Greater Yellowstone Coalition v. Flowers, No. 03-8034.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtStephen H. Anderson
Citation359 F.3d 1257
Decision Date02 March 2004
Docket NumberNo. 03-8034.
PartiesGREATER YELLOWSTONE COALITION and Jackson Hole Conservation Alliance, Plaintiffs-Appellants, Snake River Fund, Plaintiff-Intervenor, v. Robert B. FLOWERS, Commander and Chief of Engineers, United States Army Corps of Engineers, in his official capacity; Kurt F. Ubbelohde, District Engineer of Omaha District, United States Army Corps of Engineers, in his official capacity; Canyon Club, Inc., a Wyoming corporation, Defendants-Appellees.
359 F.3d 1257
GREATER YELLOWSTONE COALITION and Jackson Hole Conservation Alliance, Plaintiffs-Appellants,
Snake River Fund, Plaintiff-Intervenor,
v.
Robert B. FLOWERS, Commander and Chief of Engineers, United States Army Corps of Engineers, in his official capacity; Kurt F. Ubbelohde, District Engineer of Omaha District, United States Army Corps of Engineers, in his official capacity; Canyon Club, Inc., a Wyoming corporation, Defendants-Appellees.
No. 03-8034.
United States Court of Appeals, Tenth Circuit.
March 2, 2004.

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Timothy J. Preso (Douglas L. Honnold with him on the briefs), Earthjustice, Bozeman, MT, for Plaintiffs-Appellants.

Aaron P. Avila, United States Department of Justice, Environment and Natural Resources Division, Washington, DC (Thomas L. Sansonetti, Assistant Attorney General, Washington, DC; Matthew H. Mead, United States Attorney, Cheyenne, WY; Carol A. Statkus, Assistant United States Attorney, Cheyenne, WY; Jon M. Lipshultz and Ellen J. Durkee, Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, DC; and Gary M. Henningsen and Stanley E. Tracey, of Counsel, United States Army Corps of Engineers, Omaha, NE, with him on the brief), for Defendants-Appellees Robert B. Flowers and Kurt F. Ubbelohde.

Marc R. Stimpert (Franklin J. Falen and Richard W. Walden with him on the brief), Budd-Falen Law Offices, P.C., Cheyenne, WY, for Defendant-Appellee Canyon Club, Inc.

Before EBEL, ANDERSON, and MURPHY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.


In this case we consider Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, and National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70f, challenges to a CWA § 404 "dredge and fill" permit, issued by the U.S. Army Corps of Engineers ("Corps") to Canyon Club, Inc. ("Canyon Club"), a development company. The permit authorizes Canyon Club to proceed with constructing an upscale housing development and championship golf course on ranch land previously owned by Mr. L. Richard Edgcomb, Canyon Club's president and primary shareholder. The land lies along the Snake River in Teton County, Wyoming, in the vicinity of highly productive bald eagle nesting territory.

Two environmental groups, the Greater Yellowstone Coalition and the Jackson Hole Conservation Alliance (collectively referred to as the appellants), brought this suit against Corps officials (collectively referred to as the federal appellees) and Canyon Club, challenging the Corps' issuance of the permit as a final agency action and seeking a preliminary injunction on construction activities.1 The district court denied the appellants' motion for a preliminary injunction. In an interlocutory appeal from that decision, this court reversed and remanded the case for further consideration. Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250 (10th Cir.2003) ("Greater Yellowstone I"). Shortly thereafter, the district court decided the case on the merits, upholding the Corps' issuance of the permit.

In this appeal, the appellants ask us to set aside the permit because, they argue, (1) the Corps' consideration of alternatives to Canyon Club's proposal did not meet

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the requirements of either the CWA or NEPA, and (2) the Corps also violated NEPA by failing to prepare a full environmental impact statement.

BACKGROUND

The 359-acre Canyon Club development property lies seventeen miles south of Jackson, Wyoming, in the Snake River Canyon, across the river from U.S. Highway 26/89. The property is part of a "1,222-acre conglomerate of private land" that includes a 544-acre segment of the River Bend Ranch on the Canyon Club property's north side, the 195-acre Snake River Canyon Ranch to the north of that, and a 125-acre segment of the River Bend Ranch to the south, on the other side of a strip of National Forest land. Appellants' App. Vol. 3 at 419. Together, these properties "represent the largest private land-development opportunity in the upper portion of the Snake River Canyon." Id.

