FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

THE LANDS COUNCIL; WILD WEST           
INSTITUTE,
              Plaintiffs-Appellants,
                 v.
RANOTTA MCNAIR, Forest
Supervisor for the Idaho                    No. 07-35000
Panhandle National Forests;
UNITED STATES FOREST SERVICE,                D.C. No.
                                           CV-06-00425-EJL
             Defendants-Appellees,
                                              OPINION
BOUNDARY COUNTY; CITY OF
BONNERS FERRY; CITY OF MOYIE
SPRINGS; EVERHART LOGGING, INC.;
REGEHR LOGGING, INC.,
           Defendants-Intervenors-
                          Appellees.
                                       
        Appeal from the United States District Court
                  for the District of Idaho
         Edward J. Lodge, District Judge, Presiding

                   Argued and Submitted
         April 17, 2007—San Francisco, California

                     Filed July 2, 2007

    Before: Warren J. Ferguson, Stephen Reinhardt, and
            Milan D. Smith, Jr., Circuit Judges.

               Opinion by Judge Ferguson;
         Concurrence by Judge Milan D. Smith, Jr.;
             Concurrence by Judge Ferguson

                            7775
               THE LANDS COUNCIL v. MCNAIR             7779


                        COUNSEL

Karen Lindholdt, University Legal Assistance, Spokane,
Washington, for the plaintiffs-appellants.

Thomas W. Swegle, United States Department of Justice,
Environment & Natural Resources Division, Washington,
D.C., for the defendants-appellees.

Scott W. Horngren, Haglund, Kelley, Horngren, Jones, and
Wilder LLP, Portland, Oregon, for the intervenors-appellees.
7780            THE LANDS COUNCIL v. MCNAIR
                          OPINION

FERGUSON, Circuit Judge:

   The Lands Council and the Wild West Institute (collec-
tively, “Lands Council”) appeal the district court’s denial of
their motion for a preliminary injunction to halt the Mission
Brush Project (“Project”). Under the Project, the United States
Forest Service (“Forest Service” or “Service”) plans to allow
the selective logging of 3,829 acres of forest in the Idaho Pan-
handle National Forests (“IPNF”) for the purpose of restoring
portions of the forest to historic conditions. Lands Council
alleges that the Project violates the Administrative Procedure
Act (APA), 5 U.S.C. § 706 et seq., the National Forest Man-
agement Act (NFMA), 16 U.S.C. § 1600 et seq., the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.,
and Standard 10(b) of the IPNF Forest Plan. The district court
held that Lands Council was unlikely to prevail on its claims
and that the balance of hardships favored the Forest Service.
We reverse.

               FACTUAL BACKGROUND

  The Mission Brush Area

   The Project assessment area is in the Bonners Ferry Ranger
District in the northern portion of the IPNF. The area is home
to abundant plant and animal species, including grizzly bears,
Canada lynx, and flammulated owls. Due to decades of
unsustainable forestry practices, however, the area has devi-
ated significantly from its historical composition and struc-
ture, which consisted of open ponderosa pine and Douglas-fir
stands. For decades, logging companies cut down these old
growth trees and, along with the Forest Service, suppressed
the frequent, low-intensity fires that formerly contributed to
the cyclical process of healthy forest ecology. As a result,
much of the historic forest conditions have been replaced by
dense, crowded stands of younger Douglas-firs and other mid-
                   THE LANDS COUNCIL v. MCNAIR                      7781
and late-successional species. These overcrowded forests,
dominated by shade-tolerant trees, can lead to insect infesta-
tions, diseases, and stand-replacing fires. According to the
Forest Service, “the densely stocked stands we see today are
causing a general health and vigor decline in all tree species.”
U.S. Forest Serv., Mission Brush Supplemental Final Envi-
ronmental Impact Statement 3-15 (2006) [hereinafter SFEIS].

  The Mission Brush Project

   The Project would perform silvicultural treatments and
commercial logging on 3,829 acres of forest, including resto-
ration cutting within 277 acres of old growth stands, with the
goal of trending the forest toward historic conditions. The
Forest Service has divided the Project into three commercial
timber sales, the Brushy Mission Sale, the Haller Down Sale,
and the Mission Fly By Sale, comprising in total 23.5 million
board feet of timber. The first two sales have been sold to pri-
vate timber companies, but there were no bids on the third.
The Service’s contracting officer has stated that he does not
intend to award the Mission Fly By Sale until this litigation
concludes, although logging under the Brushy Mission and
Haller Down sales began several months ago.

                   PROCEDURAL HISTORY

   In June 2004, the Forest Service released the Mission Brush
Final Environmental Impact Statement (“EIS”) and the
Record of Decision, which adopted the Project. Lands Coun-
cil, along with several other environmental groups, appealed
to the Regional Forester, who upheld the Project in August
2004 but ordered the preparation of a supplemental EIS in
light of our decision in Lands Council v. Powell (Lands Coun-
cil I), 

(9th Cir. 2004), amended by 

(2005).1 In April 2006, the Forest Service released its
  1
   Lands Council I involved a different project in a different area of the
IPNF. 

.
7782            THE LANDS COUNCIL v. MCNAIR
Supplemental Final EIS (“SFEIS”) and Record of Decision
(“ROD”). Lands Council filed an administrative appeal,
which the Forest Service denied in July 2006.

   In October 2006, Lands Council filed suit challenging the
Project in the U.S. District Court for the District of Idaho.
Lands Council filed a motion for a temporary restraining
order and preliminary injunction to halt the Project. The dis-
trict court denied the motion on December 18, 2006, and
Lands Council timely appealed.

