League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEAGUE OF WILDERNESS No. 13-35653
DEFENDERS/BLUE MOUNTAINS
BIODIVERSITY PROJECT, an Oregon D.C. No.
nonprofit corporation; HELLS 3:12-cv-02271-
CANYON PRESERVATION COUNCIL, HZ
an Oregon nonprofit corporation,
Plaintiffs-Appellants,
OPINION
v.
KENT CONNAUGHTON, Regional
Forester, Pacific Northwest Region
of the Forest Service, in his official
capacity; UNITED STATES FOREST
SERVICE, an agency of the United
States Department of Agriculture;
U.S. FISH & WILDLIFE SERVICE, an
agency of the United States
Department of the Interior; GARY
MILLER, Field Supervisor, United
States Fish and Wildlife Service, in
his official capacity,
Defendants-Appellees,
BAKER COUNTY, a political
subdivision of the State of Oregon;
UNION COUNTY, a political
subdivision of the State of Oregon;
BOISE CASCADE WOOD PRODUCTS, a
2 LOWD/BMBP V. CONNAUGHTON
Delaware limited liability company;
AMERICAN FOREST RESOURCE
COUNCIL, an Oregon nonprofit
corporation; CHARY MIRES, an
individual; OREGON SMALL
WOODLANDS ASSOCIATION, an
Oregon nonprofit corporation,
Intervenor-Defendants–Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted
February 5, 2014—Seattle, Washington
Filed May 8, 2014
Before: Raymond C. Fisher, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge Gould
LOWD/BMBP V. CONNAUGHTON 3
SUMMARY*
Environmental Law / Preliminary Injunction
The panel affirmed in part and reversed in part the district
court’s denial of a motion to preliminarily enjoin the Snow
Basin logging project in Oregon, and remanded for entry of
a preliminary injunction, the scope of which the district court
should determine on remand.
The panel held that the plaintiffs had shown that they are
likely to prevail on their National Environmental Policy Act
(“NEPA”) claim regarding the final Environmental Impact
Statement’s discussion of elk habitat because that discussion
was insufficiently clear, and therefore the analysis of the
project’s effects on elk failed to satisfy NEPA requirements.
The panel also held that the plaintiffs had shown that absent
a preliminary injunction, they were likely to face irreparable
harm. The panel further held that the plaintiffs had shown
that the balance of equities tipped in their favor, and that the
public interest supported the granting of a preliminary
injunction. The panel reversed the district court on this claim,
but affirmed the district court’s determination that the
plaintiffs were not likely to succeed on their remaining
claims.
The panel remanded with instructions for the district court
to enter a preliminary injunction sufficient to protect the
status quo while the United States Forest Service completed
a supplemental environmental impact statement.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 LOWD/BMBP V. CONNAUGHTON
COUNSEL
Thomas Buchele (argued), Earthrise Law Center, Portland,
Oregon, for Plaintiff-Appellant League of Wilderness
Defenders/Blue Mountain Preservation Project and Jennifer
Schemm, La Grande, Oregon, for Plaintiff-Appellant Hells
Canyon Preservation Council.
J. David Gunter II (argued), Robert G. Dreher, and Beverly
F. Li, United States Department of Justice, Washington, D.C.,
for Defendants-Appellees.
Caroline Lobdell (argued), Western Resources Legal Center,
Portland, Oregon, and Scott W. Horngren, American Forest
Resource Council, Portland, Oregon, for Defendant-
Intervenors–Appellees.
OPINION
GOULD, Circuit Judge:
The League of Wilderness Defenders/Blue Mountain
Biodiversity Project and the Hells Canyon Preservation
Council (collectively “the LOWD plaintiffs”) appeal from the
district court’s denial of their motion to preliminarily enjoin
the Snow Basin logging project. We have jurisdiction under
28 U.S.C. § 1292(a)(1). We affirm in part and reverse in part
the district court’s order, and remand the case to the district
court for the entry of a preliminary injunction, the scope of
which the district court should determine on remand.
