FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE LANDS COUNCIL; WILD WEST
INSTITUTE,
Plaintiffs-Appellants,
v.
RANOTTA MCNAIR, Forest No. 07-35000
Supervisor for the Idaho
Panhandle National Forests;
UNITED STATES FOREST SERVICE,
D.C. No.
CV-06-00425-EJL
Defendants-Appellees, OPINION
BOUNDARY COUNTY; CITY OF
BONNERS FERRY; CITY OF MOYIE
SPRINGS; EVERHART LOGGING, INC.;
REGEHR LOGGING, INC.,
Defendant-Intervenors-Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
March 27, 2008—San Francisco, California
Filed July 2, 2008
Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,
Andrew J. Kleinfeld, Michael Daly Hawkins,
Barry G. Silverman, M. Margaret McKeown,
Raymond C. Fisher, Marsha S. Berzon, Richard R. Clifton,
Milan D. Smith, Jr., and N. Randy Smith, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
8231
8236 LANDS COUNCIL v. MCNAIR
COUNSEL
Karen Lindholdt, University Legal Assistance, Spokane,
Washington; Thomas J. Woodbury, Forest Defense, P.C.,
Missoula, Montana, for the plaintiffs-appellants.
Andrew C. Mergen and Thomas W. Swegle, United States
Department of Justice, Washington, D.C., for the defendants-
appellees.
Scott W. Horngren, Haglund Kelley Jones & Wilder LLP,
Portland, Oregon, for the defendant-intervenors-appellees.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
We took this case en banc to clarify some of our environ-
mental jurisprudence with respect to our review of the actions
of the United States Forest Service.
LANDS COUNCIL v. MCNAIR 8237
The Lands Council and Wild West Institute (collectively,
Lands Council) moved for a preliminary injunction to halt the
Mission Brush Project (the Project), which called for the
selective logging of 3,829 acres of forest in the Idaho Panhan-
dle National Forest (IPNF). As the basis for the preliminary
injunction, Lands Council claimed that Ranotta McNair and
the United States Forest Service (collectively, the Forest Ser-
vice), failed to comply with the National Forest Management
Act (NFMA), 16 U.S.C. § 1600 et seq., the National Environ-
mental Policy Act (NEPA), 42 U.S.C. § 4231 et seq., and the
Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.,
in developing and implementing the Project.
Boundary County, City of Bonners Ferry, City of Moyie
Springs, Everhart Logging, Inc., and Regehr Logging, Inc.
(collectively, Intervenors) intervened on behalf of the Forest
Service. The district court denied Lands Council’s motion for
a preliminary injunction. A three-judge panel of this court
reversed the district court’s decision and remanded for entry
of a preliminary injunction in Lands Council v. McNair, 494
F.3d 771 (9th Cir. 2007). We vacate that decision and affirm
the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Mission Brush Area
The Mission Brush Area (or Project Area) encompasses
approximately 31,350 acres and is located in the northeastern
portion of the Bonners Ferry Ranger District. Approximately
16,550 acres of the Project Area are National Forest System
lands, which are home to a variety of species (or their habi-
tats), including the northern gray wolf, Canada lynx, grizzly
bear, black-backed woodpecker, flammulated owl, fisher,
western toad, pileated woodpecker, and the white-tailed deer.
The Project Area is also home to old-growth trees.
The current structure and composition of the forest in the
Project Area differs significantly from the forest’s historic
8238 LANDS COUNCIL v. MCNAIR
composition. While the Project Area previously consisted of
relatively open ponderosa pine and Douglas-fir stands, today
it is crowded with stands of shade-tolerant, younger Douglas-
firs and other mid-to-late-successional species. The suppres-
sion of naturally occurring fires, past logging practices, and
disease are primarily responsible for this shift in forest com-
position.
The increased density of trees has proven deleterious to the
old-growth trees and the Project Area’s ecology. First, old-
growth trees need relatively open conditions to survive and
maintain their growth rates. Second, the increased density is
causing a decline in the health and vigor of all trees because
they must compete for moisture, sunlight, and nutrients, and
the densely clustered trees are less tolerant of insects and dis-
ease. Third, dense, dry forests are at risk for large, stand-
replacing fires, due to the build-up of fuels. Lastly, wildlife
species that prefer a relatively open forest composition with
more old-growth trees have suffered a decline in habitat.
B. Mission Brush Project
The Forest Service proposed the Project, in part, to restore
the forest to its historic composition, which, in the Forest Ser-
vice’s assessment, is more likely to be sustainable over time.
But this is not the Project’s only objective. According to the
Supplemental Final Environmental Impact Statement (SFEIS)
that the Forest Service issued in April 2006, the overall “ob-
jectives of the project are to begin restoring forest health and
wildlife habitat, improv[e] water quality and overall aquatic
habitat by reducing sediment and the risk of sediment reach-
ing streams, and provid[e] recreation opportunities that meet
the varied desires of the public and the agency while reducing
negative effects to the ecosystem.” The Project proposes to
accomplish these varied objectives through a number of
actions, such as improving roads that presently contribute to
sediment in the watersheds, decommissioning roads posing a
great risk of contributing to sediment, ensuring that the Proj-
LANDS COUNCIL v. MCNAIR 8239
ect Area has acceptable toilets and wheelchair accessible
pathways to toilets, installing a boat ramp and fishing dock,
and improving trails.
After considering multiple approaches on how best to
accomplish the Project’s goals with respect to forest composi-
tion, including one no-action alternative, the Forest Service
chose to implement a modified version of Alternative 2. In
relevant part, Alternative 2 calls for silvicultural treatments on
3,829 acres of forest, fuels treatments on 3,698 acres, and
ecosystem burns without harvest on 238 acres. The silvicul-
tural treatments proposed include commercial thinning,1
regeneration cuts,2 and sanitation salvage harvesting.3
As a part of the Project, the Forest Service plans to treat
277 acres of dry-site old-growth stands in order to increase
the overall quality of dry-site old-growth stands and scattered
old-growth Douglas-fir, and to improve and maintain trees
that could be old-growth in the future. Despite its plans to per-
form treatments within old-growth stands, the Project will not
involve harvesting allocated old-growth trees. The Forest Ser-
vice represented in the SFEIS that the allocated old-growth in
the IPNF has not been harvested for several years, and that its
“focus is on maintaining [existing] old growth stands . . . and
1
The glossary to the SFEIS explains that the primary objective of com-
mercial thinning is to “stimulate growth of the residual stand, increase
total yield, and utilize material that is suppressed,” by removing “approxi-
mately 1/3 of the stand, leaving larger trees evenly spaced with crowns
free to grow before canopy closure occurs again.”
2
The Forest Service proposed both even-aged and uneven-aged regener-
ation cuts; the former is designed to regenerate a stand with a single age
class, and the latter is designed to maintain an uneven-aged structure “by
removing some trees in all size classes either singly, in small groups, or
in strips.”
3
The glossary to the SFEIS explains that sanitation salvage involves the
“removal of trees to improve stand health by stopping or reducing the
spread of insects and disease,” and the removal of dead, damaged, or
dying trees.
8240 LANDS COUNCIL v. MCNAIR
allocating additional stands for future old growth as they
mature.” In those units containing old-growth trees, the Forest
Service has identified those non-old-growth trees it plans to
harvest.
The Project is expected to generate 23.5 million board feet
of timber, which has been, or will be, sold pursuant to three
timber sale contracts: the Brushy Mission Sale, the Haller
Down Sale, and the Mission Fly By Sale. The Forest Service
sold the Brushy Mission Sale to Everhart Logging, and the
Haller Down Sale to Regehr Logging. The Forest Service
received no bids for the Mission Fly By Sale, which contains
all but fourteen of the old-growth acres that are part of the
Haller Down Sale. Though logging under the Brushy Mission
and Haller Down sales has already begun, the injunction
imposed by the district court pursuant to the three-judge panel
opinion in Lands Council, 494 F.3d 771, prohibits the Forest
Service from logging in the fourteen acres of old-growth in
the Haller Down Sale. The same injunction imposes other
restrictions on the Forest Service, including a prohibition on
taking any action in the area encompassed by the Mission Fly
By Sale.
C. Procedural History
In late 2002, the Forest Service decided to undertake man-
agement activities in the Mission and Brush Creek areas. In
2003, the Forest Service issued a draft Environmental Impact
Statement (EIS). After receiving public comments, the Forest
Service released its final EIS and Record of Decision (ROD)
in June 2004. Lands Council appealed the ROD. The Forest
Service upheld the Project, but ordered the preparation of a
supplemental EIS in light of this court’s decision in Lands
Council v. Powell (Lands Council I), 379 F.3d 738 (9th Cir.
2004), amended by 395 F.3d 1019 (9th Cir. 2005), which
addressed the management of National Forest System lands in
the IPNF in connection with a different Forest Service project.
The Forest Service subsequently released a supplemental draft
LANDS COUNCIL v. MCNAIR 8241
EIS for public comment, and issued the SFEIS and ROD in
April 2006. Lands Council and other environmental groups
filed an administrative appeal, which the Forest Service
denied in July 2006. In October 2006, Lands Council filed
this action and moved for a preliminary injunction.
