FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLIANCE FOR THE WILD ROCKIES; No. 09-35756
NATIVE ECOSYSTEMS COUNCIL, D.C. No.
Plaintiffs-Appellants, 9:09-cv-00107-
v. DWM
JANE L. COTTRELL, in her official ORDER
capacity as acting Regional WITHDRAWING
Forester; UNITED STATES FOREST OPINION AND
SERVICE, an agency of the United DENYING
States Department of Agriculture, REHEARING AND
Defendants-Appellees.
OPINION
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 January 25, 2011
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.
1517
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1521
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.
ORDER
This Court’s opinion, filed September 22, 2010, and pub-
lished at 622 F.3d 1045 (9th Circuit 2010), is withdrawn and
replaced by the attached opinion and concurrence.
With this filing, the panel has voted unanimously to deny
Appellees’ petition for rehearing. Judge W. Fletcher and
Judge Rawlinson have voted to deny the petition for rehearing
en banc, and Judge Mosman so recommends. The full court
has been advised of the petition for rehearing en banc and no
judge of the court has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The Appellees’ peti-
tion for rehearing and petition for rehearing en banc are
DENIED.
1522 ALLIANCE FOR WILD ROCKIES v. COTTRELL
No further petitions for rehearing will be entertained.
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
(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-
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1523
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
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.
1524 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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
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
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1525
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
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.
1526 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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.
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
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1527
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
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
1528 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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-
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
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1529
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”
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-
1530 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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
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-
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1531
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. The “serious questions” standard permits a
district court to grant a preliminary injunction in sit-
uations where it cannot determine with certainty that
the moving party is more likely than not to prevail
on the merits of the underlying claims, but where the
costs outweigh the benefits of not granting the
injunction. Because the moving party must not only
show that there are “serious questions” going to the
merits, but must additionally establish that “the bal-
ance of hardships tips decidedly in its favor, its over-
all burden is no lighter than the one it bears under
the “likelihood of success” standard.
Citigroup Global Mkts., Inc. v. VCG Special Opportunities
Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (emphasis
in original; 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-
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
1532 ALLIANCE FOR WILD ROCKIES v. COTTRELL
“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-
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).
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1533
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
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
1534 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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. To the extent prior cases applying the
“serious questions” test have held that a preliminary injunc-
tion may issue where the plaintiff shows only that serious
questions going to the merits were raised and the balance of
hardships tips sharply in the plaintiff’s favor, without satisfy-
ing the other two prongs, they are superseded by Winter,
which requires the plaintiff to make a showing on all four
prongs. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). But the “serious questions” approach sur-
vives Winter when applied as part of the four-element Winter
test. That is, “serious questions going to the merits” and a bal-
ance of hardships that tips sharply towards the plaintiff can
support issuance of a preliminary injunction, so long as the
plaintiff also shows that there is a likelihood of irreparable
injury and that the injunction is in the public interest.
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.
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1535
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.
1536 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1537
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.
1538 ALLIANCE FOR WILD ROCKIES v. COTTRELL
[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-
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1539
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-
1540 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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,
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1541
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.
1542 ALLIANCE FOR WILD ROCKIES v. COTTRELL
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
ALLIANCE FOR WILD ROCKIES v. COTTRELL 1543
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.