already taken

place) on thirty-five units of land ranging from 3 to 320 acres

in size. The Forest Service describes the purpose of the Proj-

ect as follows:

. . . to recover and utilize timber from trees that are

dead or dying as a result of the Rat Creek Wildfire

or forest insects and disease and reforest the har-

vested units with healthy trees appropriate for the

site. The trees would supply wood to the forest prod-

ucts industry.

A further purpose is to cut trees infested with dwarf mistletoe

to prevent transmission to new trees.

Trees to be cut are those from 4 to 15 inches in diameter

at breast height (“dbh”) that have died or are likely to die as

a direct result of fire or insect attack. The Forest Service has

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10861

provided species-specific guidelines for determining likeli-

hood of mortality. For example, Douglas-fir trees from 4 to 15

inches dbh are to be logged if less than 40% of the pre-fire

live crown remains. Other conifers are to be logged if less

than 80% of the pre-fire live crown remains. The severity of

insect attacks is to be determined by examining trees for signs

such as pitch tubes or boring dust.

Trees that survived the fire but are infected with dwarf mis-

tletoe are to be cut, regardless of size, unless doing so would

reduce the number of live trees below the Forest Service’s

wildlife habitat standard. Uninfested live trees, including

those with a dbh larger than 15 inches, are to be cut only if

required by safety concerns.

The Project requires construction of 7 miles of temporary

roads and reconditioning of about 3 miles of existing roads.

After completion of the Project, the temporary roads will be

obliterated, and the existing roads will be returned to their

current uses, if any.

In April 2009, the Forest Service released an Environmen-

tal Assessment (“EA”) of the Project for public comment.

On June 15, 2009, the Acting Forest Supervisor for the

Beaverhead-Deerlodge National Forest wrote to the Regional

Forester requesting that the Chief Forester make an Emer-

gency Situation Determination (“ESD”) in connection with

the Rat Creek Project. The ESD request stated that the emer-

gency resulted from “rapid deterioration and decay of trees

proposed for salvage harvest,” noting that “[t]rees that have

died or are dying from secondary fire effects are rapidly los-

ing their value and merchantable volume.” The request stated

that immediate commencement of logging would “prevent

substantial economic loss to the Federal Government.” The

sites to be logged are typically accessible to loggers for only

four to five months out of the year due to heavy snowfalls.

The request stated that the logging needed to commence

10862 ALLIANCE FOR WILD ROCKIES v. COTTRELL

immediately so that it could be completed before winter

arrived.

The request stated further:

An objective for recovering the value of the fire-

killed trees is to respond to local, regional, and

national needs for commercial timber products.

Local economies in Southwest Montana have devel-

oped with natural resource utilization as the founda-

tion. This economic structure continues today and is

becoming stressed and increasingly unstable due to

higher energy prices, and reduced supply of timber

from National Forest System lands. As markets

decline and harvest activities on private lands

decrease, the timber industry in Montana increas-

ingly depends on National Forest System timber sup-

ply as an essential element to keep their mills

operational.

On June 22, 2009, the Regional Forester forwarded the

request for an ESD to the Chief Forester, noting that a “delay

in implementation of activities included in the request would

result in substantial loss of economic value to the Federal

Government.” On July 1, 2009, the Chief Forester granted the

request for an ESD. She wrote:

[A] delay to implementing the project until after any

administrative appeals have been reviewed and

answered will result in a substantial loss of economic

value to the government. Such a delay would push

the award of timber sale contracts for the hazard tree

and other salvage back to late October 2009, with

winter access limitations delaying most operations

until summer of 2010. By that time further deteriora-

tion of the affected trees will have resulted in a pro-

jected loss of receipts to the government of as much

as $16,000 and significantly increased the likelihood

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10863

of receiving no bids. An absence of bids would push

the potential loss to the government to $70,000 and

eliminate an opportunity to accomplish Douglas-fir

planting and dwarf mistletoe control objectives.

In evaluating whether an emergency situation exists

with this project, I also took note of the importance

this project has to the local economy of southwest

Montana. I understand the wood products yielded by

this project will be a critical contributor to helping

keep local mills operational.

