Colorado River Indian Tribes v. Marsh
| Decision Date | 20 March 1985 |
| Docket Number | No. CV 82-5017-RMT(JRx).,CV 82-5017-RMT(JRx). |
| Citation | 605 F. Supp. 1425 |
| Parties | COLORADO RIVER INDIAN TRIBES, an Indian tribe; Sierra Club, a non-profit corporation, Plaintiffs, v. John O. MARSH, Jr., Secretary of the Army; Lieutenant J.K. Bratton, Chief of Engineers, Corps of Engineers, United States Army; Colonel Paul W. Taylor, District Engineer, Los Angeles District of the United States Army Corps of Engineers; James Watt, Secretary of the Department of the Interior; Robert F. Burford, Director of the Bureau of Land Management; Ed Hastey, Director of the California State Office of the Bureau of Land Management; Dean Bibles, Director of the Arizona State Office of the Bureau of Land Management; Gary McVicker, Head of the Yuma District Office of the Bureau of Land Management; River City Development Co., a limited partnership, Defendants. |
| Court | U.S. District Court — Central District of California |
COPYRIGHT MATERIAL OMITTED
Mark I. Weinberger, Alletta D'A. Belin, Shute, Mihaly & Weinberger, San Francisco, Cal., for plaintiffs.
Steven J. Bloxham, Tribal Atty., Pamela S. Williams, Associate Tribal Atty., Colorado River Indian Tribes, Parker, Ariz., for Colorado River Indian Tribes.
Laurens H. Silver, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., for Sierra Club.
Paul B. Witmer, Jr., Paul B. Witmer, Jr., Prof. Corp., Santa Ana, Cal., for defendant River City Development Co.
Alexander H. Williams, III, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civil Div., Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for Federal defendants.
The Colorado River Indian Tribes ("Tribes") and the Sierra Club (jointly "plaintiffs") have filed a complaint for declaratory and injunctive relief and petition for writ of mandamus against the heads of a number of federal agencies (collectively "Federal Defendants"), heads of state agencies, and River City Development Co. ("Developer") (jointly "defendants"). The prayer seeks a declaration that the defendants have acted in violation of the first amendment rights of the members of the Tribes; an injunction enjoining the Army Corps of Engineers ("Corps") from issuing a permit for the placement of riprap (large boulders to stabilize shorebanks from erosion); an injunction enjoining the Developer and his agents from any construction activities; and a writ of mandamus directing the Corps to vacate the permit.
The plaintiffs essentially alleged that the construction of the River City project ("Development") and the permit for placement of riprap on the Development violate the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321 et seq.) ("NEPA"), the National Historic Preservation Act of 1966 (16 U.S.C. §§ 470 et seq.) ("NHPA"), the American Indian Religious Freedom Act (42 U.S.C. § 1996), executive orders and regulations promulgated to implement these statutes, and the first amendment to the United States Constitution.1
The pertinent background facts are as follows: The proposed Development is a 156-acre residential and commercial development proposed to be built on the west side of the Colorado River. The site of the Development is directly across the river from the Colorado River Indian Reservation and also immediately south of other portions of the reservation which lie on the west side of the river. The Development site spans Highway 95, with most of the site lying between the highway and the river. The Developer proposes to subdivide the parcel into approximately 447 lots for single-family homes, mobile homes, and commercial facilities. The land abutting the Development site on the west is owned by the United States Government and administered by the Bureau of Land Management ("BLM") of the United States Department of the Interior. The BLM land, an archeological district, includes several recorded significant cultural and archeological sites.
In connection with this proposed Development, the Developer has proposed to stabilize 4050 feet of the western shore of the Colorado River (the eastern boundary of the project site) by placing riprap along the river bank. The proposal calls for approximately two cubic yards of rock along every linear foot of the river bank. The purpose of the riprap is to stabilize the bank and to establish a permanent boundary line enabling the property to be subdivided and developed. The Developer must obtain a permit from the Corps in order to stabilize the river bank. Without bank stabilization, the approval for the development cannot be obtained from the County of Riverside.
