FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARTH ISLAND INSTITUTE, a non-
profit organization,
Plaintiff-Appellant, No. 09-16914
v. D.C. No.
ALICE B. CARLTON, in her official 2:09-cv-02020-FCD-
capacity as Forest Supervisor for EFB
Eastern District of
Plumas National Forest; RANDY
MOORE, in his official capacity as California,
Regional Forester for Region 5 of Sacramento
the United States Forest Service; OPINION
UNITED STATES FOREST SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
March 10, 2010—San Francisco, California
Filed November 8, 2010
Before: Procter Hug, Jr., Stephen Reinhardt and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Hug;
Dissent by Judge Reinhardt
18403
EARTH ISLAND INSTITUTE v. CARLTON 18407
COUNSEL
Rachel M. Fazio, Cedar Ridge, California, for the appellant.
David C. Shilton, Attorney, U.S. Department of Justice,
Washington, D.C., for the appellees.
OPINION
HUG, Circuit Judge:
Earth Island Institute (“Earth Island”) appeals interlocu-
torily the district court’s order denying its motion for a pre-
liminary injunction seeking to enjoin the United States Forest
Service (“Forest Service”) from conducting post-wildfire log-
ging in the Plumas National Forest. The district court con-
cluded that the applicable forest plan required only the
assessment of habitat for the black-backed woodpecker
18408 EARTH ISLAND INSTITUTE v. CARLTON
(“woodpecker”) at the project level, that the Forest Service
met that requirement, that the Forest Service adequately
responded to Earth Island’s dissenting scientific opinions in
the project adoption phases, and that the Forest Service’s tree
mortality guidelines were not legally enforceable. We affirm.
I. FACTUAL BACKGROUND
In the summer of 2007, the “Moonlight” and “Wheeler”
fires burned a total of 88,000 acres of private and National
Forest land in the northern Sierra Nevadas in California.
Approximately 78% of the fire took place within the Plumas
National Forest. The rest was on private land.
Shortly after the fires, the Forest Service initiated the
Moonlight-Wheeler Project (“project”) to remove burned
trees posing a safety hazard to road traffic within the project
area (“roadside hazard trees”), to recover the value of fire-
killed trees, and to reestablish the forest through the planting
of conifer seedlings.
It is undisputed that forests burned at high intensity form a
new type of ecologically rich ecosystem. This case concerns
a subset of such an ecosystem, namely so-called “snag forest
habitat.” Snag forest habitat is important to several species of
plants and animals. One of the species that depends on snag
forest habitat is the black-backed woodpecker; a management
indicator species (“MIS”)1 for the Sierra Nevada area. The
woodpecker can only use snag forest habitat for up to a
decade after a high-intensity fire at which point in time the
forest will have changed naturally and the woodpecker must
seek out new suitable habitat. According to a Plumas National
Forest district ranger, snag forest habitat is extremely scarce
1
An MIS is a species chosen by the Forest Service to represent a much
larger group of native species with similar habitat requirements for envi-
ronmental assessment purposes. See Earth Island Inst. v. U.S. Forest
Serv., 442 F.3d 1147, 1173 (9th Cir. 2006).
EARTH ISLAND INSTITUTE v. CARLTON 18409
in the Sierra Nevadas due to fire suppression and post-fire
logging.
Some dispute exists as to exactly how much of the wood-
pecker habitat in the Plumas National Forest would be
destroyed by the project. Earth Island’s experts conservatively
estimate that at least 40-60% of the woodpecker’s habitat
within the project area would be destroyed, corresponding to
30-50% of woodpecker habitat throughout the entire Sierra
Nevada. According to Earth Island, this could threaten the
woodpecker’s ability to survive in the Sierra Nevadas. In con-
trast, the Forest Service asserts that logging would only be
conducted on approximately 22-27% of the forest burned on
public land, thus leaving as much as 73% unlogged. However,
the Forest Service also acknowledges that approximately 38%
of the habitat that was created by the two fires on public land
would be destroyed, but points out that to compensate for this,
snag habitat has been designated on approximately 10% of the
project area with no logging to take place there.
II. PROCEDURAL BACKGROUND
Initially, the Forest Service proposed a separate project that
would result in the logging of roadside hazard trees only.
After Earth Island brought a challenge to that, the parties set-
tled. The settlement provided that the Forest Service would
re-evaluate that project as part of an Environmental Impact
Statement (“EIS”) then underway for non-hazard tree logging.
The Forest Service subsequently issued a Draft Revised
EIS covering both roadside hazard and other trees. Earth
Island submitted extensive timely comments on the draft. The
Forest Service subsequently issued a Revised Final EIS
(“RFEIS”) analyzing five alternatives. Half a year later, the
Chief of the Forest Service issued an Emergency Situation
Determination allowing the Forest Service to implement the
project as soon as a Record of Decision (“ROD”) was signed.
The Chief found this to be warranted given the threats to pub-
18410 EARTH ISLAND INSTITUTE v. CARLTON
lic and employee safety and the fact that any delay in the
implementation of the project would result in substantial loss
of economic value and jeopardize other restoration and recov-
ery objectives.
Soon thereafter, the Forest Service signed the ROD for the
project, choosing alternative A. This authorized the harvest of
fire-killed trees on approximately 14,755 acres of the approxi-
mately 41,000 acres of high severity burn areas using both
ground- and air-based harvesting methods. The Forest Service
subsequently awarded five logging contracts to local compa-
nies.
Subsequently, Earth Island filed a motion for a preliminary
injunction seeking to enjoin the Forest Service from imple-
menting all aspects of the project, including the felling,
removal and sale of any trees apart from under emergency
hazard circumstances. The district court denied Earth Island’s
motion. This appeal followed.
III. STANDARD OF REVIEW AND JURISDICTION
We have jurisdiction to review a district court’s denial of
a preliminary injunction under 28 U.S.C. § 1292(a)(1). We
review the denial of a preliminary injunction for abuse of dis-
cretion. Earth Island Inst. v. U.S. Forest Serv. (Earth Island
Inst. II), 442 F.3d 1147, 1156 (9th Cir. 2006). A district court
abuses its discretion in denying a request for a preliminary
injunction if it bases its decision on an erroneous legal stan-
dard or clearly erroneous findings of fact. Lands Council v.
McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc). A dis-
trict court’s decision regarding preliminary injunctive relief is
subject to “limited and deferential” review. Sw. Voter Regis-
tration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.
2003) (en banc) (per curiam). Accordingly, “[a]s long as the
district court got the law right, it will not be reversed simply
because the appellate court would have arrived at a different
EARTH ISLAND INSTITUTE v. CARLTON 18411
result if it had applied the law to the facts of the case.” Earth
Island II, 442 F.3d at 1156.
