SAVE OUR SONORAN, INC. V. FLOWERS 408 F.3d 1113 (9th Cir. 2005) CASE BRIEF

SAVE OUR SONORAN, INC. V. FLOWERS

408 F.3d 1113 (9th Cir. 2005)

NATURE OF THE CASE: 56th & Lone Mountain, L.L.C. (D) developer sought review of an order from the United States District Court for the District of Arizona, which granted Save our Sonoran, Inc. (P) a Fed. R. Civ. P. 65 motion for a preliminary injunction suspending development of a residential project during the pendency of litigation related to defendant U.S. Army Corps of Engineers' (Corps) issuance of a permit under 404 of the Clean Water Act (CWA), 33 U.S.C.S. 1344.

FACTS: A dispute arose over a 608-acre parcel of undeveloped land. An alluvial fan containing a significant number of braided washes. The washes constitute approximately 31.3 acres, which in fact constitute approximately 5% of the site, but affect approximately 19% of the area. The property is surrounded on four sides by other developments. The land is undeveloped desert, albeit not in pristine condition. The property was purchased from the State at a public auction by Loan Mountain's (D) predecessor for $38.5 million. D wanted to construct an upscale residential community of 794 single-family homes. Over half of the property would be maintained permanently as open space, including 'the bulk of the larger washes.' P applied for a Section 404 permit from the Army Corps of Engineers to fill in 7.5 acres of natural waterways that flow through the property. The Corps found no significant impact. The Corps invited public comment on the permit and received requests for a public hearing, but declined to hold one. The United States Environmental Protection Agency ('EPA') and the United States Fish and Wildlife Service ('FWS') opposed the issuance of the permit and disagreed with the Corps' findings with respect to whether the site was a potentially suitable habitat for the cactus ferruginous pygmy owl, which is listed as an endangered species. The Arizona Game and Fish Department agreed with the Corps' findings. Save Our Sonoran (P), a nonprofit group of citizens 'dedicated to the preservation' of the Sonoran Desert, also made public comments about the proposed project. The Corps addressed the public comments and issued the permit to D, subject to a few conditions. P sought a temporary restraining order and preliminary injunctive relief against the Corps and D. The district court granted a temporary restraining order to P and, after a hearing, the district court ordered preliminary injunctive relief. After determining that there were serious questions on the merits, the district court went on to conclude that the balance of hardships tipped in favor of P. D continued construction on the site, and the district court made clear that, in light of its previous factual findings, the status quo could be preserved only if D ceased any and all development on the site until a hearing on the merits could be held. D appealed both orders, and P filed a cross-appeal as to the amount of the bond set by the district court.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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