On July 22, 2009, the Forest Service issued the final Envi-

ronmental Assessment (“EA”) and a Decision Notice and

Finding of No Significant Impact (“DN/FONSI”). The Forest

Service concluded that the Project would not have a signifi-

cant effect on the quality of the human environment and that

an Environmental Impact Statement (“EIS”) was therefore not

required. The Forest Service then initiated a bidding process

for the Project. On July 30, 2009, Barry Smith Logging was

declared the highest bidder.

Plaintiff AWR filed suit in federal district court alleging

violations of the Appeals Reform Act (“ARA”), the National

Forest Management Act (“NFMA”), and the National Envi-

ronmental Protection Act (“NEPA”). In a brief order entered

on August 14, 2009, the district court denied AWR’s request

for a preliminary injunction. After quoting Winter, the court

wrote, “After reviewing the parties’ filings, the Court is con-

vinced Plaintiffs do not show a likelihood of success on the

merits, nor that irreparable injury is likely in the absence of

an injunction. This determination prevents the issuance of a

preliminary injunction at this stage of the proceedings.” The

court did not describe or analyze the merits of AWR’s claims

and did not describe or analyze the harm alleged by AWR.

The court denied AWR’s motion for a stay and injunction

pending appeal to this court.

10864 ALLIANCE FOR WILD ROCKIES v. COTTRELL

Barry Smith Logging began work on the Project on August

21, 2009. The parties indicated at oral argument that approxi-

mately 49% of the planned logging was completed before

winter conditions halted operations.

AWR timely appealed the district court’s denial of its

request for a preliminary injunction. Because a significant

amount of the Project remains to be completed, this appeal is

not moot.

II. Standard of Review

We review a district court’s denial of a preliminary injunc-

tion for abuse of discretion. Lands Council v. McNair, 537

F.3d 981, 986 (9th Cir. 2008) (en banc). An abuse of discre-

tion will be found if the district court based its decision “on

an erroneous legal standard or clearly erroneous finding of

fact.” Id. “We review conclusions of law de novo and findings

of fact for clear error.” Id. at 986-87. We will not reverse the

district court where it “got the law right,” even if we “would

have arrived at a different result,” so long as the district court

did not clearly err in its factual determinations. Id. at 987

(internal citations omitted).

III. Discussion

A. “Sliding Scale” and “Serious Questions” after Winter

[1] In Winter, the Supreme Court disagreed with one

aspect of this circuit’s approach to preliminary injunctions.

We had held that the “possibility” of irreparable harm was

sufficient, in some circumstances, to justify a preliminary

injunction. Winter explicitly rejected that approach. Winter,

129 S. Ct. at 375-76. Under Winter, plaintiffs must establish

that irreparable harm is likely, not just possible, in order to

obtain a preliminary injunction. Id. The Court wrote, “A

plaintiff seeking a preliminary injunction must establish that

he is likely to succeed on the merits, that he is likely to suffer

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10865

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.” Id. at 374. “A preliminary injunction

is an extraordinary remedy never awarded as of right.” Id. at

376.

[2] The majority opinion in Winter did not, however,

explicitly discuss the continuing validity of the “sliding scale”

approach to preliminary injunctions employed by this circuit

and others. Under this approach, the elements of the prelimi-

nary injunction test are balanced, so that a stronger showing

of one element may offset a weaker showing of another. For

example, a stronger showing of irreparable harm to plaintiff

might offset a lesser showing of likelihood of success on the

merits. See, e.g., Clear Channel Outdoor, Inc. v. City of Los

Angeles, 340 F.3d 810, 813 (9th Cir. 2003). This circuit has

adopted and applied a version of the sliding scale approach

under which a preliminary injunction could issue where the

likelihood of success is such that “serious questions going to

the merits were raised and the balance of hardships tips

sharply in [plaintiff’s] favor.” Id. That test was described in

this circuit as one alternative on a continuum. See, e.g., Lands

Council, 537 F.3d at 987. The test at issue here has often been

referred to as the “serious questions” test. We will so refer to

it as well.

