Save Our Sonoran, Inc. v. Flowers

• Decision Date: 25 May 2005
• Docket Number: No. 02-16156.,No. 02-16263.,No. 02-16355.,02-16156.,02-16263.,02-16355.
• Citation: 408 F.3d 1113
• Parties: SAVE OUR SONORAN, INC., a non-profit corporation, Plaintiff-Appellee, v. Robert B. FLOWERS, Lieutenant General, in his official capacity as Commander, U.S. Army Corps of Engineers; Mark F. Sudol, in his official capacity as Chief of the Regulatory Branch of the U.S. Army Corps of Engineers, Los Angeles District, Defendants, and 56th & Lone Mountain, L.L.C., Defendant-Appellant. Save Our Sonoran, Inc., a non-profit corporation, Plaintiff-Appellant, v. Robert B. Flowers, Lieutenant General, in his official capacity as Commander, U.S. Army Corps of Engineers; Mark F. Sudol, in his official capacity as Chief of the Regulatory Branch of the U.S. Army Corps of Engineers, Los Angeles District; 56th and Lone Mountain, L.L.C., Defendants-Appellees. Save Our Sonoran, Inc., a non-profit corporation, Plaintiff-Appellee, v. Robert B. Flowers, Lieutenant General, in his official capacity as Commander, U.S. Army Corps of Engineers, Defendant, and 56th & Lone Mountain, L.L.C., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.3d 1113

SAVE OUR SONORAN, INC., a non-profit corporation, Plaintiff-Appellee, v. Robert B. FLOWERS, Lieutenant General, in his official capacity as Commander, U.S. Army Corps of Engineers; Mark F. Sudol, in his official

capacity as Chief of the Regulatory Branch of the U.S. Army Corps of Engineers, Los Angeles District, Defendants, and

56th & Lone Mountain, L.L.C., Defendant-Appellant.

Save Our Sonoran, Inc., a non-profit corporation, Plaintiff-Appellant, v. Robert B. Flowers, Lieutenant General, in his official capacity as Commander, U.S. Army Corps of Engineers; Mark F. Sudol, in his official capacity as Chief of the Regulatory Branch of the U.S. Army Corps of Engineers, Los Angeles District; 56th and Lone Mountain, L.L.C., Defendants-Appellees.

Save Our Sonoran, Inc., a non-profit corporation, Plaintiff-Appellee, v. Robert B. Flowers, Lieutenant General, in his official capacity as Commander, U.S. Army Corps of Engineers, Defendant, and 56th & Lone Mountain, L.L.C., Defendant-Appellant.

No. 02-16156.

No. 02-16263.

No. 02-16355.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2003.

Filed April 26, 2004.

Amended May 25, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Norman D. James, Jay L. Shapiro (argued), Fennemore Craig, Phoenix, AZ, for defendant-appellant/cross-appellee 56th & Lone Mountain, L.L.C.

Howard M. Shanker (argued), The Shanker Law Firm, PLC, Tempe, AZ, for plaintiff-appellee/cross-appellant Save Our Sonoran, Inc.

Vera S. Kornylak, Arizona Center for Law in the Public Interest, Michael P. Senatore, Defenders of Wildlife, for amicus curiae Defenders of Wildlife.

Appeal from the United States District Court for the District of Arizona; Frederick J. Martone, District Judge, Presiding. D.C. Nos. CV-02-00761-FJM, CV-02-00761-SRB.

Before NOONAN, THOMAS, and CLIFTON, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The attached amended opinion is substituted for the original opinion filed by the panel. With the amendments, the panel has voted to deny the petition for rehearing.

The petition for rehearing en banc was circulated to the entire court. No judge of the court called for a vote on the petition for rehearing en banc within the time established to do so.

The petition for rehearing and petition for rehearing en banc are DENIED.

No further petitions for rehearing will be entertained.

OPINION

THOMAS, Circuit Judge.

In this appeal, we consider the management of the waterways in Arizona's Sonoran desert. This case, of course, inevitably brings to mind the exchange between Claude Rains and Humphrey Bogart in Casablanca (Warner Bros.1942), which aptly distills this dispute to its essence:

Captain Renault: What in heaven's name brought you to Casablanca?

Rick: My health. I came to Casablanca for the waters.

Captain Renault: The waters? What waters? We're in the desert.

Rick: I was misinformed.

In our case, it was not Rick Blaine, but the United States Army Corps of Engineers that came to the desert for the waters. An aspiring desert developer, 56th & Lone Mountain, L.L.C. ("Lone Mountain"), sought and obtained a Clean Water Act ("CWA") dredge and fill permit from the Corps for the construction of a gated community near Phoenix. The permit was required, and the Corps' jurisdiction invoked because water courses through the washes and arroyos of the arid development site during periods of heavy rain. The desert washes are considered navigable waters and therefore fall under the jurisdiction of the federal government. See 33 C.F.R. § 328.3(a)(3).

