Sylvester v. U.S. Army Corps of Engineers
| Decision Date | 22 August 1989 |
| Docket Number | Nos. 88-15376,88-15477 and 88-15604,s. 88-15376 |
| Citation | 884 F.2d 394 |
| Parties | Frederic D. SYLVESTER, Plaintiff-Appellee/Cross-Appellant, v. U.S. ARMY CORPS OF ENGINEERS, Wayne J. Scholl, in his official capacity as District Engineer of the Corps; Patrick Kelley, in his official capacity as San Francisco Division Engineer of the Corps; Robert W. Page, in his official capacity as Assistant Secretary of the Army for Civil Works; John O. Marsh, Jr., in his official capacity as Secretary of the Army, Defendants-Appellants, and Perini Land & Development Company, a Delaware corporation, Defendant-Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peter R. Steenland, Jr., Elizabeth Ann Peterson, Department of Justice, Washington, D.C., for defendants-appellants.
John M. Collette, Collette & Erickson, San Francisco, Cal., for defendant-appellant/cross-appellee.
Terry J. Houlihan, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for plaintiff-appellee Cross-Appellant.
Michael J. Bean, Environmental Defense Fund, Wm. Robert Irvin, National Audubon Society, Washington, D.C., for amici.
Appeal from the United States District Court for the Eastern District of California.
Before CHOY, SNEED and NOONAN, Circuit Judges.
We issued an order on February 23, 1989, modifying a preliminary injunction in a suit by Frederic D. Sylvester against the United States Army Corps of Engineers (the Corps), four federal officials (with the Corps, referred to as the "Federal Defendants"), and Perini Land & Development Company (Perini). 1 This opinion sets forth our reasoning and supersedes our order of February 23, 1989, with an order vacating the preliminary injunction entirely.
The district court's injunction, which enjoined all work on a resort complex that Perini is developing, was in response to Sylvester's claim that the Corps improperly issued Perini a conditional permit to fill wetlands under Sec. 404 of the Clean Water Act (CWA), 33 U.S.C. Sec. 1344(a) (1982). Specifically, Sylvester insisted that the issuance by the Corps of the Sec. 404 permit was based on an erroneous decision not to prepare an "Environmental Impact Statement" (EIS) under the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4332(2)(C) (1982), covering the entire resort and that this error unduly limited the scope of its NEPA analysis. We disagreed and temporarily modified the injunction to cover only the property that we felt was within the Corps' control and responsibility.
Perini has begun building a multi-million dollar resort in Squaw Valley, California. The resort, if completed as planned, will include skiing facilities, a resort village, and a golf course. Perini has decided to locate the golf course on a meadow in Squaw Valley and to locate the resort village and the ski runs on neighboring uplands. The meadow, through which the Squaw Creek flows, contains pockets of wetlands. To make the land suitable for golf, Perini intends to fill eleven acres of these wetlands. Although others already have used the meadow for various purposes, such as farming, waste disposal, and parking, the parties dispute whether these activities have affected the natural state of the wetlands.
Perini has sought to obtain the necessary permits to build the resort for almost five years. It has obtained approval from four government agencies: (1) the Placer County Board of Supervisors, (2) the State Regional Water Control Board--Lahontan Region, (3) the State Water Resources Control Board, and (4) the Corps. It also has settled two state court actions challenging the adequacy of the state environmental analyses.
Placer County, which has jurisdiction over all of the resort property, certified an "Environmental Impact Report" for the entire project, pursuant to California law, after analyzing each component of the resort. It then issued a "Conditional Use Permit" that allowed Perini to construct the resort subject to one hundred and twenty-eight conditions. Thirty-seven of these conditions related to the golf course. The State Regional Water Control Board and the State Water Resources Control Board, which have jurisdiction to review and approve compliance with state waste discharge restrictions, have required Perini to adopt additional water quality protective measures.