The parties in this case have devoted substantial portions of

their argument to the question of the continuing validity of the

“serious questions” approach to preliminary injunctions after

Winter. For the reasons that follow, we hold that the “serious

questions” approach survives Winter when applied as part of

the four-element Winter test. In other words, “serious ques-

tions going to the merits” and a hardship balance that tips

sharply toward the plaintiff can support issuance of an injunc-

tion, assuming the other two elements of the Winter test are

also met.

Justice Ginsburg explicitly noted in her dissent in Winter

that the “Court has never rejected [the sliding scale] formula-

10866 ALLIANCE FOR WILD ROCKIES v. COTTRELL

tion, and I do not believe it does so today.” Winter, 129 S. Ct.

at 392 (Ginsburg, J., dissenting). Justice Ginsburg emphasized

the importance of the sliding scale approach, writing

“[f]lexibility is the hallmark of equity jurisdiction.” Id. at 391.

As Justice Ginsburg noted, the majority opinion in Winter did

not disapprove the sliding scale approach. Indeed, some of its

language suggests that the approach survives. For example,

the Court implied that balancing is appropriate when it indi-

cated that “particular regard” should be paid to “the public

consequences in employing the extraordinary remedy of

injunction.” Winter, 129 S. Ct. at 376-77.

[3] Our circuit has not yet directly discussed in a published

opinion the post-Winter viability of the sliding scale

approach. In our first post-Winter opinion, we recited the

Winter four-part test and then wrote, “To the extent that our

cases have suggested a lesser standard, they are no longer

controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City

of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). We dis-

cussed the holding of Winter that a preliminary injunction

requires a showing of likely irreparable injury, but we did not

discuss whether some version of the sliding scale test sur-

vived. Id.; see also Stormans, Inc. v. Selecky, 586 F.3d 1109,

1127 (9th Cir. 2009) (“In Winter, the Supreme Court defini-

tively refuted our ‘possibility of irreparable injury’ standard

. . . .”); McDermott v. Ampersand Publ’g, LLC, 593 F.3d 950,

957 (9th Cir. 2010) (ultimately applying a more stringent

standard in light of First Amendment interests). In National

Meat Association v. Brown, 599 F.3d 1093, 1097 n.3 (9th Cir.

2010), we wrote, “The district court applied our pre-Winter

‘sliding scale’ approach, which required only a ‘possibility of

irreparable injury’ if plaintiff is likely to succeed on the mer-

its.” We then held that, although such an error might warrant

remand, it was unnecessary in that case because all elements

of the Winter test had been met. Id.

In Johnson v. Couturier, 572 F.3d 1067, 1084 (9th Cir.

2009), the district court had applied the “serious questions”

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10867

test and held that “there are serious questions on the merits

and the balance of hardships tips sharply in favor of plaintiff.”

The defendant objected that the district court had failed to

“consider the element of irreparable harm.” Id. We noted that

the district court’s approach was “questionable post-

Winter[ ],” id., but affirmed because the record supported a

finding of a “likelihood of irreparable harm,” id. at 1085.

Our other post-Winter published opinions are largely unil-

luminating on the question now before us. Some address

wholly separate aspects of Winter. See, e.g., Sierra Forest

Legacy v. Rey, 577 F.3d 1015, 1022-23 (9th Cir. 2009)

(emphasizing that Winter requires consideration of narrow

injunctive relief). Others simply recite the Winter test without

elaboration. See, e.g., S. Fork Band Council of W. Shoshone

of Nev. v. U.S. Dep’t of Interior, 588 F.3d 718, 721 (9th Cir.

2009); Klein v. City of San Clemente, 584 F.3d 1196, 1199-

1200 (9th Cir. 2009).

Three other circuits have directly confronted the question

whether some version of a sliding scale test has survived Win-

ter. They have split. The Fourth Circuit has held that the slid-

ing scale approach is now invalid. Real Truth About Obama,

Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th Cir.

2009) (holding that the circuit’s prior test, which permitted

“flexible interplay” among the elements, “may no longer be

applied” after Winter), vacated on other grounds, 130 S. Ct.

2371 (2010). The Seventh and Second Circuits have held to

the contrary.

