FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARTH ISLAND INSTITUTE, a non- 

profit organization,

Plaintiff-Appellant, No. 09-16914

v. D.C. No.

2:09-cv-02020-FCD- ALICE B. CARLTON, in her official

EFB capacity as Forest Supervisor for  Eastern District of Plumas National Forest; RANDY

M California, OORE, in his official capacity as

Sacramento Regional Forester for Region 5 of

the United States Forest Service; OPINION

UNITED STATES FOREST SERVICE,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Senior District Judge, Presiding

Argued and Submitted

March 10, 2010—San Francisco, California

Filed November 8, 2010

Before: Procter Hug, Jr., Stephen Reinhardt and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Hug;

Dissent by Judge Reinhardt

18403
COUNSEL

Rachel M. Fazio, Cedar Ridge, California, for the appellant.

David C. Shilton, Attorney, U.S. Department of Justice,

Washington, D.C., for the appellees.

OPINION

HUG, Circuit Judge:

Earth Island Institute (“Earth Island”) appeals interlocutorily the district court’s order denying its motion for a preliminary injunction seeking to enjoin the United States Forest

Service (“Forest Service”) from conducting post-wildfire logging in the Plumas National Forest. The district court concluded that the applicable forest plan required only the

assessment of habitat for the black-backed woodpecker

EARTH ISLAND INSTITUTE v. CARLTON 18407
(“woodpecker”) at the project level, that the Forest Service

met that requirement, that the Forest Service adequately

responded to Earth Island’s dissenting scientific opinions in

the project adoption phases, and that the Forest Service’s tree

mortality guidelines were not legally enforceable. We affirm.

I. FACTUAL BACKGROUND

In the summer of 2007, the “Moonlight” and “Wheeler”

fires burned a total of 88,000 acres of private and National

Forest land in the northern Sierra Nevadas in California.

Approximately 78% of the fire took place within the Plumas

National Forest. The rest was on private land. 

Shortly after the fires, the Forest Service initiated the

Moonlight-Wheeler Project (“project”) to remove burned

trees posing a safety hazard to road traffic within the project

area (“roadside hazard trees”), to recover the value of firekilled trees, and to reestablish the forest through the planting

of conifer seedlings.

It is undisputed that forests burned at high intensity form a

new type of ecologically rich ecosystem. This case concerns

a subset of such an ecosystem, namely so-called “snag forest

habitat.” Snag forest habitat is important to several species of

plants and animals. One of the species that depends on snag

forest habitat is the black-backed woodpecker; a management

indicator species (“MIS”)1 for the Sierra Nevada area. The

woodpecker can only use snag forest habitat for up to a

decade after a high-intensity fire at which point in time the

forest will have changed naturally and the woodpecker must

seek out new suitable habitat. According to a Plumas National

Forest district ranger, snag forest habitat is extremely scarce

1An MIS is a species chosen by the Forest Service to represent a much

larger group of native species with similar habitat requirements for environmental assessment purposes. See Earth Island Inst. v. U.S. Forest

Serv., 442 F.3d 1147, 1173 (9th Cir. 2006). 

18408 EARTH ISLAND INSTITUTE v. CARLTON
in the Sierra Nevadas due to fire suppression and post-fire

logging.

Some dispute exists as to exactly how much of the woodpecker habitat in the Plumas National Forest would be

destroyed by the project. Earth Island’s experts conservatively

estimate that at least 40-60% of the woodpecker’s habitat

within the project area would be destroyed, corresponding to

30-50% of woodpecker habitat throughout the entire Sierra

Nevada. According to Earth Island, this could threaten the

woodpecker’s ability to survive in the Sierra Nevadas. In contrast, the Forest Service asserts that logging would only be

conducted on approximately 22-27% of the forest burned on

public land, thus leaving as much as 73% unlogged. However,

the Forest Service also acknowledges that approximately 38%

of the habitat that was created by the two fires on public land

would be destroyed, but points out that to compensate for this,

snag habitat has been designated on approximately 10% of the

project area with no logging to take place there. 

II. PROCEDURAL BACKGROUND

Initially, the Forest Service proposed a separate project that

would result in the logging of roadside hazard trees only.

After Earth Island brought a challenge to that, the parties settled. The settlement provided that the Forest Service would

re-evaluate that project as part of an Environmental Impact

Statement (“EIS”) then underway for non-hazard tree logging.

The Forest Service subsequently issued a Draft Revised

EIS covering both roadside hazard and other trees. Earth

Island submitted extensive timely comments on the draft. The

Forest Service subsequently issued a Revised Final EIS

(“RFEIS”) analyzing five alternatives. Half a year later, the

Chief of the Forest Service issued an Emergency Situation

Determination allowing the Forest Service to implement the

project as soon as a Record of Decision (“ROD”) was signed.

The Chief found this to be warranted given the threats to pubEARTH ISLAND INSTITUTE v. CARLTON 18409
lic and employee safety and the fact that any delay in the

implementation of the project would result in substantial loss

of economic value and jeopardize other restoration and recovery objectives.

Soon thereafter, the Forest Service signed the ROD for the

project, choosing alternative A. This authorized the harvest of

fire-killed trees on approximately 14,755 acres of the approximately 41,000 acres of high severity burn areas using both

ground- and air-based harvesting methods. The Forest Service

subsequently awarded five logging contracts to local companies.

Subsequently, Earth Island filed a motion for a preliminary

injunction seeking to enjoin the Forest Service from implementing all aspects of the project, including the felling,

removal and sale of any trees apart from under emergency

hazard circumstances. The district court denied Earth Island’s

motion. This appeal followed.

III. STANDARD OF REVIEW AND JURISDICTION

We have jurisdiction to review a district court’s denial of

a preliminary injunction under 28 U.S.C. § 1292(a)(1). We

review the denial of a preliminary injunction for abuse of discretion. Earth Island Inst. v. U.S. Forest Serv. (Earth Island

Inst. II), 442 F.3d 1147, 1156 (9th Cir. 2006). A district court

abuses its discretion in denying a request for a preliminary

injunction if it bases its decision on an erroneous legal standard or clearly erroneous findings of fact. Lands Council v.

McNair, 537 F.3d 981, 986 (9th Cir. 2008) (en banc). A district court’s decision regarding preliminary injunctive relief is

subject to “limited and deferential” review. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.

2003) (en banc) (per curiam). Accordingly, “[a]s long as the

district court got the law right, it will not be reversed simply

because the appellate court would have arrived at a different

18410 EARTH ISLAND INSTITUTE v. CARLTON
result if it had applied the law to the facts of the case.” Earth

Island II, 442 F.3d at 1156. 

