Wetlands Action Network v. U.S. Army Corps

• Decision Date: 04 May 1999
• Docket Number: Nos. 98-56242,98-56672,98-56474,s. 98-56242
• Citation: 222 F.3d 1105
• Parties: (9th Cir. 2000) WETLANDS ACTION NETWORK, a California non-profit organization; BALLONA WETLANDS LAND TRUST, a California non-profit organization, Plaintiffs-Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; MICHAL R. ROBINSON, in his capacity as District Engineer of the United States Army Corps of Engineers; JOE N. BALLARD, in his capacity as Chief Engineer of the United States Army Corps of Engineers, Defendants, and PLAYA CAPITAL COMPANY, L.L.C., as successor-in-interest to Maguire Thomas Partners-Playa Vista, DefendantIntervenorAppellant. WETLANDS ACTION NETWORK, a California non-profit organization; CALIFORNIA PUBLIC INTEREST RESEARCH GROUP, Plaintiffs-Appellants, and BALLONA WETLANDS LAND TRUST, a California non-profit organization, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; MICHAL R.ROBINSON, in his capacity as District Engineer of the United States Army Corps of Engineers; JOE N. BALLARD, in his capacity as Chief Engineer of the United States Army Corps of Engineers, Defendants, And PLAYA CAPITAL COMPANY, L.L.C., as successor-in-interest to Maguire Thomas Partners-Playa Vista, Defendant-Intervenor-Appellee. WETLANDS ACTION NETWORK, a California non-profit organization; BALLONA WETLANDS LAND TRUST, a California non-profit organization; CALIFORNIA PUBLIC INTEREST RESEARCH GROUP, Plaintiffs-Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; JOE N.BALLARD, in his capacity as Chief Engineer of the United States Army Corps of Engineers; ROBERT L. DAVIS, Col., Defendants-Appellants. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1105

222 F.3d 1105 (9th Cir. 2000)

WETLANDS ACTION NETWORK, a California non-profit organization; BALLONA WETLANDS LAND TRUST, a California non-profit organization, Plaintiffs-Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; MICHAL R. ROBINSON, in his capacity as District Engineer of the United States Army Corps of Engineers; JOE N. BALLARD, in his capacity as Chief Engineer of the United States Army Corps of Engineers, Defendants, and PLAYA CAPITAL COMPANY, L.L.C., as successor-in-interest to Maguire Thomas Partners-Playa Vista, DefendantIntervenorAppellant.

WETLANDS ACTION NETWORK, a California non-profit organization; CALIFORNIA PUBLIC INTEREST RESEARCH GROUP, Plaintiffs-Appellants, and BALLONA WETLANDS LAND TRUST, a California non-profit organization, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; MICHAL R.ROBINSON, in his capacity as District Engineer of the United States

Army Corps of Engineers; JOE N. BALLARD, in his capacity as Chief Engineer of the United States Army Corps of Engineers, Defendants,

And

PLAYA CAPITAL COMPANY, L.L.C., as successor-in-interest to Maguire Thomas Partners-Playa Vista, Defendant-Intervenor-Appellee.

WETLANDS ACTION NETWORK, a California non-profit organization; BALLONA WETLANDS LAND TRUST, a California non-profit organization; CALIFORNIA PUBLIC INTEREST RESEARCH GROUP, Plaintiffs-Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, an agency of the United States; JOE N.BALLARD, in his capacity as Chief Engineer of the United States Army Corps of Engineers; ROBERT L. DAVIS, Col., Defendants-Appellants.

Nos. 98-56242, 98-56474, 98-56672

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 4, 1999--Pasadena, California

Filed August 21, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Robert D. Crockett, Charles S. Treat, Leslie A. Pereira, Robert D. Crockett, Adam H. Braun, Latham & Watkins, Los Angeles, California, for appellant Playa Capital Company, L.L.C., successor-in-interest to Maguire Thomas Partners-Playa Vista.

Charles S. Crandall, San Diego, California, and David H. Williams, Public Interest Lawyers Group, San Francisco, California, for appellees, Wetlands Action Network and California Public Interest Research Group.

Anthony P. Hoang, Robert L. Klarquist, Mark R. Haag, DAG, Washington, D.C., John Gleason, U.S. Army corps of Engineers, Ventura, California, and Lyn Cox, Office of Regional Solicitor, Department of Interior, Sacramento, California, for appellants-cross-appellees, United States Corps of Engineers.

Andrew R. Henderson (argued), Carlyle W. Hall, Jr., Hall & Associates, Los Angeles, California, for amicus Friends of Ballona Wetlands.

Appeals from the United States District Court for the Central District of California, D.C. No. CV-96-08407-RSWL; Ronald S. W. Lew, District Judge, Presiding

Before: Melvin Brunetti, Kim McLane Wardlaw, Circuit Judges, and John W. Sedwick,¹ District Judge.