The Seventh Circuit was the first to hold that the sliding

scale test survives Winter, and that a weaker claim on the

merits can still justify a preliminary injunction depending on

the amount of “net harm” that could be prevented by the

injunction. Citing Winter, Judge Easterbrook wrote:

Irreparable injury is not enough to support equitable

relief. There also must be a plausible claim on the

10868 ALLIANCE FOR WILD ROCKIES v. COTTRELL

merits, and the injunction must do more good than

harm (which is to say that the “balance of equities”

favors the plaintiff). How strong a claim on the mer-

its is enough depends on the balance of harms: the

more net harm an injunction can prevent, the weaker

the plaintiff’s claim on the merits can be while still

supporting some preliminary relief.

Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life

Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (internal citations

omitted).

The Second Circuit decision came down after the Supreme

Court had decided two post-Winter cases, Munaf v. Geren,

553 U.S. 674 (2008), and Nken v. Holder, 129 S. Ct. 1749

(2009). Prior to Winter, the Second Circuit had employed a

“serious questions” sliding scale test:

For the last five decades, this circuit has required

a party seeking a preliminary injunction to show (a)

irreparable harm and (b) either (1) likelihood of suc-

cess on the merits or (2) sufficiently serious ques-

tions going to the merits to make them a fair ground

for litigation and balance of hardships tipping decid-

edly toward the party requesting the preliminary

relief.

Citigroup Global Mkts., Inc. v. VCG Special Opportunities

Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (internal

quotations omitted).

Judge Walker explained why the Second Circuit’s “serious

questions” test survived Winter:

The value of this circuit’s approach to assessing

the merits of a claim at the preliminary injunction

stage lies in its flexibility in the face of varying fac-

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10869

tual scenarios and the greater uncertainties inherent

at the outset of particularly complex litigation.

....

The Supreme Court’s recent opinions . . . have not

undermined its approval of the more flexible

approach . . . . None of the three cases comments at

all, much less negatively, upon the application of a

preliminary injunction standard that softens a strict

“likelihood” [of success] requirement in cases that

warrant it.

....

If the Supreme Court had meant for Munaf, Win-

ter, or Nken to abrogate the more flexible standard

for a preliminary injunction, one would expect some

reference to the considerable history of the flexible

standards applied in this circuit, seven of our sister

circuits, and in the Supreme Court itself. . . . We

have found no command from the Supreme Court

that would foreclose the application of our estab-

lished “serious questions” standard as a means of

assessing a movant’s likelihood of success on the

merits. . . . Thus, we hold that our venerable standard

for assessing a movant’s probability of success on

the merits remains valid . . . .

Id. at 35-38.

Dicta in two other circuits suggests that they will follow the

Seventh and Second Circuits in preserving the flexibility of

the sliding scale approach. The Tenth Circuit has a “modified

test,” similar to the “serious questions” test, under which “a

movant need only show ‘questions going to the merits so seri-

ous, substantial, difficult and doubtful, as to make the issues

ripe for litigation and deserving of more deliberate investiga-

10870 ALLIANCE FOR WILD ROCKIES v. COTTRELL

tion.’ ” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208-09

n.3 (10th Cir. 2009) (quoting Walmer v. U.S. Dep’t of Def.,

52 F.3d 851, 854 (10th Cir. 1995)). Since Winter, the Tenth

Circuit has mentioned its “modified test” but indicated that it

was not applicable to the case before the court. Id. The D.C.

Circuit has touched upon this issue, noting that Winter “does

not squarely discuss whether the four factors are to be bal-

anced on a sliding scale.” Davis v. Pension Benefit Guar.

Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).

District courts in our circuit have grappled with the ques-

tion of the sliding scale approach’s validity after Winter. Dis-

trict Judge Alsup’s analysis bears repeating:

Winter concerned the end of the sliding scale

where the weaker factor involves injury, not the end

of the scale where the weaker factor involves the

merits (but the injury is clear and the equities tip in

favor of relief). Winter can, however, be construed to

hold that the moving party must always show a prob-

ability of success on the merits (as well as a proba-

bility of injury).

....

It would be most unfortunate if the Supreme Court

or the Ninth Circuit had eliminated the longstanding

discretion of a district judge to preserve the status

quo with provisional relief until the merits could be

sorted out in cases where clear irreparable injury

would otherwise result and at least “serious ques-

tions” going to the merits are raised. . . .