In deciding whether Earth Island is likely to succeed on the

merits of its motion for a preliminary injunction, the APA sets

forth additional requirements for review. McNair, 537 F.3d at

987. The APA states, in relevant part, that a reviewing court

may set aside only agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” Id., citing 5 U.S.C. § 706(2)(A). Review under this

standard is also narrow, and we may not substitute our judgment for that of the agency. Id. Rather, a decision may only

be reversed as arbitrary and capricious “if the agency relied

on factors Congress did not intend it to consider, entirely

failed to consider an important aspect of the problem, or

offered an explanation that runs counter to the evidence

before the agency or is so implausible that it could not be

ascribed to a difference in view or the product of agency

expertise.” Id. Thus, although the district court’s denial of

Earth Island’s request for a preliminary injunction must be

reviewed for an abuse of discretion, our review of the district

court’s determination as to whether Earth Island was likely to

prevail on the merits of its claims necessarily incorporates the

APA’s arbitrary and capricious standard. Id. 

IV. DISCUSSION

[1] A party seeking a preliminary injunction must demonstrate (1) that it is likely to succeed on the merits, (2) that it

is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and

(4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374 (2008). An injunction is a matter of equitable discretion” and is “an

extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.” Id. at 376,

381.

EARTH ISLAND INSTITUTE v. CARLTON 18411
Earth Island argues that the district court improperly

assessed Earth Island’s likelihood of success on the merits,

applied an erroneous standard for the likelihood of irreparable

harm, and incorrectly balanced the equities.

A. Likelihood of Success on the Merits

First, Earth Island contends that the district court imposed

an unreasonably high standard for success on the merits. In

doing so, Earth Island relies on the district court’s statement

that after Winter, “a heavy burden is imposed on plaintiffs.”

Earth Island argues that this means that the district court

required more indicia of success on the merits than did Winter. 

[2] The district court’s statement forms part of a footnote

and appears to simply be dictum. At any rate, as Winter

plainly demonstrates, it is correct that plaintiffs seeking a preliminary injunction face a difficult task in proving that they

are entitled to this “extraordinary remedy.” 129 S. Ct. at 376.

Characterizing this as a “heavy burden” was not improper and

does not show that the district court applied an erroneous

standard. Quite the contrary: the record shows that the district

court correctly applied Winter’s four-prong analysis throughout its thoroughly reasoned opinion. 

Next, Earth Island contends that it is likely to succeed on

the merits of its claims because (1) the Forest Service failed

to ensure the viability of the woodpecker and thus violated the

National Forest Management Act (“NFMA”); (2) the Forest

Service’s RFEIS failed to respond sufficiently to comments

made by Earth Island’s scientists; and (3) the Forest Service

failed to follow its allegedly binding tree marking guidelines.

i. Purported species viability requirements

[3] As we stated in Ecology Center v. Castaneda,

18412 EARTH ISLAND INSTITUTE v. CARLTON
The National Forest Management Act . . . provides

both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and

maintain forest resource management plans. After a

forest plan is developed, all subsequent agency

action . . . must comply with NFMA and the governing forest plan. Substantively, NFMA requires that

forest plans “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.”

574 F.3d 652, 656 (9th Cir. 2009) (citations omitted). However, we also explained that the Forest Service’s “1982 rule”

which required the Forest Service manage fish and wildlife

habitat “to maintain viable populations of existing native and

desired non-native vertebrate species” was partially superceded in 2000 (the “2000 Rule”). Id. at 657. As we stated,

“[t]he requirements of the superceded 1982 Rule apply only

to the extent they were incorporated into the Forest Plan.” Id.

at 657. (emphasis added).

[4] Similarly, in McNair, we stated that “[t]he NFMA

unquestionably requires the Forest Service to provide for

diversity of plant and animal communities . . . in order to

meet overall multiple-use objectives.” 537 F.3d at 992 (quotation marks omitted). But emphasizing the “inherent flexibility

of the NFMA”, we pointed out that the NFMA does not

“specify precisely how” the Forest Service must demonstrate

that it has met the objectives of the pertinent forest plan. Id.

As we said, 

as non-scientists, we decline to impose bright-line

rules on the Forest Service regarding particular

means that it must take in every case to show us that

it has met the NFMA’s requirements. Rather, we

hold that the Forest Service must support its conclusions that a project meets the requirements of the

NFMA and relevant Forest Plan with studies that the

EARTH ISLAND INSTITUTE v. CARLTON 18413
agency, in its expertise, deems reliable. The Forest

Service must explain the conclusions it has drawn

from its chosen methodology, and the reasons it considers the underlying evidence to be reliable. We will

conclude that the Forest Service acts arbitrarily and

capriciously only when the record plainly demonstrates that the Forest Service made a clear error in

judgment in concluding that a project meets the

requirements of the NFMA and relevant Forest Plan.

Id. at 993-94 (emphasis added). In contrast to the case at

hand, the Forest Plan at issue in McNair contained specific

provisions regarding wildlife viability. Id. at 989 (“The . . .

Forest Plan requires the Forest Service to manage the habitat

of species listed in the Regional Sensitive Species List to prevent further declines in populations which could lead to federal listing under the Endangered Species Act.”) (alteration

and quotation marks omitted). Even so, “neither the NFMA

nor the . . . Forest Plan require the Forest Service to improve

a species’ habitat to prove that it is maintaining wildlife viability.” Id. at 995. Further,

Congress has consistently acknowledged that the

Forest Service must balance competing demands in

managing National Forest System lands. Indeed, . . .

it has never been the case that the national forests

were to be set aside for non-use . . . Congress’ current vision of national forest uses . . . states that it is

the policy of the Congress that the national forests

are established and shall be administered for outdoor

recreation, range, timber, watershed, and wildlife and

fish purposes.

Id. at 990 (emphasis added, alteration, citations and quotation

marks omitted).

