F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L E A G U E O F W I L D E R

N E S S D E F E N D E R S /B L

U E M O U N T A I N S B I O D I V E R S I T Y P R

O J E C T , an Oreg o n nonprofit corporation; H E L L S C A N Y O N P R E S E R V A T I O N C O U N C I L , an Oreg on nonprofit corporation,

Plaintiffs-Appellants

,

v

.

K E N T C O N N A U G H T O N , Reg ional F orester, Pacific Northwest Reg ion of the F orest Service, in his official capacity ; UN I T E D S T A T E S F O R E S T S E R V I C E , an ag ency of the United States Department of Ag

riculture; U.S. F I S H & W I L D L I F E S E R V I C E , an ag ency o f the United States Department of the I

nterior; G A

R Y M I L L E R , F ield Supervisor, United States F ish and W ildlife Service, in his official capacity

,

Defendants-Appellees

,

B A K E R C O U N T Y , a political subdivision of the State of Oreg o n ; U N I O N C O U

N T Y , a political subdivision of the State of Oreg o n ; B O I S E C A S C A D E W O O D P R O D U C T S , a N o. 13-35653

D.C. No. 3:12-cv-02271- HZ

OPI NI ONL OW D/B MB P V

. C O N N A U G H T ON 2

Delaware limited liability company ; A M E R I C A N F O R E S T R E S O U R

C E C O U N C I L , an Oreg on nonprofit corporation; C H A R

Y M I R E S , an individual; O R

E G O N S M

A L L W O O D L A N D S A S S O C I A T I O N , an Oreg on nonprofit corporation, Intervenor-Defendants–Appellees

.

Appeal from the United States District Court for the District of Oreg on Marco A. Hernandez

, District J udg e, Presiding

Arg ued and Submitted F ebruary 5, 2014—Seattle, W ashing ton

F iled May

8, 2014

B efore: Ray

mond C. F isher, Ronald M. Gould, and Morg an Christen, Circuit J udg es.

O pinion by

J udg e GouldL OW D/B MB P V

. C O N N A U G H T ON 3

SUMMARY *

Environm ental Law / P relim inary Injunction

The panel affirmed in part and reversed in part the district court’s denial of a motion to preliminarily enjoin the Snow Basin log g ing project in Oreg o n, and remanded for entry o f

a preliminary injunction, the scope of which the district court should determine on remand.

The panel held that the plaintiffs had shown that they a re likely to prevail on their N ational Environmental Policy Act (“NEPA”) claim reg arding t h e final Environmental I mpact Statement’s discussion of elk h abitat because that discussion

w a s insufficiently clear, and therefore the analy sis of th e project’s e ffects 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. T he panel further h eld that the p lainti f f s h a d shown that the balance of e q

uities tipped in their favor, and that the public in t e r e s t supported the g r anting of a preliminary injunction. The panel reversed the d istrict court on this c laim, but af f i r med the district court’s determination that the plaintif f s w e re not likely to succeed on their remaining claims.

The p anel r emanded w ith instructions for the district court to enter a prelimin a r y injunction sufficient to protect the
status quo while the United States F orest Service completed a supplemental environmental impact statement.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.L OW D/B MB P V

. C O N N A U G H T ON 4

COUNSEL

Thomas B uchele (arg

ued), Earthrise L aw Center, P o rtland, Or e gon, for Plaintiff-Appellant L e ag ue of W ilderness Defenders/B lue Mountain P reservation Project and J ennifer Schemm, L a Grande, Oreg on, for Plaintiff-Appellant Hells Cany on Preservation Council.

J

. David G unter I I (arg

ued), Robert G. Dreher, an d Beverly F

. L i, United States Department o f J u stice, W ashing ton, D.C., for Defendants-Appellees.

Caroline L obdell (arg

ued), W estern Resources L eg al Center, Portland, Oreg on, and Sc o t t W

. Horng r en, American F orest Resource Council, Portland, O reg on, for D efendantI ntervenors–Appellees.

OP INION

GOUL D, Circuit J udg e :

The L eague o f W ilderness Defenders/B lue Mountain B iodiversity Project and the Hells Cany on Preservation Council ( collectively “the L OW D plaintiffs”) appeal f rom the district court’s denial of their motion to preliminarily enjoin the Snow B asin log g ing project. W e have jurisdiction under 28 U.S.C. § 1292(a)(1). W e affirm in p art and reverse in part the district c ourt’s o rder, and re m a n d the case to the district
court for the entry o f a p reliminary injuncti o n, the scope o f which the district court should determine on remand.L OW D/B MB P V

. C O N N A U G H T ON 5

I

The Snow B asin project area encompasses nearly 29,000

acres of the Whitman-W allowa National F orest (“the F o rest”) in northeast Oreg on, and t h e United States F orest Service (“USF S”) has been plannin g a log g ing project in this area since 2008. A draft environmental impact statement (“EI S”)

was is s u ed in March 2011, and the final EI S (“F EI S”) was issued in March 2012. One w ay i n w h i ch the F EI S differed from the draft EI S is that one s e gm e n t of the project, about 170 acres o f re ge n e rative log g ing

