Alliance for Wild Rockies v. Cottrell
2011 U.S. App. LEXIS 1473, 632 F.3d 1127, 72 ERC (BNA) 1711 (2011)
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Rule of Law:
The 'serious questions' sliding scale approach for granting a preliminary injunction remains viable after Winter v. NRDC. A plaintiff can obtain an injunction by demonstrating serious questions going to the merits and a balance of hardships that tips sharply in their favor, provided they also show a likelihood of irreparable injury and that the injunction serves the public interest.
Facts:
- In August and September 2007, the Rat Creek Wildfire burned approximately 27,000 acres in the Beaverhead-Deerlodge National Forest in Montana.
- Nearly two years later, on July 1, 2009, the United States Forest Service proposed the Rat Creek Salvage Project to conduct salvage logging on 1,652 acres of the burned area.
- The Forest Service's stated purposes for the project were to recover timber value, supply wood to local industry, reforest the units, and control dwarf mistletoe infestation.
- The Chief Forester of the Forest Service issued an Emergency Situation Determination (ESD) for the project, which allowed logging to commence immediately and bypass the standard administrative appeals process.
- The Forest Service justified the ESD by citing the need to prevent a 'substantial economic loss' to the government, estimated at $16,000 or a speculative maximum of $70,000, and the importance of the project to the local economy.
- Alliance for the Wild Rockies (AWR) is an organization whose members use the specific areas designated for logging for recreational purposes, including hunting, hiking, and skiing.
Procedural Posture:
- Alliance for the Wild Rockies (AWR) filed a lawsuit against the United States Forest Service in the U.S. District Court.
- AWR moved for a preliminary injunction to halt the Rat Creek Salvage Project.
- The district court, a court of first instance, denied AWR's motion for a preliminary injunction.
- The district court also denied AWR's motion for an injunction pending appeal.
- AWR (appellant) appealed the denial of the preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit, with the Forest Service officials as appellees.
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Issue:
Does the 'serious questions' sliding scale standard for granting a preliminary injunction, where a stronger showing of one element can offset a weaker showing of another, remain a valid legal test after the Supreme Court's decision in Winter v. Natural Resources Defense Council?
Opinions:
Majority - W. Fletcher
Yes. The 'serious questions' sliding scale standard remains valid when applied as part of the four-element test established in Winter. While Winter rejected a 'possibility' of irreparable harm standard, it did not abrogate the traditional flexibility of equity jurisdiction that allows a court to balance the elements of a preliminary injunction. Following the reasoning of the Second and Seventh Circuits, this court holds that a plaintiff can satisfy the 'likelihood of success' prong by demonstrating 'serious questions going to the merits' and a balance of hardships that tips sharply in their favor. However, the plaintiff must still independently establish a likelihood of irreparable harm and that the injunction is in the public interest. Applying this standard, AWR demonstrated a likelihood of irreparable harm through the permanent loss of use and enjoyment of the forest. AWR raised serious questions about the validity of the Forest Service's Emergency Situation Determination, as the alleged economic loss was not 'substantial' and consideration of the local economy was improper under the governing regulations. The balance of hardships tips sharply to AWR, as its irreparable environmental harm outweighs the government's minor and speculative financial loss. Finally, the public interest in preserving nature and ensuring agency adherence to federal law favors the injunction.
Concurring - Mosman
Yes. The 'serious questions' test remains a valid and practical tool for district courts. A sliding scale approach preserves the flexibility essential to equity, especially in the context of preliminary injunctions where decisions are made on an expedited basis with a limited factual record. It is often extremely difficult for a judge at this early stage to accurately predict a party's ultimate 'likelihood of success.' It is far more practical and judicially sound to assess whether the moving party has raised 'serious questions going to the merits.' This approach allows courts to preserve the status quo in complex cases where there is a clear threat of irreparable harm but the merits are not yet fully developed.
Analysis:
This decision is significant for clarifying the preliminary injunction standard in the Ninth Circuit following the Supreme Court's landmark ruling in Winter. By explicitly preserving the 'serious questions' sliding scale test, the court provides crucial guidance to lower courts and litigants, aligning the Ninth Circuit with the Second and Seventh Circuits. This holding ensures that plaintiffs facing clear irreparable harm can still seek provisional relief even if their probability of success on the merits is not definitively established, thereby maintaining a critical tool for environmental and civil rights litigation. The case solidifies that the four Winter factors are mandatory but allows for flexibility within the analysis of the 'likelihood of success' prong, preventing the standard from becoming overly rigid.
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