Here, the Plumas National Forest Plan was amended in

2004 and 2007. Earth Island cites to language in the 2004

18414 EARTH ISLAND INSTITUTE v. CARLTON
amendment indicating that the forest management approach

chosen “will provide the fish and wildlife habitat and other

ecological conditions necessary to maintain well-distributed

viable populations of vertebrate species in the planning area,

and maintain the diversity of plants and animals.” Earth Island

contends that this shows that the Forest Service was to ensure

the viability of the woodpecker. This statement does not

clearly stand for this proposition. First, it could be read to

mean that the Service was to ensure the distribution of the

species, especially when read in combination with the most

recent amendment which also calls for distribution, but not

viability analyses. Second, the requirement pertains to the

planning area, not the project area at issue in this case. As

shown below, the Forest Service did, in fact, find that there

would be no change in the distribution of the woodpeckers at

the Sierra Nevada level. Similarly, the 2007 amendment only

requires “[d]istribution population monitoring [to] track

changes in the distribution of each MIS at the Sierra Nevada

scale by monitoring the changes in the presence of the species

across a number of sample locations,” but “[t]he sole MIS

requirement that is applied at the project-level is the assessment of habitat for MIS. Further, there are no monitoring

requirements for MIS at the project level.” (Emphasis added).

[5] The record shows that the Forest Service satisfied the

requirement to assess MIS habitat in the project area. For

example, in the Management Indicator Species Report for the

Moonlight-Wheeler project, the Forest Service acknowledged

the importance of snag forest to the woodpecker, estimated

post-fire snag forest density in the proposed project area, analyzed the direct, indirect and cumulative effects of logging on

the habitat under the five proposed alternatives. The Forest

Service concluded that “[a]ll action alternatives, combined

with ongoing and planned fire-killed tree removal projects,

leave more area unharvested than harvested within the analysis area. . . . Leaving the majority of the burn in an unharvested condition maintains an important component of

biological diversity [for] all the unique plants and animals that

EARTH ISLAND INSTITUTE v. CARLTON 18415
depend on those first few years of natural (postfire) succession. This includes the [woodpecker].” The RFEIS similarly

analyzed the effects of the proposed project on the woodpecker’s habitat needs at the project level in a thorough manner.

As the district court noted,

the [Forest Service] analyzed the amount of suitable

habitat that would be lost in the analysis area due to

salvage logging, and concluded that 62% of suitable

habitat created by the Moonlight and Wheeler fires,

or 20,172 acres, would remain untreated, and thus

still support an upward trend in BBWO [blackbacked woodpecker] population. Finally, the [Forest

Service] also analyzed the relationship of the

project-level habitat impacts to the bioregional

BBWO population trends and determined that after

Project implementation, there would still be sufficient acres of forested areas that burned at high

severity to support BBWO suitable habitat.

[6] Further, the district court correctly found that the species distribution requirements only applied to the greater

Sierra Nevada bioregional level, but not to the specific project

at issue here. The district court correctly found that the Forest

Service had analyzed the population distribution data in sufficient detail, concluding that the project would preserve a sufficient area to support the woodpeckers.

[7] We give great deference to agencies when faced with

this type of scientific evidence. See, e.g., Castaneda, 574 F.3d

at 664; McNair, 537 F.3d at 993. Although we relied on species viability requirements in, for example, McNair, 537 F.3d

at 992, 998, we emphasize the fact that such requirements

only apply when contained in the pertinent forest plan for the

site-specific area. Id. at 992, 994-95. This was not the case

here. Earth Island also relies on the 1983 version of 36 C.F.R.

§ 219.19 as standing for the proposition that species viability

was required. But as we said in McNair, “[s]ection 219.19

18416 EARTH ISLAND INSTITUTE v. CARLTON
required the Forest Service to manage wildlife habitat ‘to

maintain viable populations of existing . . . species’ and

required the Forest Service to designate management indicator species (MIS) to monitor and evaluate wildlife viability.

This regulation is no longer in effect.” 537 F.3d at 989 n.5

(emphasis added, citation omitted). Here, in explaining how

the 2007 Plumas National Forest Plan Amendment relates to

the partially superceded 1982 planning rule, the Forest Service emphasized that “only the aspects of § 219.19 in the

1982 planning rule related to selecting MIS (§ 219.19(a)(1))2

and monitoring during forest plan implementation

(§ 219.19(a)(6))3 apply. Other aspects of § 219.19 are related

to forest plan development or revision and do not apply.”

(Emphasis added). Accordingly, Earth Island’s reliance on 36

C.F.R. § 219.19 is unavailing. 

[8] Our role is “simply to ensure that the Forest Service

made no clear error of judgment that would render its action

arbitrary and capricious.” McNair, 537 F.3d at 993 (quotation

marks omitted). This was not the case here. Courts may not

impose “procedural requirements not explicitly enumerated in

the pertinent statutes.” Id. (alteration omitted). Accordingly,

the district court did not abuse its discretion when it concluded that Earth Island was not likely to succeed on the merits of its argument that in analyzing and implementing the

project at issue, the Forest Service was required to ensure species viability.

2Providing, in pertinent part, that “[i]n order to estimate the effects of

each alternative on fish and wildlife populations, certain vertebrate and/or

invertebrate species present in the area shall be identified and selected as

management indicator species and the reasons for their selection will be

stated.” 

3

“Population trends of the management indicator species will be monitored and relationships to habitat changes determined. This monitoring

will be done in cooperation with State fish and wildlife agencies, to the

extent practicable.” 

EARTH ISLAND INSTITUTE v. CARLTON 18417
ii. Forest Service Responses to Earth Island’s 

Comments

Earth Island contends that the district court abused its discretion in finding that the Forest Service adequately

responded to the dissenting scientific comments submitted by

Earth Island’s scientists during the RFEIS comment period. In

particular, Earth Island alleges that the Forest Service

responded in an impermissibly generalized manner and that

the RFEIS did not address certain specific comments by Earth

Island’s experts, Mr. Rhodes and Dr. Royce.

[9] Under NEPA, agencies must ensure the scientific integrity of the discussions and analyses in their environmental

impact statements. 40 C.F.R. § 1502.24. In doing so, they

must “discuss at appropriate points in the final statement any

responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency’s

response to the issues raised.” 40 C.F.R. § 1502.9(b). However, agencies have broad discretion in choosing how to

respond to opposing scientific evidence. 40 C.F.R. § 1503.4.

Nonetheless, the EIS “must respond explicitly and directly to

conflicting views in order to satisfy NEPA’s procedural

requirements.” Earth Island II, 442 F.3d at 1172. That being

said, “an agency need not respond to every single scientific

study or comment.” Castaneda, 574 F.3d at 668. 

[10] First, the district court cited to numerous instances in

the RFEIS where the Forest Service responded in detail to the

specific comments raised by Earth Island. For example, the

court found that the Service commented on the adequacy of

the roadside hazard tree guidelines, the alleged improper

markings of hazard trees, the impact on woodpeckers and

their habitat, and the impact of logging on post-fire soils and

watersheds. Thus, Earth Island’s contention that the Service

only responded in a generalized manner is factually incorrect.