Can it possibly be that the Supreme Court and

Ninth Circuit have taken away the ability of district

judges to preserve the status quo pending at least

some discovery and further hearing on the merits in

such cases? This would be such a dramatic reversal

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10871

in the law that it should be very clearly indicated by

appellate courts before a district court concludes that

it has no such power.

Save Strawberry Canyon v. Dep’t of Energy, No. C 08-03494

WHA, 2009 WL 1098888, at *1-3 (N.D. Cal. Apr. 22, 2009)

(citing three other district court cases in the Ninth Circuit with

similar holdings).

[4] For the reasons identified by our sister circuits and our

district courts, we join the Seventh and the Second Circuits in

concluding that the “serious questions” version of the sliding

scale test for preliminary injunctions remains viable after the

Supreme Court’s decision in Winter. In this circuit, the test

has been formulated as follows:

A preliminary injunction is appropriate when a

plaintiff demonstrates . . . that serious questions

going to the merits were raised and the balance of

hardships tips sharply in the plaintiff’s favor.

Lands Council, 537 F.3d at 987 (internal quotations and mod-

ification omitted). Of course, plaintiffs must also satisfy the

other Winter factors, including the likelihood of irreparable

harm.

B. Preliminary Injunction

[5] Because it did not apply the “serious questions” test,

the district court made an error of law in denying the prelimi-

nary injunction sought by AWR. We conclude that AWR has

shown that there is a likelihood of irreparable harm; that there

are at least serious questions on the merits concerning the

validity of the Forest Service’s Emergency Situation Determi-

nation; that the balance of hardships tips sharply in its favor;

and that the public interest favors a preliminary injunction.

10872 ALLIANCE FOR WILD ROCKIES v. COTTRELL

1. Likelihood of Irreparable Harm

[6] Winter tells us that plaintiffs may not obtain a prelimi-

nary injunction unless they can show that irreparable harm is

likely to result in the absence of the injunction. AWR’s mem-

bers use the Beaverhead-Deerlodge National Forest, including

the areas subject to logging under the Project, for work and

recreational purposes, such as hunting, fishing, hiking, horse-

back riding, and cross-country skiing. AWR asserts that its

members’ interests will be irreparably harmed by the Rat

Creek Project. In particular, AWR asserts that the Project will

harm its members’ ability to “view, experience, and utilize”

the areas in their undisturbed state.

The Forest Service responds that the Project areas represent

only six percent of the acreage damaged by fire. It argues that

because AWR members can “view, experience, and utilize”

other areas of the forest, including other fire-damaged areas

that are not part of the Project, they are not harmed by logging

in the Project.

[7] This argument proves too much. Its logical extension is

that a plaintiff can never suffer irreparable injury resulting

from environmental harm in a forest area as long as there are

other areas of the forest that are not harmed. The Project will

prevent the use and enjoyment by AWR members of 1,652

acres of the forest. This is hardly a de minimus injury.

[8] “[T]he Supreme Court has instructed us that

‘[e]nvironmental injury, by its nature, can seldom be ade-

quately remedied by money damages and is often permanent

or at least of long duration, i.e., irreparable.’ ” Lands Council,

537 F.3d at 1004. Of course, this does not mean that “any

potential environmental injury” warrants an injunction. Id.

But actual and irreparable injury, such as AWR articulates

here, satisfies the “likelihood of irreparable injury” require-

ment articulated in Winter.

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10873

2. Likelihood of Success on the Merits

[9] AWR’s strongest argument on the merits is that the

Forest Service has violated the Appeals Reform Act (“ARA”)

and its implementing regulations by granting the Emergency

Situation Designation (“ESD”). Regulations promulgated

under the ARA provide that most Forest Service decisions are

appealable through an administrative process. See 36 C.F.R.

§ 215.1 et seq; Forest Service Decisionmaking and Appeals

Reform Act, Pub. L. No. 102-381, Title III, § 322, 106 Stat.