, h ad been removed from consideration in the F EI S. After the adoption of the F EI S, in April 2012, t h e F orest Supervisor w ithdrew the F orest’s Travel Ma nag ement Plan (“TMP”), which had proposed to regulate off-road motoriz ed travel and r educe the amount o f roads within the F o rest, and wh i c h had been mentioned in addressing environmental harms from the log g ing p roject. I n J uly 2012, the USF S issued a correction notice that said that “g roup selection” treatment was being considered for 1 30 o f the 170 a cres that h ad been removed f rom the draft EI S a

nd not considered in the F E I S.

The L OW D plaintiffs filed suit seeking to enjoin the timber sale o n the g rounds that the USF S and the United States F ish & W ildlife Service (“USF W S”) had violated the National Environmental Policy Act (“NEPA”) and the Endang e red Species A ct (“ESA”). The district court held that the L O W D p l ai n t iffs were not likely to succeed on any o f their claims, and that the b alance o f h arms did not tip sharply in the L OW D plaintiffs’ favor. The district court t h e r e f ore denied the preliminary injunction. T h e L OW D plaintiffs filed a timely notice of appeal.L OW D/B MB P V

. C O N N A U G H T ON 6

II

W e r e view a district court’s d enial of a pr e l i m i n ary injunction for abuse of discretion. I nst. of Cetacean Research

v. Sea Shepherd Conservation Soc’y
, 725 F .3d 9 4 0, 944 (9th Cir. 2013). A n abuse of discretion o ccurs when the d i s t r i ct court “based its r

uling o n an erroneous v iew of the law or on

a clearly erroneous a ssessment of the evidence.” Id. (quoting Cooter & Gell v. Hartmarx Corp.
, 4 96 U.S. 384, 405 (1990)). B ecause all claims r aised in this appeal relate to whether the district court’s view o f the law was erroneous, our review o f th i s decision of the district court is d e novo. Sanders Cnty. Republican Cent. Comm. v. Bullock

, 698 F .3d 741, 744 (9th Cir. 2012).

A motion for a preliminary i n j u n ction requires that a plaintiff show that “he is likely to succeed on the merits, that he is likely to suffer irreparable h arm in the a bsence o f preliminary relief, that the balance o f equitie s t i p s in his favor, and that an injunction is in the public interest.” W inter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). 1

The L O W D p l aintiffs’ substantive NEPA and ESA c laims

are r eviewed under the Administrative Procedure A ct, which allows co u r t s t o set a side ag e n cy a ctions that are “arbitrary

,

1 In su p p lem en t atio n , w e h av e said th at “ s erio u s q u estio n s g o in g to th e

m erits an d a b alan ce o f h ard s h i p s t h a t tip s sh arp ly to w ard s th e p lain tif f

c a n su p p ort i ssu an ce of a prelim in ary in j un ctio n , so lo n g as th e plain t i ff

a l s o s h o w s th at th ere is a lik elih o o d o f irrep arab le in j ury an d th at t h e in j un ctio n is in t

h e p u b l ic in terest.” Allia n ce fo r th e W ild Ro ckies v. Co ttrell

, 6 3 2 F.3 d 1 1 27
, 1 1 3 5 (9 th Cir. 2 0 1 1) (in tern al q u o tatio n m ark s

o m itted ). In o ur an aly sis w e d o n o t rely o n th is su p p lem en tal ru le b ecau s e

w e d eterm in e th at t h e r e is a l ik elih oo d of su ccess o n th e m erits o n on e claim

.L OW D/B MB P V

. C O N N A U G H T ON 7

caprici ous, an a

buse of discretion, or otherwise not in accorda n ce with law.” 5 U.S.C. § 706(2)(A). F actual determinations must be s upported by substantial evidence. Dickinson v. Zurko

, 527 U.S. 1 50, 162 (1999). The arbitrary and capricious standard req u ires “a rational connection between facts f

ound a nd conclusions made.” W

. W a tersheds Project v. Kraayenbrink

, 632 F .3d 472, 481 (9th Cir. 2011).

III

W e first analy

z e whether the L OW D plaintiffs are likely
to s u c c e e d on the merits of a ny of their claims under prong

one of W inte r

. Upon determining that they are, we then
p r o c eed to consider the r emaining prong s of the W inter te s t to determine whether the L O W D plai ntiffs face irreparable injury

, to balance the equities b etween the parties

, a n d to

ex amine the public interest to determine w hether a preliminary injunction is warranted. W inter
, 555 U

. S

. at 24 (“A preliminary injunction is a n ex traordinary remedy never awarded as of rig

ht.”).