II. 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). 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). Thus, we review the denial of
a preliminary injunction for abuse of discretion. 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 “base[s] its decision on an
erroneous legal standard or clearly erroneous findings of
fact.” Id. (citation omitted). We review conclusions of law de
novo and findings of fact for clear error. Id. Under this stan-
dard, “[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 result if it had applied the law to
the facts of the case.” Id. (quoting Earth Island Inst. v. U.S.
Forest Serv. (Earth Island Inst. I), 351 F.3d 1291, 1298 (9th
Cir. 2003)).
“A preliminary injunction is appropriate when a plaintiff
demonstrates ‘either: (1) a likelihood of success on the merits
and the possibility of irreparable injury; or (2) that serious
questions going to the merits were raised and the balance of
hardships tips sharply in [the plaintiff’s] favor.’ ” Lands
Council v. Martin (Lands Council II), 479 F.3d 636, 639 (9th
Cir. 2007) (quoting Clear Channel Outdoor Inc. v. City of Los
Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). These two
8242 LANDS COUNCIL v. MCNAIR
options represent extremes on a single continuum: “ ‘the less
certain the district court is of the likelihood of success on the
merits, the more plaintiffs must convince the district court that
the public interest and balance of hardships tip in their
favor.’ ” Id. (quoting Sw. Voter Registration Educ. Project,
344 F.3d at 918).
In deciding whether Lands Council is likely to succeed on
the merits of its claims, we must remember that the APA pro-
vides the authority for our review of decisions under NEPA
and NFMA. Pit River Tribe v. U.S. Forest Serv., 469 F.3d
768, 778 (9th Cir. 2006). The APA states, in relevant part,
that a reviewing court may set aside only agency actions that
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).
Review under the arbitrary and capricious standard “is nar-
row, and [we do] not substitute [our] judgment for that of the
agency.” Earth Island Inst. II, 442 F.3d at 1156 (citing U.S.
Postal Serv. v. Gregory, 534 U.S. 1, 6-7 (2001)). Rather, we
will reverse a decision as arbitrary and capricious only if the
agency relied on factors Congress did not intend it to con-
sider, “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. (citing Sierra Club v. U.S. Envtl. Prot.
Agency, 346 F.3d 955, 961 (9th Cir. 2003), amended by 352
F.3d 1186 (9th Cir. 2003)). Thus, although we review the dis-
trict court’s denial of Lands Council’s request for a prelimi-
nary injunction for abuse of discretion, our review of the
district court’s determination as to whether Lands Council
was likely to prevail on the merits of its NEPA and NFMA
claims necessarily incorporates the APA’s arbitrary and capri-
cious standard.
LANDS COUNCIL v. MCNAIR 8243
III. DISCUSSION
Lands Council argues that, in developing the Project, the
Forest Service violated the NFMA in two ways: (1) by failing
to demonstrate the reliability of the scientific methodology
underlying its analysis of the Project’s effect on wildlife, (spe-
cifically the flammulated owl and its habitat),4 and (2) by not
complying with Standard 10(b) of the IPNF Forest Plan,
which requires the Forest Service to maintain at least ten per-
cent old-growth throughout the forest. Lands Council also
argues that the Forest Service violated NEPA because, in
Lands Council’s view, the Forest Service did not adequately
address the uncertainty concerning its proposed treatment as
a strategy to maintain species viability.
4
The scope of the arguments we address in this opinion comports with
the representations that Lands Council made before this panel. Specifi-
cally, at oral argument, Lands Council represented that, for the purpose
of obtaining a preliminary injunction, it is concerned only with the treat-
ment of the 277 acres that qualify as old-growth habitat and the treat-
ment’s effect on the flammulated owl and its habitat. Lands Council did
not argue that the Forest Service’s analysis was deficient with respect to
any other species.
We note, however, that Lands Council’s position as to why a prelimi-
nary injunction is necessary has been a constantly moving target. To illus-
trate, in its opening brief before the district court, Lands Council argued
that the Forest Service had violated the NFMA by failing to ensure habitat
for old-growth species and viable populations of management indicator
species. The only species Lands Council mentioned by name in its motion
before the district court were the pileated woodpecker, black-backed
woodpecker, grizzly bear, Canada lynx, and gray wolf; in its reply brief
before the district court, Lands Council also mentioned the northern gos-
hawk, the fisher, and the western toad.
In its opening brief on appeal, however, Lands Council changed the
group of species about which it expressed concern, and argued that the
Project will adversely affect the flammulated owl as well as the northern
goshawk, the fisher, and the pileated woodpecker. Despite Lands Coun-
cil’s changing list of species, the Forest Service has not argued that Lands
Council has waived any arguments with respect to any particular species.
8244 LANDS COUNCIL v. MCNAIR
In essence, Lands Council asks this court to act as a panel
of scientists that instructs the Forest Service how to validate
its hypotheses regarding wildlife viability, chooses among sci-
entific studies in determining whether the Forest Service has
complied with the underlying Forest Plan, and orders the
agency to explain every possible scientific uncertainty. As we
will explain, this is not a proper role for a federal appellate
court. But Lands Council’s arguments illustrate how, in recent
years, our environmental jurisprudence has, at times, shifted
away from the appropriate standard of review and could be
read to suggest that this court should play such a role.
Below, we address each of Lands Council’s arguments. We
first discuss the language and purpose of the NFMA and how,
in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir.
2005), cert. denied, Mineral County v. Ecology Center, Inc.,
127 S. Ct. 931 (2007), we misconstrued what the NFMA
requires of the Forest Service. We then turn to whether the
Forest Service met the NFMA’s requirements in this case;
specifically, we consider the sufficiency of the Forest Ser-
vice’s analysis of the Project’s effect on the flammulated owl
and its habitat, and whether the Forest Service has complied
with Standard 10(b) of the IPNF Forest Plan. Next, we con-
sider the statutory language and purpose of NEPA, and
whether, in this case, the Forest Service’s alleged failure to
discuss uncertainty regarding its strategy for species viability
violated NEPA.
We are mindful, of course, that important environmental
resources are at stake in cases such as this, and we strongly
reaffirm that the Forest Service must fully comply with the
requirements of the NFMA and NEPA. We conclude that the
Forest Service has complied with those requirements in this
case, and we affirm the district court’s denial of Lands Coun-
cil’s request for a preliminary injunction.
LANDS COUNCIL v. MCNAIR 8245
A. The National Forest Management Act
1. Statutory Language And Purpose
[1] The NFMA sets forth the statutory framework and spec-
ifies the procedural and substantive requirements under which
the Forest Service is to manage National Forest System lands.
Procedurally, the NFMA requires the Forest Service to
develop a forest plan for each unit of the National Forest Sys-
tem. 16 U.S.C. § 1604(a). In developing and maintaining each
plan, the Forest Service is required to use “a systematic inter-
disciplinary approach to achieve integrated consideration of
physical, biological, economic, and other sciences.” Id.
§ 1604(b). After a forest plan is developed, all subsequent
agency action, including site-specific plans such as the Mis-
sion Brush Project, must comply with the NFMA and be con-
sistent with the governing forest plan. Id. § 1604(i); see Idaho
Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th
Cir. 2002) (“[A]ll management activities undertaken by the
Forest Service must comply with the forest plan, which in
turn must comply with the Forest Act.” (citing Inland Empire
Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 757
(9th Cir. 1996))).
[2] Substantively, the NFMA requires the Secretary of
Agriculture to develop guidelines “to achieve the goals of the
Program,” including:
[P]rovid[ing] for diversity of plant and animal com-
munities based on the suitability and capability of
the specific land area in order to meet overall
multiple-use objectives, and within the multiple-use
objectives of a land management plan adopted pur-
suant to this section, provide, where appropriate, to
the degree practicable, for steps to be taken to pre-
serve the diversity of tree species similar to that
existing in the region controlled by the plan . . .
8246 LANDS COUNCIL v. MCNAIR
16 U.S.C. § 1604(g)(3)(B); see Envtl. Prot. Info. Ctr. v. U.S.
Forest Serv., 451 F.3d 1005, 1017 (9th Cir. 2006) (“The
NFMA imposes substantive duties on USFS, including the
duty ‘to provide for diversity of plant and animal communi-
ties.’ ” (quoting 16 U.S.C. § 1604(g)(3)(B))).5
[3] The Project also must be consistent with the IPNF For-
est Plan’s provisions regarding wildlife viability. See 16
U.S.C. § 1604(i). In the IPNF Forest Plan, the Forest Service
designated the flammulated owl, the only species at issue in
this appeal, as a sensitive species. The IPNF Forest Plan
requires the Forest Service to “[m]anage the habitat of species
listed in the Regional Sensitive Species List to prevent further
5
The parties did not discuss what regulations implement 16 U.S.C.
§ 1604(g)(3)(B), but Lands Council suggested in a letter submitted under
Rule 28(j) of the Federal Rules of Appellate Procedure that 36 C.F.R.
§ 219.19 is the applicable regulation. Section 219.19 required the Forest
Service to manage wildlife habitat “to maintain viable populations of
existing . . . species” and required the Forest Service to designate manage-
ment indicator species (MIS) to monitor and evaluate wildlife viability. 36
C.F.R. § 219.19 (2000). This regulation is no longer in effect, see Envtl.