1374, 1419-21 (1992). The administrative appeals process

would ordinarily be available for the Project at issue in this

case. 36 C.F.R. § 215.11(a) (including as appealable decisions

those for “projects and activities implementing land and

resource management plans . . . documented in a Record of

Decision (ROD) or Decision Notice (DN)”). If the Forest Ser-

vice decision had been appealed administratively, there would

have been an opportunity for members of the public, includ-

ing plaintiffs, to object to the Project on various grounds.

Implementation would then have been delayed until at least

“the 15th business day following the date of appeal disposi-

tion.” 36 C.F.R. § 215.9(b).

[10] The regulations provide an exception to the appeals

process when the Forest Service makes an ESD. An ESD

allows work to begin on a project as soon as notice of the oth-

erwise appealable project decision is appropriately published.

36 C.F.R. § 215.10(c). The regulations define an Emergency

Situation as “[a] situation on National Forest System (NFS)

lands for which immediate implementation of all or part of a

decision is necessary for relief from hazards threatening

human health and safety or natural resources on those NFS or

adjacent lands; or that would result in substantial loss of eco-

nomic value to the Federal Government if implementation of

the decision were delayed.” 36 C.F.R. § 215.2.

[11] In granting the ESD for this Project, the Chief For-

ester considered three factors: (1) the loss of receipts to the

10874 ALLIANCE FOR WILD ROCKIES v. COTTRELL

government due to delayed commencement of the Project; (2)

the potential loss of an “opportunity to accomplish Douglas-

fir planting and dwarf mistletoe control objectives”; and (3)

the “importance this project has to the local economy of

southwest Montana.” We hold that, at a minimum, there are

“serious questions” on the merits whether these three factors

are sufficient to justify the ESD. We consider in turn the three

factors upon which the Chief Forester relied.

[12] First, the potential loss of receipts to the government

resulting from the delay inherent in the appeals process was

not great. The Chief Forester wrote that a delay of the com-

mencement of the project until the summer of 2010 would

result in a “projected loss of receipts to the government of as

much as $16,000.” The Chief Forester wrote, in addition, that

if the commencement of the project were delayed until 2010,

this would “significantly increase[ ] the likelihood of receiv-

ing no bids.” “An absence of bids would push the potential

loss to the government to $70,000.” With all due respect to

the budgetary concerns of the Forest Service, a loss of antici-

pated revenues to the government of “as much as $16,000,”

or even a “potential loss” of $70,000 in the event of no bids,

is likely not a “substantial loss . . . to the Federal Govern-

ment.”

Even if $70,000 might, in some contexts, constitute a “sub-

stantial loss,” that figure here is highly speculative. The Chief

Forester indicated that a one-year delay would “significantly

increase[ ] the likelihood of receiving no bids,” but we cannot

know precisely what that statement means. We do know that

with a 2009 commencement date, multiple bids were submit-

ted almost immediately, and one was accepted. The likelihood

of not receiving a bid in 2009 appears to have been essentially

zero. An increase from a likelihood of essentially 0% to a

likelihood of 10% would be a significant increase in likeli-

hood. But a 10% risk of receiving no bids results in a risk-

adjusted loss of 10% of $70,000, or $7,000. A risk-adjusted

loss of $7,000 is not significant.

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10875

[13] Second, the loss of the opportunity to “accomplish

Douglas-fir planting and dwarf mistletoe objectives” would

be an actual loss only if there were no successful bid on the

Project. That is, the Chief Forester concluded that if there

were a bid on the Project, the monetary loss to the govern-

ment would be “as much as $16,000.” But in that event, there

would be no loss of opportunity to plant Douglas firs or to

control dwarf mistletoe, for those objectives would be accom-

plished by means of the logging contract. Only if there were

no bids on the contract would the opportunity be lost. For the

reasons just discussed, the possibility of no bids appears to us

to be highly speculative. In addition, the Forest Service did

not even attempt to quantify the extent of its mistletoe abate-

ment objectives that would be achieved through this Project.

It is unclear from the record whether the acres selected are

particularly infested with mistletoe and therefore the Project

is essential to the Forest Service’s goals, or if mistletoe abate-

ment on these acres is simply a serendipitous byproduct of the

Project.