While upstream levees have negatively impacted the Snake River's riparian habitat closer to Jackson, the area surrounding the Canyon Club property "currently supports an intact and healthy riparian ecosystem" that includes important wintering, foraging, and nesting habitat for bald eagles. Id. Vol. 1 at 35. Three bald eagle nesting territories lie on or in the immediate vicinity of the Canyon Club property. Two of these — the Dog Creek and the Cabin Creek territories — have been highly productive, together yielding at least fifty-six fledglings since the bald eagle's 1978 listing as "endangered" under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44.2 The pair occupying the third territory — Martin Creek — have produced fledglings only once since constructing their nest in 1995. The area's habitat also supports moose, elk, mule deer, black bears, mountain lions, trumpeter swans, and Snake River cutthroat trout, among other species.

As noted above, the Canyon Club property was originally part of the River Bend Ranch, which Mr. and Mrs. Edgcomb purchased in 1994 and operated as a cattle ranch. Responding to the impact of tourism on the Teton County economy, the Edgcombs sold 286 acres of the Ranch to Canyon Club in December 2000, intending the land to be converted into an eighteen-hole golf course and residential development. According to Canyon Club, the Edgcombs needed the income generated by such a development in order to sustain the operation of the Ranch.

At that time, the project design included fifty-four homes and placed golf course holes three and four on a gravel peninsula extending into the Snake River. Construction would require dredge and fill activities in waters and wetlands under the Corps' jurisdiction, thus triggering the need for a § 404 permit.3 Canyon Club therefore submitted a § 404 permit application to the Corps in March 2001, requesting authorization to fill 1.5 acres and dredge 2.75 acres of jurisdictional wetlands, and to place up to twenty-three bendway weirs in the Snake River as necessary to stabilize the bank and prevent erosion. The Corps issued public notices

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of the proposal on April 19 and July 24, 2001.

The 286-acre proposal met with opposition from the public and various state and federal agencies, including FWS, primarily due to the development's potential effects on bald eagles and the possible impact of the bendway weirs on the Snake River. The proposal also did not comply with newly-developed Teton County land development regulations (LDRs) for golf courses, which prohibit golf course features within 150 feet of the river. In response to this opposition, Canyon Club met with various environmental groups and government agencies to discuss modifications to the proposal. At the Corps' suggestion, Canyon Club considered relocating holes three and four elsewhere within the 286 acres. However, it was determined that this change would actually increase the project's adverse environmental impact and would still involve golf course feature construction within LDR-mandated setbacks.

FWS then suggested that Canyon Club consider extending the project north onto property that was then an alfalfa field and still part of the River Bend Ranch. In response, Canyon Club purchased the additional property from the Edgcombs, expanding the project area to 359 acres, and redesigned its proposal. At the Corps' suggestion, Canyon Club withdrew its original § 404 application and submitted a new application, based on the new design, in October 2001.

Like the original proposal, the 359-acre proposal involves construction of an eighteen-hole golf course, including a club-house and maintenance facilities. The number of housing units was increased to sixty-six residences on 4000-foot lots, primarily in the southeast part of the project site, and five rental cabins next to the golf course.4 The construction would involve filling 1.45 acres and dredging 1.71 acres of jurisdictional wetlands.5 In addition, .31 acre of Snake River would be filled during construction of up to twelve bendway weirs, .05 acre of tributaries would be filled during golf course construction, and 2.12 acres of an existing pond would be dredged during its reconstruction.

The proposal also describes measures designed to mitigate the project's environmental impact. The reconstructed pond and three new ponds, incorporated in the golf course design as water hazards, would provide habitat for waterfowl and cut-throat trout. Snake River water would be diverted into the Martin Creek stream channel in order to provide trout spawning habitat. Utility lines, including a 3.8-mile-long power line currently traversing the Snake River Canyon Ranch, River Bend Ranch, and Canyon Club properties, would be buried underground, and temporary wetland fill during this process would be removed. New conservation easements would be established on both the River Bend Ranch (a 244-acre easement) and the Canyon Club property (an 88-acre easement along the Snake River setback).6

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The Canyon Club residential development's declaration would include restrictive covenants controlling owner use of the property with regard, for example, to pets, snowmobiles, tree removal, and wildlife feeding.

In the course of its decisionmaking process, the Corps asked Canyon Club to submit three documents — a biological assessment ("BA"), an environmental assessment ("EA"), and a § 404(b)(1) analysis. All three documents were prepared by Pioneer Environmental Services, Inc., an environmental consulting firm.

