# Alliance for Wild Rockies v. Cottrell

> Court of Appeals for the Ninth Circuit · January 25, 2011 · 632 F.3d 1127

URL: https://www.frixlaw.com/law-library/cases/8411858

## Case

- **Full name:** ALLIANCE FOR THE WILD ROCKIES Native Ecosystems Council v. Jane L. COTTRELL, in her official capacity as acting Regional Forester United States Forest Service, an agency of the United States Department of Agriculture
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 25, 2011
- **Citations:** 632 F.3d 1127; 72 ERC (BNA) 1711; 2011 U.S. App. LEXIS 1473; 2011 WL 208360
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosman
- **Judges:** Fletcher, Mosman, Rawlinson
- **Cited by:** 2,664 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8411858

## How later opinions describe it (automated extraction)

- concluding that the Forest Service’s argument that plaintiffs can “view, experience, and utilize other areas of the forest” “proves too much,” because its logical extension is that a “plaintiff can never suffer irreparable injury resulting from environmental 42 SIERRA CLUB V. …
- holding that, in the Ninth 23 Circuit, “serious questions going to the merits and a hardship balance that tips sharply 24 toward the plaintiff can support issuance of an injunction, assuming the other two elements 25 of the Winter test are also met” (citation modified)
- holding that, in the Ninth Circuit, “serious 18 questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can 19 support issuance of an injunction, assuming the other two elements of the Winter test are also 20 met”
- holding that, in the Ninth Circuit, “‘serious questions going to the merits’ and a 25 hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, 26 assuming the other two elements of the Winter test are also met”
- concluding that the “serious questions” version of the sliding scale test for 8 || preliminary injunctions remains viable after Winter

## Opinion text

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 , 120 S.Ct. 2246 , 147 L.Ed.2d 326 (2000) (Breyer, J., dissenting) (“[I]n certain circumstances justice requires the flexibility necessary to treat different cases differently — the rationale that underlies equity itself.”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (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 , 64 S.Ct. 587 , 88 L.Ed. 754 (1944)); Holmberg v. Armbrecht, 327 U.S. 392, 396 , 66 S.Ct. 582 , 90 L.Ed. 743 (1946) (“Equity eschews mechanical 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 parties 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 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 parties 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 *1140 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 judging to hazard a prediction about which side is likely to succeed. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8411858. Public record. Not legal advice.