Save Our Sonoran Inc v. 56th and Lone Mountain, LLC. ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAVE OUR SONORAN, INC., a non- 
profit corporation,
Plaintiff-Appellee,
v.
ROBERT B. FLOWERS, Lieutenant
General, in his official capacity as
Commander, U.S. Army Corps of No. 02-16156
Engineers; MARK F. SUDOL, in his
official capacity as Chief of the  D.C. No.
Regulatory Branch of the U.S. CV-02-00761-FJM
Army Corps of Engineers, Los
Angeles District,
Defendants,
and
56TH & LONE MOUNTAIN, L.L.C.,
Defendant-Appellant.

5703
5704 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
SAVE OUR SONORAN, INC., a non- 
profit corporation,
Plaintiff-Appellant,
v.
ROBERT B. FLOWERS, Lieutenant
General, in his official capacity as No. 02-16263
Commander, U.S. Army Corps of  D.C. No.
Engineers; MARK F. SUDOL, in his CV-02-00761-SRB
official capacity as Chief of the
Regulatory Branch of the U.S.
Army Corps of Engineers, Los
Angeles District; 56TH AND LONE
MOUNTAIN, L.L.C.,
Defendants-Appellees.

SAVE OUR SONORAN, INC., a non- 
profit corporation,
Plaintiff-Appellee,
v. No. 02-16355
ROBERT B. FLOWERS, Lieutenant D.C. No.
General, in his official capacity as
Commander, U.S. Army Corps of  CV-02-00761-SRB
ORDER AND
Engineers, AMENDED
Defendant, OPINION
and
56TH & LONE MOUNTAIN, L.L.C.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5705
Argued and Submitted
February 13, 2003—San Francisco, California
Filed April 26, 2004
Amended May 25, 2005
Before: John T. Noonan, Sidney R. Thomas, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Thomas
5708 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
COUNSEL
Norman D. James, Jay L. Shapiro (argued), Fennemore Craig,
Phoenix, Arizona, for defendant-appellant/cross-appellee 56th
& Lone Mountain, L.L.C.
Myron L. Scott (argued), Tempe, Arizona, for plaintiff-
appellee/cross-appellant Save Our Sonoran, Inc.
Vera S. Kornylak, Arizona Center for Law in the Public Inter-
est, Michael P. Senatore, Defenders of Wildlife, for amicus
curiae Defenders of Wildlife.
ORDER
The attached amended opinion is substituted for the origi-
nal opinion filed by the panel. With the amendments, the
panel has voted to deny the petition for rehearing.
The petition for rehearing en banc was circulated to the
entire court. No judge of the court called for a vote on the
petition for rehearing en banc within the time established to
do so.
The petition for rehearing and petition for rehearing en
banc are DENIED.
No further petitions for rehearing will be entertained.
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5709
OPINION
THOMAS, Circuit Judge:
In this appeal, we consider the management of the water-
ways in Arizona’s Sonoran desert. This case, of course, inevi-
tably brings to mind the exchange between Claude Rains and
Humphrey Bogart in Casablanca (Warner Bros. 1942), which
aptly distills this dispute to its essence:
Captain Renault: What in heaven’s name brought
you to Casablanca?
Rick: My health. I came to Casablanca for the
waters.
Captain Renault: The waters? What waters? We’re
in the desert.
Rick: I was misinformed.
In our case, it was not Rick Blaine, but the United States
Army Corps of Engineers that came to the desert for the
waters. An aspiring desert developer, 56th & Lone Mountain,
L.L.C. (“Lone Mountain”), sought and obtained a Clean
Water Act (“CWA”) dredge and fill permit from the Corps for
the construction of a gated community near Phoenix. The per-
mit was required, and the Corps’ jurisdiction invoked,
because water courses through the washes and arroyos of the
arid development site during periods of heavy rain. The desert
washes are considered navigable waters and therefore fall
under the jurisdiction of the federal government. See 33
C.F.R. § 328.3(a)(3).