At some point, a non-profit environmental organization, Save Our Sonoran ("SOS"), became aware of the project. It was not, shall we say, the beginning of a beautiful friendship. SOS eventually filed this action against the Corps and Lone Mountain, alleging violations of the National Environmental Policy Act ("NEPA") and the CWA. The district court issued a preliminary injunction suspending development during the pendency of the litigation. Save Our Sonoran, Inc. v. Flowers, 227 F.Supp.2d 1111 (D.Ariz.2002). Lone Mountain appealed. We affirm.

I

At the center of this controversy is a 608-acre parcel of undeveloped land ("the property"), an alluvial fan containing a significant number of braided washes. The washes constitute approximately 31.3 acres — about 5% of the site. However, as the District Court found, the washes affect the entire property. Though surrounded on all four sides by other development, the property is essentially unimproved and remains undeveloped desert, albeit not in pristine condition. The parcel was previously owned by the State of Arizona, which decided not to retain it for park or other purposes and sold it for development, an action which was itself the subject of litigation. Foster v. Anable, 199 Ariz. 489, 19 P.3d 630 (Ct.App.2001). The property was purchased from the State at a public auction by Lone Mountain's predecessor for $38.5 million.

Lone Mountain developed a plan to construct an upscale gated residential community consisting of 794 single-family homes. According to the plan, over half of the property would be maintained permanently as open space, including "the bulk of the larger washes."

Pursuant to the CWA, 33 U.S.C. § 1344, Lone Mountain applied for a Section 404 permit from the Corps to fill in 7.5 acres of natural waterways that flow through the property. The permit requested allowance of sixty-six projects in the form of combined road and utility crossings, pad fill, as well as utility, remediation, drainage, and flood control measures.

In response to the application, the Corps issued its environmental assessment and a finding of no significant impact. In reaching this conclusion, the Corps examined only the washes rather than the entire project. Within this limited area, the Corps concluded that the sixty-six dredge and fill projects would not significantly affect the environment, nor would they disturb the habitats of any endangered species. The Corps determined that no environmental impact statement was necessary, and stated its intent to authorize Lone Mountain to build the sixty-six projects.

The Corps invited public comment on the permit, received requests for a public hearing, but declined to hold one. A variety of agencies and private interests responded by written correspondence. The United States Environmental Protection Agency ("EPA") and the United States Fish and Wildlife Service ("FWS") opposed the issuance of the permit and disagreed with the Corps' findings with respect to whether the site was a potentially suitable habitat for the cactus ferruginous pygmy owl, which is listed as an endangered species. The Arizona Game and Fish Department agreed with the Corps' findings. SOS, a nonprofit group of citizens "dedicated to the preservation" of the Sonoran Desert, also made public comments about the proposed project.

The Corps addressed the public comments, reiterated its preliminary findings, and issued the permit to Lone Mountain, subject to a few conditions. SOS sought a temporary restraining order and preliminary injunctive relief against the Corps and Lone Mountain.

The district court granted a temporary restraining order to SOS and, after a hearing, the district court ordered preliminary injunctive relief. The district court concluded that there were serious questions on the merits regarding SOS's contention. The court emphasized that the development of the entire project depended upon the Corps' permit; the court concluded that the project could not go forward without permission from the Corps for the sixty-six separate and dispersed crossings. Flowers, 227 F.Supp.2d at 1114. Though the washes cover only 5% of the property, the court described that portion as critical to the whole: "But that 5% runs through the entire 608 acres the way capillaries run through tissue. It is difficult to deal with tissue without dealing with capillaries and difficult to deal with capillaries without dealing with tissue. So too here." Id. After determining that there were serious questions on the merits, the district court went on to conclude that the balance of hardships tipped in favor of SOS.

After SOS was informed that Lone Mountain was continuing construction on the site, the non-profit requested clarification with respect to the scope of the injunction. After another hearing, the district court made clear that, in light of its previous factual findings, the status quo could be preserved only if Lone Mountain ceased any and all development on the site until a hearing on the merits could be held.

The Corps elected not to appeal the district court's orders. Lone Mountain, however, appealed both orders, and SOS filed a cross-appeal as to the amount of the bond set by the district court.

II

Lone Mountain contends that SOS lacks standing to bring this action. An organization may bring an action on behalf of its members if: (1) the individual members would have standing to sue; (2) the organization's purpose relates to the interests being vindicated; and (3) the claims asserted do not require the participation of individual members. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir.2000). The individual members have standing if they can demonstrate that an actual or threatened injury exists, which is fairly traceable to the challenged action, and that such injury is likely to be redressed by a favorable decision. Id. "In addition to these constitutional requirements, a plaintiff bringing suit under the Administrative Procedure Act for a violation of NEPA must show that his alleged injury falls within the `zone of interests' that NEPA was designed to protect." Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111-12 (9th Cir. 2002) (internal quotation marks omitted).

Lone Mountain does not dispute that SOS has met the APA requirements or the latter two elements of Article III standing. It contends that SOS failed...