In deciding whether Earth Island is likely to succeed on the
merits of its motion for a preliminary injunction, the APA sets
forth additional requirements for review. McNair, 537 F.3d at
987. The APA states, in relevant part, that a reviewing court
may set aside only agency actions that are “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” Id., citing 5 U.S.C. § 706(2)(A). Review under this
standard is also narrow, and we may not substitute our judg-
ment for that of the agency. Id. Rather, a decision may only
be reversed as arbitrary and capricious “if the agency relied
on factors Congress did not intend it to consider, entirely
failed to consider an important aspect of the problem, or
offered an explanation that runs counter to the evidence
before the agency or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Id. Thus, although the district court’s denial of
Earth Island’s request for a preliminary injunction must be
reviewed for an abuse of discretion, our review of the district
court’s determination as to whether Earth Island was likely to
prevail on the merits of its claims necessarily incorporates the
APA’s arbitrary and capricious standard. Id.
IV. DISCUSSION
[1] A party seeking a preliminary injunction must demon-
strate (1) that it is likely to succeed on the merits, (2) that it
is likely to suffer irreparable harm in the absence of prelimi-
nary relief, (3) that the balance of equities tips in its favor, and
(4) that an injunction is in the public interest. Winter v. Natu-
ral Res. Def. Council, 129 S. Ct. 365, 374 (2008). An injunc-
tion is a matter of equitable discretion” and is “an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Id. at 376,
381.
18412 EARTH ISLAND INSTITUTE v. CARLTON
Earth Island argues that the district court improperly
assessed Earth Island’s likelihood of success on the merits,
applied an erroneous standard for the likelihood of irreparable
harm, and incorrectly balanced the equities.
A. Likelihood of Success on the Merits
First, Earth Island contends that the district court imposed
an unreasonably high standard for success on the merits. In
doing so, Earth Island relies on the district court’s statement
that after Winter, “a heavy burden is imposed on plaintiffs.”
Earth Island argues that this means that the district court
required more indicia of success on the merits than did Win-
ter.
[2] The district court’s statement forms part of a footnote
and appears to simply be dictum. At any rate, as Winter
plainly demonstrates, it is correct that plaintiffs seeking a pre-
liminary injunction face a difficult task in proving that they
are entitled to this “extraordinary remedy.” 129 S. Ct. at 376.
Characterizing this as a “heavy burden” was not improper and
does not show that the district court applied an erroneous
standard. Quite the contrary: the record shows that the district
court correctly applied Winter’s four-prong analysis through-
out its thoroughly reasoned opinion.
Next, Earth Island contends that it is likely to succeed on
the merits of its claims because (1) the Forest Service failed
to ensure the viability of the woodpecker and thus violated the
National Forest Management Act (“NFMA”); (2) the Forest
Service’s RFEIS failed to respond sufficiently to comments
made by Earth Island’s scientists; and (3) the Forest Service
failed to follow its allegedly binding tree marking guidelines.
i. Purported species viability requirements
[3] As we stated in Ecology Center v. Castaneda,
EARTH ISLAND INSTITUTE v. CARLTON 18413
The National Forest Management Act . . . provides
both procedural and substantive requirements. Proce-
durally, it requires the Forest Service to develop and
maintain forest resource management plans. After a
forest plan is developed, all subsequent agency
action . . . must comply with NFMA and the govern-
ing forest plan. Substantively, NFMA requires that
forest plans “provide for diversity of plant and ani-
mal communities based on the suitability and capa-
bility of the specific land area.”
574 F.3d 652, 656 (9th Cir. 2009) (citations omitted). How-
ever, we also explained that the Forest Service’s “1982 rule”
which required the Forest Service manage fish and wildlife
habitat “to maintain viable populations of existing native and
desired non-native vertebrate species” was partially super-
ceded in 2000 (the “2000 Rule”). Id. at 657. As we stated,
“[t]he requirements of the superceded 1982 Rule apply only
to the extent they were incorporated into the Forest Plan.” Id.
at 657. (emphasis added).
[4] Similarly, in McNair, we stated that “[t]he NFMA
unquestionably requires the Forest Service to provide for
diversity of plant and animal communities . . . in order to
meet overall multiple-use objectives.” 537 F.3d at 992 (quota-
tion marks omitted). But emphasizing the “inherent flexibility
of the NFMA”, we pointed out that the NFMA does not
“specify precisely how” the Forest Service must demonstrate
that it has met the objectives of the pertinent forest plan. Id.
As we said,
as non-scientists, we decline to impose bright-line
rules on the Forest Service regarding particular
means that it must take in every case to show us that
it has met the NFMA’s requirements. Rather, we
hold that the Forest Service must support its conclu-
sions that a project meets the requirements of the
NFMA and relevant Forest Plan with studies that the
18414 EARTH ISLAND INSTITUTE v. CARLTON
agency, in its expertise, deems reliable. The Forest
Service must explain the conclusions it has drawn
from its chosen methodology, and the reasons it con-
siders the underlying evidence to be reliable. We will
conclude that the Forest Service acts arbitrarily and
capriciously only when the record plainly demon-
strates that the Forest Service made a clear error in
judgment in concluding that a project meets the
requirements of the NFMA and relevant Forest Plan.
Id. at 993-94 (emphasis added). In contrast to the case at
hand, the Forest Plan at issue in McNair contained specific
provisions regarding wildlife viability. Id. at 989 (“The . . .
Forest Plan requires the Forest Service to manage the habitat
of species listed in the Regional Sensitive Species List to pre-
vent further declines in populations which could lead to fed-
eral listing under the Endangered Species Act.”) (alteration
and quotation marks omitted). Even so, “neither the NFMA
nor the . . . Forest Plan require the Forest Service to improve
a species’ habitat to prove that it is maintaining wildlife via-
bility.” Id. at 995. Further,
Congress has consistently acknowledged that the
Forest Service must balance competing demands in
managing National Forest System lands. Indeed, . . .
it has never been the case that the national forests
were to be set aside for non-use . . . Congress’ cur-
rent vision of national forest uses . . . states that it is
the policy of the Congress that the national forests
are established and shall be administered for outdoor
recreation, range, timber, watershed, and wildlife and
fish purposes.
Id. at 990 (emphasis added, alteration, citations and quotation
marks omitted).
