Alliance for the Wild Rockies v. Cottrell
622 F.3d 1045, 2010 WL 3665149 (2010)
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Rule of Law:
The 'serious questions' test for preliminary injunctions, which allows for issuance when serious questions going to the merits are raised and the balance of hardships tips sharply in the plaintiff's favor, remains viable after Winter v. Natural Resources Defense Council, so long as the plaintiff also shows a likelihood of irreparable injury and that the injunction is in the public interest.
Facts:
- In August and September of 2007, the Rat Creek Wildfire burned approximately 27,000 acres in the Beaverhead-Deerlodge National Forest in Montana.
- The United States Forest Service proposed the Rat Creek Salvage Project, permitting salvage logging on 1,652 of the burned acres, with the stated purpose of recovering timber, preventing insect infestation, and reforesting the units.
- In April 2009, the Forest Service released an Environmental Assessment (EA) of the Project for public comment.
- On June 15, 2009, the Acting Forest Supervisor requested an Emergency Situation Determination (ESD) from the Chief Forester, citing rapid deterioration of trees and economic loss if logging were delayed due to administrative appeals.
- On July 1, 2009, the Chief Forester granted the ESD, stating that delay would result in a projected loss of up to $16,000 (or $70,000 if no bids were received) and that the project was important to the local economy.
- On July 22, 2009, the Forest Service issued the final EA and a Decision Notice and Finding of No Significant Impact (DN/FONSI), concluding an Environmental Impact Statement (EIS) was not required.
- Alliance for the Wild Rockies (AWR) members use the Beaverhead-Deerlodge National Forest, including the areas targeted for logging, for work and recreational purposes such as hunting, fishing, hiking, and cross-country skiing.
- Barry Smith Logging began work on the Project on August 21, 2009, and by the time of oral argument, approximately 49% of the planned logging was completed.
Procedural Posture:
- Alliance for the Wild Rockies (AWR) filed suit in federal district court alleging violations of the Appeals Reform Act (ARA), the National Forest Management Act (NFMA), and the National Environmental Protection Act (NEPA).
- AWR filed a motion for a preliminary injunction in the district court.
- On August 14, 2009, the district court denied AWR's motion for a preliminary injunction, stating AWR did not show a likelihood of success on the merits or irreparable injury.
- The district court also denied AWR’s motion for a stay and injunction pending appeal.
- AWR (appellant) timely appealed the district court’s denial of the preliminary injunction to the United States Court of Appeals for the Ninth Circuit (appellee, United States Forest Service).
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Issue:
Does the 'serious questions' approach to preliminary injunctions, where a strong showing of hardship balance can offset a weaker showing of likelihood of success on the merits, survive the Supreme Court's four-pronged preliminary injunction test articulated in Winter v. Natural Resources Defense Council, and did the district court err in denying a preliminary injunction to Alliance for the Wild Rockies?
Opinions:
Majority - W. Fletcher
Yes, the 'serious questions' approach to preliminary injunctions survives Winter when applied as part of the Supreme Court's four-element test, meaning serious questions going to the merits and a sharply tipping balance of hardships can support an injunction, provided the plaintiff also demonstrates a likelihood of irreparable injury and that the injunction is in the public interest. The Supreme Court in Winter explicitly rejected the 'possibility' of irreparable harm, requiring 'likelihood,' but did not directly address the sliding scale approach to other elements. Justice Ginsburg's dissent in Winter noted the majority did not reject the sliding scale. The Ninth Circuit joins the Seventh and Second Circuits in preserving this flexibility, distinguishing it from the 'possibility' of harm standard which was clearly superseded. The district court erred by not applying this test. Applying the clarified standard, AWR has shown a likelihood of irreparable harm because environmental injury, by its nature, is often permanent and cannot be remedied by money damages; logging 1,652 acres of forest prevents AWR members from using and enjoying these areas in their undisturbed state. AWR also raised 'serious questions' on the merits regarding the validity of the Forest Service’s Emergency Situation Determination (ESD). The Chief Forester’s reliance on a potential $16,000 to $70,000 loss was speculative and likely not a 'substantial loss' to the federal government as required by regulations. The 'loss of opportunity' for Douglas-fir planting and mistletoe control was contingent on no bids, which was speculative, and the extent of benefits unclear. Crucially, the Chief Forester improperly considered the importance of the project to the local economy, as Forest Service regulations for ESDs only permit consideration of threats to human health, safety, natural resources, or substantial economic loss to the federal government, not local economic impact. The two-year delay between the fire and the ESD request further undermined the 'emergency' claim. The balance of hardships tips sharply in AWR's favor, as the irreparable environmental harm and loss of administrative appeal rights outweigh the Forest Service's speculative and small potential monetary losses. Finally, the public interest favors the injunction, as there is a well-established public interest in preserving nature, avoiding environmental injury, and ensuring federal agencies comply with procedures like the Appeals Reform Act (ARA), which outweighs the project's temporary local economic benefits.
Concurring - Mosman
Yes, the holding that the 'serious questions' test remains valid after Winter is crucial because it preserves essential flexibility for district courts when evaluating preliminary injunction requests. Equity jurisdiction has always been characterized by flexibility rather than rigidity, and while Winter appropriately cabined flexibility regarding the likelihood of harm, there are good reasons to treat the likelihood of success on the merits differently. District courts are often in a much better position to predict the likelihood of harm, as parties frequently agree on the immediate consequences of denying an injunction (e.g., logging will occur). However, predicting the likelihood of success on the merits at the preliminary injunction stage is far more challenging, given the accelerated schedule and limited discovery. In many, if not most, cases, it is more appropriate and realistic for judges to ask if there are 'serious questions' on the merits rather than attempting to hazard a definitive prediction of who will ultimately prevail.
Analysis:
This case is highly significant as it clarifies the Ninth Circuit's preliminary injunction standard post-Winter v. Natural Resources Defense Council, reconciling the Supreme Court's requirement of a 'likelihood of irreparable harm' with the circuit's long-standing 'sliding scale' or 'serious questions' approach. By affirming that 'serious questions' can substitute for 'likelihood of success' when hardships tip sharply, as long as irreparable harm and public interest are also shown, the court preserves a vital tool for environmental groups and other plaintiffs seeking early relief. It emphasizes judicial discretion in balancing equitable factors, especially in cases where environmental damage might be irreversible before a full trial on the merits. This ruling ensures that Winter's heightened standard for irreparable harm does not inadvertently eliminate the flexibility historically inherent in equity for complex litigation.