                        DISCUSSION

  I.   Preliminary Injunction Standard

   We review a district court’s denial of a preliminary injunc-
tion for an abuse of discretion. Earth Island Inst. v. U.S. For-
est Serv. (Earth Island Inst. II), 

, 1156 (9th Cir.
2006). A district court abuses its discretion if it “base[s] its
decision on an erroneous legal standard or clearly erroneous
findings of fact.” 

injunction should issue when the plaintiff
shows “either: (1) a likelihood of success on the merits and
the possibility of irreparable injury; or (2) that serious ques-
tions going to the merits were raised and the balance of hard-
ships tips sharply in [the plaintiff’s] favor.” Lands Council v.
Martin (Lands Council II), 

, 639 (9th Cir. 2007)
(quoting Clear Channel Outdoor Inc. v. City of Los Angeles,

, 813 (9th Cir. 2003)). These two alternatives are
“extremes of a single continuum” in which “the greater the
relative hardship to the party seeking the preliminary injunc-
tion, the less probability of success must be shown.” Clear
Channel Outdoor 

(internal punctuation
and quotation omitted).
                THE LANDS COUNCIL v. MCNAIR                7783
  II.   Likelihood of Success on the Merits

  National Forest Management Act

   NFMA requires the Forest Service to develop a forest plan
for each unit of the National Forest System. 16 U.S.C.
§ 1604(a). These plans must include provisions for public par-
ticipation, while adopting “a systematic interdisciplinary
approach to achieve integrated consideration of physical, bio-
logical, economic, and other sciences.” § 1604(b), (d). Once
a forest plan is developed, subsequent agency actions must be
consistent with the plan. § 1604(i).

   [1] In addition to these procedural components, NFMA
imposes substantive requirements on the Forest Service. In
particular, “the forest plan must comply with substantive
requirements of the Forest Act designed to ensure continued
diversity of plant and animal communities and the continued
viability of wildlife in the forest.” Idaho Sporting Cong. v.
Rittenhouse, 

, 961 (9th Cir. 2002) (citing 16
U.S.C. § 1604(g)(3)(B)). The Forest Service must also “dem-
onstrate the reliability of its scientific methodology.” Ecology
Ctr. v. Austin, 

, 1064 (9th Cir. 2005). A reliable
scientific methodology is one that the Forest Service has “ver-
ified with observation” and “on the ground analysis.” Lands
Council 

. The Forest Service may not rely
on a methodology that “is predicated on an unverified hypoth-
esis.” Ecology 

.

   [2] The Forest Service has not proven the reliability of its
scientific methodology with regard to wildlife habitat restora-
tion in the Mission Brush Project. In particular, the Service
has failed to demonstrate that the Project will not harm the
flammulated owl, the northern goshawk, the fisher, and the
western toad, all of whom the Forest Service has designated
as “sensitive species” whose viability is of special concern.
See Friends of the Clearwater v. Dombeck, 

, 556
n.2 (9th Cir. 2000) (explaining “sensitive species” designa-
7784             THE LANDS COUNCIL v. MCNAIR
tion). As in Ecology Center, the Forest Service is relying on
the “unverified hypothesis” that “treating old-growth forest is
beneficial to dependent species.” Ecology 

.

   In Ecology Center, the Forest Service, as part of another
project, sought to engage in rehabilitative treatment of old
growth stands “to correct uncharacteristic forest development
resulting from years of fire suppression.” 

We con-
cluded that the Forest Service did “not offer proof that the
proposed treatment benefits—or at least does not harm—old-
growth dependent species.” 

that the Forest Ser-
vice’s methodology was unreliable since it had not been veri-
fied, and that the treatments therefore violated NFMA. 

   The Forest Service argues that the present case is distin-
guishable from Ecology Center because the Service has pro-
vided sufficient scientific data on the effects of the Project on
wildlife habitat. None of the documents it cites, however,
demonstrates the reliability of the Forest Service’s hypothesis
that restoration treatment will benefit dependent species.

   The Forest Service relies primarily on the Dawson Ridge
Study, Dawson Ridge Flammulated Owl Habitat Monitoring
(2006) [hereinafter Dawson Ridge Study], the only study it
has conducted since our decision in Ecology Center. The
Dawson Ridge Study monitored a “relatively small area” of
flammulated owl habitat: five 1/5 acre plots in an area totaling
only eighteen acres. 

The researchers received a sin-
gle response in the 2006 survey. 

Based on this soli-
tary hoot, and the fact that the area had been logged in 2000
and underburned in 2002, the report concluded that “owls are
using the area after harvest.” 

The report admitted that
it was “inappropriate” to conclude that the treatments had
improved owl habitat, but found it “encouraging” that an owl
response had been received in the area. 

it
                    THE LANDS COUNCIL v. MCNAIR                         7785
concluded, “imply” that the harvesting practices “are at least
maintaining suitable habitat.” 

report is insufficient to meet the requirements of
Ecology Center. 

(single report of obser-
vation of bird species in formerly-treated old growth stand
was insufficient to prove reliability of scientific methodol-
ogy). Lands Council rightly points out that the Dawson Ridge
Study made no ultimate conclusion about one of the underly-
ing hypotheses of the Project: “that treating old-growth forest
is beneficial to dependent species.” Ecology 

. The study also says nothing about whether such treat-
ment can create suitable habitat that dependent species will
actually use. Its conclusion that such treatment could maintain
habitat is circumspect at best. By its own statement, there is
merely an “encouraging” “impl[ication].” Dawson Ridge
Study at 3. This is hardly sufficient to justify “grant[ing] [the
Forest Service] the license to continue treating old-growth
forests while excusing it from ever having to verify that such
treatment is not harmful.” Ecology 

.2

   [4] The other studies fall even shorter of meeting the Ecol-
ogy Center standards. In none of those studies was any obser-
vation made of the actual dependent species in order to
determine whether the species will use the habitat if the Forest
Service engages in the process it proposes. Compare R. Rich-
ard Howie and Ralph Ritcey, Distribution, Habitat Selection,
and Densities of Flammulated Owls in British Columbia,
USDA Forest Serv. General Technical Report RM-142 (1987)
(twenty-year-old study from Canadian forest) with Lands
Council 

, 1035, 1031 (holding that Forest
Service methodology was unreliable because it did not “walk
  2
    The Forest Service argues that continued monitoring pursuant to the
ROD will confirm the reliability of its methodology. While ongoing moni-
toring is certainly a good idea, this “authorize first, verify later” approach
was roundly rejected in Ecology Center as inconsistent with both NFMA
and 

.
7786               THE LANDS COUNCIL v. MCNAIR
. . . the land,” it relied on a “model with no on-site inspec-
tion,” and its data was “stale”). Other documents relied on by
the Forest Service are not studies at all, but rather position
papers and “conservation plans.” See, e.g., Montana Partners
in Flight, Montana Bird Conservation Plan (2000); Idaho
Partners in Flight, Idaho Bird Conservation Plan (2000).
These documents are not “on the ground analysis” sufficient
to prove the reliability of the Project’s methodology. Lands
Council 

.3

   [5] Accordingly, the Forest Service has not demonstrated
the reliability of its methodology. We conclude that Lands
Council was, therefore, likely to succeed on its NFMA claim.

