dissenting:
My disagreements with the majority opinion are limited, but they serve to push my position over the line to a respectfully dissenting one. I would affirm.
1. The Preliminary Injunction Standard
The majority concludes that the district court applied an improper legal standard. The district court’s order properly set forth both sets of criteria for preliminary injunctive relief recognized by our court, the “traditional” test and the “alternative” standard, citing to our decisions:
Certain prerequisites must be satisfied prior to issuance of a preliminary injunction. Under the so-called “traditional” standard, an injunction may be had if the court determines that (1) the moving party will suffer irreparable injury if the relief is denied; (2) there is a strong likelihood that the moving party will prevail on the merits at trial; (3) the balance of potential harm favors the moving party; and (4) the public interest favors granting relief. International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993). Under the “alternative” standard, an injunction properly issues when a party demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) the existence of serious questions going to the merits combined with a balancing of hardships tipping sharply in favor of the moving party. Id. The requirement for showing a likelihood of irreparable harm increases or decreases in inverse correlation to the probability of success on the merits, with these factors representing two points on a sliding scale. United States v. Nutricology, Inc. 982 F.2d 394, 396 (9th Cir.1985).
The concern identified by the majority is with the court’s articulation of one element of the test, the “possibility of irreparable injury.” What the district court said about that element in applying the “traditional” test was:
*1311Even if Plaintiffs were successful in demonstrating a likelihood of prevailing on the merits, they must still make some showing of irreparable harm under the “traditional” standard for granting a preliminary injunction. Plaintiffs have failed to meet that burden. They have failed to establish that the project will result in actual harm to the California spotted owl as opposed to speculation that some such harm could possibly occur. Plaintiffs have failed to show that measures already in place to restrict cutting of trees exhibiting any green canopy in either the PACs or within areas of Old Forest Emphasis will not afford sufficient protection. They have also failed to identify any concrete probability of irreparable harm in any other respect.
In applying the “alternative” test, the district court stated: “As discussed above, Plaintiffs have shown neither probable success on the merits or the possibility of any concrete irreparable injury.”
The majority concludes that the district court thus placed a higher burden of proof on Plaintiffs than is warranted. Though reluctant to invite a debate over semantics, I do not believe that was the case. Rather, I understand the language used by the district court to have been intended to emphasize that Plaintiffs did not persuade it that the chance or probability of actual harm — as opposed to something speculative — was sufficient to tip the balance in favor of granting the requested preliminary injunction.
The fact that the district court used slightly different words does not mean that it failed to apply the proper legal standard for deciding whether or not to grant the requested relief. Our many cases discussing preliminary injunctions do not all use exactly the same words in articulating the criteria. That is illustrated by the difference in language used in the cases cited by the district court as compared with the language used in the cases cited in the majority opinion, ante at 1297-98, Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir.1995) and Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003). There is no indication or reason to believe that the slightly different language is intended to express different legal standards. We have not, by en banc process, substantively altered the standards expressed in the older cases.
Regardless of whether the “traditional” or “alternative” test is applied, the decision whether or not to issue a preliminary injunction inherently involves weighing and balancing competing factors. One of the factors is irreparable injury. In order to justify a preliminary injunction — in order to carry enough weight to tip the balance — the cited harm must be real. The law does not require the identified injury to be certain to occur, but it is not enough to identify a purported injury which is only theoretical or speculative. That is true no matter which standard is applied:
To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Under either formulation, the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of the injury.
Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch. Dist., 868 F.2d 1085, 1088 *1312(9th Cir.1989) (citations omitted) (emphasis added); see Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir.1999); Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir.1984) (“Speculative injury does not constitute irreparable injury.”); HA ChaRLes Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal PRACTICE & Procedure: Civil 2d § 2948.1 at 153-56 (1995).
The balancing to be conducted by the court properly factors in how likely it is that the irreparable injury identified by the moving party will actually occur. In this case, the district court concluded that Plaintiffs had failed to establish that the owls would be put more at risk by implementation of the Forest Service’s plan— that is, that denial of the injunction would actually result in an irreparable injury. That was not to say that the owl’s habitat was secure. The fire put that habitat at grave risk. The Forest Service concluded that the areas previously set off as Protected Area Centers were no longer suitable for the owls and that the PACs could not effectively be relocated in what remained of the forest after the fire. The district court declined to hold that conclusion erroneous, and we have not held it to be erroneous, either. Thus, the prospects for long-term owl inhabitation of the forest or the PACs, without the restoration program, were not good. By itself, that meant that it was unlikely that permitting the reforestation plan to go forward would result in the irreparable injury cited by Plaintiffs, since preservation of the owl habitat was dubious, either way.