LOWD/BMBP V. CONNAUGHTON 5
I
The Snow Basin project area encompasses nearly 29,000
acres of the Whitman-Wallowa National Forest (“the Forest”)
in northeast Oregon, and the United States Forest Service
(“USFS”) has been planning a logging project in this area
since 2008. A draft environmental impact statement (“EIS”)
was issued in March 2011, and the final EIS (“FEIS”) was
issued in March 2012. One way in which the FEIS differed
from the draft EIS is that one segment of the project, about
170 acres of regenerative logging, had been removed from
consideration in the FEIS. After the adoption of the FEIS, in
April 2012, the Forest Supervisor withdrew the Forest’s
Travel Management Plan (“TMP”), which had proposed to
regulate off-road motorized travel and reduce the amount of
roads within the Forest, and which had been mentioned in
addressing environmental harms from the logging project. In
July 2012, the USFS issued a correction notice that said that
“group selection” treatment was being considered for 130 of
the 170 acres that had been removed from the draft EIS and
not considered in the FEIS.
The LOWD plaintiffs filed suit seeking to enjoin the
timber sale on the grounds that the USFS and the United
States Fish & Wildlife Service (“USFWS”) had violated the
National Environmental Policy Act (“NEPA”) and the
Endangered Species Act (“ESA”). The district court held that
the LOWD plaintiffs were not likely to succeed on any of
their claims, and that the balance of harms did not tip sharply
in the LOWD plaintiffs’ favor. The district court therefore
denied the preliminary injunction. The LOWD plaintiffs filed
a timely notice of appeal.
6 LOWD/BMBP V. CONNAUGHTON
II
We review a district court’s denial of a preliminary
injunction for abuse of discretion. Inst. of Cetacean Research
v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 944 (9th
Cir. 2013). An abuse of discretion occurs when the district
court “based its ruling on an erroneous view of the law or on
a clearly erroneous assessment of the evidence.” Id. (quoting
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)).
Because all claims raised in this appeal relate to whether the
district court’s view of the law was erroneous, our review of
this decision of the district court is de novo. Sanders Cnty.
Republican Cent. Comm. v. Bullock, 698 F.3d 741, 744 (9th
Cir. 2012).
A motion for a preliminary injunction requires that a
plaintiff show that “he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).1
The LOWD plaintiffs’ substantive NEPA and ESA claims
are reviewed under the Administrative Procedure Act, which
allows courts to set aside agency actions that are “arbitrary,
1
In supplementation, we have said that “serious questions going to the
merits and a balance of hardships that tips sharply towards the plaintiff
can support issuance of a preliminary injunction, so long as the plaintiff
also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation marks
omitted). In our analysis we do not rely on this supplemental rule because
we determine that there is a likelihood of success on the merits on one
claim.
LOWD/BMBP V. CONNAUGHTON 7
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Factual
determinations must be supported by substantial evidence.
Dickinson v. Zurko, 527 U.S. 150, 162 (1999). The arbitrary
and capricious standard requires “a rational connection
between facts found and conclusions made.” W. Watersheds
Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2011).
III
We first analyze whether the LOWD plaintiffs are likely
to succeed on the merits of any of their claims under prong
one of Winter. Upon determining that they are, we then
proceed to consider the remaining prongs of the Winter test
to determine whether the LOWD plaintiffs face irreparable
injury, to balance the equities between the parties, and to
examine the public interest to determine whether a
preliminary injunction is warranted. Winter, 555 U.S. at 24
(“A preliminary injunction is an extraordinary remedy never
awarded as of right.”).
A
The LOWD plaintiffs raise four challenges to the Snow
Basin FEIS under NEPA, and an additional challenge under
the ESA. Under NEPA, they argue that 1) now that the TMP
has been withdrawn, the FEIS’ reliance on the TMP in
analyzing the impact of the project on certain species within
the Forest is invalid, and a supplemental EIS must be
completed; 2) the FEIS’ failure to consider the cumulative
effects of the 130-acre logging project in the correction notice
was error; 3) the failure of the FEIS to analyze the cumulative
effects of potentially increased stream temperatures and
sedimentation was error; and 4) the FEIS did not properly
8 LOWD/BMBP V. CONNAUGHTON
explain why it found that bull trout were not present in the
project area, and so did not analyze the project’s impact on
bull trout. Under the ESA, the LOWD plaintiffs challenge
the USFS’ and USFWS’ joint determination that bull trout, a
threatened species, were not present in the project area. Each
of these challenges is addressed separately below.
