FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEAGUE OF WILDERNESS

DEFENDERS/BLUE MOUNTAINS

BIODIVERSITY PROJECT, an Oregon

nonprofit corporation; HELLS

CANYON PRESERVATION COUNCIL,

an Oregon nonprofit corporation,

Plaintiffs-Appellants,

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

No. 13-35653

D.C. No.

3:12-cv-02271-

HZ

OPINION
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 DefendantIntervenors–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 preliminaryinjunction. The LOWDplaintiffs 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

TheLOWDplaintiffs’ 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 relativelyweak. 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 preliminaryinjunction

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

preliminaryinjunction. 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.