Babbitt

In an action filed on behalf of the marbled murrelet and the northern spotted owl under the Endangered Species Act (“ESA”) and under the National Environmental Policy Act (“NEPA”), Appellee Environmental Protection Information Center (“EPIC”) secured a preliminary injunction enjoining Appellants from conducting logging activities in Humboldt County, California pursuant to eight Timber Harvest Plans (“THPs”).

The district court granted EPIC’s motion for the preliminary injunction because in its view, EPIC had demonstrated (1) the existence of serious questions on the merits as to whether ESA and NEPA had been violated, and (2) a balance of hardships tipping in its favor. Memorandum and Order, filed Apr. 9, 1996, at 39. Because we believe EPIC has failed to demonstrate the existence of serious questions on the merits as to whether ESA and NEPA have been violated, we VACATE the preliminary injunction.

Before addressing the merits of the preliminary injunction, we turn briefly to the question whether the district court properly exercised jurisdiction over EPIC’s ESA claim.

Appellants argue that the district court lacked subject matter jurisdiction over EPIC’s ESA claim because EPIC…