Save Our Sonoran, Inc. v. Flowers

• Decision Date: 30 May 2002
• Docket Number: No. CV-02-00761-PHX-SRB.,CV-02-00761-PHX-SRB.
• Citation: 227 F.Supp.2d 1111
• Court: U.S. District Court — District of Arizona
• Parties: SAVE OUR SONORAN INC., a nonprofit corporation, Plaintiff, v. Lieutenant General Robert B. FLOWERS, 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; and 56<SUP>TH</SUP> & Lone Mountain, L.L.C., Defendants.

227 F.Supp.2d 1111

SAVE OUR SONORAN INC., a nonprofit corporation, Plaintiff, v. Lieutenant General Robert B. FLOWERS, 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; and 56^TH & Lone Mountain, L.L.C., Defendants.

No. CV-02-00761-PHX-SRB.

United States District Court, D. Arizona.

May 30, 2002.

Myron L Scott, Tempe, AZ, for Save Our Sonoran, Inc.

Richard Glenn Patrick, US Attorney's Office, Phoenix, AZ, for Robert B. Flowers, Mark F. Sudol.

Norman D James, Jay Lawrence Shapiro, Fennemore Craig PC, Phoenix, AZ, for Crismon & Baseline, L.L.C., 56th & Lone Mountain, L.L.C.

ORDER

MARTONE, District Judge.

I.

The court has had under submission plaintiff's motion for preliminary injunction. We have read the motion, the federal defendants' response, 56^th & Lone Mountain's response, and plaintiff's reply. We have examined the administrative record, including the Environmental Assessment prepared by the Corps of Engineers. We have heard oral argument, and we now set forth our findings and rulings under Rule 52(a), Fed.R.Civ.P.

This is an action brought by Save our Sonoran, Inc. against the Corps of Engineers and 56^th & Lone Mountain, a real estate developer, seeking judicial review of the Corps' decision to issue a permit for the construction of 66 road crossings and other facilities over the waters of the United States. The defendant 56^th & Lone Mountain intends to build houses on an entire section of land encompassing about 608 acres in Phoenix. Although surrounded by other development, the section is desert, with washes running from east to west throughout the entire parcel. To service houses on the narrow sections of land that are surrounded by washes, the developer plans to fill the washes at 66 separate spots for road crossings. The maps that are a part of the administrative record show that the areas of crossing are scattered throughout the whole section. See, e.g., the map entitled "404 Impact Area Map." Thus, while the waters of the United States constitute about 5% of the total area, the washes are a dominant feature of the land and no development of the property could occur without affecting the washes.

On May 7, 2002, Judge Bolton (to whom this case is assigned) granted a temporary restraining order enjoining the defendants from engaging in any activities authorized by the permit in the washes and the immediately adjacent areas. Plaintiff now seeks a preliminary injunction pending the ultimate resolution of its claims on the merits.

II.

One seeking a preliminary injunction must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions on the merits and the balance of hardships tips in favor of the moving party. Andreiu v. Ashcroft, 253 F.3d 477 (9^th Cir.2001).

A single issue dominates the merits of the claims and the defenses. Plaintiff claims that the Corps of Engineers' Environmental Assessment was too narrow in scope. The Corps looked simply at the washes and not the remainder of the section and found that there was no significant impact under the National Environmental Policy Act. The plaintiff, on the other hand, argues that the Corps of Engineers should have looked at the environmental impact of the project on the entire section and not just the washes because the washes are riddled throughout the section. The plaintiff also relies on the fact that the development of the site is dependent upon the issuance of the permit.

The scope of analysis of federal action by the Corps of Engineers under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (West 1994 & Supp.2001), is a topic not without controversy. See generally, Timothy J. Hagerty, Beyond 404: Corps Permitting and the National Environmental Policy Act SF92 ALI-ABA 95 (2001), and David Paget, NEPA'S "Small Handle" problem: The Scope of Analysis of Federal Action, SG026 ALI-ABA 95 (2001). Indeed, in this very case, the United States Department of the Interior disagreed with the Corps' definition of its scope of analysis and thought the scope should extend to the entire section. Environmental Assessment at 17.

In Sylvester v. U.S. Army Corps of Engineers, 884 F.2d 394 (9^th Cir.1989), the court upheld the Corps of Engineers' regulations relating to the scope of its analysis. In that case, a developer planned a ski resort and a golf course. The golf course was planned on a meadow which contained pockets of wetlands. The Corps limited its environmental assessment to the wetlands and not the entire resort. The court upheld this limited scope of analysis because the golf course and the resort were not joined to each other like two links of a single chain. The court noted that both the golf course and the resort could exist without the other.

Similarly, in Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105 (9^th Cir.2000), the court upheld the Corps of Engineers' decision to limit its environmental assessment to the wetland portion of a major development. The court noted that the wetland portion of the proposed development was relatively small and that the project could proceed without the permit. 222 F.3d at 1117. The court acknowledged that deciding whether federal and non-federal activity are sufficiently interrelated to constitute federal action for NEPA purposes is a very fact-specific question. Id. at 1116.

Here, the facts appear to be more like those in Stewart v. Potts, 996 F.Supp. 668 (S.D.Tex.1998), than in either Sylvester or Wetlands Action Network. In Stewart v. Potts, the wetlands were not in a separate area, but were "scattered throughout the 200-acre tract." 996 F.Supp. at 682. The court noted that in all of the cases in which the Corps' jurisdictional disclaimers were upheld, the federal portion and the non-federal portion were "physically, functionally, and logically separable." Id. at 682. The court concluded that because of the interdependence, the scope of analysis should have included the entire project. Id. at 682-83.

Here, the Corps' Environmental Assessment acknowledges that "a no-action alternative (i.e., no Corps' permit issued) would not allow the site to be developed in a manner that would accomplish the applicant's project purpose." Environmental Assessment at 4, ¶ I E(1).

This case thus differs from both Sylvester and Wetlands in that the uplands here are not some separate piece of property but instead are interspersed throughout the section surrounded by washes on every side. It would not be practicable to develop the uplands without an impact on the washes, or to fill in the washes without an impact on the uplands. The permit authorizes 66 crossings interspersed throughout the entire section. And, unlike both Sylvester and Wetlands, the Corps has admitted in its Environmental Assessment that if it did not issue the permit, the site could not be developed in accordance with the project's purpose.

This case, therefore, presents a very substantial question about the application of the Corps' NEPA implementing regulations. Under the relevant regulations, 33 C.F.R. Part 325, Appendix B, Section 7(b), the Corps is considered to have control and responsibility for portions of the project beyond the limits...