The district court did not abuse its discretion in so finding.

18418 EARTH ISLAND INSTITUTE v. CARLTON
[11] Second, the Forest Service responded extensively to

the comments by both Mr. Rhodes and Dr. Royce. The Forest

Service responded to Mr. Rhodes’ comments on ground cover

loss and landing sites for helicopter and skyline logging in

both the body of the FREIS and in the Appendix. Mr. Rhodes

disagrees with the Forest Service’s scientific findings, but that

disagreement does not render the Forest Service’s review and

comment process improper. “[N]one of NEPA’s statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS . . . . After all, to

require the Forest Service to [do so] would be an onerous

requirement, given that experts in every scientific field routinely disagree . . . .” See McNair, 537 F.3d at 1001. The district court here found just such a “battle of the experts” to

exist, but concluded that this did not establish a violation of

NEPA. It was within its authority to do so.

[12] Similarly, the RFEIS responded in detail to Dr.

Royce’s comments on the roadside hazard tree guidelines. For

example, the RFEIS discussed the environmental effects of

roadside hazard tree removal and explained why the Forest

Service guidelines are consistent with scientific recommendations regarding fire-injured trees. The RFEIS also discusses a

concern raised by an Earth Island expert regarding assumptions about the likely fall rates of burned trees. In short, the

RFEIS took the required hard look at the determination of

which trees were hazardous to road travelers. The Forest Service responded in a sufficiently detailed manner to the range

of comments submitted. NEPA requires no more. McNair,

537 F.3d at 1000, 1003. Accordingly, the district court did not

abuse its discretion in finding that the Forest Service met its

comment period obligations.

iii. Enforceability of Tree Marking Guidelines

[13] Earth Island contends that the Forest Service did not

follow its allegedly enforceable tree marking guidelines. In

arguing that the guidelines were binding, Earth Island cites to

EARTH ISLAND INSTITUTE v. CARLTON 18419
language from the Record of Decision and the RFEIS stating

that the Forest Service shall “[u]se the best available information for identifying dead and dying trees,” that “[h]azard trees

proposed for felling have been identified using the PNF Roadside/Facility Hazard Tree Guidelines,” and that the objective

of the project is to “[r]emove roadside safety hazards.” The

guidelines themselves are contained in a “Roadside/Facility

Hazard Tree Abatement Action Plan,” the purpose of which

is to “provide parameters for the abatement of road and facility hazard trees.” Further, “[t]he spirit of these guidelines is

to: 1) remove those trees that would likely die to abate potential hazards to visitors . . . and 2) retain those trees that will

likely survive. . . . This balance aims to retain healthy forest

cover . . . .” (Emphasis added). Such language does not make

the guidelines enforceable. In order for an agency document

to have the force and effect of law, it must “(1) prescribe substantive rules — not interpretive rules, general statements of

policy or rules of agency organization, procedure or practice

— and, (2) . . . [be] promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress.” W. Radio Serv. Co.

v. Espy, 79 F.3d 896, 901 (9th Cir. 1996) (concluding that

agency manual and handbook were not legally enforceable as

they were neither substantive in nature nor promulgated in

accordance with the Administrative Procedure Act). Here, the

language of the guidelines similarly shows that they were not

substantive, but provided only internal guidance and parameters for the abatement of danger from hazard trees. Earth

Island further fails to show that they were promulgated pursuant to a specific grant of congressional authority. Even if they

were enforceable, Earth Island fails to show how the Forest

Service failed to observe them given the fact that one of the

project purposes was to remove burned trees posing a safety

hazard to road traffic in the project area while reestablishing

the forest. This balance is precisely what the guidelines call

for. Accordingly, the district court did not abuse its discretion

in finding that the guidelines were not enforceable.

[14] In short, the district court used the correct standard for

analyzing Earth Island’s likelihood of success on the merits

18420 EARTH ISLAND INSTITUTE v. CARLTON
and did not abuse its discretion in finding that Earth Island

failed to show that it was likely to succeed on the merits of

its NFMA claims.

B. Likelihood of Irreparable Harm

Earth Island claims that the district court abused its discretion in conflating the merits and likelihood of irreparable

harm inquiries. This argument is unavailing. In one instance,

the court referred to Earth Island’s likelihood of success on

the merits in connection with its irreparable harm analysis.

However, this should come as no surprise as there is significant overlap between these two issues. Winter does not stand

for the proposition that courts may never evaluate one factor

without looking to another, as Earth Island argues. 

Earth Island also contends that the district court failed to

realize that both the possible imminence of the alleged harm

and the severity thereof must be analyzed under this prong.

This argument does find basis in the record. The district

court’s analysis shows that the court fully understood and correctly applied this second Winter prong. For example, the

court analyzed both whether it was likely or merely possible

that the alleged harm would take place. Pointing out that a

showing of a mere possibility of irreparable harm is not sufficient under Winter, the court found that Earth Island had, at

most, showed such a possibility, but no likelihood of irreparable harm. Further, Earth Island’s argument that logging is per

se enough to warrant an injunction because it constituted

irreparable environmental harm was squarely rejected by

McNair where we declined “to adopt a rule that any potential

environmental injury automatically merits an injunction.” 537

F.3d at 1005 (noting that this is particularly so where plaintiffs are also found not likely to succeed on the merits of their

claims.).

Finally, Earth Island asserts that the district court abused its

discretion in “essentially” requiring it to show that the project

EARTH ISLAND INSTITUTE v. CARLTON 18421
would render the entire regional population of woodpeckers

unviable. Nowhere did the district court require Earth Island

to demonstrate the species-level harm that Earth Island contends.

[15] In short, the district court correctly analyzed the likelihood of irreparable harm in sufficient depth without impermissibly conflating this with the other required factors.

C. Balancing of the Equities and Public Interest

[16] Finally, Earth Island argues that in balancing the equities and considering the public interest, the district court

assigned too much weight to the Forest Service’s asserted

economic injury, the Forest Service’s risk assessment and the

Forest Service’s determination that reforestation was in the

public’s interest. To be sure, district courts must “give serious

consideration to the balance of equities and the public interest.” Winter, 129 S. Ct. at 368. However, “[a]n injunction is

a matter of equitable discretion.” Id. at 381. The assignment

of weight to particular harms is a matter for district courts to

decide. The record here shows that the district court balanced

all of the competing interests at stake. For example, the court

stated that whereas “the balance of harms will usually favor

the issuance of an injunction to protect the environment,” the

law also did not allow it “to abandon a balance of harms analysis just because a potential environmental injury is at issue”

and that it “must balance all of the competing interests at

stake.”