Here, the Plumas National Forest Plan was amended in
2004 and 2007. Earth Island cites to language in the 2004
EARTH ISLAND INSTITUTE v. CARLTON 18415
amendment indicating that the forest management approach
chosen “will provide the fish and wildlife habitat and other
ecological conditions necessary to maintain well-distributed
viable populations of vertebrate species in the planning area,
and maintain the diversity of plants and animals.” Earth Island
contends that this shows that the Forest Service was to ensure
the viability of the woodpecker. This statement does not
clearly stand for this proposition. First, it could be read to
mean that the Service was to ensure the distribution of the
species, especially when read in combination with the most
recent amendment which also calls for distribution, but not
viability analyses. Second, the requirement pertains to the
planning area, not the project area at issue in this case. As
shown below, the Forest Service did, in fact, find that there
would be no change in the distribution of the woodpeckers at
the Sierra Nevada level. Similarly, the 2007 amendment only
requires “[d]istribution population monitoring [to] track
changes in the distribution of each MIS at the Sierra Nevada
scale by monitoring the changes in the presence of the species
across a number of sample locations,” but “[t]he sole MIS
requirement that is applied at the project-level is the assess-
ment of habitat for MIS. Further, there are no monitoring
requirements for MIS at the project level.” (Emphasis added).
[5] The record shows that the Forest Service satisfied the
requirement to assess MIS habitat in the project area. For
example, in the Management Indicator Species Report for the
Moonlight-Wheeler project, the Forest Service acknowledged
the importance of snag forest to the woodpecker, estimated
post-fire snag forest density in the proposed project area, ana-
lyzed the direct, indirect and cumulative effects of logging on
the habitat under the five proposed alternatives. The Forest
Service concluded that “[a]ll action alternatives, combined
with ongoing and planned fire-killed tree removal projects,
leave more area unharvested than harvested within the analy-
sis area. . . . Leaving the majority of the burn in an unhar-
vested condition maintains an important component of
biological diversity [for] all the unique plants and animals that
18416 EARTH ISLAND INSTITUTE v. CARLTON
depend on those first few years of natural (postfire) succes-
sion. This includes the [woodpecker].” The RFEIS similarly
analyzed the effects of the proposed project on the woodpeck-
er’s habitat needs at the project level in a thorough manner.
As the district court noted,
the [Forest Service] analyzed the amount of suitable
habitat that would be lost in the analysis area due to
salvage logging, and concluded that 62% of suitable
habitat created by the Moonlight and Wheeler fires,
or 20,172 acres, would remain untreated, and thus
still support an upward trend in BBWO [black-
backed woodpecker] population. Finally, the [Forest
Service] also analyzed the relationship of the
project-level habitat impacts to the bioregional
BBWO population trends and determined that after
Project implementation, there would still be suffi-
cient acres of forested areas that burned at high
severity to support BBWO suitable habitat.
[6] Further, the district court correctly found that the spe-
cies distribution requirements only applied to the greater
Sierra Nevada bioregional level, but not to the specific project
at issue here. The district court correctly found that the Forest
Service had analyzed the population distribution data in suffi-
cient detail, concluding that the project would preserve a suf-
ficient area to support the woodpeckers.
[7] We give great deference to agencies when faced with
this type of scientific evidence. See, e.g., Castaneda, 574 F.3d
at 664; McNair, 537 F.3d at 993. Although we relied on spe-
cies viability requirements in, for example, McNair, 537 F.3d
at 992, 998, we emphasize the fact that such requirements
only apply when contained in the pertinent forest plan for the
site-specific area. Id. at 992, 994-95. This was not the case
here. Earth Island also relies on the 1983 version of 36 C.F.R.
§ 219.19 as standing for the proposition that species viability
was required. But as we said in McNair, “[s]ection 219.19
EARTH ISLAND INSTITUTE v. CARLTON 18417
required the Forest Service to manage wildlife habitat ‘to
maintain viable populations of existing . . . species’ and
required the Forest Service to designate management indica-
tor species (MIS) to monitor and evaluate wildlife viability.
This regulation is no longer in effect.” 537 F.3d at 989 n.5
(emphasis added, citation omitted). Here, in explaining how
the 2007 Plumas National Forest Plan Amendment relates to
the partially superceded 1982 planning rule, the Forest Ser-
vice emphasized that “only the aspects of § 219.19 in the
1982 planning rule related to selecting MIS (§ 219.19(a)(1))2
and monitoring during forest plan implementation
(§ 219.19(a)(6))3 apply. Other aspects of § 219.19 are related
to forest plan development or revision and do not apply.”
(Emphasis added). Accordingly, Earth Island’s reliance on 36
C.F.R. § 219.19 is unavailing.
[8] Our role is “simply to ensure that the Forest Service
made no clear error of judgment that would render its action
arbitrary and capricious.” McNair, 537 F.3d at 993 (quotation
marks omitted). This was not the case here. Courts may not
impose “procedural requirements not explicitly enumerated in
the pertinent statutes.” Id. (alteration omitted). Accordingly,
the district court did not abuse its discretion when it con-
cluded that Earth Island was not likely to succeed on the mer-
its of its argument that in analyzing and implementing the
project at issue, the Forest Service was required to ensure spe-
cies viability.
2
Providing, in pertinent part, that “[i]n order to estimate the effects of
each alternative on fish and wildlife populations, certain vertebrate and/or
invertebrate species present in the area shall be identified and selected as
management indicator species and the reasons for their selection will be
stated.”
3
“Population trends of the management indicator species will be moni-
tored and relationships to habitat changes determined. This monitoring
will be done in cooperation with State fish and wildlife agencies, to the
extent practicable.”
18418 EARTH ISLAND INSTITUTE v. CARLTON
ii. Forest Service Responses to Earth Island’s
Comments
Earth Island contends that the district court abused its dis-
cretion in finding that the Forest Service adequately
responded to the dissenting scientific comments submitted by
Earth Island’s scientists during the RFEIS comment period. In
particular, Earth Island alleges that the Forest Service
responded in an impermissibly generalized manner and that
the RFEIS did not address certain specific comments by Earth
Island’s experts, Mr. Rhodes and Dr. Royce.
[9] Under NEPA, agencies must ensure the scientific integ-
rity of the discussions and analyses in their environmental
impact statements. 40 C.F.R. § 1502.24. In doing so, they
must “discuss at appropriate points in the final statement any
responsible opposing view which was not adequately dis-
cussed in the draft statement and shall indicate the agency’s
response to the issues raised.” 40 C.F.R. § 1502.9(b). How-
ever, agencies have broad discretion in choosing how to
respond to opposing scientific evidence. 40 C.F.R. § 1503.4.
Nonetheless, the EIS “must respond explicitly and directly to
conflicting views in order to satisfy NEPA’s procedural
requirements.” Earth Island II, 442 F.3d at 1172. That being
said, “an agency need not respond to every single scientific
study or comment.” Castaneda, 574 F.3d at 668.
[10] First, the district court cited to numerous instances in
the RFEIS where the Forest Service responded in detail to the
specific comments raised by Earth Island. For example, the
court found that the Service commented on the adequacy of
the roadside hazard tree guidelines, the alleged improper
markings of hazard trees, the impact on woodpeckers and
their habitat, and the impact of logging on post-fire soils and
watersheds. Thus, Earth Island’s contention that the Service
only responded in a generalized manner is factually incorrect.