[14] Third, the Chief Forester took into account the impor-

tance of the Project to the local economy of southwest Mon-

tana. As discussed below, this factor is relevant to the public

interest element of the preliminary injunction analysis. But

the impact of a project on a local economy is not one of the

factors the Chief Forester was permitted to consider in decid-

ing whether to issue an ESD. Under Forest Service regula-

tions, she was permitted to consider “hazards threatening

human health and safety or natural resources” and any “sub-

stantial loss of economic value to the Federal Government.”

36 C.F.R. § 215.2. Neither the regulation, nor the ARA, per-

mits consideration of the local economy in making an ESD

determination. Thus, in relying on the third factor, the Chief

Forester “relied on factors Congress did not intend [her] to

consider.” Lands Council, 537 F.3d at 987.

[15] Finally, we note that the Forest Service has not been

able to make clear to us, either in its briefing or at oral argu-

10876 ALLIANCE FOR WILD ROCKIES v. COTTRELL

ment, why it waited so long to request an ESD. The Rat Creek

fire occurred in August and September of 2007. The ESD was

requested, and then issued, almost two years later. The delay

in requesting an ESD obviously undermines the Chief Forest-

er’s determination in July 2009 that there was an Emergency

Situation that justified the elimination of otherwise available

administrative appeals.

[16] We therefore conclude that AWR has, at a minimum,

raised “serious questions” on the merits of its claim regarding

the validity of the Chief Forester’s Emergency Situation

Determination.

3. Balance of Hardships

We conclude that the balance of hardships between the par-

ties tips sharply in favor of AWR. When the question was

before the district court, logging was contemplated on 1,652

acres of land in the Beaverhead-Deerlodge National Forest.

Once those acres are logged, the work and recreational oppor-

tunities that would otherwise be available on that land are

irreparably lost.

In addition, AWR was harmed by its inability to participate

in the administrative appeals process, and that harm is perpet-

uated by the Project’s approval. The administrative appeals

process would have allowed AWR to challenge the Project

under both NFMA and NEPA, and to seek changes in the

Project before final approval by the Forest Service. Such

administrative appeals sometimes result in significant changes

to proposed projects.

The hardship to the Forest Service, set against the hardship

to AWR, is an estimated potential foregone revenue of “as

much as $16,000,” and a much more speculative loss of up to

$70,000. These foregone revenues are so small that they can-

not provide a significant counterweight to the harm caused to

AWR. In addition, as noted above, the Forest Service’s oppor-

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10877

tunity to mitigate mistletoe infestation and to replant Douglas

firs is tied to whether the Project occurs or not. Because we

conclude that the risk that the project will not occur at all is

speculative, those lost opportunities similarly cannot out-

weigh the harm to AWR.

[17] The balance of the hardships here tips sharply enough

in favor of AWR that a preliminary injunction is warranted in

light of the serious questions raised as to the merits of its

ARA claim. That decision, however, does not end our analy-

sis, as the preliminary injunction must also be in the public

interest.

4. Public Interest

[18] In this case, we must consider competing public inter-

ests. On the side of issuing the injunction, we recognize the

well-established “public interest in preserving nature and

avoiding irreparable environmental injury.” Lands Council,

537 F.3d at 1005. This court has also recognized the public

interest in careful consideration of environmental impacts

before major federal projects go forward, and we have held

that suspending such projects until that consideration occurs

“comports with the public interest.” S. Fork Band Council,

588 F.3d at 728. While that public interest is most often noted

in the context of NEPA cases, we see no reason why it does

not apply equally to violations of the ARA. In the ARA, Con-

gress specifically identified the process through which it

wanted the Forest Service to make project decisions such as

this one. It comports with the public interest for the Forest

Service to comply faithfully with those procedures and to use

the exceptional emergency procedures sparingly and only in

compliance with its own implementing regulations.

We will not grant a preliminary injunction, however, unless

those public interests outweigh other public interests that cut

in favor of not issuing the injunction. See Lands Council, 537

F.3d at 1005 (“Consistent with Amoco Production Company,

10878 ALLIANCE FOR WILD ROCKIES v. COTTRELL

we have held that the public interest in preserving nature and

avoiding irreparable environmental injury outweighs eco-

nomic concerns in cases where plaintiffs were likely to suc-

ceed on the merits of their underlying claim.”). “The public

interest analysis for the issuance of a preliminary injunction

requires us to consider whether there exists some critical pub-

lic interest that would be injured by the grant of preliminary

relief.” Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d

1098, 1114-15 (9th Cir. 2010) (internal quotations omitted).

