Home » Case Summaries » 2017 » Cascadia Wildlands v. Scott Timber Co., 2017 WL 5493908 (9th Cir. Nov. 16, 2017).


Cascadia Wildlands v. Scott Timber Co., 2017 WL 5493908 (9th Cir. Nov. 16, 2017).


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Several environmental groups (Plaintiffs)[1] filed suit against Scott Timber Company and Roseburg Forest Products Company (Defendants) under the Endangered Species Act (ESA).[2] Plaintiffs alleged that Defendants’ logging project in the Elliott State Forest in Oregon would result in a taking of the marbled murrelet. The United States District Court for the District of Oregon granted an injunction, and the United States Court of Appeals for the Ninth Circuit reviewed the decision for abuse of discretion. The Ninth Circuit reversed and remanded for further consideration.

As an initial matter, the Ninth Circuit affirmed the district court’s finding that Plaintiffs had standing, recognizing the inability to view the marbled murrelet as an aesthetic and cognizable injury. Plaintiffs established that they had concrete plans to view the area in the future and thus the potential injuries were imminent.

For a preliminary injunction to be granted, plaintiffs must meet the four-part test laid out in Winter v. Nat. Res. Def. Council Inc.[3] These factors are 1) likelihood of success on the merits, 2) likelihood of irreparable harm in the absence of preliminary relief, 3) a balance of equities that favors plaintiffs, and 4) a demonstration that an injunction is in the public interest.[4]

In satisfying the first factor, a sliding scale approach is permissible; specifically, where “the balance of hardships strongly favor the plaintiff,” a lesser showing of “serious questions going to the merits” will suffice.[5] The Ninth Circuit held that the district court did not abuse its discretion by applying this sliding scale and ruling that serious questions did exist. The Ninth Circuit also supported the district court’s findings on the third and fourth factors, noting that those factors “tip heavily in favor of protecting the endangered species.”[6]

The Ninth Circuit parted ways with the district court on the second factor, requiring a showing that irreparable harm was likely. On that issue, the Ninth Circuit found the district court erred by asserting that “[t]he first and second preliminary factors are inextricably intertwined.”[7] In this instance, the district court reached that conclusion because success under both factors depended upon the same evidence; that is, a demonstration that marbled murrelets occupied the proposed project area.[8] Since Plaintiffs had shown that there were “serious questions going to the merits” for the first factor—merits of a claim based on the presence of marbled murrelets—the district court determined Plaintiffs had also demonstrated a likelihood of irreparable harm to Plaintiffs viewing the marbled murrelets under the second factor.[9]

The Ninth Circuit held that the district court misapplied Winter. The court stated that the sliding scale approach reduces the evidentiary burden for the first factor alone. In this context, the court found that the same evidence used to establish “serious questions going to the merits” under the first factor does not also necessarily show a likelihood of irreparable harm under the second. The Ninth Circuit noted that by applying the sliding scale to meet the first factor, the district court had merely established “serious questions” as to whether marbled murrelets inhabited the area. The court found this to be a lesser showing than “likelihood of harm” in the same way that “serious questions” was a lesser showing than “likelihood of success” under the first factor. For these reasons, the court held that more was needed to satisfy the second factor and remanded to the district court.

In sum, the Ninth Circuit reversed and remanded for the district court to reapply Winter and reconsider whether a likelihood of irreparable harm exists where there are only “serious questions going to the merits.”

Footnotes    (↵ returns to text)

  1. Cascadia Wildlands Project, Center for Biological Diversity, and Audubon Society of Portland.
  2. 16 U.S.C. §§ 1531–1544 (2012).
  3. 555 U.S. 7 (2008).
  4. Id. at 20.
  5. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011).
  6. Nat’l Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508, 1511 (9th Cir. 1994).
  7. Cascadia Wildlands v. Scott Timber Co., 190 F. Supp. 3d 1024, 1035 (D. Or. 2016).
  8. Id.
  9. Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003).
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