A

The L OW D plaintiffs r aise four challeng es to t h e Snow Ba s in F EI S under NEPA, and an additional challeng e under the ESA. Under NEPA, they argue that 1) now that the TMP h a s been withdrawn, the F EI S’ reliance o n the T M P i n analy z ing the impact of the project on certain species within the F orest is invalid, and a supplemen t a l E I S must be completed; 2) the F EI S’ fail ure to c onsider the c umulative effects of the 130-acre log g ing project in the correction notice

was error; 3 ) the failure of the F EI S to a n a ly z e the c umulative effects of potentially in c reased stream temperatures a nd

s edimentation was error; and 4) the F E I S did not prop e r l yL OW D/B MB P V

. C O N N A U G H T ON 8

ex p lain w hy it fo u nd that bull trout were not present in the project area , a n d s o did not analy z e the project’s impact on bull trout. Under the E S A, the L OW D plaintiffs challeng e the USF S’ and USF W S’ joint determination that bull trout, a threatened species, were not present in the project area. Each of these challeng es is addressed separately below.

1

NEPA requires agencies to prepare a supplemental E I S when “[ t] h ere are sig nificant n ew circumstances o r information relevant to environmental c oncerns and b earing

o n t he proposed action or its impacts.” 40 C.F. R

. § 1502.9( c ) ( i i ). W hen d etermining whether to issue a supplemental EI S, an a g ency must “apply a rule of reason,”
not supplementing “every time new information comes to lig ht” b ut continuing to maintain a “hard look” at the impact of ag ency action when the “new information is sufficient to show that the remaining action w ill affect the quality o f the human environment in a sig nificant manner or to a sig nificant

ex tent not already considered.” Mar s h v. Ore. Natural Res. Council

, 490 U .S. 360, 373–74 (1989) (internal quotation marks and alteration omi tted). I n Klamath Siskiyou W ildlands Center v. Boody

, 468 F

. 3d 549 (9th Cir. 2006), we required the B ureau o f L and Manag ement to p repare a supplemental EI S after it chang ed a policy up o n w hich the orig inal E I S had relied. I

d. at 561–62. W e noted that the bar for whether “sig nificant effe ct s ” may occur is “a low standard.” Id

. at 562. T hat the policy chang e “ r a i se[ d] ‘substantial questions’ reg a rding [ the project’s] impact” was enoug h to require further analy sis before allowing the project to proceed. Id. at 562.L OW D/B MB P V

. C O N N A U G H T ON 9

The Sno w B a sin F EI S opens its analy sis of the project’s impact on the area’s elk population by stating that elk are the “most popular” big g ame in the area, and are “an indicator o f the quality

and diversity

of the g eneral forested habitat,” but that “[ d] isturbance due to roads is a major factor influencing elk distribution.” After survey ing the ex isting status o f t he habitat, it beg in s i t s a n aly sis of road density

. I t notes that three parcels within the p roject a r ea currently e x c e e d t he recommended road d e n sity

, but that the TMP, “will result in

a net reduction of o pen roads wi t h i n the project area, which will provide additional habitat that is free from disturbance from motor vehicles.” I t t h en g o es on to say that, althoug h the precise reduction in road density could not be quantified because the TMP was not final, th e TMP would “result in a substantial improvement in elk security habitat in the Snow B asin project a

rea.” I t a lso includes a table, w hich calculates the r oad d ensity in all affected p arcels under each alternative. At oral argu ment, counsel for the USF S e x p l a i n e d that this chart does n ot include the impact of the TMP within its calculations. L ater, under separate h eader, the F EI S discusses the potential impacts of o ther fores e e a ble future projects, including fire thinning , cattle g raz ing , and the TMP.

The L OW D plaintiffs have shown it likely that they will prevail on their claim that with the TMP now w ithdrawn, the USF S must prepare a supplemental EI S. 2 Althoug h parts o f the USF S’ analy sis do not consider the TMP, as a whole, its

2 Our co n clu s io n th at a su p p lem en tal EIS m

u st lo o k a t e n v iro n m en t al im p acts w i t h o ut t h e T MP ap plies o n ly to assessm en t o f im p act o n elk

. T h e L O W D p lain tif

f s m ak e s im ilar claim s reg ard in g th e FEIS’ an aly sis of th e p ro j ect’ s im p act o n o th er sp ecies an d h ab itats, b u t w e co n cl u d e th e

an aly sis o f th e en v iro n m en tal i m p a cts o n o th er sp ecies w o u ld n o t b e sig n if ican tly im p acted b y p resen ce o r ab sen ce o f

th e T MP

.L OW D/B MB P V

. C O N N A U G H T ON 10

r e v i e w of the Snow B as i n p ro j e c t ’ s i n d e p en d e n t environmental impacts on e lk and their habitat are interwoven with statements that ex p licitly rely upon the TMP to mitig ate harms that the Snow B a s i n p r o j ect will cause. W hen the public reviews an EI S to assess the environmental harms a project will cause and weig hs them ag ainst the b enefits of that project, the public should not b e required to p arse the
ag ency ’s statements to determine how an area w i l l b e impacted, and particularly to determine w hich portions of the
ag ency ’s analy sis rely on accurate and up-to-date information, and which portions are no long er relevant. Here,
statements that the T MP will mitig ate harms are interspersed with analy sis that pr o p e r l y looks only at the Snow B asin project itself.