1
NEPA requires agencies to prepare a supplemental EIS
when “[t]here are significant new circumstances or
information relevant to environmental concerns and bearing
on the proposed action or its impacts.” 40 C.F.R.
§ 1502.9(c)(ii). When determining whether to issue a
supplemental EIS, an agency must “apply a rule of reason,”
not supplementing “every time new information comes to
light” but continuing to maintain a “hard look” at the impact
of agency action when the “new information is sufficient to
show that the remaining action will affect the quality of the
human environment in a significant manner or to a significant
extent not already considered.” Marsh v. Ore. Natural Res.
Council, 490 U.S. 360, 373–74 (1989) (internal quotation
marks and alteration omitted). In Klamath Siskiyou
Wildlands Center v. Boody, 468 F.3d 549 (9th Cir. 2006), we
required the Bureau of Land Management to prepare a
supplemental EIS after it changed a policy upon which the
original EIS had relied. Id. at 561–62. We noted that the bar
for whether “significant effects” may occur is “a low
standard.” Id. at 562. That the policy change “raise[d]
‘substantial questions’ regarding [the project’s] impact” was
enough to require further analysis before allowing the project
to proceed. Id. at 562.
 LOWD/BMBP V. CONNAUGHTON 9
The Snow Basin FEIS opens its analysis of the project’s
impact on the area’s elk population by stating that elk are the
“most popular” big game in the area, and are “an indicator of
the quality and diversity of the general forested habitat,” but
that “[d]isturbance due to roads is a major factor influencing
elk distribution.” After surveying the existing status of the
habitat, it begins its analysis of road density. It notes that
three parcels within the project area currently exceed the
recommended road density, but that the TMP, “will result in
a net reduction of open roads within the project area, which
will provide additional habitat that is free from disturbance
from motor vehicles.” It then goes on to say that, although
the precise reduction in road density could not be quantified
because the TMP was not final, the TMP would “result in a
substantial improvement in elk security habitat in the Snow
Basin project area.” It also includes a table, which calculates
the road density in all affected parcels under each alternative.
At oral argument, counsel for the USFS explained that this
chart does not include the impact of the TMP within its
calculations. Later, under separate header, the FEIS discusses
the potential impacts of other foreseeable future projects,
including fire thinning, cattle grazing, and the TMP.
The LOWD plaintiffs have shown it likely that they will
prevail on their claim that with the TMP now withdrawn, the
USFS must prepare a supplemental EIS.2 Although parts of
the USFS’ analysis do not consider the TMP, as a whole, its
2
Our conclusion that a supplemental EIS must look at environmental
impacts without the TMP applies only to assessment of impact on elk.
The LOWD plaintiffs make similar claims regarding the FEIS’ analysis of
the project’s impact on other species and habitats, but we conclude the
analysis of the environmental impacts on other species would not be
significantly impacted by presence or absence of the TMP.
10 LOWD/BMBP V. CONNAUGHTON
review of the Snow Basin project’s independent
environmental impacts on elk and their habitat are interwoven
with statements that explicitly rely upon the TMP to mitigate
harms that the Snow Basin project will cause. When the
public reviews an EIS to assess the environmental harms a
project will cause and weighs them against the benefits of that
project, the public should not be required to parse the
agency’s statements to determine how an area will be
impacted, and particularly to determine which portions of the
agency’s analysis rely on accurate and up-to-date
information, and which portions are no longer relevant. Here,
statements that the TMP will mitigate harms are interspersed
with analysis that properly looks only at the Snow Basin
project itself.
This lack of clarity likely renders the EIS deficient.