[17] Earth Island argues that the district court gave too

much weight to the economic harm alleged by the Forest Service. It is true that the district court considered the government’s interest in recovering the highest possible value of the

timber and providing a boost to the local economy by creating

jobs in the local logging industry. However, the district court

did not clearly err in finding that the economic stakes, in combination with the safety concerns and reforestation efforts,

18422 EARTH ISLAND INSTITUTE v. CARLTON
outweighed any harm to environmental interests. Economic

harm may indeed be a factor in considering the balance of

equitable interests. See, e.g., Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (concluding that where

asserted environmental injury was “not at all probable,” economic interest was properly given more weight); McNair, 537

F.3d at 1005 (holding that the district court did not clearly err

in concluding that the balance of harms did not tip in environmental organization’s favor where a Forest Service project

would “further the public’s interest in aiding the struggling

local economy and preventing job loss.”).

[18] Earth Island further argues that the district court erroneously found that if the injunction were issued, the public

would be at risk from falling roadside hazard trees and erred

in not considering its request4 for a tailored injunction that

allowed for only the felling of trees in imminent danger of

falling. To be sure, district courts have “broad latitude in fashioning equitable relief when necessary to remedy an established wrong.” Sierra Hikers Ass’n v. Blackwell, 390 F.3d

630, 641 (9th Cir. 2004). However, courts must always carefully “balance the competing claims of injury.” Winter, 129 S.

Ct. at 376. In doing so here, the district court carefully scrutinized both the written record regarding the fall rates of trees

affected by fires as well as the extensive testimony by experts

asserting the dangers posed by roadside hazard trees to the

general public and forest employees. The court concluded that

these safety concerns weighed in favor of not issuing the

injunction. It did not abuse its discretion in doing so.

4This alleged request took the form of Earth Island’s statements on page

24 of its memorandum in support of the preliminary injunction that it did

not “object to structurally damaged imminent hazard trees being felled and

left on site.” It was thus not the clear request for alternative relief that

Earth Island contends. See, e.g. Sierra Forest Legacy v. Rey, 577 F.3d

1015, 1022 (9th Cir. 2009) (concluding that the district court had the

power to issue a narrow injunction specifically requested by plaintiffs).

Regardless, we will address the requested remedy here as if it had been.

EARTH ISLAND INSTITUTE v. CARLTON 18423
[19] Finally, Earth Island contends that the district court

erred in finding that salvage logging was necessary to promote forest regeneration. The court evaluated expert testimony that absent logging of fire-killed and fire-injured trees

in combination with the planting of conifer seedlings, brush

species would eventually dominate the area resulting in an

increase of the cost, difficulty and failure rate of subsequently

converting the area into suitable woodpecker habitat. The

court concluded that if the injunction was granted, the public

would lose the immediate benefits of the reforestation efforts.

It did not abuse its discretion in doing so.

CONCLUSION

For the above reasons, the district court correctly denied

Earth Island’s motion for a preliminary injunction enjoining

the Forest Service’s implementation of the MoonlightWheeler project.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

The majority’s denial of a preliminary injunction, like the

district court’s before it, rests on two fundamental errors.

First, the majority concludes that the Forest Service has no

obligation to ensure species viability in the Plumas National

Forest despite numerous clear statements to the contrary in

the Plumas National Forest Plan. Second, it concludes that the

RHT Hazard Tree Marking Guidelines are not binding on the

Forest Service despite the fact that the Forest Service itself

acknowledges that they are. The district court rested its denial

of a preliminary injunction almost entirely on its erroneous

conclusions regarding Earth Island’s likelihood of success on

the merits. I would therefore grant a temporary injunction and

remand to the district court to reconsider Earth Island’s appli18424 EARTH ISLAND INSTITUTE v. CARLTON
cation for a preliminary injunction with the understanding

that, as is explained below, Earth Island is likely to prevail on

its NFMA challenges to the Moonlight-Wheeler Project.

I.

The Forest Service’s actions in implementing the

Moonlight-Wheeler Project violated a substantive obligation,

enforceable under the NFMA, to ensure the viability of the

Black-backed Woodpecker. To avoid this conclusion, the

majority wilfully ignores unambiguous language in the 2004

and 2007 Forest Plan Amendments, which impose a binding

obligation to ensure species viability in the Plumas National

Forest, as well as our precedent, which makes this obligation

applicable to individual projects, such as the MoonlightWheeler Project.

A.

The viability requirement that Earth Island alleges the Forest Service violated was originally stated in the first paragraph

of the so-called 1982 Rule, 36 C.F.R. § 219.19 (1982). It

reads:

Fish and wildlife habitat shall be managed to

maintain viable populations of existing native and

desired non-native vertebrate species in the planning

area. For planning purposes, a viable population

shall be regarded as one which has the estimated

numbers and distribution of reproductive individuals

to insure its continued existence is well distributed in

the planning area. In order to insure that viable populations will be maintained, habitat must be provided

to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others

in the planning area.

EARTH ISLAND INSTITUTE v. CARLTON 18425
Id. Although the majority is correct that the regulation itself

has since been superceded, its requirements still apply “to the

extent they were incorporated into [a] Forest Plan.” Castaneda, 574 F.3d at 657. The majority appears to conclude

that the 1982 Rule was not incorporated into the Plumas

National Forest Plan by the 2004 amendments, and that therefore the Forest Service has no obligation to ensure species

viability. This conclusion is contrary not only to the district

court’s finding that the 1982 Rule was incorporated into the

1993 Forest Plan and the 2001, 2004, and 2007 Forest Plan

Amendments, but also to this court’s explicit prior holding

that the 2004 amendments did incorporate the 1982 Rule. ER

Vol. 1, Tab 1, page 18 (“The Forest Plan and all amendments

rely on the 1982 version of the 36 C.F.R. § 219 NFMA regulations.”).1

See Earth Island Inst. v. U.S. Forest Service, 442

F.3d 1147, 1173 (9th Cir. 2006) (“As a preliminary matter, we

conclude the NFMA regulations promulgated in 1982 apply

to the . . . 2004 [amendments].”

2

Id. at 1173.

Moreover, even if binding precedent did not foreclose the

majority’s conclusions that the 1982 Rule does not apply and

1Neither party appears to dispute that the 2001 amendments incorporated the 1982 Rule’s viability requirement. As the Record of Decision for

those amendments stated: 

My decision conforms with the 1982 planning regulations (36

CFR 219) that implement the National Forest Management Act.