BRUNETTI, Circuit Judge:

This case involves a challenge by environmental groups to the United States Army Corps of Engineers ("Corps") decision to grant Maguire Thomas Partners-Playa Vista ("MTPPV")² a permit to fill 16.1 acres of federally delineated wet lands and to mitigate the fill by creating a 51-acre freshwater wetland system. Wetlands Action Network and California Public Interest Research Group (collectively "WAN") brought suit in the district court alleging that the Corps had failed to fulfill their legal obligations under the Clean Water Act ("CWA"), 33 U.S.C. S 1251 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. S 4321 et seq., in granting MTP-PV a fill permit pursuant to section 404 of the CWA. The district court denied MTP-PV's motion to intervene as a right in the NEPA claims but granted MTP-PV's motion in the alternative for permissive intervention. The district court, however, limited MTP-PV's participation in the NEPA claims to the relief phase. MTP-PV appeals this decision.

The district court granted summary judgment to WAN on its NEPA claims, invalidated the permit, and enjoined MTPPV from any further construction activities in the area covered by the permit³. The Corps appeals the district court's determination that it violated NEPA. MTP-PV appeals the district court decision to issue the injunction claiming that (1) the district court committed error by denying MTP-PV a hearing on the remedial phase of the proceedings, (2) the injunction is moot, (3) the district court erred in failing to balance the equities of a permanent injunction, and (4) the district court should not have issued the injunction as WAN is guilty of laches. WAN filed a cross-appeal claiming that the district court abused its discretion in failing to broaden the injunction in order to protect the integrity of the environment and the NEPA process during the preparation of the Environmental Impact Statement ("EIS"). We consolidated the appeals and we affirm in part and reverse in part.

I.

Since 1979, MTP-PV and its predecessor-in-interest have been planning to build a large scale mixed use development on the Playa Vista property. The proposed development is expected to cover over 1,000 acres and include residential areas, a marina, and numerous commercial developments including hotels, retail establishments, and an entertainment media and technology district. The project has been the subject of much dispute as the Playa Vista property is the largest remnant parcel of undeveloped land in a heavily urbanized western portion of Los Angeles County⁴.

The Playa Vista property contains approximately 186 acres of federally delineated wetlands. As part of its project, MTPPV plans to eventually dredge and fill 21.4 acres of wetlands. Before preparing an application for a dredge and fill permit for any of the project activities, MTP-PV met with the Corps to determine the proper division of the project for permitting purposes. MTP-PV proposed to divide the overall project into the following three separate permit applications to correspond to the three separate phases of the project:

The first phase is for authorization to fill 7.8 acres of scattered wetland patches in Areas B, C, and D⁵ for mixed-use development. It also includes the creation of a 52-acre fresh water wetland complex which [MTP-PV] proposes as mitigation for a total of 21.4 acres of wetlands that would be dredged and filled for all phases of the Playa Vista project. The creation of the freshwater wetland system would require filling 7.7 acres of wetlands in Area B for the berm (4.0 acres of which would be restored to wetlands leaving 3.7 acres as permanently filled).

The second phase is for the restoration and creation of a salt marsh which would occur in 160 acres of delineated degraded wetlands in Area B. By restoring those wetlands and converting uplands to wetlands, an approximately 230-acre salt marsh system would be created.

The third is for the development of a marina and ecological enhancement of the Ballona flood control channel which will dredge and fill 9.8 acres of wetlands in Area A. Of that, 3.7 acres are a man-made drainage ditch and 8.1 acres are scattered, degraded wetlands.

U.S. Army Corps of Engineers, Public Notice of Permit Application at 4-5 (January 2, 1991). The Corps agreed that it was appropriate to divide the overall project into three phases for permitting purposes as each of the proposed phases had independent viability.

In August 1990, MTP-PV applied to the Corps for a permit to fill 16.1 acres of federally delineated wetlands as part of Phase I of the project.⁶ The eight acres proposed to be filled for multi-use development are man-made flood control ditches and degraded wetlands located in seventeen isolated patches across the Playa Vista property. The remaining eight acres, located in Area B, MTP-PV proposed to fill in order to create a 51.1 acre freshwater wetland system consisting of 26 acres of freshwater marsh and 25 acres of freshwater riparian corridor. Of the latter eight acres, four of the acres are to be restored to wetlands and the remaining four are to be permanently filled to create a berm between the freshwater wetland system and a saltwater marsh which MTP-PV plans to restore as part of Phase II of the project.

In October 1990, MTP-PV submitted an analysis of alternatives to the proposed filling of wetlands. The analysis describes six alternatives including four different configurations of the mixed-use development which avoid all or part of the wetlands as well as the possibility of using an offsite location for the development. Based on its analysis, MTP-PV concluded that there was no practical alternative way to accomplish its purpose of building an environmentally sensitive development that would not result in other significant environmental impacts.

On January 2, 1991, the Corps issued a public notice of the permit application. The notice described the activity for which the permit was requested as well as the entire Playa Vista development. The notice also included the Corps' preliminary determination that an EIS would not be required for the work proposed in Phase I of the project. The Corps solicited comments from the interested public and relevant state and federal resource agencies. The period of public review of the permit application originally was set for January 1, 1991 to February 2, 1991. The Corps extended the review period to February 15, 1991 at the request of the EPA.

The Corps received numerous comments from the general public, environmental groups, and state and federal resource agencies. In particular, the United States Fish and Wildlife Service ("FWS"), the National Marine Fisheries Service ("NMFS") and the Environmental Protection Agency ("EPA") expressed concern that, inter alia , the notice of intent and the permit application did not contain a sufficiently...