The district court did not abuse its discretion in so finding.
EARTH ISLAND INSTITUTE v. CARLTON 18419
[11] Second, the Forest Service responded extensively to
the comments by both Mr. Rhodes and Dr. Royce. The Forest
Service responded to Mr. Rhodes’ comments on ground cover
loss and landing sites for helicopter and skyline logging in
both the body of the FREIS and in the Appendix. Mr. Rhodes
disagrees with the Forest Service’s scientific findings, but that
disagreement does not render the Forest Service’s review and
comment process improper. “[N]one of NEPA’s statutory pro-
visions or regulations requires the Forest Service to affirma-
tively present every uncertainty in its EIS . . . . After all, to
require the Forest Service to [do so] would be an onerous
requirement, given that experts in every scientific field rou-
tinely disagree . . . .” See McNair, 537 F.3d at 1001. The dis-
trict court here found just such a “battle of the experts” to
exist, but concluded that this did not establish a violation of
NEPA. It was within its authority to do so.
[12] Similarly, the RFEIS responded in detail to Dr.
Royce’s comments on the roadside hazard tree guidelines. For
example, the RFEIS discussed the environmental effects of
roadside hazard tree removal and explained why the Forest
Service guidelines are consistent with scientific recommenda-
tions regarding fire-injured trees. The RFEIS also discusses a
concern raised by an Earth Island expert regarding assump-
tions about the likely fall rates of burned trees. In short, the
RFEIS took the required hard look at the determination of
which trees were hazardous to road travelers. The Forest Ser-
vice responded in a sufficiently detailed manner to the range
of comments submitted. NEPA requires no more. McNair,
537 F.3d at 1000, 1003. Accordingly, the district court did not
abuse its discretion in finding that the Forest Service met its
comment period obligations.
iii. Enforceability of Tree Marking Guidelines
[13] Earth Island contends that the Forest Service did not
follow its allegedly enforceable tree marking guidelines. In
arguing that the guidelines were binding, Earth Island cites to
18420 EARTH ISLAND INSTITUTE v. CARLTON
language from the Record of Decision and the RFEIS stating
that the Forest Service shall “[u]se the best available informa-
tion for identifying dead and dying trees,” that “[h]azard trees
proposed for felling have been identified using the PNF Road-
side/Facility Hazard Tree Guidelines,” and that the objective
of the project is to “[r]emove roadside safety hazards.” The
guidelines themselves are contained in a “Roadside/Facility
Hazard Tree Abatement Action Plan,” the purpose of which
is to “provide parameters for the abatement of road and facil-
ity hazard trees.” Further, “[t]he spirit of these guidelines is
to: 1) remove those trees that would likely die to abate poten-
tial hazards to visitors . . . and 2) retain those trees that will
likely survive. . . . This balance aims to retain healthy forest
cover . . . .” (Emphasis added). Such language does not make
the guidelines enforceable. In order for an agency document
to have the force and effect of law, it must “(1) prescribe sub-
stantive rules — not interpretive rules, general statements of
policy or rules of agency organization, procedure or practice
— and, (2) . . . [be] promulgated pursuant to a specific statu-
tory grant of authority and in conformance with the proce-
dural requirements imposed by Congress.” W. Radio Serv. Co.
v. Espy, 79 F.3d 896, 901 (9th Cir. 1996) (concluding that
agency manual and handbook were not legally enforceable as
they were neither substantive in nature nor promulgated in
accordance with the Administrative Procedure Act). Here, the
language of the guidelines similarly shows that they were not
substantive, but provided only internal guidance and parame-
ters for the abatement of danger from hazard trees. Earth
Island further fails to show that they were promulgated pursu-
ant to a specific grant of congressional authority. Even if they
were enforceable, Earth Island fails to show how the Forest
Service failed to observe them given the fact that one of the
project purposes was to remove burned trees posing a safety
hazard to road traffic in the project area while reestablishing
the forest. This balance is precisely what the guidelines call
for. Accordingly, the district court did not abuse its discretion
in finding that the guidelines were not enforceable.
[14] In short, the district court used the correct standard for
analyzing Earth Island’s likelihood of success on the merits
EARTH ISLAND INSTITUTE v. CARLTON 18421
and did not abuse its discretion in finding that Earth Island
failed to show that it was likely to succeed on the merits of
its NFMA claims.
B. Likelihood of Irreparable Harm
Earth Island claims that the district court abused its discre-
tion in conflating the merits and likelihood of irreparable
harm inquiries. This argument is unavailing. In one instance,
the court referred to Earth Island’s likelihood of success on
the merits in connection with its irreparable harm analysis.
However, this should come as no surprise as there is signifi-
cant overlap between these two issues. Winter does not stand
for the proposition that courts may never evaluate one factor
without looking to another, as Earth Island argues.
Earth Island also contends that the district court failed to
realize that both the possible imminence of the alleged harm
and the severity thereof must be analyzed under this prong.
This argument does find basis in the record. The district
court’s analysis shows that the court fully understood and cor-
rectly applied this second Winter prong. For example, the
court analyzed both whether it was likely or merely possible
that the alleged harm would take place. Pointing out that a
showing of a mere possibility of irreparable harm is not suffi-
cient under Winter, the court found that Earth Island had, at
most, showed such a possibility, but no likelihood of irrepara-
ble harm. Further, Earth Island’s argument that logging is per
se enough to warrant an injunction because it constituted
irreparable environmental harm was squarely rejected by
McNair where we declined “to adopt a rule that any potential
environmental injury automatically merits an injunction.” 537
F.3d at 1005 (noting that this is particularly so where plain-
tiffs are also found not likely to succeed on the merits of their
claims.).
Finally, Earth Island asserts that the district court abused its
discretion in “essentially” requiring it to show that the project
18422 EARTH ISLAND INSTITUTE v. CARLTON
would render the entire regional population of woodpeckers
unviable. Nowhere did the district court require Earth Island
to demonstrate the species-level harm that Earth Island con-
tends.
[15] In short, the district court correctly analyzed the like-
lihood of irreparable harm in sufficient depth without imper-
missibly conflating this with the other required factors.
C. Balancing of the Equities and Public Interest
[16] Finally, Earth Island argues that in balancing the equi-
ties and considering the public interest, the district court
assigned too much weight to the Forest Service’s asserted
economic injury, the Forest Service’s risk assessment and the
Forest Service’s determination that reforestation was in the
public’s interest. To be sure, district courts must “give serious
consideration to the balance of equities and the public inter-
est.” Winter, 129 S. Ct. at 368. However, “[a]n injunction is
a matter of equitable discretion.” Id. at 381. The assignment
of weight to particular harms is a matter for district courts to
decide. The record here shows that the district court balanced
all of the competing interests at stake. For example, the court
stated that whereas “the balance of harms will usually favor
the issuance of an injunction to protect the environment,” the
law also did not allow it “to abandon a balance of harms anal-
ysis just because a potential environmental injury is at issue”
and that it “must balance all of the competing interests at
stake.”
