Cottrell

Alliance for Wild Rockies v. Cottrell

Good Law
632 F.3d 1127·2011 WL 208360·72 ERC (BNA) 1711·2011 U.S. App. LEXIS 1473
United States Court of Appeals for the Ninth CircuitJanuary 25, 2011No. 09-35756California5,669 words

Opinion

Lead Opinion

ORDER

This Court’s opinion, filed September 22, 2010, and published at 622 F.3d 1045 (9th Circuit 2010), is withdrawn and replaced by the attached opinion and concurrence.

With this filing, the panel has voted unanimously to deny Appellees’ petition for rehearing. Judge W. Fletcher and Judge Rawlinson have voted to deny the petition for rehearing en banc, and Judge Mosman so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The Appellees’ petition for rehearing and petition for rehearing en banc are DENIED.

No further petitions for rehearing will be entertained.

OPINION

Alliance for the Wild Rockies (“AWR”) appeals the district court’s denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 555 U.S. 7 , 129 S.Ct. 365 , 172 L.Ed.2d 249 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral argument, we issued an…

Concurring Opinion

Mosman, J.

concurring:

Today’s holding that the “serious questions” test remains valid post-Winter is an important one for district courts tasked with evaluating requests for preliminary injunctions. The task is often a delicate and difficult balancing act, with complex factual scenarios teed up on an expedited basis, and supported only by limited discovery. A sliding scale approach, including the “serious questions” test, preserves the flexibility that is so essential to handling preliminary injunctions, and that is the hallmark of relief in equity. See Winter, 129 S.Ct. at 391 (Ginsburg, J., dissenting); see also Miller v. French, 530 U.S. 327, 361 , 120 S.Ct. 2246 , 147 L.Ed.2d 326 (2000) (Breyer, J., dissenting) (“[I]n certain circumstances justice requires the flexibility necessary to treat different cases differently — the rationale that underlies equity itself.”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (1982) (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.”) (quoting Hecht Co. v.…

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