Informed public participation in reviewing environmental
impacts is essential to the proper functioning of NEPA. See,
e.g., Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768
(2004) (describing one of the purposes of NEPA as ensuring
“that the relevant information will be made available to the
larger audience that may also play a role in both the
decisionmaking process and the implementation of that
decision.” (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 349 (1989)); San Luis Obispo Mothers
for Peace v. Nuclear Regulatory Comm’n, 449 F.3d 1016,
1034 (9th Cir. 2006) (noting that one of the purposes of
NEPA is “ensuring that the public can both contribute to that
body of information, and can access the information that is
made public”). Without supplemental analysis of impacts
absent the TMP, previously stressed in parts of the agency’s
assessment, the public would be at risk of proceeding on
mistaken assumptions. We conclude that the LOWD
plaintiffs are likely to prevail on their claim that a
LOWD/BMBP V. CONNAUGHTON 11
supplemental EIS must be completed to show the
environmental impact of the Snow Basin project on elk and
their habitat now that the TMP has been withdrawn.
2
NEPA’s implementing regulations require that when
agencies prepare an EIS, that document must consider the
cumulative impacts of the action under consideration, and
defines cumulative impacts as “the incremental impact[s] of
the action when added to other past, present, and reasonably
foreseeable future actions.” 40 C.F.R. § 1508.7. A
reasonably foreseeable future action is defined as an
“[i]dentified proposal[],” 36 C.F.R. § 220.3, and an identified
proposal exists where the agency “has a goal and is actively
preparing to make a decision on one or more alternative
means of accomplishing that goal and the effects can be
meaningfully evaluated.” 36 C.F.R. § 220.4(a)(1). Although
“projects need not be finalized before they are reasonably
foreseeable,” N. Plains Res. Council, Inc. v. Surface Transp.
Bd., 668 F.3d 1067, 1078-79 (9th Cir. 2011), they must be
more than merely “contemplated,” Kleppe v. Sierra Club,
427 U.S. 390, 410 n.20 (1976). When looking at whether a
potential future action is an identified proposal, courts must
“focus upon a proposal’s parameters as the agency defines
them.” California. v. Block, 690 F.2d 753, 761 (9th Cir.
1982).
The LOWD plaintiffs have not shown that they are likely
to prevail on their claim that the 130 acres of group selection
treatment listed in the USFS’ Correction Notice meet the
standard for an identified proposal for which cumulative
impacts analysis must be done. The USFS may have a goal,
but the likelihood of proceeding on that goal and a timetable
12 LOWD/BMBP V. CONNAUGHTON
on any such action are not yet defined. More importantly,
there is no indication that the USFS “is actively preparing to
make a decision,” 36 C.F.R. § 220.4(a)(1), but rather, they
have disclaimed any intention to move forward on that
logging in any particular time frame. As the record now
stands, the USFS may permit this logging, or it may not take
any action at all. Environmental impacts of this possibility
are at present inchoate and to a degree speculative. If the
USFS proceeds, the agency will then be required to complete
an independent EIS, but we affirm the district court’s holding
that the LOWD plaintiffs are not likely to succeed on the
merits of their claim that the potential group selection
treatment must be considered among the cumulative effects
in the Snow Basin EIS.
3
In the LOWD plaintiffs’ second cumulative effects claim,
they argue that the FEIS did not consider the symbiotic
relationship between increased sediment in the streams that
flow through the project area and the pre-existing thermal
stress that the stream’s high temperatures place on the fish
that inhabit the streams. The EIS notes that both Little Eagle
Creek and Eagle Creek exceed their target temperatures,
which results in harms for both migration and spawning. It
also notes that logging could add low to moderate amounts of
sediment to those same streams. However, the LOWD
plaintiffs’ allegation misapplies the cumulative impact test.
Because the project will not have any impact on stream
temperatures, any thermal stress on the fish is a part of the
project’s environmental baseline. Therefore, no cumulative
effects analysis is required, and the LOWD plaintiffs have not
shown that they are likely to prevail on this claim.
LOWD/BMBP V. CONNAUGHTON 13
4
Federal agencies must undertake a “full and fair” analysis
of the environmental impacts of their activities. 40 C.F.R.
§ 1502.1. This is a crucial cornerstone of NEPA. “NEPA
requires that a federal agency ‘consider every significant
aspect of the environmental impact of a proposed action . . .