[17] Earth Island argues that the district court gave too
much weight to the economic harm alleged by the Forest Ser-
vice. It is true that the district court considered the govern-
ment’s interest in recovering the highest possible value of the
timber and providing a boost to the local economy by creating
jobs in the local logging industry. However, the district court
did not clearly err in finding that the economic stakes, in com-
bination with the safety concerns and reforestation efforts,
EARTH ISLAND INSTITUTE v. CARLTON 18423
outweighed any harm to environmental interests. Economic
harm may indeed be a factor in considering the balance of
equitable interests. See, e.g., Amoco Prod. Co. v. Vill. of Gam-
bell, 480 U.S. 531, 545 (1987) (concluding that where
asserted environmental injury was “not at all probable,” eco-
nomic interest was properly given more weight); McNair, 537
F.3d at 1005 (holding that the district court did not clearly err
in concluding that the balance of harms did not tip in environ-
mental organization’s favor where a Forest Service project
would “further the public’s interest in aiding the struggling
local economy and preventing job loss.”).
[18] Earth Island further argues that the district court erro-
neously found that if the injunction were issued, the public
would be at risk from falling roadside hazard trees and erred
in not considering its request4 for a tailored injunction that
allowed for only the felling of trees in imminent danger of
falling. To be sure, district courts have “broad latitude in fash-
ioning equitable relief when necessary to remedy an estab-
lished wrong.” Sierra Hikers Ass’n v. Blackwell, 390 F.3d
630, 641 (9th Cir. 2004). However, courts must always care-
fully “balance the competing claims of injury.” Winter, 129 S.
Ct. at 376. In doing so here, the district court carefully scruti-
nized both the written record regarding the fall rates of trees
affected by fires as well as the extensive testimony by experts
asserting the dangers posed by roadside hazard trees to the
general public and forest employees. The court concluded that
these safety concerns weighed in favor of not issuing the
injunction. It did not abuse its discretion in doing so.
4
This alleged request took the form of Earth Island’s statements on page
24 of its memorandum in support of the preliminary injunction that it did
not “object to structurally damaged imminent hazard trees being felled and
left on site.” It was thus not the clear request for alternative relief that
Earth Island contends. See, e.g. Sierra Forest Legacy v. Rey, 577 F.3d
1015, 1022 (9th Cir. 2009) (concluding that the district court had the
power to issue a narrow injunction specifically requested by plaintiffs).
Regardless, we will address the requested remedy here as if it had been.
18424 EARTH ISLAND INSTITUTE v. CARLTON
[19] Finally, Earth Island contends that the district court
erred in finding that salvage logging was necessary to pro-
mote forest regeneration. The court evaluated expert testi-
mony that absent logging of fire-killed and fire-injured trees
in combination with the planting of conifer seedlings, brush
species would eventually dominate the area resulting in an
increase of the cost, difficulty and failure rate of subsequently
converting the area into suitable woodpecker habitat. The
court concluded that if the injunction was granted, the public
would lose the immediate benefits of the reforestation efforts.
It did not abuse its discretion in doing so.
CONCLUSION
For the above reasons, the district court correctly denied
Earth Island’s motion for a preliminary injunction enjoining
the Forest Service’s implementation of the Moonlight-
Wheeler project.
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
The majority’s denial of a preliminary injunction, like the
district court’s before it, rests on two fundamental errors.
First, the majority concludes that the Forest Service has no
obligation to ensure species viability in the Plumas National
Forest despite numerous clear statements to the contrary in
the Plumas National Forest Plan. Second, it concludes that the
RHT Hazard Tree Marking Guidelines are not binding on the
Forest Service despite the fact that the Forest Service itself
acknowledges that they are. The district court rested its denial
of a preliminary injunction almost entirely on its erroneous
conclusions regarding Earth Island’s likelihood of success on
the merits. I would therefore grant a temporary injunction and
remand to the district court to reconsider Earth Island’s appli-
EARTH ISLAND INSTITUTE v. CARLTON 18425
cation for a preliminary injunction with the understanding
that, as is explained below, Earth Island is likely to prevail on
its NFMA challenges to the Moonlight-Wheeler Project.
I.
The Forest Service’s actions in implementing the
Moonlight-Wheeler Project violated a substantive obligation,
enforceable under the NFMA, to ensure the viability of the
Black-backed Woodpecker. To avoid this conclusion, the
majority wilfully ignores unambiguous language in the 2004
and 2007 Forest Plan Amendments, which impose a binding
obligation to ensure species viability in the Plumas National
Forest, as well as our precedent, which makes this obligation
applicable to individual projects, such as the Moonlight-
Wheeler Project.
A.
The viability requirement that Earth Island alleges the For-
est Service violated was originally stated in the first paragraph
of the so-called 1982 Rule, 36 C.F.R. § 219.19 (1982). It
reads:
Fish and wildlife habitat shall be managed to
maintain viable populations of existing native and
desired non-native vertebrate species in the planning
area. For planning purposes, a viable population
shall be regarded as one which has the estimated
numbers and distribution of reproductive individuals
to insure its continued existence is well distributed in
the planning area. In order to insure that viable popu-
lations will be maintained, habitat must be provided
to support, at least, a minimum number of reproduc-
tive individuals and that habitat must be well distrib-
uted so that those individuals can interact with others
in the planning area.
18426 EARTH ISLAND INSTITUTE v. CARLTON
Id. Although the majority is correct that the regulation itself
has since been superceded, its requirements still apply “to the
extent they were incorporated into [a] Forest Plan.” Cas-
taneda, 574 F.3d at 657. The majority appears to conclude
that the 1982 Rule was not incorporated into the Plumas
National Forest Plan by the 2004 amendments, and that there-
fore the Forest Service has no obligation to ensure species
viability. This conclusion is contrary not only to the district
court’s finding that the 1982 Rule was incorporated into the
1993 Forest Plan and the 2001, 2004, and 2007 Forest Plan
Amendments, but also to this court’s explicit prior holding
that the 2004 amendments did incorporate the 1982 Rule. ER
Vol. 1, Tab 1, page 18 (“The Forest Plan and all amendments
rely on the 1982 version of the 36 C.F.R. § 219 NFMA regula-
tions.”).1 See Earth Island Inst. v. U.S. Forest Service, 442
F.3d 1147, 1173 (9th Cir. 2006) (“As a preliminary matter, we
conclude the NFMA regulations promulgated in 1982 apply
to the . . . 2004 [amendments].”2 Id. at 1173.