These regulations were recently changed. . . . Transition language

within the new rule permits plan revisions and amendments, such

as the amendments that are part of my decision, to be completed

under the 1982 procedures. 

The document then proceeds to discuss the amendments’ compliance with

the 1982 Rule. Thus, the only question is whether either the 2004 or 2007

amendments eliminated the Forest Service’s preexisting obligation to

ensure species viability consistent with the 1982 Rule. 

2Earth Island addressed a project in the El Dorado National Forest. Like

Plumas National Forest, El Dorado is governed by the 2001 Sierra Nevada

Framework Plan and the 2004 amendments to that framework. See id. at

1154. 

18426 EARTH ISLAND INSTITUTE v. CARLTON
there is therefore no viability requirement, these conclusions

could not be supported by a sensible reading of the relevant

forest plan amendments. The 2004 amendments to the Plumas

National Forest Plan, for example, could not have been more

clear in incorporating the 1982 Rule and imposing a viability

requirement upon the Forest Service. In the Record of Decision implementing the 2004 amendments, the Forest Service’s

Regional Forester for the Pacific Southwest Region stated

that, “[m]y decision conforms with the 1982 planning regulations (29 CFR 219) that implement the National Forest Management Act.” The document’s following subsection is

entitled, “Diversity and Viability Provisions for Fish and

Wildlife,” (emphasis added), and concludes by requiring the

Forest Service to “provide the fish and wildlife habitat and

other ecological conditions necessary to maintain welldistributed viable populations of vertebrate species in the

planning area.” (Emphasis added). The majority suggests that

this statement “could be read to mean that the Service was to

ensure the distribution of the species,” but not their viability.

Maj. Op. at 18415. In fact, it cannot. To do so, one would first

be required to ignore the fact that this statement follows

shortly after the amendments’ explicit adoption of the 1982

Rule; one would then have to ignore the fact that the statement falls under a heading pertaining to “Viability Provisions”; and finally, one would have to willfully overlook the

presence of the word viable in the statement itself. There is no

canon of construction that allows us to ignore words we deem

inconvenient. Such a willful misreading is especially unacceptable, where, as here, the context in which the word “viable” appears makes perfectly clear that its inclusion in the

amendments was deliberately intended to impose upon the

Forest Service a viability requirement consistent with the

1982 Rule.

The majority likewise errs in its conclusion that the 2007

amendments do not impose a viability requirement. It so concludes because, in addressing requirements for Management

Indicator Species such as the Black-backed Woodpecker, the

EARTH ISLAND INSTITUTE v. CARLTON 18427
Amendments require only “[d]istribution population monitoring [to] track changes in the distribution of each MIS at the

Sierra Nevada scale by monitoring the changes in the presence of the species across a number of sample locations,” and

state that “[t]he sole MIS requirement that is applied at the

project-level is the assessment of habitat for MIS. Further,

there are no monitoring requirements for MIS at the project

level.” But this language is simply irrelevant to whether or not

the Forest Service is obligated to ensure species viability. The

2007 amendments made clear that the species viability

requirement and the MIS monitoring requirement are separate

and distinct provisions, and that though the Amendment

changed MIS monitoring requirements, it had no effect whatsoever on the Forest Service’s pre-existing obligation to

ensure viability under the 1982 Rule:

This Amendment does not change the viability

requirements. The viability requirements at the planning area scale are described under the first paragraph of the [1982 Rule]; these have already been

met in each forest plan, as revised. Forests will continue to ensure that the project-level viability

requirements are met: “Provide for adequate fish and

wildlife habitat to maintain viable population of

existing native vertebrate species” (36 C.F.R.

219.27(a)(6)). This is documented in project-level

analysis . . . . The project-level MIS requirements . . .

will also be documented in project-level analysis.

FEIS Appendix G at 338. The Final Environmental Impact

Statement for the 2007 amendments likewise stated that

“[m]anagement for conservation of all species, regardless of

whether they are designated as MIS or not, is governed by . . .

the general viability requirements of the National Forest Management Act implementing regulations.” FEIS at 56 (emphasis added). The 2004 and 2007 amendments impose a viability

requirement upon the Forest Service that is distinct from the

MIS monitoring requirement, and Forest Service must satisfy

18428 EARTH ISLAND INSTITUTE v. CARLTON
both requirements to be in compliance with the NFMA.

Although the majority’s extensive discussion of how the

Moonlight-Wheeler Project satisfies the 2007 MIS monitoring

requirement may well be correct, it is completely beside the

point. The question at issue in this case is not whether or not

the Forest Service has met its obligations to monitor MIS species, but whether or not it has satisfied the viability requirements so clearly set forth in the 2004 and 2007 amendments.

B.

Our precedents have been deliberately flexible in defining

what the Forest Service must do when, as here, a Forest Plan

requires it to ensure species viability in the administration of

a given national forest. See, e.g., The Lands Council v.

McNair, 537 F.3d 981, 997 (9th Cir. 2008) (en banc) (“To

always require a particular type of proof that a project would

maintain a species’ population in a specific area would inhibit

the Forest Service from conducting projects in the National

Forests.”). However, two principles are clear. First, contrary

to the majority’s repeated efforts to assert that even if a viability requirement exists it does not apply at the project level, a

viability requirement that is applicable at the planning level

necessarily applies to and constrains individual projects

undertaken in a national forest:

[C]ompliance with NFMA’s forest-wide species viability requirements is relevant to the lawfulness of

any individual timber sale. To hold otherwise would

permit the Forest Service to don blinders to the overall condition of a national forest each time it

approved a sale, quite literally losing sight of the forest for the trees. This would contravene “one of the

fundamental purposes of Congress in enacting

[NFMA]: that the National Forest System be managed with ‘a systematic interdisciplinary approach,’

by means of ‘one integrated plan for each unit of the

National Forest System.’ ” Idaho Sporting Cong. v.

EARTH ISLAND INSTITUTE v. CARLTON 18429
Rittenhouse, 305 F.3d 957 (9th Cir. 2002) (quoting

16 U.S.C. § 1604).

Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059,

1069 (9th Cir. 2002); see also McNair, 537 F.3d at 989

(“After a forest plan is developed, all subsequent agency

action, including site-specific plans . . . must comply with the

NFMA and be consistent with the governing forest plan.”). 