Prot. Info. Ctr., 451 F.3d at 1017 & n.8 (“[N]ew regulations have elimi-
nated the MIS concept . . . .”), and at the time of filing, the Forest Service
must abide by § 219.10(b), which only requires the Forest Service to
“provid[e] appropriate ecological conditions to support diversity of . . .
native animal species.” See 36 C.F.R. § 219.10(b) (2008). Section
219.10(b) specifies that providing such ecological conditions satisfies the
statutory requirement to provide for species diversity. Id.
We need not resolve Lands Council’s eleventh hour suggestion that
§ 219.19 is applicable because the SFEIS and ROD incorporated that regu-
lation. Lands Council has not claimed that the Forest Service violated any
specific regulation regarding wildlife viability. In fact, Lands Council’s
brief does not cite any regulations to support its argument that the Forest
Service violated the NFMA or NEPA. Moreover, the species that Lands
Council focuses on, the flammulated owl, is not an MIS under § 219.19.
The parties do, however, agree that the Project must comply with the IPNF
Forest Plan’s requirements regarding species viability. The Forest Plan’s
requirement, which is discussed below, does not materially differ from
§ 219.19’s requirement that the Forest Service must manage wildlife habi-
tat to maintain viable populations of existing species.
LANDS COUNCIL v. MCNAIR 8247
declines in populations which could lead to federal listing
under the Endangered Species Act.” U.S. Dep’t of Agricul-
ture, Forest Plan, Idaho Panhandle National Forests, at II-28
(Aug. 1987), available at http://www.fs.fed.us/ipnf/eco/
manage/~forestplan/ [hereinafter IPNF Forest Plan].
Congress has consistently acknowledged that the Forest
Service must balance competing demands in managing
National Forest System lands. Indeed, since Congress’ early
regulation of the national forests, it has never been the case
that “the national forests were . . . to be ‘set aside for non-
use.’ ” United States v. New Mexico, 438 U.S. 696, 716 n.23
(1978) (citing 30 Cong. Rec. 966 (1897) (statement of Rep.
McRae)). For example, in the Organic Administration Act of
June 4, 1897, passed less than a decade after Congress began
regulating the national forests, Congress identified two pur-
poses for which it would reserve a national forest at that time:
“[to] secur[e] favorable conditions of water flows, and to fur-
nish a continuous supply of timber.” Id. at 707-08 (quoting 16
U.S.C. § 475 (1976)).
[4] Congress’ current vision of national forest uses, a
broader view than Congress articulated in 1897, is expressed
in the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C.
§§ 528-31, which states that “[i]t is the policy of the Congress
that the national forests are established and shall be adminis-
tered for outdoor recreation, range, timber, watershed, and
wildlife and fish purposes.” Id. § 528. The NFMA references
16 U.S.C. §§ 528-531 and requires that plans developed for
units of the National Forest System “provide for multiple use
and sustained yield of the products and services obtained
therefrom . . . and [must] include coordination of outdoor rec-
reation, range, timber, watershed, wildlife and fish, and wil-
derness[.]” Id. § 1604(e)(1). Thus, the NFMA is explicit that
wildlife viability is not the Forest Service’s only consideration
when developing site-specific plans for National Forest Sys-
tem lands.
8248 LANDS COUNCIL v. MCNAIR
2. We Overrule Ecology Center
Lands Council argues that the Forest Service violated the
NFMA because it has not demonstrated the reliability of the
scientific methodology underlying its analysis of the effect of
the Project’s proposed treatment on the flammulated owl and
its habitat. Relying primarily on Ecology Center, Lands Coun-
cil specifically contends that the Forest Service erred by not
verifying its prediction regarding the effect of treatment on
old-growth species’ habitat with observation or on-the-ground
analysis. We disagree, and hereby overrule Ecology Center.
We also hold that the district court did not abuse its discretion
in concluding that Lands Council is unlikely to succeed on the
merits of this claim.
[5] In Ecology Center, we relied on Lands Council I when
we grafted onto our jurisprudence a broad rule that, in effect,
requires the Forest Service to always “demonstrate the reli-
ability of its scientific methodology” or the hypotheses under-
lying the Service’s methodology with “on the ground
analysis.” See Ecology Ctr., 430 F.3d at 1064 (quoting Lands
Council I, 379 F.3d at 752). Thus, our analysis begins with
Lands Council I.
In Lands Council I, we reviewed the Forest Service’s
approval of a timber harvest as part of a watershed restoration
project in the IPNF. 395 F.3d at 1024. The project was “de-
signed to improve the aquatic, vegetative, and wildlife habitat
in the Project area.” Id. at 1025. Lands Council challenged
that project’s compliance with the NFMA in part because it
questioned the reliability of the Forest Service’s scientific
methodology underlying its analysis of disturbed soil condi-
tions. Id. at 1034.
In analyzing the quality of the soil in the project area, the
Forest Service had not taken soil samples from the activity
area, but instead had relied on samples from other areas in the
forest and on aerial photographs. Id. Despite the Forest Ser-
LANDS COUNCIL v. MCNAIR 8249
vice’s representation that it had “tested similar soils within the
Forest, and similar soils act the same way,” we rejected the
Forest Service’s choice of scientific methodology because it
was based entirely on a spreadsheet model with no on-site
inspection or verification. Id. at 1034-35. We explained that
“[u]nder the circumstances of this case, the Forest Service’s
basic scientific methodology, to be reliable, required that the
hypothesis and prediction of the model be verified with obser-
vation. The predictions of the model . . . were not verified
with on the ground analysis.” Id. at 1035 (emphasis added).
We then held that the “Forest Service’s reliance on the
spreadsheet models, unaccompanied by on-site spot verifica-
tion of the model’s predictions, violated NFMA.” Id.
In Ecology Center, we applied an on-the-ground analysis
requirement to our review of the Lolo National Forest Post
Burn Project, in which the Forest Service proposed logging in
old-growth forest and post-fire habitats. 430 F.3d at 1060. We
held that in order to comply with the NFMA, the Forest Ser-
vice was required to conduct on-the-ground analysis to verify
its soil quality analysis and to establish the reliability of its
hypothesis that “treating old-growth forest is beneficial to
dependent species.” Id. at 1064, 1070-71.
Ecology Center even suggests that such an analysis must be
on-site, meaning in the location of the proposed action. There,
we rejected the Forest Service’s argument that its on-the-
ground soil analysis was “sufficiently reliable because it uti-
lized data from areas with ecological characteristics similar to
the proposed harvest units.” Id. at 1070. We noted that, as in
Lands Council I, the Forest Service had not tested “much of
the activity area.” Id. (quoting Lands Council I, 395 F.3d at
1034) (emphasis added); see also Wildwest Inst. v. Bull, 472
F.3d 587, 591-92 (9th Cir. 2006) (distinguishing Ecology
Center because the Forest Service relied on on-site analysis in
developing its proposal). But see Ecology Ctr., 430 F.3d at
1064 (noting that the Forest Service did not conduct on-the-
ground analysis “despite the fact that it has already treated
8250 LANDS COUNCIL v. MCNAIR
old-growth forest elsewhere and therefore had the opportunity
to do so”).
We made three key errors in Ecology Center. First, we read
the holding of Lands Council I too broadly. Second, we cre-
ated a requirement not found in any relevant statute or regula-
tion. And, third, we defied well-established law concerning
the deference we owe to agencies and their methodological
choices. Today, we correct those errors.
[6] In Lands Council I, we expressly limited our holding
that “on-site spot verification” was required for soil analysis
to “the circumstances of [that] case.” 395 F.3d at 1036. But
in Ecology Center, we expanded the on-the-ground analysis
requirement beyond the facts of Lands Council I, and even
beyond the context of soil analysis. In holding that the Forest
Service violated the NFMA by not verifying its hypothesis
that treating old-growth forest is beneficial to dependent spe-
cies with on-the-ground analysis, Ecology Center established
a far-reaching rule that the Forest Service must always verify
its methodology with on-the-ground analysis, regardless of
the context. 430 F.3d at 1064. We accept the description in
Lands Council I that it was “limited to the circumstances of
[that] case,” and hold that it does not impose a categorical
requirement of on-the-ground analysis or observation for soil
analysis, or any other type of analysis.
The Forest Service is at liberty, of course, to use on-the-
ground analysis if it deems it appropriate or necessary, but it
is not required to do so. As Judge McKeown explained in her
dissent in Ecology Center, “there is no legal basis to conclude
that the NFMA requires an on-site analysis where there is a
reasonable scientific basis to uphold the legitimacy of model-
ing. NFMA does not impose this substantive requirement, and
it cannot be derived from the procedural parameters of
NEPA.” 430 F.3d at 1073 (McKeown, J., dissenting); see also
Inland Empire Pub. Lands Council, 88 F.3d at 758 (noting
LANDS COUNCIL v. MCNAIR 8251
that NEPA imposes only procedural requirements on federal
agencies).
The NFMA unquestionably requires the Forest Service to
“provide for diversity of plant and animal communities . . . in
order to meet overall multiple-use objectives.” 16 U.S.C.