Nonetheless, the district court went on to consider whether the owls’ prospects would be made worse if the preliminary injunction was denied. As to that, the conclusion of the district court was that the restoration plan did what it could to protect the remaining habitat: “Plaintiffs have failed to show that measures already in place to restrict cutting of trees exhibiting any green canopy in either the PACs or within areas of Old Forest Emphasis will not afford sufficient protection.” On that basis, entry of the requested preliminary relief was denied.
That treatment by the district court did not represent the application of an erroneous legal standard. The court did not require Plaintiffs to establish a probability of irreparable injury, in the sense of more likely than not. The factual determination by the Forest Service that the remaining habitat is not suitable for owls by itself established that it was unlikely that the injunction would save the owls’ habitat. But the district court went on to consider the protections provided in the restoration plan and concluded that they were sufficient, such that the injunction sought by Plaintiff would not have made an actual difference. If an actual injury is not going to result, then denial of an application for preliminary injunctive relief is appropriate.
2. The Likelihood of Trepara,ble Injury
After concluding that the district court applied an erroneous legal standard, the majority moves on to fault the court for failing to focus separately on the logging of trees with green canopy outside the PACs and the Old Forest Emphasis Areas. In particular, the majority quotes an argument made by Plaintiffs’ counsel to the effect that the owls had no chance of surviving unless additional green canopy was preserved — with no reference to any evidence whatsoever — and concludes that “[tjhere is no indication that the district court considered this possibility in its assessment of irreparable harm.” Ante at 1299-1300. The burden was on Plaintiffs as the moving party. Argument is not evidence. The district court is not re*1313quired to discuss and discount any argument which Plaintiffs happened to make.
More to the point, that assertion is simply wrong. As quoted above, the district court concluded, in so many words: “Plaintiffs have failed to show that measures already in place to restrict cutting of trees exhibiting any green canopy in either the PACs or within areas of Old Forest Emphasis will not afford sufficient protection.” That indicates that the district court did consider the remaining green canopy and determined' — as a matter of fact — 'that Plaintiffs had failed to prove their assertion. We have not held that determination to be clearly erroneous.
The district court concluded that Plaintiffs did not demonstrate a likelihood or a reasonable possibility that irreparable injury would result from denial of their application. That conclusion was not erroneous. The district court’s denial of the application for a preliminary injunction was proper and should be affirmed.
3. Public Interest as a Preliminary Injunction Factor to Consider
The “traditional” standard for preliminary injunctions explicitly identifies the “public interest” as a factor to be considered. The “alternative” test does not, but that does not mean that it should not be considered. In considering an application for a preliminary injunction, the public interest should be considered as an “element that deserves separate attention in cases where the public interest may be affected.” Sammartano v. First Judicial District, 303 F.3d 959, 974 (9th Cir.2002).
The majority faults the district court for failing “to consider the broader public interest in the preservation of the forest and its resources.” Ante at 1308. But it did. The district court’s order explicitly discussed this factor and appeared to conclude that the public interest weighed against granting the injunction.
That discussion followed the court’s discussion concerning the “balance of hardships.” The court’s order referred to Plaintiffs’ failure to demonstrate irreparable injury. It then went on to note that enjoining the program would result in a loss in value from deteriorating timber— and thus a reduction in the money available to fund the reforestation plan — and would delay implementation of replanting efforts. The court concluded that the balance of hardships appeared to favor permitting the restoration program to proceed.
Immediately after that discussion, the court moved to consideration of the public interest:
The fact that the balance of hardships does not weigh in Plaintiffs favor, as discussed above, is significant in assessing whether the public interest would be served by granting the proposed injunction. Delay in harvesting dead timber will result in degradation of wood quality and decreased sales revenue that, in turn, will reduce the only assured source of funding for forest rehabilitation as envisioned by the project. Restoration of those portions of the Eldorado National Forest damaged by the Star fire is clearly in the public interest.
The majority fails to identify precisely what is wrong with that evaluation. It similarly fails to explain why preservation of a burned-out forest and postponement of rehabilitation plans serves the public interest.