  National Environmental Policy Act

   [6] NEPA requires federal agencies to take a “hard look”
at the potential environmental impacts of their actions. Idaho
Sporting 

. An agency must prepare a
detailed EIS for each action “significantly affecting the qual-
ity of the human environment.” 42 U.S.C. § 4332(C). The EIS
must “provide full and fair discussion of significant environ-
mental impacts” so as to “inform decisionmakers and the pub-
lic of the reasonable alternatives which would avoid or
  3
    Intervenors contend that “the proxy on proxy method” of using
changes to old growth habitat to assess environmental effects on wildlife
is a reliable methodology. However, we have never held that manufactur-
ing wildlife habitat through invasive commercial harvesting allows the
Forest Service to assume that such habitat will subsequently be occupied
by the species at issue. Rather, the proxy on proxy method permits the
Service to assume only that “maintaining the acreage of habitat necessary
for survival would in fact assure a species’ survival.” Envtl. Prot. Info.
Ctr. (EPIC) v. U.S. Forest Serv., 

, 1017 (9th Cir. 2006)
(emphasis added); see also Native Ecosystems Council v. U.S. Forest
Serv., 

, 1250 (9th Cir. 2005) (“Our case law permits the For-
est Service to meet the wildlife species viability requirements by preserv-
ing habitat . . . .”) (emphasis added); Ecology 

(distinguishing between “maintaining . . . old-growth habitat” and “alter-
ing the composition of old-growth habitat through an invasive process”).
                 THE LANDS COUNCIL v. MCNAIR                  7787
minimize adverse impacts or enhance the quality of the
human environment.” 40 C.F.R. § 1502.1. The EIS must “be
supported by evidence that the agency has made the necessary
environmental analyses,” 

“address in [a] mean-
ingful way the various uncertainties surrounding the scientific
evidence.” Ecology 

(quoting Seattle
Audubon Soc’y v. Espy, 

, 704 (9th Cir. 1993)).

    Lands Council contends that the Project violates NEPA
because the Forest Service failed to include a full discussion
of the scientific uncertainty surrounding its strategy for
improving wildlife habitat. For the reasons already stated,
supra at 7784-85, we agree. As in Ecology Center, “[t]he EIS
. . . treats the prediction that treatment will benefit old-growth
dependent species as a fact instead of an untested and debated
hypothesis.” 

responding to the public comment that the Service
had “failed to [c]ite any evidence that its managing for old
growth habitat strategy will improve old growth species habi-
tat over the short-term or long-term,” the SFEIS does not
address the scientific uncertainty described above, nor does it
cite the sources now relied on by the Forest Service. SFEIS
at F-3. The SFEIS cites only sources discussing the historical
conditions of the forest, the role of fire in the forest’s ecology,
and the health of old growth trees following treatment. 

no discussion of the uncertainties regarding wildlife
and their use of these habitats following treatment. 

the SFEIS’s direct and indirect effects analysis simply “as-
sumes that active management through regeneration and
selective tree cutting can help restore natural processes in an
ecological system.” SFEIS at 4-68 (emphasis added).

  [8] For these reasons, Lands Council was likely to succeed
on its NEPA claim.

  IPNF Plan Standard 10(b)

   [9] NFMA requires the Forest Service to comply with the
forest management plan for each national forest. 16 U.S.C.
7788            THE LANDS COUNCIL v. MCNAIR
§ 1604(i). Standard 10(b) of the IPNF Forest Plan requires the
Forest Service to maintain at least ten percent old growth
throughout the forest. IPNF Forest Plan Standard 10(b).

   Lands Council contends that the IPNF is not currently
meeting the ten percent requirement and that the Forest Ser-
vice therefore must address how cutting mature, future old-
growth trees will affect its future compliance with Standard
10(b). Lands Council bases its contention on its own report,
which concluded that seventy percent of designated old
growth stands did not actually meet the Forest Service’s own
standards for old growth. Ellen Picken, The Lands Council,
Lost Forests: An Investigative Report on the Old-Growth of
North Idaho (2005).

   The Forest Service disagrees with these results. In deter-
mining the percentage of old growth in the IPNF, the Service
has used two independent monitoring tools, each of which
concluded that approximately twelve percent of the forest met
old growth criteria. Arthur C. Zack, Review of Old Growth
Assessments for the Idaho Panhandle National Forest 6
(2006) (referencing the Forest Inventory Analysis data, find-
ing 11.8 percent old growth, and the IPNF stand map, finding
12.1 percent old growth). The Forest Service’s expert, Dr.
Arthur Zack, specifically considered and evaluated Lands
Council’s report, but disagreed with its methodology and con-
clusions.

   [10] Where an agency is presented with conflicting data, it
“must have discretion to rely on the reasonable opinions of its
own qualified experts.” Marsh v. Oregon Natural Res. Coun-
cil, 

, 378 (1989). Accordingly, “[a]t this stage,
the record does not allow us to conclude that the Forest Ser-
vice acted arbitrar[il]y and capriciously in relying on its own
data and discounting the alternative evidence offered by the
[p]laintiffs.” Earth Island Inst. v. U.S. Forest Serv. (Earth
Island Inst. I), 

, 1302 (9th Cir. 2003). The Ser-
vice explained the differences between its findings and those
                     THE LANDS COUNCIL v. MCNAIR                          7789
of Lands Council, and it “is entitled to use the data it collect-
ed.” Id.4

  [11] Accordingly, the district court properly concluded that
Lands Council was not likely to succeed on the merits of its
Standard 10(b) claim.

  III.    Balance of Hardships

   [12] Because Lands Council has demonstrated a strong
probability of success on the merits of its NFMA and NEPA
claims, “it need only show the possibility of irreparable injury
if preliminary relief is not granted, and that the balance of
hardships tips in its favor.” Earth Island Inst. 