Second, the NFMA requires that when a viability requirement is included in a Forest Plan, the Forest Service must

affirmatively demonstrate that any given project satisfies its

obligation to ensure species viability. McNair, 537 F.3d at

992-94. Such a demonstration is to be reviewed deferentially,

see id. at 992 (“[W]e defer to the Forest Service as to what

evidence is, or is not, necessary to support wildlife viability

analyses.”), but, at the least, the Forest Service must:

support its conclusions that a project meets the [viability] requirements of the . . . relevant Forest Plan

with studies that the [Forest Service], in its expertise,

deems reliable. The Forest Service must explain the

conclusions it had drawn from its chosen methodology, and the reasons it considers the underlying evidence to be reliable. 

Id. at 994. In McNair, for example, the Forest Service supported its conclusion that a project in the Idaho Panhandle

National Forest provided for the Flammulated Owl’s viability

by citing to several scientific studies pertaining to the owl’s

habitat preferences and conducting on-the-ground analysis of

the owl in an area adjacent to the project area. Id. at 994. That

“relatively sparse” showing, we stated, “approaches the limits

of our deference.” Id. at 995.

In implementing the Moonlight-Wheeler Project, the Forest

Service failed to meet even these minimal obligations. The

agency did not reach a conclusion that the Project would

18430 EARTH ISLAND INSTITUTE v. CARLTON
ensure species viability, let alone did it support such a conclusion, as the NFMA requires, with studies and methodological

explanations sufficient to establish that its actions were not

arbitrary or capricious. The agency argues that it satisfied its

obligations through analysis that it undertook in fulfillment of

the Forest Plan’s unrelated requirement that it “assess wildlife

habitat,” and the majority asserts that it need not demonstrate

project-level species viability at all. Where the Forest Service

seeks to use habitat as a proxy for species viability it “must

describe the quantity and quality of habitat that is necessary

to sustain the viability of the species in question and explain

its methodology for measuring this habitat.” McNair, 537

F.3d at 998. The Forest Service has not done so in this case,

and its conclusion that the project would, despite undoing

some habitat gains from the Moonlight fires, “still support an

upward trend in [Black-backed Woodpecker] population,” tell

us nothing about whether the project interferes with the

Woodpecker’s viability. The Forest Service’s essentially nonexistent conclusions regarding species viability thus fall far

short of the conclusions that “approach[ed] the limits of our

deference” in McNair. Id. at 995.

The Forest Service’s decision to simply ignore a binding

viability requirement in the Plumas National Forest Plan violates the NFMA. See 16 U.S.C. § 1604(i) (“Resource plans

and permits, contracts, and other instruments for the use and

occupancy of National Forest System lands shall be consistent

with the land management plans.”). Earth Island has thus

shown that it is extremely likely to prevail on the merits of its

NFMA claim. The district court was wrong to conclude otherwise, and because its application of the preliminary injunction

test turned predominantly on this erroneous conclusion, I

would grant an injunction pending appeal and issue a limited

remand to allow the district court to reconsider Earth Island’s

request for a preliminary injunction. The majority is simply

wrong when it says that species viability on a project level is

not required.

EARTH ISLAND INSTITUTE v. CARLTON 18431
II.

The majority further errs in its conclusion that the Forest

Service was not bound by the RHT Guidelines for identifying

and marking hazardous trees. The majority, like the district

court, concludes that the RHT Guidelines are not enforceable.

It reaches this conclusion based on the presence of certain

non-mandatory phrases in the Guidelines, as well as its conclusion that the Guidelines were not promulgated pursuant to

a specific congressional grant of authority. However, both of

these arguments for the non-enforceability of the Guidelines

are erroneous.

First, the fact that the Guidelines use non-mandatory

phrases to describe their general objectives, does not, as the

majority suggests, render them unenforceable. See Maj. Op.

at 18419-20. The majority emphasizes two such uses of nonmandatory phrases—one is a reference to “[t]he spirit of these

guidelines”; the other states that the “balance [struck by the

Guidelines] aims to retain healthy forest cover”—and somehow arrives at the conclusion that the Guidelines were

intended only to provide “internal guidance and parameters”

for the marking of hazardous trees. Id. In fact, notwithstanding such general statements, the guidelines are predominantly

phrased in mandatory language, and impose specific requirements on which trees may be marked for removal. See, e.g.,

ER II, Tab 16 at 1-2 (“Mark for removal any hazard tree capable of falling on a road or facility that meets the following

criteria . . . .”). 

Second, the majority’s conclusion that Earth Island “fails to

show that [the Guidelines] were promulgated pursuant to a

specific grant of congressional authority” is incorrect. The

2004 amendments to the Plumas National Forest Plan state

that the Forest service must “[u]se the best available information for identifying dead and dying trees for salvage purposes

as developed by the Pacific Southwest Region Forest Health

Protection Staff,” and the Forest Service concedes that “the

18432 EARTH ISLAND INSTITUTE v. CARLTON
Plumas Forest Plan, as amended, contemplates that salvage

projects will use the RHT Guidelines.” Moreover, a portion of

the guidelines was explicitly incorporated into the MoonlightWheeler Project. The Forest Service thus clearly adopted the

Guidelines pursuant to a congressional grant of authority,

namely, its authority under the NFMA to develop and execute

Forest Plans. See 16 U.S.C. § 1604(e) (“In developing, maintaining, and revising plans for units of the National Forest

System pursuant to this section, the Secretary shall assure that

such plans . . . determine forest management systems, harvesting levels, and procedures in the light of all of the uses set

forth in subsection (c)(1) of this section.”) (emphasis added).

Because the RHT Guidelines were incorporated into the

Plumas National Forest Plan, the district court erred in concluding that they are unenforceable. This erroneous conclusion kept the district court from deciding whether the factual

foundation of Earth Island’s allegations regarding violations

of the Guidelines was sufficiently strong to warrant an injunction under the test set forth in Winter v. Natural Res. Def.

Council, 129 S. Ct. 365, 374 (2008).3 Its denial of a preliminary injunction regarding the tree marking guidelines—and

the majority’s affirmation of that denial—was thus based

entirely on the faulty legal conclusion that the RHT Guidelines do not impose any enforceable obligations upon the Forest Service. I would therefore remand this issue to the district

court for further proceedings to determine whether, given that

the Guidelines create legally binding obligations, Earth Island

has alleged facts sufficient to satisfy the Winter test and,

3While the district court expressed significant skepticism toward several

of Earth Island’s arguments regarding the Guidelines, it did so in addressing Earth Island’s NEPA claims. The NEPA claims that the district court

addressed are distinct from the claims at issue in Earth Island’s NFMA

claim. Whereas the former address the validity of the Guidelines and

whether the Forest Service adequately responded to Earth Island’s comments on the subject, the latter address whether or not the Forest Service

actually adhered to the Guidelines. See Dist. Ct. Op. at 20. 