This lack of clarity likel y renders the EI S deficient. I nformed p ublic participation in r e viewing environmental impacts is essential to the proper functioning of NEPA. See,
e.g. , Dep’t o

f Transp. v. Pub. Citizen
, 541 U .S. 752, 768 (2004) (describing one of the purposes o f NEPA as ensuring “that the relevant information will b e m ade available to the larg e r audience that may als o p l a y a r ole in both the decisionmaking process and the implementation of that decision.” (q u o ting Robertson v. Methow Valley Citizens Council

, 490 U .S. 3 3 2, 3 4 9 (1989)); San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n
, 44 9 F .3d 1016, 1034 (9 t h C i r

. 2006) (noting that one of the purposes o f NEPA is “ensuring that the public can both contribute to that body of info r m a t i on, and can a c cess the information that is made public”). W i t h o ut supplemental analy sis of impacts absent the TMP, previously stressed in parts o f the ag e ncy ’s assessment, the public w o u l d b e at risk of proceeding on

m i staken assumptions. W e c onclude that the L OW D plaintiffs are likely to prevail on their claim that aL OW D/B MB P V

. C O N N A U G H T ON 11

supplemental EI S must be c ompleted to show the environmental impact o f t h e Snow B asin project o n elk a nd their habitat now that the TMP has been withdrawn.

2

NEPA’s implementing regulations require that when
ag enci e s p r epare an EI S, that document must c onsider the cumulative impacts of the ac t i on under consideration, a nd defines cumulative impacts as “the incremental impact[ s] of the action when added to other past, present, and reasonably foreseeable f

uture actions.” 40 C.F .R

. § 1508.7. A

r e asonably foreseeable future a ction is defined as an “[ i] dentified proposal[ ] ,” 36 C.F .R. § 220.3, and a n identified
proposa l ex i s t s where the ag ency “has a g oal and is actively preparing to make a decisio n o n o n e or more a lternative

means of accomplishing that g oal and the effects can be meaning fully evaluated.” 36 C.F .R. § 220.4(a)(1). Althoug h “projects need not b e finaliz ed before t h ey are reasonably foreseeable,” N. Plains Res. Council, I nc. v. Surface Transp. Bd.

, 668 F .3d 1067, 1078-79 (9th Cir. 20 11), they must be

mo r e than merely “contemplated,” Kleppe v. Sierra Club

, 427 U.S. 390, 410 n.20 (1976). W hen looki n g at whether a potential future action is an identified proposal, courts must “focus upon a proposal’s parameters as the ag ency defines them

. ” California. v

. B lock

, 690 F .2d 753, 761 (9th Cir. 1982).

The L OW D plaintiffs h ave not shown that they are likely
to prevail on their claim that the 130 acres of g roup selection
treatment listed in t h e U SF S’ Correction Notice meet the standard for an identi f

i e d proposal for which c umulative impacts analy sis must be done. The USF S may have a g oal, but the likelihood of p roceeding on that g oal and a timetableL OW D/B MB P V

. C O N N A U G H T ON 12

o n a ny such action are not y et d efined. More importantly

, there is no indication that the U SF S “is actively preparing to make a d e c ision,” 36 C.F

. R. § 2 20.4(a)(1), but rather, they have disclaimed any inten tion to move forward on that log g ing in any particular time frame. As the record n ow stands, the USF S may permit this log g ing

, or it may not take
any action at all. Environmental impacts of this possibility

are at p resent inchoate a

nd to a deg ree sp e c u l a tive. I f the USF S proceeds, the ag e n c y will then be r equired to complete

an independent EI S, but we affirm the district court’s holding that the L O W D plaintiffs are not likely to succeed on the merits of their cl a i m that the p otential g roup selection
treatment must be considered amo n g the cumulative effects in the Snow B asin EI S.

3

I n the L OW D plaintiffs’ second cumulative effects c laim, they a rg ue that the F EI S did not consider t h e sy mbiotic relationship between increased sediment in the streams that flow throug h the project area and the p r e

- e x isting thermal
stress that the stream’s hig h te m p e r a tures place on the fish that inhabit the streams. T h e EI S notes that both L ittle Eag le Creek and Ea gl e C r eek ex ceed their targ e t temperatures, which results in harms f

or both mig ration and spawning

. I t also notes that log g ing could a d d low to moderate amounts o f sedimen t t o those same streams. However, the L OW D plaintiffs’ alleg ation misapplies the cumulative imp ac t test. B ecause t h e p roject will not have any impact on stream temperatures, any thermal stress o n th e f i s h is a part of the projec t ’ s environmental b aseline. Therefore, no c umulative effects analy sis is required, and the L O W D plaintiffs have not shown that they

are likely to prevail on this claim.L OW D/B MB P V

. C O N N A U G H T ON 13

4

F ederal ag encies must undertake a “full and fair” analy sis of t he environmental impacts of their activities. 40 C.F .R. § 1 5 0 2