(internal punctuation omitted). “Environmental injury,
by its nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long duration,
i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 

, 545 (1987). In addition to balancing the hardships
to the parties, we must also consider the public interest. Koo-
tenai Tribe of Idaho v. Veneman, 

, 1125 (9th
Cir. 2002).

   [13] The Project, if not enjoined, would allow treatment of
2,326 acres of capable flammulated owl habitat and 202 acres
of suitable flammulated owl habitat, the latter of which is
more than half of the owls’ 364 current suitable habitat acres
within the Project area. The Project would treat 2,503 acres of
capable northern goshawk habitat and 561 acres of suitable
northern goshawk habitat. It would convert 255 acres of suit-
able goshawk habitat to unsuitable habitat and would prevent
  4
    Lands Council may nevertheless revisit this issue on the merits before
the district court should further development on remand be appropriate.
Infra at 7791; see Earth Island Inst. 

(“We note, how-
ever, that if Plaintiffs are able to convince the district court that the agency
unreasonably relied upon inaccurate data, they may be able to succeed on
the merits of this claim.”).
7790             THE LANDS COUNCIL v. MCNAIR
757 acres of capable goshawk habitat from becoming suitable.
The Project would also treat 1,839 acres of capable fisher
habitat and 449 acres of suitable fisher habitat.

   On the other side of the balance are the potential environ-
mental harms to the forest caused by delaying the Project, as
well as the potential economic harms to the local community
from enjoining logging.

   [14] As to the risk to the forest of delaying the project, the
permanent and certain harm of violating the environmental
laws outweighs the speculative harm that might result from a
failure to engage in a statutorily prohibited activity. That
determination was made by Congress when it enacted the stat-
utes which prohibit the type of activity in which the Forest
Service wishes to engage unless and until the Service com-
plies with those statutes.

   [15] The potential economic hardships, however, are more
troubling. According to Intervenors, enjoining the project will
force the timber companies that purchased the sales to lay off
some or all of their workers. One of the companies employs
fifteen people and the other employs twenty-two. The Project
area is located in Boundary County, which has one of Idaho’s
highest unemployment rates and an average wage that is
below the national average. Since 2003, the county has lost
two major employers (accounting for 400 jobs), including a
Louisiana Pacific mill. These concerns implicate the public
interest.

   [16] While balancing environmental harms and economic
harms is not easy, it is not unprecedented. We have held time
and again that the public interest in preserving nature and
avoiding irreparable environmental injury outweighs eco-
nomic concerns. Earth Island Inst. 

; Earth
Island Inst. 

; National Parks & Conser-
vation Ass’n v. Babbitt, 

, 738 (9th Cir. 2001); see
also Sierra Nev. Forest Prot. Campaign v. Tippin, No. 06-
                 THE LANDS COUNCIL v. MCNAIR                7791
00351, 

, at *21 (E.D. Cal. August 16,
2006) (“The environment is a vital constituent public interest
that must be recognized and protected by federal law even in
the face of adverse economic consequences.”).

   Accordingly, Lands Council demonstrated a threat of irrep-
arable injury sufficient to warrant granting the preliminary
injunction.

                       CONCLUSION

   [17] Lands Council demonstrated a probability of success
on the merits and a possibility of irreparable injury. Lands
Council further showed that the balance of hardships and the
public interest favored granting the preliminary injunction.
For these reasons, we reverse the district court and remand for
entry of a preliminary injunction of the contested portions of
the Mission Brush Project.

   To the extent that either party believes that any further fac-
tual development is required and appropriate in light of this
opinion, the district court may engage in such further factual
determinations, including by way of trial, as it deems proper.

  The mandate shall issue forthwith.

  REVERSED and REMANDED.



MILAN D. SMITH, JR., Circuit Judge, specially concurring:

  Ecology Center v. Austin, 

(9th Cir. 2005) is
binding law in this circuit and dictates the outcome of this
case. See Gen. Constr. Co. v. Castro, 

, 975 (9th
Cir. 2005) (“[W]e are bound by decisions of prior panels
unless an en banc decision, Supreme Court decision or subse-
quent legislation undermines those decisions.”). However, I
7792            THE LANDS COUNCIL v. MCNAIR
write a separate concurrence in this case because, like Judge
Margaret McKeown, I believe that Ecology Center was
wrongly decided. See Ecology 

(McKeown, dissenting). Following Ecology Center in this
instant matter, compounds already serious errors of federal
law because “the majority’s extension of Lands Council v.
Powell, 

(9th Cir. 2004), amended by 

, 1024 (9th Cir. 2005), [to Ecology Center] represents an
unprecedented incursion into the administrative process and
ratchets up the scrutiny we apply to the scientific and admin-
istrative judgments of the Forest Service. . . . [T]he majority
has, in effect, displaced ‘arbitrary and capricious’ review for
a more demanding standard.” 

   In Lands Council v. Powell (Lands Council I), 

(9th Cir. 2004), amended by 

(9th Cir.
2005), the court reviewed the Forest Service’s approval of a
timber harvest as part of a watershed restoration project in the
Idaho Panhandle National Forest 

.
The project was “designed to improve the aquatic, vegetative,
and wildlife habitat in the Project area.” 

The
Lands Council challenged the project’s compliance with the
National Forest Management Act (NFMA) because the proj-
ect was allegedly inconsistent with the IPNF Forest Plan, and
because it questioned the reliability of the Forest Service’s
scientific methodology underlying its analysis of disturbed
soil conditions. 

The Forest Service did not
take soil samples from the activity area, but instead relied on
samples from other areas in the Forest and aerial photographs
to determine the quality of the soil in the project area. 

our rules provided that the Forest Service was
entitled to deference for its technical expertise, the Lands
Council I court rejected the Forest Service’s choice of scien-
tific methodology because it was based entirely on a spread-
sheet model with no on-site inspection or verification. 

The court explained that “[u]nder the circumstances of
this case, the Forest Service’s basic scientific methodology, to
                 THE LANDS COUNCIL v. MCNAIR                7793
be reliable, required that the hypothesis and prediction of the
model be verified with observation. The predictions of the
model . . . were not verified with on the ground analysis.” 

court held that the “Forest Service’s reliance on the
spreadsheet models, unaccompanied by on-site spot verifica-
tion of the model’s predictions, violated NFMA.” 

