Biddle, Sean R.

English

University of Denver

Water Law Review Volume 8 Issue 1 Article 14 9-1-2004 Save Our Sonoran v. Flowers, 381 F.3d 905 (9th Cir. 2004) Sean R. Biddle Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Sean R. Biddle, Court Report, Save Our Sonoran v. Flowers, 381 F.3d 905 (9th Cir. 2004), 8 U. Denv. Water L. Rev. 228 (2004). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAWREVIEWthe plant according to the Order issued, the court found that theremust be a good-faith allegation of continuous or intermittent violationfor the suit to be proper. The burden is on the City to show that thealleged violations were not likely to recur. The court found that theCity satisfied their burden, because the minor violations occurred be-fore the replacement of the outdated plant.Lynch and Ailor also argued that the district court erred in dismiss-ing their RCRA claim. The court upheld-the district court's ruling thatthe case was moot. The court reasoned that the City's actions after thefiling of the lawsuit remedied the injuries alleged in the complaint withno showing of a reasonable likelihood of recurrence. Additionally, thecourt upheld the district court's dismissal of Lynch and Ailor's RCRAclaim based on the fact that the relief available under RCRA is no dif-ferent than the relief available under the CWA.Conversely, the dissent argued the City did not satisfy its burden toshow that alleged violations would not recur. Since the plant's last vio-lation was only six months before the district court granted summaryjudgment, the dissent asserted that this was not enough time to show areasonable likelihood that the discharges and overflows would not re-cur, especially with the possibility of higher flows in winter and spring.The dissent also stated the state's determination that the City substan-tially complied with its obligations should not shield the City from citi-zen suits seeking to enforce the CWA.For the reasons above, the court affirmed the district court's hold-ing that Lynch and Ailor's suit was moot and that relief is not availableunder RCRA or the CWA when the previous actions already remediedthe alleged injuries.Kathleen BoothNINTH CIRCUITSave Our Sonoran v. Flowers, 381 F.3d 905 (9th Cir. 2004) (holding:(1) a district court's grant of a preliminary injunction suspending con-struction activities is reviewed only for an abuse of discretion where thereasons for granting the injunction are firmly based in the factual re-cord of the case; and (2) that an organization challenging an actionbased on National Environmental Policy Act noncompliance hasstanding as long as the organization's injury in fact results from thealleged noncompliance).56th & Lone Mountain, L.L.C. ("Lone Mountain") appealed to theNinth Circuit Court of Appeals the decision of the United States Dis-trict Court for the District of Arizona granting a preliminary injunctionagainst any construction activity on a planned housing developmentlocated on 608 acres of undisturbed land in the Sonoran Desert. Thedistrict court granted the injunction pending the outcome of a suitbrought by a nonprofit organization, Save Our Sonoran ("SOS"),Volume 8COURT REPORTSagainst Lone Mountain and the Army Corps of Engineers ("Corps") foralleged violations of the National Environmental Policy Act ("NEPA")and the Clean Water Act ("CWA"). The alleged violations of the NEPAand the CWA arose from permits granted to Lone Mountain by theCorps to fill 7.5 acres of washes located on the proposed constructionsite. Both Lone Mountain and SOS appealed the amount of the$50,000 bond the district court required SOS to post. The Corps didnot appeal the decision of the district court.On appeal, Lone Mountain contended that SOS lacked standing tochallenge the fill permit's compliance with the NEPA and the CWA,because the individual members lacked the necessary standing re-quired for a suit brought by an organization on behalf of its members.The Ninth Circuit rejected this contention and upheld SOS's standing.The court found that an individual member of an organization onlyhas to demonstrate an injury in fact by the challenged activity to estab-lish standing under the NEPA. Degradation of both recreational andaesthetic interests in a particular place establishes the necessary injuryin fact. Further, a member of the public does not need to physicallyaccess the parcel of land in question in order to demonstrate a pro-tectable aesthetic interest. Once an affected party demonstrates aninjury in fact, an alleged noncompliance with the NEPA establishesboth causation and redressability under the relaxed standards of thestatute. The court