Home » Case Summaries » 2004 » Save Our Sonoran v. Flowers


Save Our Sonoran v. Flowers


Save Our Sonoran Inc. (SOS) challenged a section 404 permit[1] issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act (CWA),[2] and an Environmental Assessment and Finding of No Significant Impact by the Corps pursuant to the National Environmental Policy Act (NEPA).[3] The permit allowed Arizona developer 56th and Lone Mountain LLC (Lone Mountain) to fill 7.5 acres of natural waterways as part of the proposed development of a 608-acre desert property with a gated residential community consisting of 794 homes. The district court issued a preliminary injunction ordering cessation of all development on the site, and required a $50,000 security bond from SOS. The Ninth Circuit held SOS had standing to bring the action, the district court had acted within its discretion in issuing the preliminary injunction, and the district court acted within its discretion when setting the amount of the security bond.

Lone Mountain first argued that SOS lacked standing to bring this action. The Ninth Circuit reviewed the three factors necessary to allow an organization to sue on behalf of its members: 1) the individual members would have standing to sue, 2) the organization’s purpose relates to the interests being vindicated, and 3) the claims asserted do not require the participation of individual members.[4] Lone Mountain only contested one factor: whether any of SOS’s individual members had standing to sue. The Ninth Circuit held that affidavits and evidence presented by SOS, showing that its members both owned land in close proximity to the proposed development and would have their wildlife-viewing opportunities impaired, sufficiently established individual standing. The Ninth Circuit further supported SOS’s standing by noting that one of Lone Mountain’s development objectives was to preserve wildlife-viewing opportunities for project residents and the surrounding community.

The Ninth Circuit next reviewed the district court’s grant of a preliminary injunction, which is subject only to limited review and to be reversed only if it “abused its discretion or based its decision on an erroneous legal standard or on a clearly erroneous finding of fact.”[5] Preliminary injunctions are governed by a multi-factor test which at its essence is “a sliding scale in which the required degree of irreparable harm increases as the possibility of success [on the merits] decreases.”[6] The Ninth Circuit upheld the district court’s determination of SOS’s chances of success on the merits and the balancing of hardships between the parties as warranting issuance of the injunction.

The district court made findings of fact that the desert washes ran through the property “the way capillaries run through tissue” with the upland areas “surrounded by washes on every side.”[7] However, the Corps had decided to limit its jurisdiction and only required NEPA analysis on sixty-six specific sites totaling 7.5 acres where the developer proposed fill and disturbance to a specific water course. The limited Corps action raised questions with the district court as to whether the Corps had followed its own regulations, which state that the Corps must determine impacts not only on jurisdictional waters, but also on “those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant federal review.”[8] The Corps own environmental assessment concluded that a denial of a permit would prevent the development from going forward in any manner similar to the developer’s proposal. In reviewing the district court’s findings, the Ninth Circuit agreed that SOS had raised “serious issues that go to the merits of the case” and upheld the district court’s determination that an injunction was appropriate.[9] The Ninth Circuit additionally noted that two other federal agencies, the United States Environmental Protection Agency and the United States Fish and Wildlife Service, had commented in opposition to the Corps’s issuance of the permit, thus underscoring the significance of these factual disputes on the merits.

Turning to the hardship analysis associated with the preliminary injunction, the Ninth Circuit also found the district court had acted within the scope of its discretion. The court noted that environmental injury such as the disturbance of the desert “can seldom be adequately remedied by money damages and is often permanent or at least of long duration.”[10] The district court had concluded that, were SOS to prevail on the merits of its claim, the Corps expanded assessment would have a dramatic effect on the nature of the development and thus on the surrounding environment. The environment would be harmed, perhaps permanently, by allowing development to proceed. In approving the district court’s balancing of the potential harm to the parties, the Ninth Circuit stated that “[t]his is a classic, and quite proper, examination of the relative hardships in an environmental case.”[11]

Finally, the Ninth Circuit upheld the district court’s requirement that SOS provide a $50,000 security bond pursuant to Federal Rule of Civil Procedure 65(c).[12] Both SOS and Lone Mountain appealed the decision, with SOS arguing that the deposit was too high, and Lone Mountain asserting that it was not enough. The Ninth Circuit noted that a “district court is in a far better position to determine the amount and security required under [Federal] Rule [of Civil Procedure] 65,”[13] and applied the “abuse of discretion” standard to determine its appropriateness.[14] The Ninth Circuit held that the district court’s bond was not so high as to thwart SOS’s action, and, furthermore, noted that SOS had not provided evidence that the proposed bond constituted an undue hardship. In answer to Lone Mountain’s assertion that the bond was too low, the Ninth Circuit noted that Lone Mountain erroneously relied on Sylvester v. United States Army Corps of Engineers[15] for the proposition that district courts must set bonds that approximate actual damages. To the contrary, Sylvester did not address the appealability of the bonding order because its decision only required the district court to reconsider the amount of the bond on remand.[16] The Ninth Circuit pointed out that Lone Mountain’s argument also contradicted the “long-standing precedent that requiring nominal bonds is perfectly proper for public interest litigation.”[17] Thus, the Ninth Circuit also rejected the contention that $50,000 was insufficient security.

In summary, the Ninth Circuit upheld the district court’s decision to grant SOS’s motion for a preliminary injunction because its claim had a good chance of success on the merits and long-lasting environmental harm would result if development continued during litigation. The Ninth Circuit also upheld the district court’s decision to require a $50,000 bond from SOS, and found that SOS had standing to appeal the original Corps decision.

[1] Federal Water Pollution Control Act, 33 U.S.C. § 1344 (2000).

[2] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

[3] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[4] Save Our Sonoran, Inc. v. Flowers (Save Our Sonoran), 381 F.3d 905, 910-11 (9th Cir. 2004) (citing Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000)).

[5] Id. at 912 (quoting United States v. Peninsula Communications, Inc., 287 F.3d 832, 839 (9th Cir. 2002)).

[6] Id. (quoting Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998)).

[7] Save Our Sonoran v. Flowers, 227 F. Supp. 2d 1111, 1114 (D. Ariz. 2002).

[8] Processing of Department of the Army Permits, 33 C.F.R. pt. 325, app. B § 7(b)(1) (2000).

[9] Save Our Sonoran, 381 F.3d at 914.

[10] Id. (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987)).

[11] Id. at 915.

[12] Federal Rule of Civil Procedure 65(c) mandates that the applicant of a restraining order or a preliminary injunction pay a court determined sum “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c).

[13] Save Our Sonoran, 381 F.3d at 915 (quoting Barshom-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999)).

[14] Id.

[15] 884 F.2d 394 (9th Cir. 1989).

[16] Save Our Sonoran, 381 F.3d at 916 (quoting Sylvester, 884 F.2d at 397 n.2)

[17] Id. (citing Cal. ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985)).

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