The BA, submitted October 22, 2001, considered the project's impact on species protected under the ESA, primarily focusing on bald eagles. It concluded that, as a result of construction activities as well as the...

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  • Wy Outdoor Council Powder River v. U.S. Army Corps, No. 02-CV-155-D.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • January 7, 2005
    ...an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1274 (10th Cir.2004). "[T]he scope of review under the `arbitrary and capricious' standard is narrow, but not without dimension." Olenhouse, 42 F.......
  • Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 2009
    ...1508.13. "An agency's decision to issue a FONSI and not prepare an EIS is a factual determination." Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir.2004) (quoting Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002)). A FONSI must be supp......
  • Klamath-Siskiyou Wildlands v. U.S. Forest Service, No. CIV.S.03-1334FCDDAD.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 15, 2004
    ...a threatened or endangered species to have a "significant" effect on the environment. See e.g., Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1275-1276 (10th Cir.2004)(finding the Fish and Wildlife Service's conclusion that construction of housing development and golf course alon......
  • Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers, Civil Action No. 3:08-0979.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • November 24, 2009
    ...held two public hearings, and noted and substantially responded to public comments in EA); Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1279 (10th Cir.2004) (holding public notice sufficient when it included maps detailing the layout of the proposal, informed the public that the......
  • Request a trial to view additional results
93 cases
  • Wy Outdoor Council Powder River v. U.S. Army Corps, No. 02-CV-155-D.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • January 7, 2005
    ...an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1274 (10th Cir.2004). "[T]he scope of review under the `arbitrary and capricious' standard is narrow, but not without dimension." Olenhouse, 42 F.......
  • Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 2009
    ...1508.13. "An agency's decision to issue a FONSI and not prepare an EIS is a factual determination." Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir.2004) (quoting Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002)). A FONSI must be supp......
  • Klamath-Siskiyou Wildlands v. U.S. Forest Service, No. CIV.S.03-1334FCDDAD.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 15, 2004
    ...a threatened or endangered species to have a "significant" effect on the environment. See e.g., Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1275-1276 (10th Cir.2004)(finding the Fish and Wildlife Service's conclusion that construction of housing development and golf course alon......
  • Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers, Civil Action No. 3:08-0979.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • November 24, 2009
    ...held two public hearings, and noted and substantially responded to public comments in EA); Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1279 (10th Cir.2004) (holding public notice sufficient when it included maps detailing the layout of the proposal, informed the public that the......
  • Request a trial to view additional results
5 books & journal articles
  • Practicable Alternatives for Wetlands Development Under the Clean Water Act
    • United States
    • Environmental Law Reporter Nbr. 48-10, October 2018
    • October 1, 2018
    ...costs.”).75. City of Shoreacres v. Waterwor th, 420 F.3d 440, 450, 35 ELR 20162 (5th Cir. 2005); Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1277, 34 ELR 20019 (10th Cir. 2004); Town of Norfolk, 968 F.2d at 1447; Gouger v. U.S. Army Corps of Eng’rs, 779 F. Supp. 2d 588, 617 (S.D. T......
  • Federal Wetlands Law Permits Under §404
    • United States
    • Wetlands Deskbook Part I. Clean Water Act §404 Programs
    • November 11, 2009
    ...situation. Because the same impact was predicted under any of the actionable 261. Id. at 887. 262. Id. at 886-87. 263. Id. at 887. 264. 359 F.3d 1257, 34 ELR 20019 (10th Cir. 2004). 265. Id. at 1262-65. 266. Id. at 1278. Page 88 Wetlands Deskbook alternatives and none of the proposed altern......
  • List of Case Citations
    • United States
    • Wetlands Deskbook Appendices
    • November 11, 2009
    ...16, 39, 110 Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 34 ELR 20019 (10th Cir. 2004) .................. 87 Gunn v. U.S. Department of Agriculture, 118 F.3d 1233, 27 ELR 21331 (8th Cir. 1997) ...................174 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.......
  • Federal Wetlands Law Permits Under §404
    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...702 F.3d 1156 (10th Cir. 2012). 331. Id. at 1162. 332. Id. at 1163. 333. Id. at 1163–64. 334. Id . at 1169. 335. Id. at 1169–70. 336. 359 F.3d 1257, 34 ELR 20019 (10th Cir. 2004). 337. Id. at 1262–65. 338. Id. at 1278. Federal Wetlands Law Permits Under §404 Page 111 the Corps’ decision tha......
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