Greater Yellowstone Coalition v. Flowers

• Decision Date: 20 February 2003
• Docket Number: No. 02-8087.,02-8087.
• Citation: 321 F.3d 1250
• Parties: GREATER YELLOWSTONE COALITION; Jackson Hole Conservation Alliance, Plaintiffs-Appellants, and 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.
• Court: U.S. Court of Appeals — Tenth Circuit

321 F.3d 1250

GREATER YELLOWSTONE COALITION; Jackson Hole Conservation Alliance, Plaintiffs-Appellants, and 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. 02-8087.

United States Court of Appeals, Tenth Circuit.

February 20, 2003.

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

Aaron P. Avila (Gary M. Henningsen and Stanley E. Tracey, U.S. Army Corps of Engineers, Omaha, NE; Matthew H. Mead, United States Attorney; Thomas L. Sansonetti, Assistant Attorney General; Carol A. Statkus, Assistant United States Attorney; Jon Lipshultz and Ellen Durkee, Attorneys, United States Department of Justice, Environmental & Natural Resources

Division with him on the brief), United States Department of Justice, Environmental & Natural Resources Division, Washington, DC, for Defendants-Appellees.

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

Before SEYMOUR, HENRY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

This case involves a proposal to construct an eighteen-hole golf course and residential development along the Snake River in Wyoming, an area that provides important nesting and foraging habitat for the bald eagle, a threatened species. Two environmental groups, the Greater Yellowstone Coalition and the Jackson Hole Conservation Alliance (collectively, the "plaintiffs"), challenge the Army Corps of Engineers' ("Corps'") issuance of a permit under section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, to Canyon Club, Inc. ("Canyon Club") allowing development of the project. Plaintiffs seek a preliminary injunction to halt the proposed development, pending resolution of its challenge to the issuance of the permit under the CWA and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Plaintiffs claim that the project will cause irreparable harm to three bald eagle nesting territories. Finding no irreparable harm and concluding that the plaintiffs were unlikely to succeed on the merits, the district court denied the motion for a preliminary injunction. We exercise jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and reverse.

I

Richard Edgcomb, the president and general manager of Canyon Club, owns a parcel of land adjacent to the Snake River in Wyoming known as the River Bend Ranch ("Ranch"). Edgcomb sold a portion of the Ranch to the Canyon Club for the purpose of building a golf course and residential development. According to Edgcomb and the Canyon Club, the purpose of building the golf course was to provide additional income so that the remainder of the Ranch could remain viable as a ranching operation;¹ Edgcomb continues to own as Ranch property 544 acres adjacent to the Canyon Club property to the north and 125 acres some distance from the Canyon Club parcel to the south.² The Canyon Club parcel is bounded on the west by the Snake River and on the east and south by national forest land.

Three bald eagle nesting territories are in the vicinity of the Canyon Club parcel: the Martin Creek nest, the Dog Creek nest, and the Cabin Creek nest.³ The Martin Creek nest, which has been inactive in recent years, lies to the west of the property, 230 feet from one of the proposed golf greens. The Dog Creek nest is located near the river to the northwest of the Canyon Club development, approximately 1,000 feet from the tee box of one of the proposed golf holes. This nest has been very productive, having produced at least one fledgling per year since 1992. The Cabin Creek nest is situated to the south of the project area, 1,475 feet from one of the proposed tee boxes, with an alternate nesting site very close to the development. Cabin Creek is the most productive nest in the Greater Yellowstone ecosystem, having produced eleven fledglings between 1992 and 2002.

In March 2001, Canyon Club applied to the Corps for a permit to build an eighteen-hole golf course and fifty-four home residential development on a 286-acre parcel of land originally part of the Ranch (the "March proposal"). Congress requires developers to obtain a section 404 permit from the Corps "for the discharge of dredged or fill material into ... navigable waters," 33 U.S.C. § 1344(a). This project required the dredging and filling of waters under the Corps' jurisdiction, including the construction of twenty-three bendway weirs (river-bank stabilizing structures) to protect the golf course holes along the banks of the Snake River. Two of the proposed golf holes were to be built on a gravel peninsula extending into the river. When the project met with criticism from various state and federal agencies and environmental groups, and was determined not to be in compliance with Teton County Land Development Regulations ("LDRs"), the Corps recommended that Canyon Club withdraw and revise its proposal, and Canyon Club did so.