This is not an environmental case where some natural treasure is threatened with extinction because of commercial plans to harvest resources. The reality is that a fire devastated Eldorado National Forest, leaving the Forest Service to decide how to make the best of a bad situation. There *1314is not inherently a public interest value in “preservation,” when what is to be preserved is that bad situation. Reasonable people can disagree on what approach would be best for the forest, the owls, the environment, and the public interest generally. But the responsibility for making the decision has been assigned to the Forest Service, and it does not appear that the Forest Service — or the district court — disregarded the public interest or acted arbitrarily and capriciously in making the judgment that it did. The public interest does not support reversal of the district court’s order. Rather, it favors affirming it.
4. Foreseeing the Future
The majority identifies two bases for concluding that Plaintiffs have demonstrated a reasonable probability of success on the merits of some of their claims. The second, that the Final Environmental Impact Statement (FEIS) for the project did not sufficiently anticipate the possibility that the Tahoe National Forest would subsequently decide not to give up the Protected Area Center known as PAC075, gives me pause and causes me to add a comment.
The majority concludes that the Forest Service was not required to prepare a single EIS covering the similar Star Fire restoration and timber sale projects planned for the two neighboring national forests, Eldorado and Tahoe. It also concludes that consideration should have been given in the Eldorado study to the cumulative impact of conditions and foreseeable actions in the Tahoe forest. I agree with both of those conclusions. The majority also acknowledges the many sections of “cumulative impact” analysis contained within the Eldorado FEIS, but holds that analysis to be insufficient for one reason: that the Eldorado FEIS and the subsequent decision regarding the Star Fire Restoration program did not anticipate that, months later, the persons responsible for Tahoe would change their minds about one element of the Tahoe plan.
At the time that the key decisions were made and the FEIS issued for Eldorado, it was assumed by the persons making those decisions that Tahoe was not going to maintain (or was going to “de-list”) the relevant area within its boundaries known as PAC075, because that was the preliminary plan announced for Tahoe. That was still the case at the time that this matter was presented to and ruled on by the district court. That surely did not seem surprising to the officials responsible for Eldorado, because the conditions after the fire in Tahoe were generally the same as the conditions in Eldorado, and Eldorado had determined that the habitat after the fire, including the Eldorado PAC075, which adjoined the Tahoe PAC075, was unsuitable to support owls, a factual judgment we do not hold to have been erroneous.
It was not until November 2002, five months after Eldorado completed its FEIS and a month after the district court made its decision, that Tahoe made its decision not to de-list PAC075. The majority faults Eldorado and the district court, in effect, for not being better predictors of the future. In the terms used by the majority, “the agency should have reasonably foreseen that Tahoe would not — indeed, could not — de-list PAC075.” Ante at 1308. If Tahoe had not changed its position and instead had gone forward with de-listing PAC075, there would be no basis for that objection.
I do not understand our decision to say in any general sense that one federal office should be expected to predict what another office will do, or more specifically, that one office should be required to predict that *1315another office will change its position on an important element of an announced preliminary plan. The circumstances here are very unique, and they should be recognized as such by anyone reading our opinion. The decision by Tahoe which the majority concludes should have been foreseen by Eldorado was essentially identical to a decision which Eldorado had to make for itself — whether to maintain or to de-list Eldorado’s adjacent PAC075. The majority has concluded that Eldorado’s decision to de-list its PAC075 was erroneous because it ignored the presence of a pair of owls spotted in the area of PAC075 in an April 2002 survey. It is precisely that same spotting of the pair of owls which the majority cites as the basis for concluding that Eldorado should have reasonably foreseen that Tahoe would not de-list PAC075. As the majority points out, the Framework requires maintenance of PACs unless “habitat is rendered unsuitable ... and surveys confirm non-occupancy” (emphasis added). Ante at 1304.
In this instance, then, Eldorado is really not being faulted for not looking over Tahoe’s shoulder and anticipating that Tahoe would change its mind about an element of its own plan. Instead, Eldorado has been faulted for de-listing its own PAC075 even though a pair of owls was spotted there. The discussion of Tahoe’s PAC075 is simply a further ramification of that failure, since if Eldorado had realized that the Framework required the preservation of its PAC075, it would have anticipated the preservation of Tahoe’s PAC075, as well.
I comment on this to underscore the unusual circumstance here. It should not ordinarily be expected that one government agency or office can reasonably anticipate that another will change its mind.