Sylvester v. U.S. Army Corps of Engineers

882 F.2d 407, 1989 WL 89131
Court of Appeals for the Ninth Circuit·Decided August 11, 1989·No. No. 89-15592·Published·Cited by 10 cases

Opinion

SNEED, Circuit Judge:

Sylvester appeals the district court’s denial of a motion for a preliminary injunction. We affirm.

I.

FACTS AND PROCEEDINGS BELOW

This appeal addresses issues not before this court in an earlier appeal in which we reversed the district court’s issuance of a temporary injunction. See Sylvester v. United States Army Corps of Eng’rs, 871 F.2d 817 (9th Cir.1989) (Sylvester I).

The facts and then existing procedural history were fully set out in our first opinion. See id. at 818-19. Following our remand to the district court, Sylvester filed a motion for a preliminary injunction to halt, in effect, the construction of the proposed golf course based on the Clean Water Act (CWA), 33 U.S.C. § 1344(a) (1982). He also filed a motion for partial summary judgment based on his National Environmental' Policy Act (NEPA) claims, 42 U.S.C. § 4332(2)(E) (1982). Perini Land & Development Co. (Perini) opposed the preliminary injunction motion and also filed a partial summary judgment motion on the NEPA claims. The district court denied Sylvester’s motion for a preliminary injunction and granted Perini’s motion for partial summary judgment. Sylvester appealed to this court, seeking an emergency injunction halting construction of the proposed golf course. We affirm.

II.

JURISDICTION

The district court had jurisdiction under 28 U.S.C. § 1331 (1982). We have jurisdiction under § 1292(a).

m.

STANDARD OF REVIEW

We review the district court’s refusal to grant injunctive relief for abuse of discretion. See Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 327 (9th Cir.1975). This court will set aside the Corps’ decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law.” 5 U.S.C. § 706(2)(A) (1982).

IV.

ANALYSIS

Sylvester raises three objections to the district court’s decision which we will address in turn. In sum, Sylvester argues that the Corps violated the CWA, the NEPA, and its own regulations in issuing a permit to Perini to fill eleven acres of wetlands in the process of building a golf course.

A. Practicable Alternative under the CWA

First, we turn to Sylvester’s claim that the Corps impermissibly accepted Perini’s definition of the project as necessitating an on-site, eighteen hole golf course. By accepting this definition, Sylvester contends that the Corps’ evaluation of practicable alternatives was skewed in favor of Perini.

The regulations implementing § 404 of the CWA provide that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a) (1988) (emphasis added). The Corps defines a practicable alternative as an alternative that “is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2) (emphasis added). Further, [409]*409because the golf course is not a water dependent activity, the Corps’ regulations presume that practicable alternatives are available “unless clearly demonstrated otherwise.” Id. § 230.10(a)(3); see also Louisiana Wildlife Fed’n, Inc. v. York, 603 F.Supp. 518, 527 (W.D.La.1984), aff'd in part and vacated in part, 761 F.2d 1044 (5th Cir.1985) (“[Classification of an activity as ‘non-water dependent’ does not serve as an automatic bar to issuance of a permit ... [it] simply necessitates a more persuasive showing than otherwise concerning the lack of alternatives.”).

In its Environmental Assessment (EA), the Corps defined the project’s purpose as follows:

To construct an 18-hole, links style, championship golf course and other recreational amenities in conjunction with the development of the proposed Resort at Squaw Creek. Research conducted for the applicant has indicated that a quality 18-hole golf course is an essential element for a successful alpine destination resort.

Sylvester protests that the use of this definition impermissibly skewed the “practicable alternatives” analysis in favor of Perini. Specifically, Sylvester objects to the Corps’ failure to consider off-site locations for the golf course, i.e., a site that was not contiguous to the rest of the resort complex. The Corps rejected consideration of such an alternative because it “did not meet [Peri-ni’s] basic purpose and need.” The Corps did note, however, that two off-site locations were considered but rejected because of insufficient size and the potential for more severe environmental impacts.

In evaluating whether a given alternative site is practicable, the Corps may legitimately consider such facts as cost to the applicant and logistics. See Friends of the Earth v. Hintz, 800 F.2d 822, 833-34 (9th Cir.1986). In addition, the Corps has a duty to consider the applicant’s purpose. As the Fifth Circuit observed: "[T]he Corps has a duty to take into account the objectives of the applicant’s project. Indeed, it would be bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable.” Louisiana Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir.1985) (per curiam) (footnote omitted).

Obviously, an applicant cannot define a project in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable. This court in Hintz quite properly suggested that the applicant’s purpose must be “legitimate.” Id. at 833. Yet, in determining whether an alternate site is practicable, the Corps is not entitled to reject Perini’s genuine and legitimate conclusion that the type of golf course it wishes to construct is economically advantageous to its resort development.

By contrast, an alternative site does not have to accommodate components of a project that are merely incidental to the applicant’s basic purpose. For example, in Shoreline Assocs. v. Marsh, 555 F.Supp. 169, 179 (D.Md.1983), aff'd, 725 F.2d 677 (4th Cir.1984), the Corps refused to issue a permit to a developer for building a number of waterfront town houses together with a boat storage and launching facility.

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Sylvester v. U.S. Army Corps of Engineers, 882 F.2d 407, 1989 WL 89131 (9th Cir. 1989).

882 F.2d 407 (Sylvester v. U.S. Army Corps of Engineers) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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