§ 1604(g)(3)(B). Similarly, the IPNF Forest Plan requires the
Forest Service to “[m]anage the habitat of species listed in the
Regional Sensitive Species List to prevent further declines in
populations which could lead to federal listing under the
Endangered Species Act.” IPNF Forest Plan, supra, at II-28.
However, despite imposing these substantive requirements on
the Forest Service, neither the NFMA and its regulations6 nor
the IPNF Forest Plan specify precisely how the Forest Service
must demonstrate that its site-specific plans adequately pro-
vide for wildlife viability.
Granting the Forest Service the latitude to decide how best
to demonstrate that its plans will provide for wildlife viability
comports with our reluctance to require an agency to show us,
by any particular means, that it has met the requirements of
the NFMA every time it proposes action. We have approved
of forest plans when they are “based on the current state of
scientific knowledge.” See Seattle Audubon Soc’y v. Moseley,
80 F.3d 1401, 1404 (9th Cir. 1996). Moseley upheld a plan to
6
Even if 36 C.F.R. § 219.19 is applicable to the Project because it was
explicitly incorporated into the SFEIS and ROD, see supra n. 5, the transi-
tional rule in effect until April 21, 2008 stated that for plans developed
“using the provisions of the planning rule in effect prior to November 9,
2000,” which would include 36 C.F.R. § 219.19, “the Responsible Official
may comply with any obligations relating to [MIS] by considering data
and analysis relating to habitat unless the plan specifically requires popu-
lation monitoring or population surveys for the species. Site-specific moni-
toring or surveying or a proposed project or activity area is not required,
but may be conducted at the discretion of the Responsible official.” 36
C.F.R. § 219.14 (2007) (emphasis added). The Forest Service did not des-
ignate the flammulated owl as an MIS and, in any case, Lands Council
does not argue that any language in the IPNF Forest Plan or the Project
itself imposed a requirement for site-specific monitoring.
8252 LANDS COUNCIL v. MCNAIR
manage old-growth forest after the plan was challenged on the
grounds that the Forest Service did not adequately account for
the northern spotted owl’s habitat. Id. We stated:
Here, the record demonstrates that the federal defen-
dants considered the viability of plant and animal
populations based on the current state of scientific
knowledge. Because of the inherent flexibility of the
NFMA, and because there is no showing that the
federal defendants overlooked any relevant factors or
made any clear errors of judgment, we conclude that
their interpretation and application of the NFMA’s
viability regulations was reasonable.
Id. (citations omitted). Thus, we defer to the Forest Service as
to what evidence is, or is not, necessary to support wildlife
viability analyses.
Were we to grant less deference to the agency, we would
be ignoring the APA’s arbitrary and capricious standard of
review. Ecology Center illustrates the consequences of failing
to grant appropriate deference to an agency. In Ecology Cen-
ter, we rejected reports establishing that soil analysis was con-
ducted in the project area as “too few and of poor quality.”
See 430 F.3d at 1073 (McKeown, J., dissenting). We stated,
“[t]he record provides little information that enables us to
assess the reliability or significance of these reports; for
example, we do not know the qualifications of the person con-
ducting the field review, the methodology utilized, or whether
the field observations confirmed or contradicted the Service’s
estimates.” Id. at 1070 (majority opinion). Essentially, we
assessed the quality and detail of on-site analysis and made
“fine-grained judgments of its worth.” Id. at 1077 (McKeown,
J., dissenting). It is not our proper role to conduct such an
assessment.
Instead, our proper role is simply to ensure that the Forest
Service made no “clear error of judgment” that would render
LANDS COUNCIL v. MCNAIR 8253
its action “arbitrary and capricious.” See Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 378 (1989); see also Ecology
Ctr., 430 F.3d at 1075 (McKeown, J., dissenting) (noting that
Lands Council I did not demand that we “assess the suffi-
ciency of the Forest Service’s on-site soil quality analysis
beyond the traditional arbitrary and capricious standard; it
only asks us to verify that there is such an on-site sampling”).
To do so, we look to the evidence the Forest Service has pro-
vided to support its conclusions, along with other materials in
the record, to ensure that the Service has not, for instance, “re-
lied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or [an explanation that] is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Motor Vehicle Mfrs.
Assn., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983); see Lands Council I, 395 F.3d at 1026.
This approach respects our law that requires us to defer to
an agency’s determination in an area involving a “high level
of technical expertise.” See Selkirk Conservation Alliance v.
Forsgren, 336 F.3d 944, 954 (9th Cir. 2003) (quoting Marsh,
490 U.S. at 377-78). We are to be “most deferential” when the
agency is “making predictions, within its [area of] special
expertise, at the frontiers of science.” Forest Guardians v.
U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003) (cita-
tions omitted). A number of our sister circuits agree that we
are to conduct a “particularly deferential review” of an “agen-
cy’s predictive judgments about areas that are within the
agency’s field of discretion and expertise . . . as long as they
are reasonable.” Earthlink, Inc. v. FCC, 462 F.3d 1, 12 (D.C.
Cir. 2006) (quoting FCC v. WNCN Listeners Guild, 450 U.S.
582, 594 (1981)); see Cellnet Commc’ns, Inc. v. FCC, 149
F.3d 429, 441 (6th Cir. 1998); W. Fuels-Ill., Inc. v. ICC, 878
F.2d 1025, 1030 (7th Cir. 1989).
Finally, this approach also acknowledges that “[w]e are not
free to ‘impose on the agency [our] own notion of which pro-
8254 LANDS COUNCIL v. MCNAIR
cedures are ‘best’ or most likely to further some vague, unde-
fined public good.’ ” Churchill County v. Norton, 276 F.3d
1060, 1072 (9th Cir. 2001) (alteration in original) (quoting Vt.
Yankee Nuclear Power Corp. v. Natural Res. Def. Council,
Inc., 435 U.S. 519, 549 (1978)). Nor may we impose “proce-
dural requirements [not] explicitly enumerated in the pertinent
statutes.” Wilderness Soc’y v. Tyrrel, 918 F.2d 813, 818 (9th
Cir. 1990).
[7] Thus, 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 Ser-
vice must support its conclusions that a project meets the
requirements of the NFMA and relevant Forest Plan with
studies that the agency, in its expertise, deems reliable. The
Forest Service must explain the conclusions it has drawn from
its chosen methodology, and the reasons it considers the
underlying evidence to be reliable. We will conclude that the
Forest Service acts arbitrarily and capriciously only when the
record plainly demonstrates 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.
[8] For these reasons, we overrule Ecology Center and
affirm that Lands Council I’s requirement of on-the ground
analysis was limited to the circumstances of that particular
case.
3. Reliability of the Forest Service’s Analysis
Concerning The Effects Of Treating Old-Growth
Habitat On The Flammulated Owl
[9] Lands Council argues that the Forest Service violated
the NFMA by failing to demonstrate the reliability of the sci-
entific methodology underlying its analysis of the Project’s
effect on wildlife, specifically the flammulated owl and its
habitat. But the Forest Service supported its conclusions about
LANDS COUNCIL v. MCNAIR 8255
the impact of the Project on the flammulated owl and its habi-
tat with studies it deemed reliable. Moreover, the Forest Ser-
vice did conduct on-the-ground analysis of the flammulated
owl in an area straddled by the Mission Brush Project Area,
even though, by overruling Ecology Center, this opinion con-
firms that such analysis is not required. See supra Part III.A.2.
[10] These studies, together with the Forest Service’s rea-
sonable assumption that enhancing the amount of flam-
mulated owl habitat in the long-term will maintain the
flammulated owl population, lead us to conclude that the For-
est Service did not act arbitrarily and capriciously in deter-
mining that the Project met the substantive requirements of
the NFMA and the IPNF Forest Plan regarding species diver-
sity. See Inland Empire Pub. Lands Council, 88 F.3d at 760
(“In deference to an agency’s expertise, we review its inter-
pretation of its own regulations solely to see whether that
interpretation is arbitrary and capricious . . . . This is espe-
cially true when questions of scientific methodology are
involved.”) (citations omitted). Accordingly, we conclude that
the district court did not abuse its discretion when it decided
that Lands Council is not likely to succeed on this aspect of
its NFMA claim.
The Forest Service has provided studies evidencing that
flammulated owls prefer old-growth habitat. See Montana
Partners in Flight, Bird Conservation Plan—Flammulated
Owl (2001) [hereinafter Montana Partners], at 2 (noting “a
strong association between Flammulated Owls and old-
growth ponderosa-pine/Douglas-fir habitat”); Idaho Partners
in Flight, Idaho Bird Conservation Plan-Version 1.0; Imple-
mentation Schedule (2000), at 144 (“Old-growth trees are
strongly correlated with nesting, singing, and foraging sites
[of flammulated owls].”); R. Reynolds & B. Linkhart, Flam-
mulated Owls in Ponderosa Pine: Evidence of Preference for
Old Growth (1992), at 167 (“[Flammulated] owls settled into
areas having greater proportions of old-growth ponderosa
pine/Douglas-fir.”).