[and] inform the public that it has indeed considered
environmental concerns in its decisionmaking process.’”
Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300
(9th Cir. 2003) (alteration in original) (citation omitted). “In
order to accomplish this, NEPA imposes procedural
requirements designed to force agencies to take a ‘hard look'
at environmental consequences.” Id.
In the FEIS, the USFS cited to a study of the project area
by the Oregon Department of Fish and Wildlife. The Oregon
study indicates that, although bull trout were “common” in
Eagle Creek in the 1940s and ‘50s and continued to be
documented there through the 1980s, snorkeling surveys
conducted between 1991 and 1994 failed to find bull trout in
Eagle Creek. The EIS concludes that “[b]ull trout have likely
been extirpated from the Eagle Creek system since the
1990s,” and as a result, the EIS does not analyze the impact
of the Snow Basin project on bull trout. While the FEIS does
not engage with existing contrary scientific opinions about
the potential presence of bull trout in Eagle Creek, it included
all of the relevant scientific data and contains sufficient
information to let the public make an informed determination
of the environmental impacts of the Snow Basin project.
The LOWD plaintiffs argue that the data relied upon by
the USFS are too vague or stale to support the conclusions
drawn from it. In some contexts, NEPA’s “hard look”
14 LOWD/BMBP V. CONNAUGHTON
standard requires agencies to conduct new scientific studies
in order to “full[y] and fair[ly]” analyze the impacts of a
particular project. See, e.g., N. Plains, 668 F.3d at 1085–87
(overturning reliance on 10-year-old aerial survey data);
Lands Council v. Powell, 395 F.3d 1019, 1030–31 (9th Cir.
2005) (holding that reliance on 13-year-old habitat studies
was arbitrary and capricious). The snorkel surveys were aged
– more than 15 years old by the time the Final EIS was
released. Nevertheless, there was no reliable evidence that
showed their results were likely incorrect or that the status of
bull trout in the project area had changed over time, so we
cannot say that the USFWS and USFS’ reliance on the
surveys was arbitrary and capricious. The LOWD plaintiffs
have not shown that they are likely to prevail on this claim.
5
The ESA requires that agencies “insure that any [agency]
action . . . is not likely to jeopardize the continued existence
of any endangered species or threatened species or result in
the destruction or adverse modification of [critical] habitat of
such species.” 16 U.S.C. § 1536(a)(2). To accomplish this,
agencies must ask the USFWS if any endangered or
threatened species “may be present” in the area of a proposed
action, and the USFWS is to determine the answer using “the
best scientific and commercial data available.” 16 U.S.C.
§ 1536(c)(1). In making this determination, the USFWS must
“give the benefit of the doubt to the species.” Conner v.
Burford, 848 F.2d 1441, 1454 (9th Cir. 1988) (quoting H.R.
Conf. Rep. No. 96-697, 96th Cong., 1st Sess. at 12) (internal
quotation marks omitted). The LOWD plaintiffs advocate
two key issues with the conclusion that bull trout are not
present in Eagle Creek: The first is that the data relied upon
by the USFS and USFWS are too vague or stale to support
LOWD/BMBP V. CONNAUGHTON 15
the conclusions drawn from it. The second is that the USFS
and USFWS arbitrarily ignored the contrary conclusions
derived from that data in other reports.
The ESA’s requirement that agencies use “the best
scientific and commercial data available,” 16 U.S.C.
§ 1536(c)(1), means that agencies must support their
conclusions with accurate and reliable data. However, so long
as an agency considers all relevant data, it may rely on that
available evidence even when it is imperfect, weak, and not
necessarily dispositive. See Greenpeace Action v. Franklin,
14 F.3d 1324, 1336–37 (9th Cir. 1992). Because of the age
of the snorkel surveys (see Part III.A.4, infra), the evidence
of the bull trout’s absence was relatively weak. Nevertheless,
for the same reasons that we found that reliance on the
surveys was not a violation of NEPA, we conclude that the
evidence was sufficiently strong to meet the agencies’ burden
under the ESA.