. 1. This is a crucial cornerstone of NEPA. “ N E P A requires that a federal a g ency ‘consider every sig ni f i c a n t aspect of the environmental impact of a proposed a ction

. . . [ and] in f o rm the public that it has indeed considered environmental concerns in its decisionmaking pr o c ess.’” Earth Island Inst. v. U

.S. Fores t Serv
., 351 F .3d 1291, 1300 (9th Cir. 2003) (alteration in orig inal) (citation omitted). “I n order to accomplish this, NEPA i m p o ses procedural requirements desig ned to force ag encies to take a ‘hard look' at environmental consequences.” Id

.

I n the F EI S, the USF S c ited to a study of the project area by the Oreg on Department of F ish and W ildlife. The O reg on study indicates that, althoug h bull trou t w e re “common” in E ag le Creek in the 1940s and ‘50s and continued to be documented there throug h the 1 9 80s, snorkeling survey s conducted between 1991 and 1 994 failed to find bull trout in Eag le Creek. T he EI S concludes that “[ b] ull trout have likely been ex tirpated from the Eag le Creek s y s t e m since the 1990s,” and as a result, the EI S does not analy z e the impact of the Snow B asin project on bull trout. W hile the F EI S does
not eng a g e with ex ist i n g c ontrary scientific opinions about the potential presence of b ull trout in Eag le Creek, it included all of the rele v a n t scientific data and contains sufficient information to let the public make an informed determination of the environmental impacts of the Snow B asin project.

The L OW D p laintiffs argue that the data relied upon b y the USF S are too v ag u e or s t a le to support the conclusions drawn f rom it. I n s o m e c o n tex ts, NEPA’s “hard look”L OW D/B MB P V

. C O N N A U G H T ON 14

standard requires age n cies to conduct new scientific studies in order to “full[ y ] and fair[ ly ] ” a n a ly z e the impacts of a particular project. See, e.g., N. Plains

, 668 F .3d a t 1085–87 (overturning reliance o n 10-y ear-old aerial survey data); Lands Council v. Powell

, 3 9 5 F

. 3d 1019, 1030–31 (9th Cir. 2005) (holding that reliance on 13-y e a r-old habitat studies

was arbitrary and capricious). The snorkel survey s were ag ed

– more than 15 y ears old b y t h e time the F inal E I S was released. N evertheless, there was no r e liable evidence that showed their results were likely incorrect or that the status o f bull tr out in the project a r ea had chang ed over time, so we cannot say that the USF W S and U SF S ’ r eliance o n the
survey s was arbitrary and capricious. The L O W D plaintiffs have not shown that they

are likely to prevail on this claim.

5

The E SA requires that ag encies “insure that a ny [ag e ncy ] action

. . . is not likely

to jeopardiz e the continued ex istence of any endang ered species or threatened species or result in the destruction or adverse modification of [ critical] habitat o f such species.” 16 U.S.C. § 1536(a)(2). To accomplish this,
ag e n cies must ask the USF W S if any e ndang ered o r threatened species “may b e p r esent” in the area of a proposed action, and the USF W S is to determine the answer using “the best scientific and commercial d a t a available.” 16 U .S.C. § 1536(c)(1). I n making this d etermination, the USF W S must “g ive the b enefit o f the doubt t o t h e 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 1 2 ) (internal quotation marks omitted). T he L OW D plaintiffs advocate
two k ey issues with the co n c lusion that bull trout are not p r e s en t in Eag le Creek: T he first is that the d ata relied upo n by the U S FS and USF W S a re too vag ue or stale to supportL OW D/B MB P V

. C O N N A U G H T ON 15

the conclusions drawn from it. The second is that the USF S and USF W S arbitrarily ig nored the co n t r ary conclusions derived from that data in other reports.

The ESA’s r equirement that ag encies use “the best scientific a

nd commercia l d ata available,” 1 6 U .S.C. § 1536(c)(1), means that ag encies m u s t support their conclusions w ith accurate and r eliable data. However, so long

as a n a ge n c y considers all relevant data, it may rely on that available e vidence even when it is imperfect, weak, and not necessarily dispositive. S ee Greenpeace Action v. Franklin

, 14 F

. 3d 1324, 1336–37 (9th Cir. 1992). B ecaus e of the ag e of the snorkel survey s (see Part I I I .A.4, infra ), the e v i d e n c e of the bull trout’s absence was relatively weak. Nevertheless, for the same reasons t h at we found that reliance on the
survey s was not a violation of NEPA
, w e c o nclude that the evidence w as sufficiently strong to meet the a g encies’ burden under the ESA.

