                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 16 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CASCADIA WILDLANDS, et al.,                     No.    17-35038

                Plaintiffs-Appellees,           D.C. No. 6:16-cv-01710-AA

 v.
                                                MEMORANDUM*
SCOTT TIMBER CO. and ROSEBURG
FOREST PRODUCTS CO.,

                Defendants-Appellants.

                   Appeal from the United States District Court
                            for the District of Oregon
                     Ann L. Aiken, District Judge, Presiding

                      Argued and Submitted October 2, 2017
                               Portland, Oregon

Before: PAEZ and BEA, Circuit Judges, and LAMBERTH,** District Judge.

      Plaintiffs-Appellees Cascadia Wildlands, Center for Biological Diversity,

and Audubon Society of Portland (collectively “Cascadia”), filed suit under the

citizen-suit provision of the Endangered Species Act (“ESA”), 16 U.S.C. §



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
1540(g)(1)(A), and subsequently moved to enjoin implementation of Defendants-

Appellants Scott Timber Co. and Roseburg Forest Products Co.’s (collectively

“Scott Timber”) logging project. Cascadia alleges that the project will result in a

taking of the marbled murrelet, a seabird listed as a threatened species under the

ESA. 57 Fed. Reg. 45328; see 16 U.S.C. § 1538(a)(1)(B). Scott Timber appeals

the district court’s order granting Cascadia’s motion for a preliminary injunction.

We have jurisdiction under 28 U.S.C. § 1292(a)(1). We reverse and remand for

further proceedings.

      We review de novo a district court’s finding on standing. Fair Hous. of

Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002). We review for abuse of

discretion a grant of a preliminary injunction. Thalheimer v. City of San Diego,

645 F.3d 1109, 1115 (9th Cir. 2011). Conclusions of law are reviewed de novo,

while factual determinations by the district court are reviewed for clear error. Id.

       At the outset, we conclude that the district court properly held that

Cascadia has standing to pursue this case. Cascadia’s alleged injury—diminished

ability to view the marbled murrelets—is cognizable as a recreational and aesthetic

injury. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972). And Cascadia’s

injuries are imminent, given members’ concrete plans to visit the area to view

marbled murrelets in the near future. Lujan v. Defenders of Wildlife, 504 U.S. 555,

564 (1992).


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         To obtain a preliminary injunction, plaintiffs must establish: (1) likelihood

of success on the merits; (2) likelihood of irreparable harm in the absence of

preliminary relief; (3) that the balance of equities tips in their favor; and (4) that an

injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7, 20 (2008). In Winter, the Supreme Court held that plaintiffs must demonstrate

that harm is likely, not just possible, to obtain a preliminary injunction. Id. at 22.

Here, the district court applied a sliding scale standard. Under that standard, a

plaintiff can meet the burden of obtaining a preliminary injunction even when there

are “serious questions going to the merits”—a lesser showing than a likelihood of

success on the merits— if the balance of hardships strongly favors the plaintiff.

See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). This

Court highlighted, however, that even under the sliding scale standard, the other

two Winter factors—likelihood of irreparable harm and that the injunction is in the

public interest—must be satisfied for a preliminary injunction to be issued. Id. at

1135.

        The district court did not abuse its discretion by ruling that there were

serious questions going to the merits in this case. The merits of this case center on

whether a taking of marbled murrelets will occur as a result of the logging

project—an issue the district court found hinges on whether the birds occupy the

tract. 16 U.S.C. § 1538(a)(1)(B). Since the district court found that both parties


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plausibly rely on qualified experts who differ on whether a taking will occur, this

Court agrees that the “serious questions” standard is met. See Republic of the

Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988).

      The district court was also correct that the third and fourth factors of the

preliminary injunction standard—balance of hardships and public interest favoring

an injunction—are satisfied in this case. In cases brought under the ESA, the

balance of hardships and public interest factors always tip heavily in favor of

protecting the endangered species. See Nat. Wildlife Fed’n v. Burlington Northern

R.R., 23 F.3d 1508, 1511 (9th Cir. 1994) (“The ‘language, history, and structure’ of

the ESA demonstrates Congress' determination that the balance of hardships and

the public interest tips heavily in favor of protected species.”) (quoting Tennessee

Valley Authority v. Hill, 437 U.S. 153, 174 (1978)). This court has noted that

“[w]e may not use equity’s scales to strike a different balance” in an ESA

preliminary injunction case. Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir.

1987). Thus, we conclude that the district court did not abuse its discretion in

finding these two factors supported issuing a preliminary injunction.

      In its approach to evaluating irreparable harm, the district court correctly

required harm to Cascadia’s interest in individual members of the marbled murrelet

species as opposed to harm to the entire species itself. See Babbitt v. Sweet Home

Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704 (1995) (quoting S. Rep. No.


                                          4
93–307, p. 7 (1973)) (finding that Congress intended “take” to be defined “‘in the

broadest possible manner to include every conceivable way in which a person can

“take” or attempt to “take” any fish or wildlife.’”); Or. Nat. Res. Council v. Allen,

476 F.3d 1031, 1040 (9th Cir. 2007) (finding that Section 9 of the ESA “issues a

blanket prohibition on the taking of any member of a listed species.”). However,

the district court did err as a matter of law by requiring a lesser showing of

irreparable harm than necessary to satisfy Winter. The district court stated:


      [T]he likelihood of irreparable injury – like the likelihood of success on the
      merits – depends on which scientific method to follow in determining
      occupancy. The first and second preliminary injunction factors are
      inextricably intertwined. Since these two factors are bound together,
      plaintiffs have provided sufficient showing of likely irreparable harm by
      showing that serious questions exist as to the merits.

In other words, the district court found that by showing that there were serious

questions as to the merits, plaintiffs had also shown a likelihood of irreparable

harm. But we have held that the standard for serious questions is lower than the

standard for likelihood of success on the merits. See Republic of the Philippines,

862 F.2d at 1362 (internal citation omitted) (“Serious questions need not promise a

certainty of success, nor even present a probability of success, but must involve a

‘fair chance of success on the merits.’”); All. for the Wild Rockies v. Pena, 865

F.3d 1211, 1217 (9th Cir. 2017) (finding that serious questions standard is a “lesser

showing than likelihood of success on the merits.”). Therefore, the district court



                                          5
erred in treating the two standards as equivalent. In essence, the district court

found that there were “serious questions” as to whether any marbled murrelets

inhabited the area in question and would therefore be harmed as a result of the

logging project when the district court was actually required to find that it was

likely that marbled murrelets inhabited the area in question and would be harmed

by the project. Because a likelihood of irreparable harm, and not merely a serious

question of irreparable harm, is necessary to grant a preliminary injunction, we

remand to the district court to apply the proper standard. See Winter, 555 U.S. at

22.

      REVERSED and REMANDED.




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