McKeown observed, Lands Council I made “compli-
ance with NFMA and NEPA a moving target.” 

   Ecology Center was erroneously decided, in part, because
the majority applied the court’s criticism of the Forest Ser-
vice’s soil analysis in Lands Council I to its review of the For-
est Service’s soil quality analysis conducted as part of the
Lolo National Forest Post Burn Project. The Ecology Center
majority’s reliance on Lands Council I is faulty because the
Lands Council I court’s determination that “on-site spot veri-
fication” was required for soil analysis was in direct response
to the specific record and circumstances of that case. As
Judge McKeown explained, “there is no legal basis to con-
clude that the NFMA requires an on-site analysis where there
is a reasonable scientific basis to uphold the legitimacy of
modeling. NFMA does not impose this substantive require-
ment, and it cannot be derived from the procedural parameters
of NEPA.” Ecology 

.

   Furthermore, the Ecology Center majority’s application of
Lands Council I is also erroneous because the Forest Service
did conduct on-site analysis in the activity area of the Lolo
National Forest. Even if the majority had been correct in read-
ing Lands Council I to require on-site analysis in every case,
the Forest Service complied with this requirement. In fact,
there are specific reports indicating that soil analysis was con-
ducted in the activity area. Nevertheless, the majority rejected
these reports on the grounds that they were “too few and of
poor quality.” 

that “[t]he record provides lit-
tle information that enables us to assess the reliability or sig-
nificance of these reports; for example, we do not know the
qualifications of the person conducting the field review, the
7794             THE LANDS COUNCIL v. MCNAIR
methodology utilized, or whether the field observations con-
firmed or contradicted the Service’s estimates.” 

Judge McKeown observed that “[f]rom this judgment, we are
left to conclude that not only does the court of appeals set
bright-line rules, such as requiring an on-site, walk the terri-
tory inspection, but it also assesses the detail and quality of
that analysis-even in the absence of contrary scientific evi-
dence in the record.” 

She also noted that “Lands
Council [I] does not direct us to assess the sufficiency of the
Forest Service’s on-site soil quality analysis beyond the tradi-
tional arbitrary and capricious standard; it only asks us to ver-
ify that there is such an on-site sampling.” 

   Additionally, “the [Ecology Center] majority generalizes
the ‘unverified hypothesis’ principle articulated in Lands
Council [I] beyond the soil analysis to other scientific find-
ings made by the Forest Service. In so doing, the majority
demonstrates the dangers of extending a reference-abstracted
from a single technically detailed, fact-specific decision-to
unrelated factual contexts.” 

For example, the
majority applied Lands Council I to find that the Forest Ser-
vice’s conclusion that treating old-growth forest is beneficial
to dependent species is predicated on an unverified hypothe-
sis. 

The majority criticized the Forest Service for
not taking the time to test its theory that thinning of old-
growth stands via commercial logging and prescribed burning
would improve, or at least not harm, old-growth dependent
species. 

concluded that “[a]pparently we no longer
simply determine whether the Forest Service’s methodology
involves a ‘hard look’ through the use of ‘hard data,’ but now
are called upon to make fine-grained judgments of its worth.”

This is in direct contradiction to basic administra-
tive law principles— “we reverse agency decisions only if
they are arbitrary and capricious.” 

of
review does not direct us to literally dig in the dirt (or soil, as
it were), get our fingernails dirty and flyspeck the agency’s
                 THE LANDS COUNCIL v. MCNAIR                7795
analysis.” 

majority’s rationale cannot be
reconciled with our case law requiring ‘[d]eference to an
agency’s technical expertise and experience,’ particularly
‘with respect to questions involving engineering and scientific
matters.’ ” 

States v. Alpine Land & Reser-
voir Co., 

, 213 (9th Cir. 1989)).

   I believe that our reasoning and holding in the instant mat-
ter perpetuates the majority’s faulty reasoning in Ecology
Center. Had the majority in Ecology Center not erroneously
stretched the court’s reasoning and analysis in Lands Council
I, we might have upheld the district court’s decision in this
case because of our obligation to defer to the scientific exper-
tise of the Forest Service and to overrule only determinations
that are “arbitrary and capricious.”

   First, in examining the adequacy of the Forest Service’s
scientific data concerning the effects of the Project on wildlife
habitat, we would not be bound by the requirement that the
Forest Service’s hypothesis and prediction must be “verified
with observation” and “on the ground analysis.” Lands Coun-
cil 

. As Judge McKeown explained, the
court in Lands Council I concluded that under the record and
circumstances in that case the “Forest Service’s reliance on
the spreadsheet models, unaccompanied by on-site spot verifi-
cation of the model’s predictions, violated NFMA.” Ecology

(quoting Lands Council 

). There is no indication in the text of the Lands Council
I opinion that the court sought to create an on-site analysis
verification requirement for all soil quality analyses, and there
is even less support for the proposition that the on-site verifi-
cation requirement should be extended to “all scientific
hypotheses adopted by the Forest Service regardless of con-
text.” 

Thus, but for Ecology Center’s on-site veri-
fication requirement, we would have at least been able to
consider the Forest Service’s documentary support for its
hypothesis that restoration treatment will benefit dependent
species. As it stands, we summarily dismiss the Forest Ser-
7796            THE LANDS COUNCIL v. MCNAIR
vice’s reliance on the R. Richard Howie and Ralph Ritcey
study entitled Distribution, Habitat Selection, and Densities
of Flammulated Owls in British Columbia simply because it
is a survey of the flammulated owls’ habitat in British Colum-
bia. Op. at 7785-86. Although the Howie and Ritcey study
admittedly does not conclude that logging improves flam-
mulated owl habitat, it does document a flammulated owl
presence within logged old-growth stands. We also would
have been able to examine the Montana Partners in Flight,
Montana Bird Conservation Plan, Idaho Partners in Flight,
and Idaho Bird Conservation Plan. Again, even though none
of these reports unequivocally state that logging will improve
flammulated owl habitat, they do demonstrate that flam-
mulated owls can inhabit selectively-logged stands. Ulti-
mately, we might not have changed our conclusion that the
“Forest Service has not proven the reliability of its scientific
methodology with regard to wildlife habitat restoration in the
Mission Brush Project,” but it should have been based on the
content of the reports themselves—not the mere fact that they
did not constitute “on the ground analysis.” Op. at 7783-86.