affirmed the district court's determination that theindividual members of SOS had the necessary standing to bring thesuit for the preliminary injunction, because many of the organization'smembers owned adjacent lands and long used the proposed construc-tion site for wildlife viewing.After confirming SOS's standing, the court analyzed several find-ings in evaluating whether the district court abused its discretion ingranting the preliminary injunction. The district court found that SOSraised a significant question on the merits of the permit by challengingthe Corps' compliance with the NEPA in granting the permit, requiredby the CWA, to fill the washes because the Corps restricted the assess-ment of adverse environmental impacts to only the 7.5 acres affectedby direct construction activities. Since the 7.5 acres of washes are in-terconnected with the remaining 31.3 acres of washes braided throughout the entire property, the court determined that filling the 7.5 acresof washes could significantly impact a larger percentage of the landthan the Corps considered. In evaluating the relative harm to the par-ties, the district court determined that the irreparable nature of theenvironmental harm from allowing construction activities to proceedoutweighed the financial burden placed on Lone Mountain by the in-junction. Since the court found no clearly erroneous factual findingsby the district court and the district court did not apply an incorrectlegal standard, the court determined that the district court did notabuse its discretion in granting the preliminary injunction.Issue IWATER LAWREVIEWBoth parties challenged the equity of the $50,000 bond imposed onSOS. In challenging the amount of the bond as excessive, SOS reliedon past precedent where courts had either not required public interestorganizations to post a bond at all or required the posting of only anominal amount. However, SOS presented no evidence of hardshipcaused by the bond when given the opportunity by the district court.Lone Mountain contended that the bond must be sufficient to com-pensate the company for any losses incurred as a result of the injunc-tion; therefore, the district court set the bond amount too low. Thecourt affirmed the amount of the bond, because the district court hadconsiderable discretion in setting the amount of the bond to securethe preliminary injunction limited only to the extent that the amountof the bond would prevent the affected party from going forward withthe suit.In conclusion, the court applied a deferential standard of review tothe decisions of the district court and affirmed both the grant of thepreliminary injunction and the amount of the security bond requiredof SOS.Sean R BiddleUnited States v. Matley Family Trust, 354 F.3d 1154 (9th Cir. 2004)(holding that the Water Master is not required to follow Federal Rulesof Evidence or Civil Procedure in water reclassification hearings andbefore reclassifying land, the Water Master must consider principles ofbeneficial use in addition to reductions in crop yield).The land in dispute is part of the Newlands Reclamation Project("Project"), which relies on two judicial decrees for allocating waterrights from the Truckee and Carson Rivers, the Alpine Decree and theOrr Ditch Decree. These decrees classified Project land as either "bot-tom land" or "bench land" based on the land's soil characteristics.However, the decrees did not specify a method for applying the classi-fications to Project lands. In 1986, the Department of Interior ("DOI")reviewed soil surveys and adopted a classification scheme for each par-cel in the Project. The Truckee Carson Irrigation District, which rep-resented the Matleys and other owners of land within the Project, chal-lenged the DOI scheme, based on the reduction of the Matleys alloca-tion from 4.5 acre feet per year ("af') to 3.5 af. Under that challenge,the United States District Court for the District of Nevada ruled in fa-vor of the Matleys. However, the United States Court of Appeals for theNinth Circuit reversed, remanded, and limited the district court's re-view to determining if the DOI had acted arbitrarily and capriciously inpromulgating the regulations. On remand, the district court upheldthe DOI criteria and classification maps. The Matleys then appealedthe reclassification on the basis that the reallocation caused a decreasein crop yield. The Water Master recommended that the DOI grantVolume 8

Save Our Sonoran v. Flowers, 381 F.3d 905 (9th Cir. 2004)

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Save Our Sonoran v. Flowers, 381 F.3d 905 (9th Cir. 2004)

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