The LOWD plaintiffs argue that the USFS and USFWS
arbitrarily ignored the contrary conclusions derived from the
same data in other reports. That fisheries experts in other
agencies read the same studies and thought it unclear whether
bull trout were present in Eagle Creek does not make the
USFS and USFWS’ determination to the contrary arbitrary or
capricious. See Ecology Ctr. v. Castaneda, 574 F.3d 652,
658-59 (9th Cir. 2009) (“We grant considerable discretion to
agencies on matters requiring a high level of technical
expertise. Though a party may cite studies that support a
conclusion different from the one the Forest Service reached,
it is not our role to weigh competing scientific analyses.”)
(internal quotation marks and citation omitted). While it is
true that contrary scientific explanations can serve as
evidence of arbitrary and capricious agency decision-making,
16 LOWD/BMBP V. CONNAUGHTON
see Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870,
879 (9th Cir. 2009), we conclude that is not the case here,
where the scientific studies were ambiguous and the analyses
of the agencies were supported by a reasonable reading of the
evidence.
The determination by both the USFWS and USFS that
bull trout were “likely extirpated” from Eagle Creek was not
arbitrary and capricious. The LOWD plaintiffs are not likely
to succeed on the merits of this claim.
B
The USFS concedes that the LOWD plaintiffs’ harms are
irreparable, but defendants-intervenors-appellees Baker
County, Union County, Boise Cascade, the American
Resource Council, Chary Mires, and the Oregon Small
Woodlands Association disagree. While intervenors properly
note that it would be incorrect to hold that all potential
environmental injury warrants an injunction, this objection is
more aptly aimed at the remaining prongs of the Winter
analysis. “[T]he 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.”
Lands Council v. McNair, 537 F.3d 981, 1004 (9th Cir. 2008)
(en banc), quoting Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 545 (1987) (internal quotation marks omitted),
abrogated in part on other grounds by Winter, 555 U.S. at 20.
The LOWD plaintiffs have shown that the Snow Basin
project will lead to the logging of thousands of mature trees.
The logging of mature trees, if indeed incorrect in law, cannot
be remedied easily if at all. Neither the planting of new
seedlings nor the paying of money damages can normally
LOWD/BMBP V. CONNAUGHTON 17
remedy such damage. The harm here, as with many instances
of this kind of harm, is irreparable for the purposes of the
preliminary injunction analysis.
Intervenors argue that because the project area has
previously been logged, the project does not contemplate
logging old-growth forest, and there were only limited or
delayed objections by the LOWD plaintiffs to the logging
plan, these circumstances mitigate the irreparability of this
harm. But none of these contentions are supported by our
precedent. We have upheld or granted injunctions in cases
involving only smaller trees and in areas that have previously
been logged, see Wild Rockies, 632 F.3d at 1129, 1135, and
in cases where plaintiffs have been less than timely,
Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d
1372, 1381–82 (9th Cir. 1998). We have never made a rule
that a plaintiff must challenge all related harms to maintain
an ability to challenge the harm that it views as the most
serious. Like the plaintiffs in Wild Rockies, the LOWD
plaintiffs have shown that the Snow Basin project is likely to
irreparably harm their members’ interest in the project area,
and we now must consider the third and fourth Winter prongs.
C
Balancing the equities in this case requires comparison
between the irreparable environmental harms pled by the
LOWD plaintiffs, on the one hand, and the economic interests
of the intervenors, on the other hand. The USFS does not
raise any equitable interests specific to itself, limiting its
argument to the public interest. Both the economic and
environmental interests are relevant factors, and both carry
weight in this analysis. See, e.g., McNair, 537 F.3d at
1004–05 (considering both economic losses and irreparable
18 LOWD/BMBP V. CONNAUGHTON
environmental harm). However, we conclude that the balance
of equities tips toward the LOWD plaintiffs, because the
harms they face are permanent, while the intervenors face
temporary delay.3 See Amoco, 480 U.S. at 545 (“If such
[irreparable environmental] injury is sufficiently likely,
therefore, the balance of harms will usually favor the issuance
of an injunction to protect the environment.”); Sierra Forest
Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (“When
deciding whether to issue a narrowly tailored injunction,
district courts must assess the harms pertaining to injunctive
relief in the context of that narrow injunction.”).