EARTH ISLAND INSTITUTE v. CARLTON 18433
accordingly, to warrant the issuance of a preliminary injunction.

III.

The district court failed to address the last three factors of

the Winter test —likelihood of irreparable injury, the balance

of the harms, and the public interest—as questions distinct

from Earth Island’s likelihood of success on the merits.

Rather, it addressed each of the three remaining preliminary

injunction factors as if they were settled by its finding that

Earth Island was unlikely to succeed on the merits of its claim.4

Had the district court analyzed these three factors without reference to its erroneous conclusions regarding Earth Island’s

likelihood of success, it may well have been compelled to

conclude that a preliminary injunction was appropriate. 

Regarding whether the harm suffered by Earth Island is

irreparable, the Supreme Court has stated that because

“[e]nvironmental injury, by its very nature, can seldom be

adequately remedied by money damages and is often permanent or at least of long duration [it is] irreparable.” Amoco

Production Co. v. Gambell, 480 U.S. 531, 545 (1987). We

have thus repeatedly recognized that the irreversible environmental effects of logging activity suffice to establish “irreparable harm” for purposes of obtaining a preliminary

injunction. See, e.g., Neighbors of Cuddy Mountain v. United

States Forest Service, 137 F.3d 1372, 1382 (9th Cir. 1998);

City of Tenakee Springs v. Clough, 915 F.2d 1308, 1314 (9th

Cir. 1990).5 Here, Earth Island has alleged that if the snag for4

See, e.g., Dist. Ct. Op. at 63 (“Considering the court has found that it

is unlikely plaintiff can demonstrate any clear error in judgment by the

[Forest Service] in rendering its decision on the Project’s impacts to wildlife and the soils and watersheds, the court cannot find that plaintiff has

shown a likelihood of irreparable harm.”). 

5The district court concluded that such cases no longer had precedential

value following Winter v. Natural Res. Def. Council, 129 S. Ct. 365

18434 EARTH ISLAND INSTITUTE v. CARLTON
est habitat created by the 2007 fires is logged, it will be permanently lost as potential habitat for the Black-backed

Woodpecker and other species. The district court expressed

skepticism that this logging project would ultimately precipitate the extinction of the Black-backed Woodpecker in the

Sierra Nevadas, a question that is difficult to answer given the

shoddiness of the Forest Service’s analysis of that issue. But

Earth Island need not be required to prove with certainty that

the project will lead to the Woodpecker’s extinction to establish that it will be irreparably harmed. There is no dispute that

the project will destroy thousands of acres of rare habitat that

is critical for the Woodpecker’s survival. As such, there is

more than a likelihood—there is an absolute certainty—that

Earth Island was and will continue to be irreparably harmed

by the denial of an injunction.

The district court likewise committed serious errors in its

analysis of the public interest and the balancing of the equities. First, as in its analysis of irreparable harm, the district

court’s treatment of these factors rested largely on its erroneous conclusion that Earth Island was unlikely to prevail on the

merits. It stated, “While the court must seriously consider the

potential harm to the environment caused by the Project,

where plaintiff has not made the requisite showing on the

merits which, in turn, undermines the likelihood of irreparable

injury, the balance of equities cannot be found in plaintiff’s

favor.” (Emphasis added).

Second, the district court conducted its analysis as though

Earth Island had sought an injunction broader than the one it

(2008). Winter held that a party seeking a preliminary injunction must

show a likelihood of irreparable harm, overruling Ninth Circuit precedent

requiring only a showing of a possibility of irreparable harm. Id. at 375-

76. However, this holding has no bearing on whether a certain category

of alleged harm is in fact irreparable. These precedents thus remain valid

to the extent they make clear that the sort of environmental harm that

Earth Island anticipates in this case is irreparable in nature. 

EARTH ISLAND INSTITUTE v. CARLTON 18435
expressly requested. On the same day it filed its motion for a

preliminary injunction, Earth Island filed a proposed preliminary injunction order. The proposed order explicitly states

that the Forest Service “may fell and leave trees or remove

naturally fallen trees to the side of the roadway under emergency circumstances pursuant to 36 C.F.R. § 220.4(b)(1)”, but

may not remove any such trees from the project area. Id. The

cited regulation allows “actions necessary to control the

immediate impacts of the emergency and . . . urgently needed

to mitigate harm to life, property, or important natural or cultural resources.”

In the reply brief it filed with the district court in support

of its request for a preliminary injunction, Earth Island

emphasized the safety exception contained in its proposed

order, and added that “[i]f this Court is convinced that the

allowances made by Plaintiff in [its] Proposed Order are not

sufficient to safeguard the public from harm, . . . . the Court

could merely identify some segment of the trees marked for

cut as hazards to be logged, while enjoining the rest of the

project.” Yet the district court, in its analysis of the public

interest and the balance of the equities, explicitly relied on

evidence that “a real safety risk exists to the public as a result

of hazardous trees,” — a risk that the Forest Service would

retain the authority to address even if the requested preliminary injunction were issued. The district court thus violated

the requirement that “[w]hen 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.” Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022

(9th Cir. 2009). Had the district court evaluated the narrow

injunction Earth Island requested and thus not incorrectly concluded that an injunction would pose a threat to the public

safety, it would have been left with only two bases for concluding that the balance of the equities and public interest

support an injunction: economic harm to the community and

government, and loss of the “benefits of reforestation.” The

latter of these is clearly not a legitimate basis for denying a

18436 EARTH ISLAND INSTITUTE v. CARLTON
preliminary injunction—even if reforestation is not occurring

naturally, there is no reason why the steps necessary to ensure

reforestation cannot be undertaken following a decision on the

merits. 

The district court’s denial of an injunction was thus flawed

in a number of respects, as is the majority’s affirmation of that

denial. It failed to recognize Earth Island’s strong likelihood

of success on the merits as well as the irreparable harm that

would befall Earth Island absent an injunction. Likewise, its

treatment of the public interest and the balance of the equities

rested largely on the court’s flawed analysis of the merits of

the case, and failed to account for the narrow scope of the

injunction Earth Island requested. I therefore must disagree

strongly with the majority. I believe that Earth Island is entitled to an injunction pending appeal, as well as a limited

remand to allow the district court to consider whether, in light

of its likelihood of success on the merits, the irreparable

nature of its foreseeable harm, and the narrow scope of the

injunction it requested, it is entitled to a preliminary injunction.

EARTH ISLAND INSTITUTE v. CARLTON 18437