   Even if one assumes, arguendo, that Ecology Center did
not err in adopting the Lands Council I’s “verified with obser-
vation” and “on the ground analysis” requirement or in apply-
ing it to all of the Forest Service’s scientific hypotheses,
Lands Council I certainly did not empower the majority in
Ecology Center “to assess the detail and quality of,” Ecology

, the Forest Service’s analysis and to
“make fine-grained judgments of its worth,” 

Just
as Judge McKeown believes that the majority should have
held that the Forest Service’s soil analysis was in compliance
with Lands Council I because it was on-site analysis and chal-
lenges the appropriateness of the majority’s criticism of the
soil evaluators’ qualifications, I question whether, without
Ecology Center, we would be able to scrutinize how many
owl hoots were heard in the Dawson Ridge Study. Op. at
7784-85. The Forest Service already considered this report
and determined that there is sufficient support for its hypothe-
                 THE LANDS COUNCIL v. MCNAIR                7797
sis that treating old-growth forest will maintain habitat and
benefit dependent species. Judge McKeown captures my con-
cern with her statement that “[i]n faulting the Forest Service’s
soil quality and concluding that old-growth forest will not be
impaired, the majority changes our posture of review to one
where we sit at the table with Forest Service scientists and
second-guess the minutiae of the decision making process.”
Ecology 

. Similarly, by counting owl
hoots, we are abandoning our role as reviewers under an “ar-
bitrary and capricious” standard and supplanting the Forest
Service as decision makers. If we do not grant the Forest Ser-
vice appropriate deference in areas of scientific expertise, we
defeat the purpose of permitting the Forest Service to make
administrative decisions in the first place, and we intrude into
areas far beyond our competence.

   Finally, not only is Ecology Center problematic from an
administrative law perspective, but the injunction commanded
in that case continues the pattern by some courts in this circuit
of issuing injunctions based upon misconstructions of federal
law that frustrate the careful legal balance struck by the demo-
cratic branches of our government between important envi-
ronmental protections and carefully regulated logging within
our national forests. It is not presently, and has never been,
the policy of our national government under any administra-
tion to ban all logging in all of our national forests, and yet,
cases like Ecology Center make it virtually impossible for
logging to occur under any conditions because the Forest Ser-
vice can never satisfy the constantly moving legal targets cre-
ated by our circuit, sometimes out of whole cloth.

   When federal law truly forbids logging in a particular area,
we have appropriately held that “the public interest in pre-
serving nature and avoiding irreparable environmental injury
outweighs economic concerns,” Op. at 7790 (citing Earth
Island Inst. v. U.S. Forest Serv., 

, 1177 (9th Cir.
2006); Earth Island Inst. v. U.S. Forest Serv., 

,
1308-09; Nat’l Parks & Conservation Ass’n v. Babbitt, 241
7798             THE LANDS COUNCIL v. MCNAIR
F.3d 722, 738 (9th Cir. 2001); see also Sierra Nev. Forest
Prot. Campaign v. Tippin, No. 06-00351, 

,
at *21 (E.D. Cal. August 16, 2006)), but, as noted, I do not
believe that the majority in Ecology Center correctly con-
strued applicable federal law. When we misconstrue federal
law and compound the effects of that misconstruction by
affirming or requiring the issuance of a blunderbuss injunc-
tion banning all logging in a particular area instead of using
a finely crafted legal scalpel based upon correct legal interpre-
tations, we needlessly create great hardship in the lives of
many people, harm the economic interests of our country, and
foster disrespect for our courts. We must remember that an
injunction is an equitable remedy that “must be narrowly tai-
lored to give only the relief to which plaintiffs are entitled.”
Orantes-Hernandez v. Thornburgh, 

, 558 (9th
Cir. 1990) (emphasis added). An injunction should “remedy
only the specific harms shown by the plaintiffs, rather than to
enjoin all possible breaches of the law,” Price v. City of
Stockton, 

, 1117 (9th Cir. 2004) (internal quota-
tion marks omitted), and it “should be no more burdensome
to the defendant than necessary to provide complete relief to
the plaintiffs,” Califano v. Yamasaki, 

, 702
(1979).

   Although I readily acknowledge that injunctions are some-
times required and appropriate in interdicting certain viola-
tions of federal law (and especially environmental law), in my
view the pattern of some courts within our circuit to occasion-
ally hand down over-broad injunctions based upon incorrect
constructions of federal law has substantially contributed to
(even though it is not entirely responsible for) the decimation
of the logging industry in the Pacific Northwest in the last two
decades and the commensurate growth of logging in our
neighbor to the north. Scholars with far more time available
than I have can trace the case-by-case results on a region-by-
region basis, but the following governmental statistical data
are illustrative of the damage suffered, at least part of which,
                THE LANDS COUNCIL v. MCNAIR               7799
in my opinion, is properly attributable to the effects of
improperly granted or over-broad federal court injunctions.

   In Oregon, which has traditionally been one of the coun-
try’s leading producers of wood and paper products, timber
harvests on federal lands decreased by more than 89%
between 1988 and 1998. Krista M. Gebert, et al., U.S. Dept.
of Agric., Utilization of Oregon’s Timber Harvest and Associ-
ated Direct Economic Effects, 1998 2 (2002). The number of
primary lumber mills in Oregon went from 360 in 1988 to 200
in 1998, and overall log consumption was cut nearly in half.

were felt throughout the Pacific Northwest.
In the area covered by the Northwest Forest Plan, which
encompasses northwest California as well as the western por-
tions of Oregon and Washington, 30,000 direct lumber indus-
try jobs were lost between 1990 and 2000. 1 Susan Charnley,
et al., U.S. Dept. of Agric., Socioeconomic Monitoring
Results 13 (2006). The communities closest to the forest lands
have been hit the hardest. The Department of Agriculture
reports that 40% of the communities within five miles of fed-
eral forests in this region suffered decreases in socioeconomic
well-being during this period. 

Although logging was
a vital source of economic stability in these communities dur-
ing the 1970s and 1980s, it “had become minor or negligible”
in much of this area by 2003. 