At some point, a non-profit environmental organization,
Save Our Sonoran (“SOS”), became aware of the project. It
was not, shall we say, the beginning of a beautiful friendship.
SOS eventually filed this action against the Corps and Lone
5710 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
Mountain, alleging violations of the National Environmental
Policy Act (“NEPA”) and the CWA. The district court issued
a preliminary injunction suspending development during the
pendency of the litigation. Save Our Sonoran, Inc. v. Flowers,
227 F. Supp. 2d 1111 (D. Ariz. 2002). Lone Mountain
appealed. We affirm.
I
At the center of this controversy is a 608-acre parcel of
undeveloped land (“the property”), an alluvial fan containing
a significant number of braided washes. The washes consti-
tute approximately 31.3 acres — about 5% of the site. How-
ever, as the District Court found, the washes affect the entire
property. Though surrounded on all four sides by other devel-
opment, the property is essentially unimproved and remains
undeveloped desert, albeit not in pristine condition. The par-
cel was previously owned by the State of Arizona, which
decided not to retain it for park or other purposes and sold it
for development, an action which was itself the subject of liti-
gation. Foster v. Anable, 19 P.3d 630 (Ariz. Ct. App. 2001).
The property was purchased from the State at a public auction
by Lone Mountain’s predecessor for $38.5 million.
Lone Mountain developed a plan to construct an upscale
gated residential community consisting of 794 single-family
homes. According to the plan, over half of the property would
be maintained permanently as open space, including “the bulk
of the larger washes.”
Pursuant to the CWA, 33 U.S.C. § 1344, Lone Mountain
applied for a Section 404 permit from the Corps to fill in 7.5
acres of natural waterways that flow through the property.
The permit requested allowance of sixty-six projects in the
form of combined road and utility crossings, pad fill, as well
as utility, remediation, drainage, and flood control measures.
In response to the application, the Corps issued its environ-
mental assessment and a finding of no significant impact. In
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5711
reaching this conclusion, the Corps examined only the washes
rather than the entire project. Within this limited area, the
Corps concluded that the sixty-six dredge and fill projects
would not significantly affect the environment, nor would
they disturb the habitats of any endangered species. The
Corps determined that no environmental impact statement
was necessary, and stated its intent to authorize Lone Moun-
tain to build the sixty-six projects.
The Corps invited public comment on the permit, received
requests for a public hearing, but declined to hold one. A vari-
ety of agencies and private interests responded by written cor-
respondence. The United States Environmental Protection
Agency (“EPA”) and the United States Fish and Wildlife Ser-
vice (“FWS”) opposed the issuance of the permit and dis-
agreed with the Corps’ findings with respect to whether the
site was a potentially suitable habitat for the cactus ferrugi-
nous pygmy owl, which is listed as an endangered species.
The Arizona Game and Fish Department agreed with the
Corps’ findings. SOS, 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, reiterated its
preliminary findings, and issued the permit to Lone Mountain,
subject to a few conditions. SOS sought a temporary restrain-
ing order and preliminary injunctive relief against the Corps
and Lone Mountain.
The district court granted a temporary restraining order to
SOS and, after a hearing, the district court ordered prelimi-
nary injunctive relief. The district court concluded that there
were serious questions on the merits regarding SOS’s conten-
tion. The court emphasized that the development of the entire
project depended upon the Corps’ permit; the court concluded
that the project could not go forward without permission from
the Corps for the sixty-six separate and dispersed crossings.
Flowers, 227 F. Supp. 2d at 1114. Though the washes cover
5712 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
only 5% of the property, the court described that portion as
critical to the whole: “But that 5% runs through the entire 608
acres the way capillaries run through tissue. It is difficult to
deal with tissue without dealing with capillaries and difficult
to deal with capillaries without dealing with tissue. So too
here.” Id. 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 SOS.