Moreover, even if binding precedent did not foreclose the
majority’s conclusions that the 1982 Rule does not apply and
1
Neither party appears to dispute that the 2001 amendments incorpo-
rated the 1982 Rule’s viability requirement. As the Record of Decision for
those amendments stated:
My decision conforms with the 1982 planning regulations (36
CFR 219) that implement the National Forest Management Act.
These regulations were recently changed. . . . Transition language
within the new rule permits plan revisions and amendments, such
as the amendments that are part of my decision, to be completed
under the 1982 procedures.
The document then proceeds to discuss the amendments’ compliance with
the 1982 Rule. Thus, the only question is whether either the 2004 or 2007
amendments eliminated the Forest Service’s preexisting obligation to
ensure species viability consistent with the 1982 Rule.
2
Earth Island addressed a project in the El Dorado National Forest. Like
Plumas National Forest, El Dorado is governed by the 2001 Sierra Nevada
Framework Plan and the 2004 amendments to that framework. See id. at
1154.
EARTH ISLAND INSTITUTE v. CARLTON 18427
there is therefore no viability requirement, these conclusions
could not be supported by a sensible reading of the relevant
forest plan amendments. The 2004 amendments to the Plumas
National Forest Plan, for example, could not have been more
clear in incorporating the 1982 Rule and imposing a viability
requirement upon the Forest Service. In the Record of Deci-
sion implementing the 2004 amendments, the Forest Service’s
Regional Forester for the Pacific Southwest Region stated
that, “[m]y decision conforms with the 1982 planning regula-
tions (29 CFR 219) that implement the National Forest Man-
agement Act.” The document’s following subsection is
entitled, “Diversity and Viability Provisions for Fish and
Wildlife,” (emphasis added), and concludes by requiring the
Forest Service to “provide the fish and wildlife habitat and
other ecological conditions necessary to maintain well-
distributed viable populations of vertebrate species in the
planning area.” (Emphasis added). The majority suggests that
this statement “could be read to mean that the Service was to
ensure the distribution of the species,” but not their viability.
Maj. Op. at 18415. In fact, it cannot. To do so, one would first
be required to ignore the fact that this statement follows
shortly after the amendments’ explicit adoption of the 1982
Rule; one would then have to ignore the fact that the state-
ment falls under a heading pertaining to “Viability Provi-
sions”; and finally, one would have to willfully overlook the
presence of the word viable in the statement itself. There is no
canon of construction that allows us to ignore words we deem
inconvenient. Such a willful misreading is especially unac-
ceptable, where, as here, the context in which the word “via-
ble” appears makes perfectly clear that its inclusion in the
amendments was deliberately intended to impose upon the
Forest Service a viability requirement consistent with the
1982 Rule.
The majority likewise errs in its conclusion that the 2007
amendments do not impose a viability requirement. It so con-
cludes because, in addressing requirements for Management
Indicator Species such as the Black-backed Woodpecker, the
18428 EARTH ISLAND INSTITUTE v. CARLTON
Amendments require only “[d]istribution population monitor-
ing [to] track changes in the distribution of each MIS at the
Sierra Nevada scale by monitoring the changes in the pres-
ence of the species across a number of sample locations,” and
state that “[t]he sole MIS requirement that is applied at the
project-level is the assessment of habitat for MIS. Further,
there are no monitoring requirements for MIS at the project
level.” But this language is simply irrelevant to whether or not
the Forest Service is obligated to ensure species viability. The
2007 amendments made clear that the species viability
requirement and the MIS monitoring requirement are separate
and distinct provisions, and that though the Amendment
changed MIS monitoring requirements, it had no effect what-
soever on the Forest Service’s pre-existing obligation to
ensure viability under the 1982 Rule:
This Amendment does not change the viability
requirements. The viability requirements at the plan-
ning area scale are described under the first para-
graph of the [1982 Rule]; these have already been
met in each forest plan, as revised. Forests will con-
tinue to ensure that the project-level viability
requirements are met: “Provide for adequate fish and
wildlife habitat to maintain viable population of
existing native vertebrate species” (36 C.F.R.
219.27(a)(6)). This is documented in project-level
analysis . . . . The project-level MIS requirements . . .
will also be documented in project-level analysis.
FEIS Appendix G at 338. The Final Environmental Impact
Statement for the 2007 amendments likewise stated that
“[m]anagement for conservation of all species, regardless of
whether they are designated as MIS or not, is governed by . . .
the general viability requirements of the National Forest Man-
agement Act implementing regulations.” FEIS at 56 (empha-
sis added). The 2004 and 2007 amendments impose a viability
requirement upon the Forest Service that is distinct from the
MIS monitoring requirement, and Forest Service must satisfy
EARTH ISLAND INSTITUTE v. CARLTON 18429
both requirements to be in compliance with the NFMA.
Although the majority’s extensive discussion of how the
Moonlight-Wheeler Project satisfies the 2007 MIS monitoring
requirement may well be correct, it is completely beside the
point. The question at issue in this case is not whether or not
the Forest Service has met its obligations to monitor MIS spe-
cies, but whether or not it has satisfied the viability require-
ments so clearly set forth in the 2004 and 2007 amendments.
B.
Our precedents have been deliberately flexible in defining
what the Forest Service must do when, as here, a Forest Plan
requires it to ensure species viability in the administration of
a given national forest. See, e.g., The Lands Council v.
McNair, 537 F.3d 981, 997 (9th Cir. 2008) (en banc) (“To
always require a particular type of proof that a project would
maintain a species’ population in a specific area would inhibit
the Forest Service from conducting projects in the National
Forests.”). However, two principles are clear. First, contrary
to the majority’s repeated efforts to assert that even if a viabil-
ity requirement exists it does not apply at the project level, a
viability requirement that is applicable at the planning level
necessarily applies to and constrains individual projects
undertaken in a national forest:
[C]ompliance with NFMA’s forest-wide species via-
bility requirements is relevant to the lawfulness of
any individual timber sale. To hold otherwise would
permit the Forest Service to don blinders to the over-
all condition of a national forest each time it
approved a sale, quite literally losing sight of the for-
est for the trees. This would contravene “one of the
fundamental purposes of Congress in enacting
[NFMA]: that the National Forest System be man-
aged with ‘a systematic interdisciplinary approach,’
by means of ‘one integrated plan for each unit of the
National Forest System.’ ” Idaho Sporting Cong. v.
18430 EARTH ISLAND INSTITUTE v. CARLTON
Rittenhouse, 305 F.3d 957 (9th Cir. 2002) (quoting
16 U.S.C. § 1604).
Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059,
1069 (9th Cir. 2002); see also McNair, 537 F.3d at 989
(“After a forest plan is developed, all subsequent agency
action, including site-specific plans . . . must comply with the
NFMA and be consistent with the governing forest plan.”).