   Furthermore, in my view there is a correlation between
sometimes over-broad court injunctions halting the flow of
lumber and the dramatic decrease of employment in logging
communities throughout the Pacific Northwest. For example
in Quilcene, Washington, the number of people working in
the national forest dropped by 59% between 1993 and 2003.
3 Susan Charnley, et al., U.S. Dept. of Agric., Socioeconomic
Monitoring Results 127, 131 (2006). Also, in the Mid-
Klamath region in northern California, where logging went
from providing 30% of the area’s jobs in 1990 to only 4% in
7800             THE LANDS COUNCIL v. MCNAIR
2000, the economic impact was devastating. 

workers, loggers, and F[orest] S[ervice] employees moved
away in search of work elsewhere, taking their families with
them. As a consequence, housing prices dropped, stores and
service centers that supported these workers shut down, and
school enrollment declined precipitously. . . . Not only did the
community lose its economic base, but it also lost productive
people who were hard-working and contributed much to the
community.” 

   The effects of the severe decline in logging at least partially
brought about by sweeping federal court injunctions incor-
rectly applying federal law are apparent on a national scale as
well. From 1965 to 1988, lumber exports from the United
States enjoyed steady growth. James L. Howard, U.S. Dept.
of Agric., U.S. Timber Production, Trade, Consumption, and
Price Statistics 1965 to 1999 4 (2001). After 1988, the
Department of Agriculture reports that lumber exports sud-
denly spiraled downward at the same time that lumber
imports reached unprecedented highs. 

In 1988,
before our circuit began to aggressively issue extremely broad
injunctions against the logging industry, lumber exports
peaked at 4.5 billion board feet and the United States
imported 13.8 billion board feet. 

lumber exports
had plummeted to just 2.5 billion board feet while imports
soared to 19.9 billion board feet. 

asserts a contrary view in his concurrence.
He cites as authority for that view a 2003 tome by Messrs.
Derrick Jensen and George Draffan entitled Strangely Like
War: The Global Assault on Forests, which attributes the
decline of logging in the Northwest almost entirely to corpo-
rate consolidation and cost-cutting within the timber industry.
Every citizen has the constitutional right to express his or her
views on any subject and have the value of what he or she
says, and any works cited, evaluated by the hearer or reader,
but, in my view, writers who say extreme things should not
be surprised that many of the things they say will be heavily
                 THE LANDS COUNCIL v. MCNAIR                 7801
discounted because of that very extremism. According to
Wikipedia, “Jensen is often labeled an ‘anarcho-primitivist,’
who is quoted as saying in his book A Language Older Than
Words that “[e]very morning when I awake I ask myself
whether I should write or blow up a dam. I tell myself I
should keep writing, though I’m not sure that’s right.”
Wikipedia, http://en.wikipedia.org/wiki/Derrick_Jensen. Mr.
Draffan is described by Aric McBay in an interview published
in In the Wake as a “forest activist, public interest investigator
and corporate muckracker.” Aric McBay, An Interview with
George Draffan, IN THE WAKE, available at http://
www.inthewake.org/draffan1.html. He is a frequent contribu-
tor to Endgame.org and the compiler of Activist Research
Manual published in January 1999 by the Public Information
Network. I respectfully suggest that the views of persons who,
for example, fantasize about blowing up dams (a form of eco-
terrorism and criminal act that potentially threatens the lives
and property of thousands of people) deserve a healthy skepti-
cism because they are so skewed and are so far from the
mainstream of knowledgeable discourse.

   As federal judges, we have a weighty responsibility to
properly construe and apply federal environmental laws in
order to protect our national parks and endangered species
from undisciplined and unregulated timber harvesting, but we
may not properly ignore the well-established standards that
govern our own role in reviewing the laws and regulations
enacted by the representative branches of our government and
the agencies empowered to implement those laws.

   Because I respectfully contend that it was wrongly decided,
I would (if the occasion arises) reverse the majority’s holding
in Ecology Center, which would likely change the result in
this case. However, because I am legally bound by Ecology
Center, I reluctantly join my colleagues in reversing the lower
court.
7802             THE LANDS COUNCIL v. MCNAIR
FERGUSON, Circuit Judge, concurring, in which Judge Rein-
hardt also concurs:

  I write separately to respond to Judge Smith’s special con-
currence.

   At the outset, I disagree with Judge Smith that Ecology
Center was wrongly decided. I see little controversy in hold-
ing that an agency’s failure to confirm its hypotheses in a
project area is arbitrary and capricious. I also note that the
Supreme Court denied certiorari in that case. Mineral County
v. Ecology Ctr., 

(2007).

   More importantly, however, I take issue with the part of his
special concurrence that, with no evidence whatsoever,
assigns to the courts of our circuit culpability for the status of
the timber industry and impugns the last several decades of
our circuit’s environmental law jurisprudence. Judge Smith
takes the plain fact that district courts in our circuit have
enjoined logging projects in the past, adds the claim that the
timber industry is declining, and asserts a causal relation
between the two. In doing so, Judge Smith commits a text-
book logical fallacy: post hoc, ergo propter hoc (after this,
therefore because of this). See, e.g., Robert J. Gula, Nonsense:
A Handbook of Logical Fallacies 95 (2002). The mere fact
that there has been a “severe decline in logging” does not
mean that it has been “brought about by sweeping federal
court injunctions.” Judge Smith cites no evidence for this
claim.

   Judge Smith’s two premises, first, that there has been
something amiss in the issuance of injunctions, and, second,
that the timber industry has declined as a result, are entirely
erroneous.

   First, Judge Smith provides little evidence for his conten-
tion that district courts have issued injunctions that are “blun-
derbuss,” “over-broad,” “sweeping,” or “aggressive.” Judge
                THE LANDS COUNCIL v. MCNAIR                7803
Smith discusses no particular injunctions, aside from that in
Ecology Center, yet he nevertheless asserts that we have “ag-
gressively issue[d] extremely broad injunctions against the
logging industry.” Judge Smith contends that there is a “pat-
tern by some courts in this circuit of issuing injunctions based
upon misconstructions of federal law that frustrate the careful
legal balance struck by the democratic branches of our gov-
ernment.”

