All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)

Facts

  • A wildfire burned roughly 27,000 acres in Montana’s Beaverhead–Deerlodge National Forest in 2007.
  • The U.S. Forest Service approved the Rat Creek Salvage Project to log about 1,652 acres of burned forest to remove dead/dying trees and address forest health and economic concerns.
  • The Forest Service Chief issued an Emergency Situation Determination allowing the project to proceed without delay from administrative appeals.
  • Two conservation organizations sued, alleging violations of NEPA, NFMA, and the Appeals Reform Act, and sought a preliminary injunction to stop logging during the litigation.
  • The district court denied preliminary relief, concluding the plaintiffs had not shown likely success on the merits or likely irreparable harm under Winter.

Issues

  1. After Winter, whether the Ninth Circuit may grant a preliminary injunction under a “serious questions” sliding-scale approach rather than requiring a strict showing of likely success on the merits.
  2. Whether the plaintiffs satisfied the governing preliminary injunction standard to enjoin the salvage logging project pending a merits decision.

Decision

  • The Ninth Circuit reversed the denial of a preliminary injunction and directed the district court to issue injunctive relief.
  • The court held that the “serious questions” sliding-scale approach remains valid after Winter when applied consistently with Winter’s requirements.
  • The court found the plaintiffs raised serious questions on the merits, including challenges to the Emergency Situation Determination and to compliance with NEPA and NFMA.
  • The court held the plaintiffs showed likely irreparable environmental harm because logging would cause permanent or long-lasting impacts that could not be remedied after trees were cut.
  • The court concluded the balance of hardships tipped sharply toward the plaintiffs because the asserted government harms were primarily economic and temporary.
  • The court determined the public interest favored preventing irreparable environmental injury and ensuring compliance with environmental statutes.
  • A separate concurrence agreed that an injunction should issue but expressed caution about the majority’s framing or application of the standard.
  • A preliminary injunction requires: (1) likelihood of success on the merits, (2) likelihood of irreparable harm absent relief, (3) balance of equities in the movant’s favor, and (4) consistency with the public interest.
  • Post-Winter, the Ninth Circuit may apply a sliding-scale approach: serious questions on the merits plus a balance of hardships tipping sharply toward the movant can justify relief, if the movant also shows likely irreparable harm and that the injunction is in the public interest.
  • “Possibility” of irreparable harm is insufficient; the movant must show irreparable harm is likely.
  • In environmental cases, likely irreparable harm may be established where challenged actions would cause permanent or long-duration impacts before judicial review on the merits.

Conclusion

The Ninth Circuit clarified that, after Winter, it may still grant preliminary injunctions under a serious-questions sliding-scale approach so long as the plaintiff proves likely irreparable harm and that the injunction serves the public interest; applying that standard, it ordered a preliminary injunction to halt the salvage logging project pending resolution of the statutory claims.