8256 LANDS COUNCIL v. MCNAIR
The Forest Service has also provided studies supporting its
determination that the Project will maintain flammulated owl
habitat because flammulated owls live in old-growth habitat
post-treatment. One study on the habitat selection of flam-
mulated owls in British Columbia notes that “most [flam-
mulated] owls were found in mature-old (100-200 yr) growth
stands of Douglas fir that had been selectively harvested 20-
30 years prior to [the] surveys.” R. Howie & R. Ritcey, Dis-
tribution, Habitat Selection, and Densities of Flammulated
Owls in British Columbia (1987), at 251. While the study
does not conclude that logging improves flammulated owl
habitat, it documents flammulated owl presence within logged
old-growth stands.7 Other studies document this presence as
well. See Montana Partners, supra, at 3 (acknowledging pres-
ence of flammulated owls in selectively logged sites in the
Northern Rockies and stating that “[t]he Forest Service has an
opportunity to manage restored acres to meet both the micro-
habitat and landscape parameters of identified wildlife spe-
cies, including the Flammulated Owl”).
Moreover, although it was not required to, the Forest Ser-
vice conducted an on-the-ground analysis of flammulated
owls in the Bonners Ferry Ranger district within the IPNF.
Dawson Ridge Flammulated Owl Habitat Monitoring (June
30, 2006). The Dawson Ridge study monitored five 1/5 acre
plots of flammulated owl habitat in an area that was treated
with thinning and underburning in the mid-1970s, logged in
2000, and underburned in 2002. Id. at 1, 3. The researchers
received one flammulated owl response in the 2006 survey,
and recorded additional responses in 1999 and 2000. Id. at 1.
It is within the Forest Service’s expertise, not ours, to deter-
mine the significance of these responses.
7
Lands Council’s briefs repeatedly suggest that the Forest Service must
improve wildlife habitat but, as our discussion of the NFMA and the IPNF
Forest Plan makes clear, neither the NFMA nor the IPNF Forest Plan
require the Forest Service to establish that its plans will improve the habi-
tat of a particular species.
LANDS COUNCIL v. MCNAIR 8257
Although we acknowledge that this record is relatively
sparse and approaches the limits of our deference, we never-
theless conclude that there is sufficient evidence to defer to
the Forest Service’s conclusion that this survey response indi-
cates that flammulated owls are using the monitored area. To
determine whether deference is warranted, we look to the suf-
ficiency of the evidence, not the size of the record. The Daw-
son Ridge study concluded that “[m]onitoring surveys
confirm that owls are using the area after harvest,” and stated:
Although it is inappropriate at this time to assume
that any of these silvicultural treatments improved
(i.e., changed habitat from an unsuitable to suitable
condition) flammulated owl habitat[,] it is encourag-
ing given the management history of Dawson Ridge
that owls are using the area. However, these positive
responses do imply that our dry forest silvicultural
practices are at least maintaining suitable habitat.
Id. at 3 (emphasis in original). Of course, neither the NFMA
nor the IPNF Forest Plan require the Forest Service to
improve a species’ habitat to prove that it is maintaining wild-
life viability.8
Finally, the Forest Service used a habitat suitability model
to analyze the potential effects of the proposed Project on the
flammulated owl. Studies in the record reference the required
size and continuity of habitat that the owls need to survive.
8
Lands Council observes that the Forest Service has conducted other
surveys in the Project Area and has failed to locate any flammulated owls.
While it is true that these studies did not record the presence of flam-
mulated owls, nothing in the SFEIS suggests that these particular surveys
were performed to determine if flammulated owls occupy treated old-
growth habitat. Rather, the SFEIS is clear that these studies were per-
formed when the Forest Service was examining suitable habitat for the
flammulated owls. Contrary to Lands Council’s suggestion, we cannot
infer from these studies anything about the impact of the proposed Project
on flammulated owls.
8258 LANDS COUNCIL v. MCNAIR
The habitat suitability model predicted the change in suitable
habitat9 that would result from the treatment proposed in each
of the Forest Service’s alternatives for the Project. The Forest
Service explained its methodology for calculating the amount
of habitat that would be suitable for the flammulated owl after
the treatment. The Forest Service used vegetation characteris-
tics to determine stands that were currently suitable habitat for
the flammulated owl, and wildlife biologists conducted site
visits and interpreted aerial photographs to determine the suit-
ability of stands deemed “capable.”
Based on its analysis, the Forest Service concluded that,
though the disturbance imposed by the Project may have
short-term negative impacts in the immediate vicinity of har-
vesting, there would be no decrease in suitable habitat in the
short-term, and the Project “would promote the long-term via-
bility of suitable Flammulated Owl habitat.” The Forest Ser-
vice also concluded that the Project’s effects “would not
indicate local or regional change in habitat quality or popula-
tion status, allowing Flammulated Owls to maintain their cur-
rent distribution,” and that it would not contribute to a trend
toward a “Federal listing” under the Endangered Species Act
or cause a loss of viability.
[11] Today, as we have in the past, we approve, based on
the record before us, of the Forest Service’s use of the amount
of suitable habitat for a particular species as a proxy for the
viability of that species. See, e.g., Inland Empire Pub. Lands
Council, 88 F.3d at 761. We therefore find “eminently reason-
able” the Forest Service’s conclusion that the Project will
maintain a viable population of flammulated owls because it
will not decrease suitable flammulated owl habitat in the
9
The SFEIS defines “suitable habitat” as habitat “that currently has both
fixed and variable stand attributes for a given species’ habitat require-
ments.” This differs from “capable habitat,” which refers to a site’s “inher-
ent potential . . . to produce essential habitat requirements of a species”
though the site does not currently have all that a species requires.
LANDS COUNCIL v. MCNAIR 8259
short-term and will promote the long-term viability of suitable
flammulated owl habitat. See id.
In Inland Empire Public Lands Council, the plaintiffs chal-
lenged the Forest Service’s analysis of a timber sales project’s
impact on seven sensitive species in the Kootenai National
Forest. Id. at 757. The plaintiffs, several environmental
groups, claimed that the Forest Service did not satisfy the
NFMA because its population viability analysis was insuffi-
cient to ensure viable populations of the relevant species. Id.
at 759-60. We approved of the Forest Service’s “habitat via-
bility analysis,” which measured the amount of suitable habi-
tat for the species at issue and then used that figure as a proxy
to estimate a species’ population. Id. at 763. Using this “habi-
tat as a proxy approach,” the Forest Service concluded that a
species would remain viable on the basis of whether “the
threshold percentage of each type of habitat remaining in the
chosen alternative [after harvesting] was greater than the per-
centage required for that species to survive.” Id. at 759.10 We
characterized the Forest Service’s assumption that maintain-
ing acreage necessary for survival would ensure a species’
survival as “eminently reasonable” and deferred to the Forest
Service’s methodology. See id. at 760-61.11
10
We have also allowed the Forest Service to use habitat as a proxy to
measure a species’ population, and then to use that species’ population as
a proxy for the population of other species (proxy-on-proxy approach).
See Envtl. Prot. Info. Ctr., 451 F.3d at 1017.
11
Some of our sister circuits have been skeptical when the Forest Ser-
vice has relied only on habitat analyses to satisfy its requirements under
36 C.F.R. § 219.19. Compare Inland Empire Pub. Lands Council, 88 F.3d
at 763, and Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851,
863 (7th Cir. 2003) (upholding the Forest Service’s use of data on habitat
availability to approximate the population of MIS instead of “going into
the field and actually counting all of the birds” and noting that none of the
relevant regulatory sources imposed a specific methodology on the Forest
Service for ensuring species diversity), with Sierra Club v. Martin, 168
F.3d 1, 4-7 & n.10 (11th Cir. 1999) (rejecting Inland Empire and conclud-
ing that the Forest Service violated the NFMA by using habitat informa-
8260 LANDS COUNCIL v. MCNAIR
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. We decline to constrain the Forest Service
in this fashion. Were we to do so, we may well be complicit
in frustrating one or more of the other objectives the Forest
Service must also try to achieve as it manages National Forest
System lands. See 16 U.S.C. § 528 (noting Congress’ policy
that the National Forests are to be “administered for outdoor
recreation, range, timber, watershed, and wildlife and fish
purposes”).
The case before us resembles Inland Empire. As explained,
the record includes studies describing the quality and quantity
of habitat necessary to sustain the viability of flammulated
owls, and the Forest Service has determined what habitat is
currently suitable for the flammulated owl and what habitat
would be suitable after the proposed project. While the project
involves a disturbance in the forest to some extent, it is for the
Forest Service to determine how the Project will affect the
habitat of flammulated owls. In this case, the Forest Service
has concluded that the current amount of suitable habitat will
be maintained and that flammulated owls will be able to
maintain their current distribution. That a proposed project
involves some disturbance to the forest does not prohibit the
Forest Service from assuming that maintaining a sufficient
amount of suitable habitat will maintain a species’ viability.
Indeed, the project in Inland Empire involved a plan to har-
vest trees, and that disturbance did not render the habitat as
a proxy approach inapplicable. 88 F.3d at 759.
tion as a proxy for viability when the Forest Plan specifically required
population data and the Forest Service had not collected any information
on many sensitive species in the project area), and Utah Envtl. Cong. v.
Bosworth, 372 F.3d 1219, 1225-26 (10th Cir. 2004) (holding that 36
C.F.R. § 219.19 requires population data to establish viability of an MIS).