The L OW D p laintiffs a r gue that the USF S and USF W S arbitrarily ig nored the contrary conclusions derived from the

same data in other reports. Tha t fisheries ex perts in other
ag encies read the same studies and thoug ht it unclear whether b ull trout were p resent in Eag le Creek does not make t h e USF S and USF W S’ determination to the contrary arbitrary o r capricious. See Ecology Ctr. v. Castaneda

, 5 7 4 F. 3 d 652, 658-59 (9th Cir. 2009) (“W e g rant considerable discretion to ag encies on matters r equiring a h ig h level of technical

ex p ertise. Thoug h a party ma y cite studies that support a conclusion different from the one the F orest Service reached, it is not our role to weig h competing scientifi c analy ses.”) (internal q

uotation mark s and citation o mitted). W hile it is
tr ue that contrary scientific ex planations can serve a s evidence of a

rbitrary and capricious ag e n cy decision-making

,L OW D/B MB P V

. C O N N A U G H T ON 16

see Tucson Herpetolo g i ca l S oc’y v. Salazar

, 566 F .3d 870, 879 (9th Cir. 2 009), we conclude t h a t is not the case h ere, where the scientific studies were ambig uous and the analy ses of the ag encies were supported by a reasonable reading of the evidence.

The d etermination by both the USF W S and USF S t h at bull trout were “likely ex tirpated” from Eag le Creek was not arbitrary and capricious. The L OW D p laintiffs are not likely to succeed on the merits of this claim.

B

The USF S concedes that the L OW D plaintiffs’ harms a re irreparable, but d efendants-intervenors-appellees B aker Co u n ty , Union County
, B oise Cascade, the American R e source Council, Chary Mires, and the Oreg on Sm a l l W o odlands Association disag ree. W hile intervenors properly
note that it w ould be incorrect to hold t h a t a ll potential environmental injury warrants an injunction, this objection is

more ap t l y aimed at the remaining prong s of the W inter analy sis. “ [ T] he Supreme Court has instructed u s that [ e] n v ironmental injury

, b y its nature, can seldom be adequately remedied by money damag es and is often permanent or at least of long duration, i.e., irreparable.” Lands Council v. McNair
, 537 F .3d 981, 1004 ( 9th Cir. 2 008) (en b anc), quoting A moco Pr o d

. Co. v. Vill. of G ambell

, 480 U .S. 5 31, 545 (1987) (internal quotation marks omitted), abrogated in part on other grounds by W inter
, 555 U.S. at 20. Th e L OW D p laintiffs h ave shown that the Snow B asin project will lead to the log g ing of thousands of mature trees. The log g ing of mature trees, if indeed incorrect in law, cannot be remedied e asily if at a l l

. Ne i ther the planting of new seedling s nor the paying o f money damag es ca n n o r mallyL OW D/B MB P V

. C O N N A U G H T ON 17

remedy such d amag e. The harm here, as with many instances of this k ind of harm, is irreparable for the purposes of the preliminary

injunction analy sis.

I ntervenors argue that because the project ar e a has previously been log g ed, t h e project does not contemplate log g ing old-g rowth f

orest, a n d there were only limited o r delay e d o b

jections by the L OW D plaintiffs to the log g ing plan, these c ircumstances mitig ate the irreparability of this harm. B ut none of these cont e n t i o n s are supported by our precedent. W e have upheld or g ranted injunctio n s i n cases involving only smaller trees and in areas that have previously been log g ed, see W

ild Rockies

, 632 F .3d at 11 2 9, 1135, a nd in cases w h ere plaintiffs have b een less than timely

, Neighbors of Cuddy Mountain v. U.S. Forest Serv.
, 137 F .3d 1372, 1 381–82 (9th Cir. 1998). W e h a v e never made a rule that a plaintiff mu s t challeng e all r elated harms to maintain

an ability to challeng e the harm that it v i e w s a s the most serious. L ike the plaintiffs in W ild R ocki e s , the L OW D plaintiffs have shown that the Snow B asin project is likely to irreparably harm their members’ interest in the p r o ject area, and we now must consider the third and fourth W inter prong s.

C

B a lancing the equities in this case requires comparison between the irreparable env i ronmental harms pled by the L OW D plaintiffs, on the one hand, a n d the economic interests of the intervenors, on the other hand. The USF S d o es not raise any equitable intere s t s specific to itself, limiting its
argument to the public interest. B oth the econ o mic a nd environmental interests are relevant facto r s , and b oth carry weig ht in this analy sis. See, e.g. , M cNair
, 537 F .3d at 1004–05 (considering both economic losses a nd irrepar a b l eL OW D/B MB P V

. C O N N A U G H T ON 18

environmental harm). However, w e c o n c lude that the balance of equities tips toward the L OW D plaintiffs, b e c ause the harms they face are pe rmanent, while the intervenors face temporary delay

. 3 S

ee Amoco
, 480 U.S. at 545 (“I f s u c h [ irreparable environmental] injury is sufficiently li k e l y , therefore, the balance of h arms will usually favor the issuance of an injunction to protect the environment.”); Sierra F orest Legacy v. Rey
, 577 F .3d 1015, 1022 (9th Cir. 2009) (“W h en deciding whether to issue a n a r r o wly tailored injunction, district courts must assess the harms pertaining to injunctive relief in the contex t of that narrow injunction.”).