   Respect for “the democratic branches of our government,”
however, requires that courts enjoin conduct that violates the
environmental laws passed by Congress. A pattern of injunc-
tions means that there has been a pattern of illegal conduct,
not that there is something wrong with the courts’ handling of
environmental cases. In Earth Island Inst. v. U.S. Forest
Serv., 

, 1177-78 (9th Cir. 2006), our colleague
Judge William Fletcher “noticed a disturbing trend in the
[Forest Service’s] recent timber-harvesting and timber-sale
activities” and suggested that the Forest Service has “been
more interested in harvesting timber than in complying with
our environmental laws.” See 

recent
cases in which federal courts have reversed or enjoined Forest
Service timber sales). District courts must not shy away from
enjoining illegal activity by administrative agencies. The fact
that we have upheld or required such injunctions in the past,
and will continue to do so in the future, is required by, not
contrary to, our role as an appellate court. The frequency of
injunctions is evidence of the frequency of unlawful agency
actions, nothing more and nothing less.

   Second, Judge Smith’s assertion that such injunctions are
substantially responsible for “the decimation of the logging
industry in the Pacific Northwest” is unsupported. As with
many sectors of our economy, it is the practices of the timber
industry itself that have caused massive unemployment, not
the practices of those who would check its unhindered “prog-
ress.” Derrick Jensen and George Draffan rightly argue that
debates about forest protection should never have been posi-
7804                THE LANDS COUNCIL v. MCNAIR
tioned as “jobs versus owls,” but rather “jobs versus automa-
tion, mergers, and downsizing.” Derrick Jensen & George
Draffan, Strangely Like War: The Global Assault on Forests
51 (2003). They explain the impact of industry practices on
employment as follows:

      As companies continue to merge in order to reduce
      industry overcapacity and boost market share, they
      shed jobs. In the 1970s and 1980s, the number of
      paper mills in the United States decreased by 21 per-
      cent, but the average output per mill increased by 90
      percent. Paper production in that period increased by
      42 percent, while employment in the industry
      decreased by 6 percent. The amount of timber cut
      increased 55 percent, while the number of logging
      and milling jobs decreased by 10 percent, or 24,000
      jobs. In just one decade (1987-1997), employment in
      pulp mills decreased by 2,900 jobs, and employment
      in paper mills decreased by 12,100 jobs. Output per
      employee in the U.S. paper industry has increased
      fourfold in the last fifty years. The wave of consoli-
      dation in the pulp and paper industry that began in
      the late 1990s is expected to cost another 50,000
      jobs.

(citing Miller Freeman, Inc., Pulp & Paper 1998
North American Factbook 71, 72, 76 (1998), Maureen Smith,
The U.S. Paper Industry and Sustainable Production 40, 43,
72 (1997), and Michael Jaffe, Industry Surveys: Paper & For-
est Products 4 (1998)).1 We can see such impacts in this very
  1
    Judge Smith’s ad hominem attack against Jensen and Draffan does not
address the merits upon which the authors base their contentions. Regard-
less of how one feels about these two individuals, their argument quoted
herein is a quantitative analysis, citing other studies. It has nothing to do
with blowing up dams. Furthermore, I do not think politically engaged
individuals are disqualified from contributing to the analysis of an issue.
It is certainly not our role to determine who we think is or is not in the
political “mainstream” and to credit their research accordingly.
                  THE LANDS COUNCIL v. MCNAIR                    7805
case: much of the economic decline near Boundary County,
Idaho was caused by the 2003 decision of Louisiana-Pacific,
a leading manufacturer of building products, to close its mill
in Bonners Ferry. That closure, which left 130 workers unem-
ployed, resulted from the decision of the corporation, not an
injunction from our courts.

   Contrary to Judge Smith’s suggestion, it appears that too
much logging, rather than not enough, has caused the eco-
nomic decline in Boundary County. A spokesperson for Riley
Creek Lumber Company, the company that bought the mill
site from Louisiana-Pacific, explained why the mill would not
reopen: “There’s not enough raw material to support a mill
operation at Bonners Ferry.”2 A Louisiana-Pacific spokesper-
son also explained the closure, stating, “In the lumber busi-
ness, we continue to see an oversupply situation, with historic
low prices.”3 By depleting the “raw materials” and depressing
the price of lumber through oversupply, the industry has put
people out of work.

   I have the utmost sympathy for those left unemployed by
these recent trends, but I cannot accept Judge Smith’s asser-
tion that the judiciary, rather than the industry, is primarily to
blame.4
   2
     Dan Hansen, Bonners Ferry Mill Won’t Reopen, Spokesman Rev.
(Spokane, WA), July 23, 2003, at A8.
   3
     Becky Kramer, Timber Town May Buy Two L-P Sawmills, Spokesman
Rev. (Spokane, WA), May 30, 2003, at A1 (emphasis added).
   4
     Notably, while low-income workers have been laid-off, the world’s
largest paper companies have provided multi-million dollar pay packages
to their CEOs. Louisiana-Pacific’s CEO received a ten-percent salary
increase and a package worth $3.6 million in 2006. Louisiana-Pacific,
Notice of Annual Meeting of Stockholders 21, 25 (2007), available at
http://library.corporate-ir.net/library/73/730/73030/items/237173/
2006%20proxy.pdf. International Paper’s CEO received a package worth
$13.7 million in 2006. International Paper, Notice of Annual Meeting of
Shareholders 50 (2007), available at http://www.internationalpaper.com/
PDF/PDFs_for_Our_Company/2007_Proxy_Statement.pdf.
7806                THE LANDS COUNCIL v. MCNAIR




Weyerhaeuser’s CEO received a package worth $4 million in 2006.
Weyerhaeuser, Notice of 2007 Annual Meeting of Shareholders and Proxy
Statement 27 (2007), available at http://library.corporate-ir.net/library/92/
922/92287/items/235323/WY2007ProxyStatement.pdf. Georgia-Pacific’s
former CEO received a $92 million package when the multi-billion dollar
Koch Industries acquired Georgia-Pacific in 2005 to become the largest
privately owned company in the United States. Emily Thornton, Fat
Merger Payouts For CEOs, Bus. Wk., Dec. 12, 2005, at 34; Koch Indus-
tries Inc.: Acquisition of Georgia-Pacific For $13.2 Billion Is Completed,
Wall St. J., Dec. 24, 2005, at B2.