LANDS COUNCIL v. MCNAIR 8261
[12] To the extent we suggested in Idaho Sporting Con-
gress v. Thomas, 137 F.3d 1146 (9th Cir. 1998), that habitat
cannot be used as a proxy when there is an “appreciable habi-
tat disturbance,” id. at 1154, Thomas is overruled. A habitat
disturbance does not necessarily mean that a species’ viability
will be threatened. Thus, a planned disturbance to a habitat
does not preclude the Forest Service from using the habitat as
a proxy approach to establish a species’ viability when the
disturbance does not reduce the suitable habitat so as to
threaten that species’ viability.
[13] Of course, a reviewing court still must ensure that the
Forest Service’s use of “habitat as a proxy” is not arbitrary
and capricious. We therefore hold that when the Forest Ser-
vice decides, in its expertise, that habitat is a reliable proxy
for species’ viability in a particular case, the Forest Service
nevertheless must both 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. See Earth Island Institute II, 442 F.3d at 1175 (reject-
ing the use of habitat as a proxy, in relevant part, because
there was “no indication of the methodology used in deter-
mining what constitutes suitable habitat”); Native Ecosystems
Council v. U.S. Forest Serv., 428 F.3d 1233, 1250 (9th Cir.
2005) (“Our case law permits the Forest Service to meet the
wildlife species viability requirements by preserving habitat,
but only where both the Forest Service’s knowledge of what
quality and quantity of habitat is necessary to support the spe-
cies and the Forest Service’s method for measuring the exist-
ing amount of that habitat are reasonably reliable and
accurate.”); Inland Empire, 88 F.3d at 762 (holding the Forest
Service did not need to engage “in a more extended analysis
of the owl’s nesting and feeding habitat requirements because
such data were unavailable”). We will defer to its decision to
use habitat as a proxy unless the Forest Service makes a
“clear error of judgment” that renders its decision arbitrary
and capricious. See Marsh, 490 U.S. at 378 (describing arbi-
trary and capricious review).
8262 LANDS COUNCIL v. MCNAIR
Though some of our cases limit the use of habitat as a
proxy, see, e.g., Oregon Natural Resources Council Fund v.
Goodman, 505 F.3d 884, 891 (9th Cir. 2007) and Rittenhouse,
305 F.3d at 972-73, these cases do not reject the habitat as a
proxy approach. Rather, these cases reasonably limited the
Forest Service when, based on the particular facts before the
court, the use of habitat as a proxy was arbitrary and capri-
cious. See Rittenhouse, 305 F.3d at 972-73 (“We hold that
under the facts of this case, the Forest Service’s use of habitat
as proxy . . . was arbitrary and capricious.”) (emphasis
added). Thus, our cases are instructive that the Forest Ser-
vice’s use of habitat as a proxy may be arbitrary and capri-
cious if, for example, the EIS states that the relationship
between the species at issue and the habitat is unclear, see
Oregon Natural Resources Council Fund, 505 F.3d at 891,
the record fails to describe the type or amount of habitat that
is necessary to sustain the viability of the species in question,
cf. Native Ecosystems Council, 428 F.3d at 1250, or the record
indicates that the Forest Service based its habitat calculations
on outdated or inaccurate information, see Lands Council I,
395 F.3d at 1036; Rittenhouse, 305 F.3d at 971-72.
As explained, in this case, the Forest Service detailed the
methodology it used for determining the amount of suitable
habitat and acknowledged the assumptions underlying its use
of habitat as a proxy. Although it is true that no flammulated
owls were located in suitable habitat in a number of presence
surveys, the Forest Service acknowledges that the nesting
boxes used may have been placed too low on trees in some
of these surveys. Moreover, the Forest Service has repre-
sented that it is difficult to detect flammulated owls, and we
recognize that “monitoring difficulties do not render a habitat-
based analysis unreasonable, so long as the analysis uses all
the scientific data currently available.” See Envtl. Prot. Info.
Ctr., 451 F.3d at 1018 (citing Inland Empire Pub. Lands
Council, 88 F.3d at 762).
[14] In light of the discussion above, the rule we set forth
in Native Ecosystems Council remains good law: the Forest
LANDS COUNCIL v. MCNAIR 8263
Service may meet wildlife “viability requirements by preserv-
ing habitat, but only where both the Forest Service’s knowl-
edge of what quality and quantity of habitat is necessary to
support the species and the Forest Service’s method for mea-
suring the existing amount of that habitat are reasonably reli-
able and accurate.” 428 F.3d at 1250. But we construe the
phrase “preserving habitat” broadly so as to include not only
those projects where the Forest Service is increasing or pre-
serving the same amount of suitable habitat but also those
projects where the Forest Service is maintaining a sufficient
amount of suitable habitat to support a species’ viability, even
if its plans will disturb some suitable habitat.
[15] On the basis of the studies provided by the Forest Ser-
vice and the Forest Service’s reasonable assumption that
maintaining suitable habitat for the flammulated owl will also
maintain a viable population of flammulated owls, we con-
clude that the district court did not abuse its discretion in
deciding that Lands Council is not likely to succeed on this
aspect of its NFMA claim.
4. Forest Service’s Compliance With Standard 10(b)
Of The IPNF Forest Plan
The NFMA requires the Forest Service to comply with its
established forest plan in all subsequent actions. 16 U.S.C.
§ 1604(i); Inland Empire Pub. Lands Council, 88 F.3d at 757.
Standard 10(b) of the IPNF Forest Plan requires the Forest
Service to maintain at least ten percent old-growth throughout
the forest. Lands Council argues both that the Forest Service
will not meet Standard 10(b) after the Project’s completion,
and also that the IPNF is currently out of compliance with
Standard 10(b). These arguments fail.
[16] The Forest Service has shown that it has complied
with Standard 10(b), and Lands Council’s contentions to the
contrary are not supported by reliable evidence. The Forest
Service presented two independent monitoring tools to deter-
8264 LANDS COUNCIL v. MCNAIR
mine the percentage of old-growth acres in the IPNF, each of
which found that the forest contained approximately twelve
percent old-growth. The first tool, the National Forest Inven-
tory and Analysis (FIA) program, “provides a congressionally
mandated, statistically-based, continuous inventory of the for-
est resources of the United States.” The program’s design and
methods are “scientifically designed, publicly disclosed, and
repeatable. . . . There are also stringent quality control stan-
dards and procedures.” Using the FIA data, the Forest Ser-
vices concluded that 11.8 percent of the IPNF is old-growth.
The second tool, the IPNF stand-level old-growth map,
found a similar percentage using a method that “was designed
and implemented independently from the FIA inventory.”
This method utilizes stand information gathered by Forest
Service personnel, which is inputted into the Timber Stand
Management Record System (TSMRS) database.12 Using this
database, the Forest Service concluded that 12.1 percent of
the IPNF is old-growth.
Lands Council’s argument that the Forest Service is not
currently meeting Standard 10(b) is based on its own report.
The report, Lost Forests, documented the results of a sam-
pling, performed by Lands Council under the direction of a
forest pathologist, of 3,000 acres that the Forest Service
claimed to be old-growth. The report concluded that seventy
12
In Lands Council I, 395 F.3d at 1036, we found the TSMRS database
inaccurate due, in relevant part, to its use of outdated data. Until oral argu-
ment before this panel, Lands Council had not contested the reliability of
the TSMRS database on appeal. In any case, the SFEIS acknowledges the
questions raised in Lands Council I and states that since Lands Council I,
“the Bonners Ferry Ranger District has undertaken an extensive review of
all the old growth stands in the Mission Brush Project area.” Indeed,
according to Dr. Arthur Zack, the forest ecologist who reviewed Lands
Council’s own report on old-growth in the IPNF, it was Lands Council
that was “inexplicably using an obsolete version of the Forest Service
TSMRS database, even though they knew the IPNF was in the process of
updating its old growth data” and had been provided with more recent
data.
LANDS COUNCIL v. MCNAIR 8265
percent of the surveyed area did not meet the Forest Service’s
own standards for old-growth. The Forest Service’s expert,
Dr. Arthur Zack, a forest ecologist, disagreed with the meth-
odology and findings of the report. Dr. Zack found the report
“contradictory and unclear about what criteria [it] used for
making old growth determinations.” Dr. Zack called the
report “not credible” because Lands Council used outdated
versions of Forest Service databases and did not use “a repre-
sentative, non-biased sample design.”
[17] “When specialists express conflicting views, an
agency must have discretion to rely on the reasonable opin-
ions of its own qualified experts even if, as an original matter,
a court might find contrary views more persuasive.” Marsh,
490 U.S. at 378. Thus, mindful of the Forest Service’s discre-
tion, we conclude that it did not act arbitrarily and capri-
ciously “in relying on its own data and discounting the
alternative evidence offered” by Lands Council. See Earth
Island Inst. I, 351 F.3d at 1302.
[18] The Forest Service has also established that it will not
harvest any old-growth trees as a part of the Project. Despite
its plans to perform treatments within old-growth stands, the
treatment will not involve harvesting allocated old-growth.