The Corps believed that it had jurisdiction only over the wetlands and, accordingly, confined its review to the meadow where Perini intends to locate the golf course. The Corps reviewed the records compiled by the state agencies, held a public hearing, and conducted its own evaluation of the environmental effects of constructing the golf course. The Corps also agreed to accept anonymous written comments about the resort because of the possibility that Perini may have curtailed the speech of concerned citizens and organizations by threatening to enforce certain "no further opposition" terms of its state court settlements.
On February 25, 1988, the Corps issued a conditional permit under Sec. 404 of the CWA allowing Perini to build the golf course but requiring it: (1) to construct 12.7 acres of new artificial wetlands, (2) to restore 117 acres of the existing meadow, and (3) to comply with certain conditions imposed by the state agencies. In its "Environmental Assessment" (EA), issued pursuant to its own regulations, see 53 Fed.Reg. 3120, 3129 (1988) (), the Corps stated that it had decided not to prepare an EIS under 42 U.S.C. Sec. 4332(2)(C) (1982), because it found that the federal action of granting the Sec. 404 permit to Perini would not have a significant effect on the quality of the human environment, see 53 Fed.Reg. at 3129 (). As already mentioned, the Corps considered only the impact of the golf course and not the impact of the rest of the resort complex in reaching this decision.
Sylvester reacted quickly. On April 28, 1988, he sued Perini and the Federal Defendants in the United States district court below. His complaint raised claims under the NEPA, the CWA, the Endangered Species Act, 16 U.S.C. Sec. 1536(c)(1) (1982), and the Clean Air Act, 42 U.S.C. Secs. 7506(c), 7609 (1982). The relief he sought included declaratory relief, a writ of mandamus ordering the Corps, among other things, to prepare an EIS and to rescind Perini's Sec. 404 permit, and, finally, a preliminary and permanent injunction restraining the defendants from authorizing or undertaking "work in the Squaw Meadow or in other areas that would affect the wetlands in Squaw Meadow."
On August 4, 1988, the district court granted a temporary restraining order preventing Perini from doing any work in the wetlands. On September 21, 1988, it issued a preliminary injunction halting all work on the entire resort complex. The court accepted Sylvester's claim that the Corps should not have issued the Sec. 404 permit because it failed to comply with the NEPA. It relied, in particular, on Sylvester's assertion that, in deciding whether to prepare an EIS, the Corps improperly limited the scope of its NEPA analysis to the golf course rather than examining the environmental effects of the entire resort complex. After reviewing various Ninth Circuit cases, the court stated that the "plaintiff has at least raised serious questions on the merits, if not a likelihood of success, regarding the proper scope of analysis under his NEPA claim." The court later explained that it would not defer to the Corps' NEPA regulations, which interpreted the NEPA to limit the scope of its analysis to the golf course, because the regulations did not comport with the NEPA and its legislative history. On October 6, 1988, the court ordered Sylvester to post a $100,000 bond as security for the injunction.
Perini timely appealed the order granting the preliminary injunction and Sylvester timely appealed the bonding order. To expedite this litigation, we modified the scope of the injunction to cover only the golf course and the other areas embraced in the Corps' EA immediately following oral argument.
The district court had jurisdiction over Sylvester's NEPA claim under 28 U.S.C. Sec. 1331 (1982) and the Administrative Procedure Act, 5 U.S.C. Sec. 702 (Supp. IV 1986). This court has appellate jurisdiction, under 28 U.S.C. Sec. 1292(a) (1982), to review the order granting the preliminary injunction. 2
This court reviews an order granting a preliminary injunction for abuse of discretion. See Sierra Club v. Penfold, 857 F.2d 1307, 1321 (9th Cir.1988). To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. See United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987).
The NEPA requires federal agencies to prepare a detailed statement on the environmental impact of "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C) (1982). The issue before us is whether the Corps' understanding of the term "federal action" that it used in deciding whether to prepare such a statement was correct. The NEPA does not specify the scope of analysis that federal agencies must conduct in determining whether their actions, when combined with private actions, come within the mandate of Sec. 4332(2)(C). The district court, as noted above, looked to Ninth Circuit precedent for guidance. We hold that the district court erred in reaching the conclusion it did.
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