Intervenors raise two primary forms of harm: loss of jobs
and loss of government revenue. If the preliminary injunction
were granted, the intervenors would suffer both harms but, if
the project proceeds, the harms would be mitigated in part
once the LOWD plaintiffs’ claims are resolved. Relying on
the intervenors’ data, the project will support about 300
directly and indirectly caused jobs and some $275,000 in
revenue to the local governments. These numbers represent
the benefits of the entire project, which is scheduled to take
place over five years. Under Sierra Forest, we must consider
only the portion of the harm that would occur while the
preliminary injunction is in place, and proportionally
diminish total harms to reflect only the time when a
3
Because we determine that the LOWD plaintiffs are likely to succeed
on their claim that the USFS must do a supplemental EIS that assesses the
impacts on elk of the Snow Basin project without considering the TMP,
see Part III.A, above, we need not determine whether the balance of
equities tips sharply in LOWD’s favor under the Wild Rockies standard.
Wild Rockies, 632 F.3d at 1135. Instead, because the LOWD plaintiffs
have shown likely success on one claim, we analyze whether the LOWD
plaintiffs can show that the balance of harms tips in their favor under the
Winter standard. Winter, 555 U.S. at 20.
LOWD/BMBP V. CONNAUGHTON 19
preliminary injunction would be in place. Because the jobs
and revenue will be realized if the project is approved, the
marginal harm to the intervenors of the preliminary
injunction is the value of moving those jobs and tax dollars to
a future year, rather than the present. The LOWD plaintiffs’
irreparable environmental injuries outweigh the temporary
delay intervenors face in receiving a part of the economic
benefits of the project.
Intervenors also raise a third form of harm, the increased
risk of fire danger and insect infestation. This claim has
elements of both private and public interest in that the
intervenors face a particular harm from the risk of forest fires
in their region, separate from the more generalized harm the
public faces. However, because the issues involved are
substantially similar, we analyze it under the fourth Winter
prong, below.
D
“Finally, our precedent requires that we examine the
public interest in determining the appropriateness of a
preliminary injunction. While we have at times subsumed this
inquiry into the balancing of the hardships, it is better seen as
an element that deserves separate attention in cases where the
public interest may be affected. The public interest inquiry
primarily addresses impact on non-parties rather than
parties.” Sammartano v. First Judicial Dist. Court, 303 F.3d
959, 974 (9th Cir. 2002) (internal citations omitted),
abrogated in part on other grounds by Winter, 555 U.S. at 24.
Although “[w]hen the government is a party, these last two
factors merge,” Drakes Bay Oyster Co. v. Jewell, — F.3d —,
2014 WL 114699, at *14 (9th Cir. 2013), the intervenors’
20 LOWD/BMBP V. CONNAUGHTON
interests in this case make it appropriate to consider the
factors separately.
The USFS and intervenors argue that the public interest
would be harmed if the preliminary injunction is granted
because the risk of forest fires and insect infestation would
not be reduced by the logging project as planned. Even
though fire and insect risks are to a degree speculative,
mitigating such risks is a valid public interest. See McNair,
537 F.3d at 1005 (citing Wildwest Inst. v. Bull, 472 F.3d 587,
592 (9th Cir. 2006)). We have given this claim great weight
when the risk is imminent or the danger has begun. See
Alpine Lakes Prot. Soc’y v. Schlapfer, 518 F.2d 1089, 1090
(9th Cir. 1975) (per curiam) (holding that an injunction was
not in the public interest because many trees at issue were
already infested by insects, which made large-scale spreading
across other lands inevitable absent logging). That is not the
case here. The FEIS states that, if no action is taken, “[f]ire
suppression can be expected to continue and be highly
successful,” and notes the possibility of “periodic insect
outbreaks.” Without evidence of an imminent threat, we
cannot say that the inability to mitigate such risks for a
temporary period outweighs the public’s interest in
maintaining elk habitat and mature trees in the Forest.