Canyon Club submitted a revised section 404 application in October 2001 (the "October proposal"). Like the March proposal, the October proposal envisioned an eighteen-hole golf course and residential development, but the number of homes was increased to sixty-six and the overall size of the parcel that would be the subject of development was increased to 359 acres. Changes were also made to bring the project into compliance with Teton County LDRs, such as moving two of the proposed golf holes off the peninsula extending into the river. Proposed impacts to wetlands were reduced, and proposed conservation easements were redesigned. A section 404 permit was necessary because the October proposal, like the March proposal, required dredging and filling of wetlands and waters of the United States under the Corps' jurisdiction, including the possible construction of bendway weirs to protect the river banks.

At the Corps' request, Canyon Club prepared a Biological Assessment ("BA") of the proposed development, retaining Pioneer Environmental Services, Inc. ("Pioneer") for this purpose. This BA considered the impact of the proposed project on a number of species, including bald eagles, concluding that "[t]he proposed project may affect and is likely to adversely affect bald eagles" but would not adversely affect various other species. (2 Appellant's App. at 437.) In January 2002, Pioneer prepared a "Section 404(b)(1) Analysis" for the Corps, listing several alternatives to the proposal. (2 id. at 398.) This section 404(b)(1) analysis compared the October proposal to five alternatives: (1) the March proposal, (2) a nine-hole golf course, (3) a design that would relocate holes three and four of the proposed golf course, (4) no issuance of a section 404 permit, and (5) a "no action" alternative. (2 id. at 403-06.) Finally, in March 2002, Pioneer prepared an Environmental Assessment ("EA") that compared the proposal to each of these alternatives with the exception of (4).

In its EA, the most comprehensive document prepared for the Corps, Pioneer articulated the purposes and goals of the project:⁴

• Supplement the ranching operations on the River Bend Ranch with income from the Canyon Club golf development in order to protect the working ranch operations (horse and/or cattle).

• Preserve the adjacent working ranch and the rustic, natural character of the ranch throughout the project area.

• Develop a world-class, 18-hole, championship golf course of such quality that it will maximize real estate values and minimize the number of lot sales.

• Create a golf course with exceptional visual experiences and variety of play (in length and direction of holes).

• Minimize development sprawl and conceal human structures and the infrastructure of the golf course in order to preserve the scenic quality of the environment.

• Minimize tree removal, wetland impacts, and ground disturbance while optimizing conservation of open space.

(1 id. at 111.) Having thus defined the purposes of the project, Pioneer concluded that the "no action alternative" and the nine-hole golf course alternative failed to satisfy the project purposes. (1 id. at 121-24.) According to Pioneer, if the Corps did not issue a section 404 permit, the entirety of the Ranch would be sold to the Canyon Club, and a larger housing development without a golf course would be built on the parcel. The nine-hole golf course was rejected for lack of demand and failure to satisfy any of the enumerated project purposes. Finally, Pioneer explained that the original 286-acre proposal and the possible relocation of holes three and four would not be in compliance with Teton County LDRs. Under this analysis, the October proposal was the only alternative that both satisfied the purported purposes of the project and complied with local land development regulations.

On April 5, 2002, the Fish and Wildlife Service ("FWS") prepared a Biological Opinion ("BO") analyzing the likely effects of the October proposal on species listed as threatened or endangered under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. FWS concurred with Pioneer's BA that the proposed project would not adversely affect other species, but would likely affect bald eagles. Specifically, FWS determined that the project would result in increased human disturbance to the bald eagles and render their foraging habitat less suitable. Although it conceded that some bald eagles "could become moderately habituated to human presence or tolerant of certain activities along the Snake River," the BO stated that "[t]he Service anticipates the loss of 3 bald eagle nesting territories (i.e., Cabin Creek, Martin Creek, and Dog Creek) as a result of the...