I ntervenors raise two primary forms of harm: loss o f jobs and loss of g o vernment revenue. I f the p reliminary injunction

were g r anted, the intervenors would suffer both harms but, if the project proceeds, the h arms would be m i t i gated in part

once the L OW D plaintiffs’ claims are r eso l v e d

. Rely ing on the intervenors’ data, the project wi l l support about 300 directly and indirectly caused jobs and some $ 2 75,000 in
revenue to the local g overnments. These numbers represent the benefits of the e ntire project, w hich is s c h eduled to take place over five y ears. Under Sierra F orest , we must consider only th e p o rt i o n of the h a r m that would occur w hile the preliminary injunction is in place, and p roportionally diminish total h arms to r eflect only the time w hen a

3 B ecau se w e d eterm in e th at t h e L OW D p lain t if

f s are lik ely to su cceed

o n th eir claim th at th e U SFS m u st d o a s u

pp l em en tal EIS th at assesses th e im p acts o n elk o f th e S n o w B a sin p ro j ect w ith o u t co n sid erin g th e T MP
, see P art III.A
, ab o v e, w e n eed n o t d eterm in e w h et h er th e b alan ce of
eq u ities ti p s sh arp ly in L OW D’ s f av o r un d er t

h e W ild Ro ckies stan d ard

. W ild Ro ckies, 6 3 2 F .3 d at 1 1 3 5

. In s tead

, b ecau se th e L OW D plain tif f s h av e s h o w

n lik ely su ccess o n

o n e claim , w e an aly ze w h eth er t h e L OW D
p lain tif f s can sh o w t

h at th e b alan ce o f

h arm s tip s in th eir f

av o r un d er th e W in ter stan dard

. W

i n ter , 5 5 5 U.S. at 2 0

.L OW D/B MB P V

. C O N N A U G H T ON 19

preliminary injunction would b e in pl a ce. B ecause the jobs and revenue will be realiz ed if the project is approved, the
marg inal harm to th e i n t ervenors of the preliminary injunction is the value of moving those jobs and tax dollars to

a future y ear, rather than the present. The L OW D plaintiffs’ irreparable environmental injuries outweig h the temporary delay intervenors face in r eceiving a part of the economic benefits of the project.

I ntervenors also raise a third form of harm, the increased risk of fire dang er and insect infestation. This claim has elements o f both p rivate a nd public interest in that the intervenors face a particular harm f rom the risk of forest fires in their reg ion, separate from the more g eneraliz ed harm the public f aces. However, because the issues involved a re

su bstantially similar, we analy z e it under the fourth W

inter
prong , below.

D

“F inally

, our precedent requires t h a t we e x amine the
pu b lic interest in determining the appropriateness of a preliminary injunction. W hile we have at times subsumed this inquiry into the balancing of the hardships, it is better seen a s

an element that deserves separate attention in cases w here the publi c interest may b e affected. The public interest inquiry primarily addresses i m p a ct on n on-parties rather than parties.” Sammartano v. First J udicial Dist. Court
, 303 F .3d 959, 974 ( 9 t h Cir. 2002) (internal citations omitted), abrogated in p art on other g rounds by W

inter
, 555 U.S. at 24. Althoug h “[ w] hen the g overn m e n t is a party , these last two factors merg e,” Drakes Bay Oyster Co. v. Jewell

, — F

. 3d —, 2014 W L 114699, at *14 (9 t h C i r

. 2013), the intervenors’L OW D/B MB P V

. C O N N A U G H T ON 20

i n t erests in this case make it appropriate to consider th e factors separately

.

The USF S and interveno r s a rg ue that the public interest

w ould be harmed if the preliminary injunction is g ran t e d because the risk of f

or e s t f i res and insect infestation would
not be reduced by the log g ing project a s p lanned. Even thoug h fire and insect risk s a re to a deg ree speculative, mitig ating such risks is a va l i d public interest. See M cNair
, 537 F .3d a t 1005 (citing W ildwest I nst. v. Bull

, 472 F .3d 587, 592 (9th Cir. 2006)). W e have g iven this claim g r e at w eig ht when th e r i s k is imminent or the dang er has beg un. See Alpine Lakes Prot. Soc’y v. Schlapfer

, 5 18 F

. 2 d 1 0 8 9, 1090 (9th Cir. 1 9 7 5 ) ( per curiam) (holding that a n injunction was not in the public interest because many trees at issue were already infested by insects, which made larg e-scale spreading

across other lands inevitable absent log g ing ). That is not the

case here. The F EI S states that, if n o action is taken, “[ f ] ire

s u p p r ession can b e ex pected to c ontinue and be hig hly successful,” and notes the possibility o f “ periodic insect outbreaks.” W ithout evidence of a n imminent threat, w e cannot say that the inability to mit i ga te such risks for a temporary period outweigh s the public’s interest in maintaining elk habitat and mature trees in the F orest.