In April, 1978, the Developer applied to the Corps for a permit to allow placement of riprap along the west river bank on the Development site. In November, 1978, the Corps prepared an environmental assessment of the permit application and concluded that because significant impact upon the environment would result from the Developer's proposed project, an environmental impact statement ("EIS") would be prepared.
A Draft EIS was prepared and published in September 1979. On January 11, 1981, the Corps informed the Developer that the Draft EIS was "lacking only an adequate treatment of cultural resources," and stated that a "thorough cultural resources survey" of resources on and near the proposed development site was "essential" before the Corps could complete a Final EIS. The Corps proposed a detailed scope of work for a "systematic intensive cultural resources survey of lands surrounding the proposed River City Development."
In June, 1981, however, before the preparation of the survey, the Corps announced its retraction of the Draft EIS as a result of changes in Corps policy regarding its jurisdictional authority, and stated that no EIS was required.
The Corps' decision to retract the draft EIS was apparently in conformity with its proposed cultural resource regulations, 33 C.F.R. § 325, Appendix C, 45 Fed.Reg. 22112 (1980). Those regulations have never been finally adopted and incorporated into the Code of Federal Regulations.
In response to the Corps' notice retracting the Draft EIS, the Tribes wrote to the Corps noting that issuance of the requested Corps permit without preparation of an adequate EIS fully analyzing potential impact of the project on cultural and archeological resources would violate NEPA and NHPA. The Tribes also pointed out that another potentially significant effect of the project was an adverse impact upon the opposite shore of the river. On April 15, 1982, the Corps responded to the Tribes' comments, asserting that under its proposed regulations, no further evaluation or protection of cultural resources was required. Also, the Corps concluded that the riprap would cause no significant impact on the eastern side of the river. On May 21, 1982, the Corps issued a permit to the Developer authorizing it to place the riprap along the west bank of the Colorado River.
The County of Riverside approved the tract maps for the project on June 19, 1984. Plaintiffs herein have challenged that action and the County's December, 1982 approval of the specific plan for the project in two separate Superior Court actions. Colorado River Indian Tribes and Sierra Club v. County of Riverside, et al., Riverside County Superior Court, Indio Nos. 37230 and 41515. Both actions are pending in the trial court.
Tribes filed this complaint for injunctive and declaratory relief on September 28, 1982. On October 27, 1982, pursuant to a stipulation and order of the court, Tribes and the Developer agreed that the Developer would provide the Tribes at least 45 days' notice before beginning any construction or riprapping at River City. On May 27, 1983, pursuant to stipulation of the parties and order of the court, a First Amended Complaint was filed naming the Sierra Club as an additional plaintiff.
On August 13, 1984, the Developer formally gave plaintiffs the 45-day notice of its intent to commence riprapping activities pursuant to the Corps' permit, thus giving rise to the instant motion. Plaintiffs seek a preliminary injunction to enjoin the placement of riprap, arguing essentially that the Corps improperly issued a permit for the riprap without an EIS, in contravention of NEPA; that the Federal Defendants have failed to take the required measures to protect the cultural and archeological resources on the BLM land as mandated by NHPA; and that the balance of harm weighs heavily in favor of the Tribes.
The traditional factors which must be present in order for preliminary injunctive relief to be granted are (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest. Los Angeles Memorial Coliseum Commission v. NFL, 634 F.2d 1197, 1200 (9th Cir. 1980); Sierra Club v. Hathaway, 579 F.2d 1162, 1167 (9th Cir.1978). In this circuit, two different formulations of this test have been applied. The moving party must show either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Aguirre v. Chula Vista Sanitary Serv., 542 F.2d 779, 781 (9th Cir.1976), quoting Gresham v. Chambers, 501 F.2d 687, 691 (2nd Cir.1974). See Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979); Wm. Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975). These are not separate tests, but the outer reaches "of a single continuum." Benda v. Grand Lodge, 584 F.2d at 315. In effect, the standard provides that the more probability of success on the merits that a plaintiff establishes, the less he or she...
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