Intervenors also cite Bering Strait Citizens for
Responsible Resource Development v. U.S. Army Corps of
Engineers, 524 F.3d 938, 949 (9th Cir. 2008), for the
proposition that their private harms, discussed above, are also
relevant to the public interest analysis based on the economic
impact of the added jobs and how the governmental
authorities would use their share of the funds, discussing the
undeniable benefits to the public of increased school funding
and mental health services, among others. In Bering Strait,
LOWD/BMBP V. CONNAUGHTON 21
we were discussing whether the Army Corps of Engineers
had erred in granting a permit to a mining project. Id. In this
context, where we were analyzing a section of the Code of
Federal Regulations that explicitly and repeatedly
contemplates consideration of economic factors, including the
economic impact of projects on neighboring communities, we
held that considering the community impact of economic
activity was not arbitrary and capricious. Although the
continuation or increase of jobs in logging is relevant to the
public interest, a part of what must be considered, our
analysis of the public interest in the context of a preliminary
injunction here is not bound by Bering Strait’s analysis of a
regulation that is not at issue in this litigation. Although we
think intervenors are correct that their private harms deserve
to be considered as part of Winter’s public interest analysis,
we conclude nonetheless that those harms are outweighed by
threatened irreparable injury to elk habitat. Important in our
analysis is the fact that the economic impacts will not be
completely foregone (as they might be were this case about
a denial of a permit, like Bering Strait, rather than a
preliminary injunction). Rather, there is a temporary delay of
the economic benefit of jobs while a preliminary injunction
is in place. See Sierra Forest, 577 F.3d at 1022–23. If the
Snow Basin project is approved after trial, then it and the
consequent jobs will proceed.
IV
The LOWD plaintiffs have shown that they are likely to
prevail on their NEPA claim regarding the FEIS’ discussion
of elk habitat because that discussion is insufficiently clear.
Therefore, the Environmental Impact Statement’s analysis of
the project’s effects on elk failed to satisfy NEPA’s
requirements. The LOWD plaintiffs have shown that absent
22 LOWD/BMBP V. CONNAUGHTON
a preliminary injunction, they are likely to face irreparable
harm. The LOWD plaintiffs have shown that the balance of
equities tips in their favor. And the LOWD plaintiffs have
shown that the public interest supports the granting of a
preliminary injunction. We reverse the district court’s
assessment that the LOWD plaintiffs are not likely to succeed
on one claim, affirm the district court’s determination that the
LOWD plaintiffs are not likely to succeed on other claims,
and reverse the district court’s holding that the LOWD
plaintiffs are not entitled to a preliminary injunction. A
preliminary injunction is warranted under the test established
by the Supreme Court in Winter.
We remand to the district court with instructions for it to
enter a preliminary injunction sufficient to protect the status
quo while the USFS completes a supplemental environmental
impact statement. On remand, the district court should
determine whether the entire Snow Basin project must be
preliminarily enjoined, or whether a more narrowly tailored
preliminary injunction can be crafted that adequately
“preserve[s] the status quo and the rights of the parties until
a final judgment issues in the cause.” U.S. Philips Corp. v.
KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010). We
have explained that “[i]njunctive relief must be tailored to
remedy the specific harm alleged, and an overbroad
preliminary injunction is an abuse of discretion.” Natural
Res. Def. Council, Inc. v. Winter, 508 F.3d 885, 886 (9th Cir.
2007). In this case, the district court could consider, for
example, limiting the injunction to specific areas of elk
habitat or to trees above a certain diameter at breast height.
As we hold only that the LOWD plaintiffs have adequately
established their entitlement to the issuance of a preliminary
injunction, however, we express no opinion on the
appropriate scope for such an injunction. Rather, we reverse
LOWD/BMBP V. CONNAUGHTON 23
and remand for further proceedings consistent with this
opinion.
Costs on appeal shall be taxed against Appellees. Fed. R.
App. P. 39(d)(1); Ninth Cir. Rule 39-1.1. The mandate of this
court shall issue immediately upon the running of the
deadlines for en banc consideration.
AFFIRMED in part, REVERSED in part, and
REMANDED.