[19] The public interests that might be injured by a prelim-

inary injunction here, however, do not outweigh the public

interests that will be served. The primary public interest

asserted by the Forest Service is that the Project will aid the

struggling local economy and prevent job loss. The effect on

the health of the local economy is a proper consideration in

the public interest analysis. The Forest Service asserts that the

Project would directly create 18 to 26 temporary jobs and

would have indirect beneficial effects on other aspects of the

local economy. The record before us reflects that the jobs in

question, and, for the most part, the indirect effects, will begin

and end with work on the Project which is now expected to

be completed in 2010.

[20] On these facts, we conclude that issuing the injunction

is in the public interest.

Conclusion

We conclude that the district court erred in denying AWR’s

request for a preliminary injunction. AWR has established a

likelihood of irreparable injury if the Project continues. AWR

has also established serious questions, at the very least, on the

merits of its claim under the ARA. Because AWR has done

so with respect to its claim under the ARA, we do not reach

its claims under NFMA and NEPA. The balance of hardships

between the parties tips sharply in favor of AWR. Finally, the

public interest favors a preliminary injunction.

ALLIANCE FOR WILD ROCKIES v. COTTRELL 10879

We therefore REVERSE and REMAND for further pro-

ceedings consistent with this opinion.

MOSMAN, District Judge, concurring:

Today’s holding that the “serious questions” test remains

valid post-Winter is an important one for district courts tasked

with evaluating requests for preliminary injunctions. The task

is often a delicate and difficult balancing act, with complex

factual scenarios teed up on an expedited basis, and supported

only by limited discovery. A sliding scale approach, including

the “serious questions” test, preserves the flexibility that is so

essential to handling preliminary injunctions, and that is the

hallmark of relief in equity. See Winter, 129 S. Ct. at 391

(Ginsburg, J., dissenting); see also Miller v. French, 530 U.S.

327, 361 (2000) (Breyer, J., dissenting) (“[I]n certain circum-

stances justice requires the flexibility necessary to treat differ-

ent cases differently—the rationale that underlies equity

itself.”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312

(1982) (“The essence of equity jurisdiction has been the

power of the Chancellor to do equity and to mould each

decree to the necessities of the particular case. Flexibility

rather than rigidity has distinguished it.”) (quoting Hecht Co.

v. Bowles, 321 U.S. 321, 329 (1944)); Holmberg v. Arm-

brecht, 327 U.S. 392, 396 (1946) (“Equity eschews mechani-

cal rules; it depends on flexibility.”).

While the Supreme Court cabined that flexibility with

regard to the likelihood of harm, there are good reasons to

treat the likelihood of success differently. As between the

two, a district court at the preliminary injunction stage is in

a much better position to predict the likelihood of harm than

the likelihood of success. In fact, it is not unusual for the par-

ties to be in rough agreement about what will follow a denial

of injunctive relief. In this case, for example, the parties agree

that more than 1,600 acres would be logged in the absence of

10880 ALLIANCE FOR WILD ROCKIES v. COTTRELL

an injunction. While they disagree about the implications of

the logging—such as the extent of environmental impact or

the value of natural recovery—the mere fact of logging is

undisputed.

But predicting the likelihood of success is another matter

entirely. As mentioned, the whole question of the merits

comes before the court on an accelerated schedule. The par-

ties are often mostly guessing about important factual points

that go, for example, to whether a statute has been violated,

whether a noncompetition agreement is even valid, or whether

a patent is enforceable. The arguments that flow from the

facts, while not exactly half-baked, do not have the clarity and

development that will come later at summary judgment or

trial. In this setting, it can seem almost inimical to good judg-

ing to hazard a prediction about which side is likely to suc-

ceed. There are, of course, obvious cases. But in many,

perhaps most, cases the better question to ask is whether there

are serious questions going to the merits. That question has a

legitimate answer. Whether plaintiffs are likely to prevail

often does not.