I ntervenors also cite Bering Strait Citizens for Responsible R esource Development v

. U.S. Army Cor p s of Engineers
, 524 F .3d 938, 949 (9th Cir. 2008), f o r the proposition that their p rivate harms, d iscussed above, are also relevant to the public interest a naly sis based on the economic impact o f th e a dded jobs and h ow the g overnmental authorities would use their share o f the funds, discussing the undeniable benefits to the public of increased school funding and mental health services, amon g others. I n Bering Strait
,L OW D/B MB P V

. C O N N A U G H T ON 21

we were d iscussing whether th e Army Corps of Eng ineers had erred in g ranting a permit to a mining project. Id. I n this
contex t, where we were a n a l y z ing a section of the Code o f Fe d e r al Reg u l a t i o n s t h a t e x p l i c i t l y a n d re p e a t ed l y contemplates consideration of e c o n o m i c f a c t o r s , i n c l u ding the economic impact of projects o n neig hboring c ommuniti e s , we held that conside ring the community impact of economic activi t y was not arbitrary and capricious. Althoug h the continuation or increase o f j o bs in log g ing is relevant to the
p u b l i c interest, a part of what must be considered, o u r analy sis of the public interest in the contex t of a preliminary injunction here is not bound by Bering Str a i t ’ s a naly sis of a regulation that is not at issue in this litig ation. Althoug h we think intervenors are correct that their private h arms deserve
to be considered as part of W inter ’s p u blic interest analy sis,

we conclude nonetheless that those harms are o utweig hed b y threatened irreparable injury to elk habitat. I mportant in our analy sis is the fact that the economic i m p a cts will n ot be completely f

oreg one (as they mig ht be w e re this case about

a denial of a permit, like Bering Strait
, rathe r than a preliminary injunction). Rather, there is a temporary delay o f the economic benefit of jobs w hil e a p reliminary injunction is in place. See Sierra F o r e s t , 577 F .3d at 1022–23. I f the Snow B asin project is appro v e d a f t er trial, then it and the consequent jobs will proceed.

IV

The L OW D plaintiffs h ave shown that they are likely to prevail on their NEPA claim reg arding the F EI S’ discussion of el k h abitat b ecause that discussion is insufficiently clear. Therefore, the Environmental I mpact Statement’s a naly sis o f the project’s effects on elk failed to satisfy NEPA’s requirements. The L OW D plaintiffs h ave shown that absentL OW D/B MB P V

. C O N N A U G H T ON 22

a preliminary injunction, they are likely to face irrepara ble harm. The L O W D plaintiffs have shown that the balance of equities tips in their favor. An d t h e L O W D plaintiffs have shown that the public i n t e r e s t supports the g ranting of a p reliminary injunction. W e reverse the district cour t ’s
assessment that the L O W D plaintiffs are not likely to succeed

on one claim, affirm the district court’s determination that the L OW D plaintiffs a

r e not likely to succeed on other c l aims, and reverse the d istrict c ourt’ s holding that the L OW D plaintiffs ar e not entitled to a preliminary injunction. A preliminary injunction is warranted under the test e stablished by the Supreme Court in W

inter

.

W e remand to the district c ourt with instructions f or it to enter a preliminary injunction sufficient to protect the status quo while the USF S completes a supplemental environmental impact statement. On remand, th e district court should determine whether the entire Snow B as i n p r oject must be preliminarily enjoined, or whether a more narrowly tailored preliminary injunction can be crafted that adequately “preserve[ s] the status quo and the rig hts of the pa r t i es until

a final judg ment issues in the ca u s e.” U.S. Philips Corp. v

. KBC Ban k N.V.
, 590 F .3d 1091, 1 094 ( 9th Cir. 2 0 10). W e have e x plained that “[ i ] n j u n ctive relief must be tailored to remedy the specific harm al l e g ed, and a n overbroad preliminary injunctio n i s a n abuse of discretion.” Natural Res. Def. Council, Inc. v. W inter
, 508 F

. 3d 885, 886 (9th Cir. 20 0 7 )

. I n this c ase, the district court could c onsider, for

ex ample, limiting the injunction to specific are as of elk habitat or to trees above a certain diameter at breast heig ht. As we hold o n ly tha t the L OW D plaintiffs have adequately established their entitlement to the issuance of a preliminary i njunction, however, we ex press no opinion on t h e appropriate scope for such an injunction. Rather, we reverseL OW D/B MB P V

. C O N N A U G H T ON 23

and rem a nd for further proceeding s consistent with this opinion.

Costs on appeal shall be tax ed ag ainst Appellees. F ed. R. App. P. 39(d)(1); Ninth Cir. Rule 39-1.1. The mandate of this
court shall issue immediately u pon the running of the deadlines for en banc consideration.

AF F IRMED in part, REVERSED in p a r t, a nd REMANDED.