Second, the NFMA requires that when a viability require-
ment is included in a Forest Plan, the Forest Service must
affirmatively demonstrate that any given project satisfies its
obligation to ensure species viability. McNair, 537 F.3d at
992-94. Such a demonstration is to be reviewed deferentially,
see id. at 992 (“[W]e defer to the Forest Service as to what
evidence is, or is not, necessary to support wildlife viability
analyses.”), but, at the least, the Forest Service must:
support its conclusions that a project meets the [via-
bility] requirements of the . . . relevant Forest Plan
with studies that the [Forest Service], in its expertise,
deems reliable. The Forest Service must explain the
conclusions it had drawn from its chosen methodol-
ogy, and the reasons it considers the underlying evi-
dence to be reliable.
Id. at 994. In McNair, for example, the Forest Service sup-
ported its conclusion that a project in the Idaho Panhandle
National Forest provided for the Flammulated Owl’s viability
by citing to several scientific studies pertaining to the owl’s
habitat preferences and conducting on-the-ground analysis of
the owl in an area adjacent to the project area. Id. at 994. That
“relatively sparse” showing, we stated, “approaches the limits
of our deference.” Id. at 995.
In implementing the Moonlight-Wheeler Project, the Forest
Service failed to meet even these minimal obligations. The
agency did not reach a conclusion that the Project would
EARTH ISLAND INSTITUTE v. CARLTON 18431
ensure species viability, let alone did it support such a conclu-
sion, as the NFMA requires, with studies and methodological
explanations sufficient to establish that its actions were not
arbitrary or capricious. The agency argues that it satisfied its
obligations through analysis that it undertook in fulfillment of
the Forest Plan’s unrelated requirement that it “assess wildlife
habitat,” and the majority asserts that it need not demonstrate
project-level species viability at all. Where the Forest Service
seeks to use habitat as a proxy for species viability it “must
describe the quantity and quality of habitat that is necessary
to sustain the viability of the species in question and explain
its methodology for measuring this habitat.” McNair, 537
F.3d at 998. The Forest Service has not done so in this case,
and its conclusion that the project would, despite undoing
some habitat gains from the Moonlight fires, “still support an
upward trend in [Black-backed Woodpecker] population,” tell
us nothing about whether the project interferes with the
Woodpecker’s viability. The Forest Service’s essentially non-
existent conclusions regarding species viability thus fall far
short of the conclusions that “approach[ed] the limits of our
deference” in McNair. Id. at 995.
The Forest Service’s decision to simply ignore a binding
viability requirement in the Plumas National Forest Plan vio-
lates the NFMA. See 16 U.S.C. § 1604(i) (“Resource plans
and permits, contracts, and other instruments for the use and
occupancy of National Forest System lands shall be consistent
with the land management plans.”). Earth Island has thus
shown that it is extremely likely to prevail on the merits of its
NFMA claim. The district court was wrong to conclude other-
wise, and because its application of the preliminary injunction
test turned predominantly on this erroneous conclusion, I
would grant an injunction pending appeal and issue a limited
remand to allow the district court to reconsider Earth Island’s
request for a preliminary injunction. The majority is simply
wrong when it says that species viability on a project level is
not required.
18432 EARTH ISLAND INSTITUTE v. CARLTON
II.
The majority further errs in its conclusion that the Forest
Service was not bound by the RHT Guidelines for identifying
and marking hazardous trees. The majority, like the district
court, concludes that the RHT Guidelines are not enforceable.
It reaches this conclusion based on the presence of certain
non-mandatory phrases in the Guidelines, as well as its con-
clusion that the Guidelines were not promulgated pursuant to
a specific congressional grant of authority. However, both of
these arguments for the non-enforceability of the Guidelines
are erroneous.
First, the fact that the Guidelines use non-mandatory
phrases to describe their general objectives, does not, as the
majority suggests, render them unenforceable. See Maj. Op.
at 18419-20. The majority emphasizes two such uses of non-
mandatory phrases—one is a reference to “[t]he spirit of these
guidelines”; the other states that the “balance [struck by the
Guidelines] aims to retain healthy forest cover”—and some-
how arrives at the conclusion that the Guidelines were
intended only to provide “internal guidance and parameters”
for the marking of hazardous trees. Id. In fact, notwithstand-
ing such general statements, the guidelines are predominantly
phrased in mandatory language, and impose specific require-
ments on which trees may be marked for removal. See, e.g.,
ER II, Tab 16 at 1-2 (“Mark for removal any hazard tree capa-
ble of falling on a road or facility that meets the following
criteria . . . .”).
Second, the majority’s conclusion that Earth Island “fails to
show that [the Guidelines] were promulgated pursuant to a
specific grant of congressional authority” is incorrect. The
2004 amendments to the Plumas National Forest Plan state
that the Forest service must “[u]se the best available informa-
tion for identifying dead and dying trees for salvage purposes
as developed by the Pacific Southwest Region Forest Health
Protection Staff,” and the Forest Service concedes that “the
EARTH ISLAND INSTITUTE v. CARLTON 18433
Plumas Forest Plan, as amended, contemplates that salvage
projects will use the RHT Guidelines.” Moreover, a portion of
the guidelines was explicitly incorporated into the Moonlight-
Wheeler Project. The Forest Service thus clearly adopted the
Guidelines pursuant to a congressional grant of authority,
namely, its authority under the NFMA to develop and execute
Forest Plans. See 16 U.S.C. § 1604(e) (“In developing, main-
taining, and revising plans for units of the National Forest
System pursuant to this section, the Secretary shall assure that
such plans . . . determine forest management systems, harvest-
ing levels, and procedures in the light of all of the uses set
forth in subsection (c)(1) of this section.”) (emphasis added).
Because the RHT Guidelines were incorporated into the
Plumas National Forest Plan, the district court erred in con-
cluding that they are unenforceable. This erroneous conclu-
sion kept the district court from deciding whether the factual
foundation of Earth Island’s allegations regarding violations
of the Guidelines was sufficiently strong to warrant an injunc-
tion under the test set forth in Winter v. Natural Res. Def.
Council, 129 S. Ct. 365, 374 (2008).3 Its denial of a prelimi-
nary injunction regarding the tree marking guidelines—and
the majority’s affirmation of that denial—was thus based
entirely on the faulty legal conclusion that the RHT Guide-
lines do not impose any enforceable obligations upon the For-
est Service. I would therefore remand this issue to the district
court for further proceedings to determine whether, given that
the Guidelines create legally binding obligations, Earth Island
has alleged facts sufficient to satisfy the Winter test and,
3
While the district court expressed significant skepticism toward several
of Earth Island’s arguments regarding the Guidelines, it did so in address-
ing Earth Island’s NEPA claims. The NEPA claims that the district court
addressed are distinct from the claims at issue in Earth Island’s NFMA
claim. Whereas the former address the validity of the Guidelines and
whether the Forest Service adequately responded to Earth Island’s com-
ments on the subject, the latter address whether or not the Forest Service
actually adhered to the Guidelines. See Dist. Ct. Op. at 20.