The Forest Service represented in the SFEIS that the IPNF has
not harvested allocated old-growth for several years, and that
its “focus is on maintaining [existing] old growth stands.”
[19] In Lands Council I, we held that “[b]ecause no old
growth forest is to be harvested under the Project, . . . it can-
not be said that the Project itself violates the IPNF Plan’s
requirement to maintain ten percent of the forest acreage as
old growth forest.” 395 F.3d at 1036. Though we reach the
same holding here, we acknowledge, as does the Forest Ser-
vice, that old-growth percentages may decline due to “distur-
bances such as fire, insects, [or] pathogens” even if the
Forest Service never authorizes harvesting of old-growth in
the IPNF. Because the current old-growth exceeds ten per-
8266 LANDS COUNCIL v. MCNAIR
cent, we need not discuss whether the Forest Service has an
obligation to preserve mature, not-yet-old-growth trees in
order to work toward the required amount of old-growth in
the future.
[20] The district court did not abuse its discretion in con-
cluding that Lands Council was not likely to succeed on the
merits of this aspect of its NFMA claim.
B. National Environmental Policy Act
1. Statutory Language And Purpose
NEPA, unlike the NFMA, does not impose any substantive
requirements on federal agencies—it “exists to ensure a pro-
cess.” Inland Empire Pub. Lands Council, 88 F.3d at 758.
NEPA aims to make certain that “the agency . . . will have
available, and will carefully consider, detailed information
concerning significant environmental impacts,” and “that the
relevant information will be made available to the larger [pub-
lic] audience.” Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349 (1989); see also 40 C.F.R. § 1500.1(c)
(“The NEPA process is intended to help public officials make
decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and
enhance the environment.”).
[21] To that end, NEPA requires agencies to take a “hard
look” at the environmental consequences of their actions by
preparing an EIS for each “major Federal action[ ] signifi-
cantly affecting the quality of the human environment.” 42
U.S.C. § 4332(C); Sierra Club v. Bosworth, 510 F.3d 1016,
1018 (9th Cir. 2007). The EIS must “provide [a] full and fair
discussion of significant environmental impacts” so as to “in-
form decisionmakers and the public of the reasonable alterna-
tives which would avoid or minimize adverse impacts or
enhance the quality of the human environment.” 40 C.F.R.
§ 1502.1. The EIS must include statements on:
LANDS COUNCIL v. MCNAIR 8267
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented, (iii)
alternatives to the proposed action, (iv) the relation-
ship between local short-term uses of man’s environ-
ment and the maintenance and enhancement of long-
term productivity, and (v) any irreversible and irre-
trievable commitments of resources which would be
involved in the proposed action should it be imple-
mented.
42 U.S.C. § 4332(C). We hold that when the Forest Service
provides a full and fair discussion of environmental impacts
and its EIS includes these necessary components, the Forest
Service has taken the requisite “hard look.”
[22] We have previously faulted the Forest Service for not
addressing uncertainties relating to a project “in any meaning-
ful way” in an EIS. See Seattle Audubon Soc’y v. Espy, 998
F.2d 699, 704 (9th Cir. 1993) (“The EIS did not address in
any meaningful way the various uncertainties surrounding the
scientific evidence upon which the ISC rested.”); see also
Ecology Ctr., 430 F.3d at 1065 (stating that the EIS “did not
address in any meaningful way” uncertainties regarding the
proposed treatment). But none of NEPA’s statutory provisions
or regulations requires the Forest Service to affirmatively
present every uncertainty in its EIS. Thus, we hold that to the
extent our case law suggests that a NEPA violation occurs
every time the Forest Service does not affirmatively address
an uncertainty in the EIS, we have erred. See Espy, 998 F.2d
at 704; see also Ecology Ctr., 430 F.3d at 1065. After all, to
require the Forest Service to affirmatively present every
uncertainty in its EIS would be an onerous requirement, given
that experts in every scientific field routinely disagree; such
a requirement might inadvertently prevent the Forest Service
from acting due to the burden it would impose.
[23] We reaffirm, however, that the Forest Service must
acknowledge and respond to comments by outside parties that
8268 LANDS COUNCIL v. MCNAIR
raise significant scientific uncertainties and reasonably sup-
port that such uncertainties exist. This requirement comports
with NEPA’s regulations, as well as with interpretations of
NEPA offered by the Supreme Court and other circuits. See,
e.g., 40 C.F.R. § 1500.1(b) (providing that the agency “must
insure that environmental information is available to public
officials and citizens” and this “information must be of high
quality” as “[a]ccurate scientific analysis, expert agency com-
ments, and public scrutiny are essential to implementing
NEPA”); id. § 1502.9(a) (requiring that the agency “make
every effort to disclose and discuss at appropriate points in the
[EIS] all major points of view on the environmental impacts
of the alternatives including the proposed action”); id.
§ 1503.4(a) (stating that “[a]n agency preparing a final envi-
ronmental impact statement shall assess and consider com-
ments both individually and collectively, and shall respond
. . . in the final statement”); id. § 1502.22 (providing that
“[w]hen an agency is evaluating reasonably foreseeable sig-
nificant adverse effects on the human environment in an envi-
ronmental impact statement and there is incomplete or
unavailable information, the agency shall always make clear
that such information is lacking”); Izaak Walton League of
Am. v. Marsh, 655 F.2d 346, 377 (D.C. Cir. 1981) (holding
that “[s]o long as the environmental impact statement identi-
fies areas of uncertainty, the agency has fulfilled its mission
under NEPA”) (emphasis added). The Forest Service does
not, however, have the burden to anticipate questions that are
not necessary to its analysis, or to respond to uncertainties
that are not reasonably supported by any scientific authority.
2. Lands Council’s Contentions That The Forest
Service Violated NEPA By Failing To Address
Scientific Uncertainty
Lands Council argues that the Project runs afoul of NEPA
because the Forest Service “fail[ed] to include a full discus-
sion of the scientific uncertainty surrounding its strategy for
maintaining species viability.” Lands Council has not argued
LANDS COUNCIL v. MCNAIR 8269
that the Forest Service’s SFEIS was deficient in any other
respect. We conclude that the Forest Service has satisfied
NEPA.
Lands Council first points to two papers it cited in its
administrative appeal, one by Pfister et al. and one by Veblen,13
to establish that the Project’s strategy of managing old-growth
to maintain species viability is controversial. The Forest Ser-
vice did not fail to conduct a “full and fair discussion” of
environmental impacts as NEPA requires by not discussing
these articles brought to its attention by Lands Council
because they did not raise uncertainties about its methodol-
ogy. Instead, on the whole, the papers Lands Council cites
actually lend support to the Project’s proposed treatment of
old-growth habitat.
Though Pfister states that “producing ‘old-growth habitats’
through active management is an untested hypothesis,” he
approves of active management in certain circumstances that
apply to the Project Area. See R.D. Pfister et al., Contract
Review of Old-Growth Management on School Trust Lands:
Supplemental Biodiversity Guidance 8/02/00, at 11. Pfister
states that “initial restoration cutting treatments appear neces-
sary to restore old-growth stands historically sustained by rel-
atively frequent low- to mixed-intensity fire.” Id. at 15. As
explained, the Project Area was historically sustained by such
fires. Also relevant to the Project Area, Pfister recommends
restoration cutting to “reduce unsustainable post-settlement
density increases in [old-growth] pine/fir stands.” Id.
Veblen questioned whether suppression of naturally occur-
ring forest fires resulted in unnatural fuel buildup, and also
stated that this “premise and its implications need to be evalu-
ated by . . . area-specific research” in forests targeted for
13
The Veblen paper is not a part of the administrative record, and only
an excerpt from the Veblen paper is included in Lands Council’s brief.
The full text is available at http://www.fs.fed.us/rm/pubs/rmrs_p029.html.
8270 LANDS COUNCIL v. MCNAIR
“fuels or ecological restoration projects.” T.T. Veblen, Key
Issues in Fire Regime Research for Fuels Management and
Ecological Fire Restoration (2003). The Forest Service has
done precisely what Veblen advocates—“area-specific
research.” The Forest Service conducted “field reconnais-
sance” in the Project area to obtain area-specific information
on the history and intervals of fire. The Forest Service also
modeled the fire risk for the Project Area.
Lands Council also contends, more generally, that the For-
est Service did not cite adequate evidence that the Project will
improve the habitat of old-growth species and did not ade-
quately examine adverse impacts from logging within old-
growth stands. We disagree.
In the SFEIS, the Forest Service discussed how the treat-
ment proposed as a part of the Project would maintain dry-
forest, old-growth stands and cited literature explaining that
such treatment improves tree vigor and resistance to insects
and disease. The Forest Service also modeled the treatment
proposed in the different alternatives it considered, which
demonstrated that the Project provided the greatest reduction
in the risk of stand-replacing fires, thereby benefitting old-
growth habitat. Also, Lands Council claims to have submitted
a comment stating that the Forest Service did not cite “any
evidence that its managing for old growth habitat strategy will
improve old growth species habitat over the short-term or
long-term.” The Forest Service responded, again with cita-
tions to literature, by stating that the Project’s proposed treat-
ment would return the Project Area to old-growth and, in turn,
improve tree vigor.