18434 EARTH ISLAND INSTITUTE v. CARLTON
accordingly, to warrant the issuance of a preliminary injunc-
tion.
III.
The district court failed to address the last three factors of
the Winter test —likelihood of irreparable injury, the balance
of the harms, and the public interest—as questions distinct
from Earth Island’s likelihood of success on the merits.
Rather, it addressed each of the three remaining preliminary
injunction factors as if they were settled by its finding that
Earth Island was unlikely to succeed on the merits of its claim.4
Had the district court analyzed these three factors without ref-
erence to its erroneous conclusions regarding Earth Island’s
likelihood of success, it may well have been compelled to
conclude that a preliminary injunction was appropriate.
Regarding whether the harm suffered by Earth Island is
irreparable, the Supreme Court has stated that because
“[e]nvironmental injury, by its very nature, can seldom be
adequately remedied by money damages and is often perma-
nent or at least of long duration [it is] irreparable.” Amoco
Production Co. v. Gambell, 480 U.S. 531, 545 (1987). We
have thus repeatedly recognized that the irreversible environ-
mental effects of logging activity suffice to establish “irrepa-
rable harm” for purposes of obtaining a preliminary
injunction. See, e.g., Neighbors of Cuddy Mountain v. United
States Forest Service, 137 F.3d 1372, 1382 (9th Cir. 1998);
City of Tenakee Springs v. Clough, 915 F.2d 1308, 1314 (9th
Cir. 1990).5 Here, Earth Island has alleged that if the snag for-
4
See, e.g., Dist. Ct. Op. at 63 (“Considering the court has found that it
is unlikely plaintiff can demonstrate any clear error in judgment by the
[Forest Service] in rendering its decision on the Project’s impacts to wild-
life and the soils and watersheds, the court cannot find that plaintiff has
shown a likelihood of irreparable harm.”).
5
The district court concluded that such cases no longer had precedential
value following Winter v. Natural Res. Def. Council, 129 S. Ct. 365
EARTH ISLAND INSTITUTE v. CARLTON 18435
est habitat created by the 2007 fires is logged, it will be per-
manently lost as potential habitat for the Black-backed
Woodpecker and other species. The district court expressed
skepticism that this logging project would ultimately precipi-
tate the extinction of the Black-backed Woodpecker in the
Sierra Nevadas, a question that is difficult to answer given the
shoddiness of the Forest Service’s analysis of that issue. But
Earth Island need not be required to prove with certainty that
the project will lead to the Woodpecker’s extinction to estab-
lish that it will be irreparably harmed. There is no dispute that
the project will destroy thousands of acres of rare habitat that
is critical for the Woodpecker’s survival. As such, there is
more than a likelihood—there is an absolute certainty—that
Earth Island was and will continue to be irreparably harmed
by the denial of an injunction.
The district court likewise committed serious errors in its
analysis of the public interest and the balancing of the equi-
ties. First, as in its analysis of irreparable harm, the district
court’s treatment of these factors rested largely on its errone-
ous conclusion that Earth Island was unlikely to prevail on the
merits. It stated, “While the court must seriously consider the
potential harm to the environment caused by the Project,
where plaintiff has not made the requisite showing on the
merits which, in turn, undermines the likelihood of irreparable
injury, the balance of equities cannot be found in plaintiff’s
favor.” (Emphasis added).
Second, the district court conducted its analysis as though
Earth Island had sought an injunction broader than the one it
(2008). Winter held that a party seeking a preliminary injunction must
show a likelihood of irreparable harm, overruling Ninth Circuit precedent
requiring only a showing of a possibility of irreparable harm. Id. at 375-
76. However, this holding has no bearing on whether a certain category
of alleged harm is in fact irreparable. These precedents thus remain valid
to the extent they make clear that the sort of environmental harm that
Earth Island anticipates in this case is irreparable in nature.
18436 EARTH ISLAND INSTITUTE v. CARLTON
expressly requested. On the same day it filed its motion for a
preliminary injunction, Earth Island filed a proposed prelimi-
nary injunction order. The proposed order explicitly states
that the Forest Service “may fell and leave trees or remove
naturally fallen trees to the side of the roadway under emer-
gency circumstances pursuant to 36 C.F.R. § 220.4(b)(1)”, but
may not remove any such trees from the project area. Id. The
cited regulation allows “actions necessary to control the
immediate impacts of the emergency and . . . urgently needed
to mitigate harm to life, property, or important natural or cul-
tural resources.”
In the reply brief it filed with the district court in support
of its request for a preliminary injunction, Earth Island
emphasized the safety exception contained in its proposed
order, and added that “[i]f this Court is convinced that the
allowances made by Plaintiff in [its] Proposed Order are not
sufficient to safeguard the public from harm, . . . . the Court
could merely identify some segment of the trees marked for
cut as hazards to be logged, while enjoining the rest of the
project.” Yet the district court, in its analysis of the public
interest and the balance of the equities, explicitly relied on
evidence that “a real safety risk exists to the public as a result
of hazardous trees,” — a risk that the Forest Service would
retain the authority to address even if the requested prelimi-
nary injunction were issued. The district court thus violated
the requirement that “[w]hen deciding whether to issue a nar-
rowly tailored injunction, district courts must assess the harms
pertaining to injunctive relief in the context of that narrow
injunction.” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022
(9th Cir. 2009). Had the district court evaluated the narrow
injunction Earth Island requested and thus not incorrectly con-
cluded that an injunction would pose a threat to the public
safety, it would have been left with only two bases for con-
cluding that the balance of the equities and public interest
support an injunction: economic harm to the community and
government, and loss of the “benefits of reforestation.” The
latter of these is clearly not a legitimate basis for denying a
EARTH ISLAND INSTITUTE v. CARLTON 18437
preliminary injunction—even if reforestation is not occurring
naturally, there is no reason why the steps necessary to ensure
reforestation cannot be undertaken following a decision on the
merits.
The district court’s denial of an injunction was thus flawed
in a number of respects, as is the majority’s affirmation of that
denial. It failed to recognize Earth Island’s strong likelihood
of success on the merits as well as the irreparable harm that
would befall Earth Island absent an injunction. Likewise, its
treatment of the public interest and the balance of the equities
rested largely on the court’s flawed analysis of the merits of
the case, and failed to account for the narrow scope of the
injunction Earth Island requested. I therefore must disagree
strongly with the majority. I believe that Earth Island is enti-
tled to an injunction pending appeal, as well as a limited
remand to allow the district court to consider whether, in light
of its likelihood of success on the merits, the irreparable
nature of its foreseeable harm, and the narrow scope of the
injunction it requested, it is entitled to a preliminary injunc-
tion.