The Forest Service did not ignore that there may be some
adverse impact from logging in old-growth stands. The Forest
Service acknowledged possible short-term, negative impacts
in the immediate vicinity of harvest units for the flammulated
owl. But the Forest Service explained, based on its habitat
suitability model, that its actions would not decrease suitable
LANDS COUNCIL v. MCNAIR 8271
habitat in the short-term and would enhance it in the long-
term. Finally, as we have already explained, we allow the For-
est Service to use habitat as a proxy when the Forest Service
concludes, in its expertise, that it is reasonable to assume that
a project will maintain a species’ viability if the project will
maintain suitable habitat for the species. Though the Forest
Service must explain the methodology it used for its habitat
suitability analysis, which the Forest Service did here, NEPA
does not require us to “decide whether an [EIS] is based on
the best scientific methodology available.” See Friends of
Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th
Cir. 1985) (citations omitted). And, we will not find a NEPA
violation based on the Forest Service’s use of an assumption
that we approve.
[24] We conclude that the Forest Service took the requisite
“hard look” at the environmental impacts of the Project to sat-
isfy NEPA. Thus, the district court did not abuse its discretion
in concluding that Lands Council is unlikely to succeed on the
merits of its NEPA claim.
C. Injunctive Relief
[25] “A preliminary injunction is appropriate when a plain-
tiff demonstrates ‘either: (1) a likelihood of success on the
merits and the possibility of irreparable injury; or (2) that seri-
ous questions going to the merits were raised and the balance
of hardships tips sharply in [the plaintiff’s] favor.’ ” Lands
Council II, 479 F.3d at 639 (quoting Clear Channel Outdoor
Inc., 340 F.3d at 813). We concluded above that Lands Coun-
cil is not likely to succeed on the merits of its claims under
the NFMA or NEPA. Assuming that Lands Council has at
least raised “serious questions going to the merits,” which is
in some doubt given our discussion above, Lands Council is
entitled to a preliminary injunction only if the balance of
hardships tips sharply in its favor. See id. (“ ‘[T]he less cer-
tain the district court is of the likelihood of success on the
merits, the more plaintiffs must convince the district court that
8272 LANDS COUNCIL v. MCNAIR
the public interest and balance of hardships tip in their
favor.’ ” (quoting Sw. Voter Registration Educ. Project, 344
F.3d at 918)); Earth Island Inst. I, 351 F.3d at 1298 (noting
that the burden of proof is on the plaintiff to show it is entitled
to a preliminary injunction). In addition to balancing the hard-
ships to the parties, we also must take into account the pub-
lic’s interest. Kootenai Tribe of Idaho v. Veneman, 313 F.3d
1094, 1125 (9th Cir. 2002); Sammartano v. First Judicial
Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). We conclude
that the district court did not abuse its discretion in denying
Lands Council a preliminary injunction.14
As a threshold matter, a district court abuses its discretion
if it “base[s] its decision on an erroneous legal standard or
clearly erroneous findings of fact.” Earth Island Inst. II, 442
F.3d at 1156; Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries
Serv., 422 F.3d 782, 793 (9th Cir. 2005) (stating that we
reverse a district court’s order regarding preliminary injunc-
tive relief “only if . . . the district court ‘based its decision on
an erroneous legal standard or on clearly erroneous findings
of fact’ ” (quoting United States v. Peninsula Commc’ns, Inc.,
287 F.3d 832, 839 (9th Cir. 2002) (emphasis added))). Under
this standard, “[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 result if it had applied the
law to the facts of the case.” Earth Island Inst. II, 442 F.3d
at 1156 (quoting Earth Island Inst. I, 351 F.3d at 1298).
Here, the district court applied the correct preliminary
injunction standard and concluded that Lands Council estab-
lished neither a fair chance of success on the merits nor the
existence of serious questions going to the merits. The district
court noted that Lands Council did not point to irreparable
14
Even though Lands Council expressed concern only about the 277
acres of old-growth habitat in the Project Area at oral argument, Lands
Council seeks to enjoin the entire project without regard for the multiple-
use objectives the Project seeks to promote.
LANDS COUNCIL v. MCNAIR 8273
harm “beyond the general allegation that environmental harm
is irreparable,” and refused to “presume that in all environ-
mental cases that irreparable harm will outweigh all other
considerations.” Importantly, Lands Council has not argued
that the district court applied an incorrect legal standard or
made clearly erroneous findings of fact in denying its request
for a preliminary injunction.
We also agree with the district court that Lands Council has
not shown that “the balance of hardships tips sharply in its
favor.” See Lands Council II, 479 F.3d at 639. In balancing
the harms, we must weigh the environmental injuries invoked
by Lands Council against the other injuries identified by the
Forest Service and Intervenors. In Lands Council’s view, the
environmental injuries are the loss of trees and risk to the
flammulated owl; the other injuries cited by the Forest Ser-
vice and Intervenors are economic losses—particularly the
loss of jobs and harm to the local economy—and the risks
from no action, including catastrophic fire, insect infestation,
and disease.
Turning first to the significance of environmental injury,
the Supreme Court has instructed us that “[e]nvironmental
injury, by its nature, can seldom be adequately remedied by
money damages and is often permanent or at least of long
duration, i.e., irreparable. If such injury is sufficiently likely,
therefore, the balance of harms will usually favor the issuance
of an injunction to protect the environment.” Amoco Prod.
Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987). But the
Supreme Court has not established that, as a rule, any poten-
tial environmental injury merits an injunction. Indeed, in
Amoco Production Company, the Supreme Court concluded
that economic concerns—the loss of $70 million that an oil
company had committed to exploration—outweighed envi-
ronmental concerns when the claimed injury to subsistence
resources from exploration “was not at all probable.” Id. at
545.
8274 LANDS COUNCIL v. MCNAIR
[26] Consistent with Amoco Production Company, we have
held that the public interest in preserving nature and avoiding
irreparable environmental injury outweighs economic con-
cerns in cases where plaintiffs were likely to succeed on the
merits of their underlying claim, see Earth Island Inst. II, 442
F.3d at 1177; Earth Island Inst. I, 351 F.3d at 1308-09 (noting
the long-term environmental consequences of logging). For
example, in National Parks & Conservation Association v.
Babbitt, 241 F.3d 722, 738 (9th Cir. 2001), we held that a
cruise ship’s “loss of anticipated revenues . . . does not out-
weigh the potential irreparable damage to the environment.”
[27] Our law does not, however, allow us to abandon a bal-
ance of harms analysis just because a potential environmental
injury is at issue. See Forest Conservation Council v. U.S.
Forest Serv., 66 F.3d 1489, 1496 (9th Cir. 1995) (“Injunctive
relief is an equitable remedy, requiring the court to engage in
the traditional balance of harms analysis, even in the context
of environmental litigation.”) (citation omitted). Indeed, the
Supreme Court has instructed us not to “exercise [our] equita-
ble powers loosely or casually whenever a claim of ‘environ-
mental damage’ is asserted.” Aberdeen & Rockfish R. Co. v.
Students Challenging Regulatory Agency Procedures
(SCRAP), 409 U.S. 1207, 1217-18 (1972); see Weinberger v.
Romero-Barcelo, 456 U.S. 305, 313 (1982) (“The grant of
jurisdiction to ensure compliance with a statute hardly sug-
gests an absolute duty to do so under any and all circum-
stances, and a federal judge sitting as chancellor is not
mechanically obligated to grant an injunction for every viola-
tion of law.”). Accordingly, we decline to adopt a rule that
any potential environmental injury automatically merits an
injunction, particularly where, as in this case, we have deter-
mined that the plaintiffs are not likely to succeed on the mer-
its of their claims.
[28] Intervenors raise hardships that must be balanced
against Lands Council’s claims of potential environmental
injury. Intervenors contend that enjoining the project will
LANDS COUNCIL v. MCNAIR 8275
force the timber companies that purchased the Sales to lay off
some or all of their twenty-seven workers, in addition to other
indirect harm to the struggling local economy. We must also
consider the public’s interest. See Kootenai Tribe of Idaho,
313 F.3d at 1125; Sammartano, 303 F.3d at 974. Though pre-
serving environmental resources is certainly in the public’s
interest, the Project benefits the public’s interest in a variety
of other ways. According to the Forest Service, the Project
will decrease the risk of catastrophic fire, insect infestation,
and disease, and further the public’s interest in aiding the
struggling local economy and preventing job loss. See Wild-
west Inst., 472 F.3d at 592 (considering the possibility of a
severe wildfire and its accompanying danger to human life,
and the money the Forest Service would lose in revenue from
timber sales as hardships favoring the denial of an injunction).
The court did not clearly error in concluding that the balance
of harms did not tip sharply in Lands Council’s favor.
[29] We conclude that the district court did not abuse its
discretion in denying Lands Council’s request for a prelimi-
nary injunction.
CONCLUSION
For the reasons explained above, we conclude that Lands
Council was not likely to succeed on any of its claims under
the NFMA or NEPA. We also conclude that Lands Council
has not shown that, if we allow the Forest Service to proceed
with the Mission Brush Project, the balance of hardships tips
sharply in its favor. The district court’s denial of Lands Coun-
cil’s request for a preliminary injunction is
AFFIRMED.