After SOS was informed that Lone Mountain was continu-
ing construction on the site, the non-profit requested clarifica-
tion with respect to the scope of the injunction. After another
hearing, the district court made clear that, in light of its previ-
ous factual findings, the status quo could be preserved only if
Lone Mountain ceased any and all development on the site
until a hearing on the merits could be held.
The Corps elected not to appeal the district court’s orders.
Lone Mountain, however, appealed both orders, and SOS
filed a cross-appeal as to the amount of the bond set by the
district court.
II
Lone Mountain contends that SOS lacks standing to bring
this action. An organization may bring an action on behalf of
its members if: (1) the individual members would have stand-
ing to sue; (2) the organization’s purpose relates to the inter-
ests being vindicated; and (3) the claims asserted do not
require the participation of individual members. Ecological
Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th
Cir. 2000). The individual members have standing if they can
demonstrate that an actual or threatened injury exists, which
is fairly traceable to the challenged action, and that such
injury is likely to be redressed by a favorable decision. Id. “In
addition to these constitutional requirements, a plaintiff bring-
ing suit under the Administrative Procedure Act for a viola-
tion of NEPA must show that his alleged injury falls within
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5713
the ‘zone of interests’ that NEPA was designed to protect.”
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111-12
(9th Cir. 2002) (internal quotation marks omitted).
Lone Mountain does not dispute that SOS has met the APA
requirements or the latter two elements of Article III standing.
It contends that SOS failed to establish that any of its individ-
ual members would have standing to sue because no member
has demonstrated actual injury, causation, or redressability.
“The ‘injury in fact’ requirement in environmental cases is
satisfied if an individual adequately shows that she has an aes-
thetic or recreational interest in a particular place, or animal,
or plant species and that that interest is impaired by a defen-
dant’s conduct.” Ecological Rights Found., 230 F.3d at 1147.
Here, SOS tendered affidavits and presented evidence that
its members owned land in close proximity to the property,
and that the development would impair their recreational
opportunities. See, e.g., id. at 1151 (finding plaintiff estab-
lished injury by averring longstanding recreational and aes-
thetic interests in place at issue, and that these interests were
derogated due to concerns that defendant was discharging pol-
lutants into creek); Northwest Envtl. Def. Ctr. v. Bonneville
Power Admin., 117 F.3d 1520, 1528-29 (9th Cir. 1997) (find-
ing cognizable injury to plaintiffs based on affidavits stating
enjoyment from fly fishing, sport fishing, and nature watching
in river at issue). Once a plaintiff has established an injury in
fact, the causation and redressability standards under NEPA
are relaxed, such that a private owner’s alleged noncompli-
ance with NEPA is sufficient to meet these standing require-
ments. See Cantrell v. City of Long Beach, 241 F.3d 674, 682
(9th Cir. 2001) (“[W]e have held that to establish redressa-
bility plaintiffs asserting procedural standing need not demon-
strate that the ultimate outcome following proper procedures
will benefit them.”).
[1] The fact that this development is private does not
destroy standing. See, e.g., id. at 680-81 (rejecting Navy’s
5714 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
argument that plaintiffs can only assert standing with respect
to property to which they possess a legal right of access, and
stating that “because [the plaintiffs] desire to view the birds
at the Naval Station from publically accessible locations out-
side the station [there] is an interest sufficient to confer stand-
ing”). Indeed, one of Lone Mountains’ purported objectives in
its development is to preserve wildlife-viewing opportunities,
both for its residents and others from publicly accessible loca-
tions. Given the members’ adjacent land ownership, the
development’s alleged impact on wildlife in the area, and the
alleged diminution of the members’ recreational access and
use, SOS has established sufficient standing to maintain this
action.
III
A
As we observed in Clear Channel Outdoor, Inc. v. City of
Los Angeles, “[t]he standard for granting a preliminary
injunction balances the plaintiff’s likelihood of success
against the relative hardship to the parties.” 340 F.3d 810, 813
(9th Cir. 2003). We have described two sets of criteria for
preliminary injunctive relief. Under the “traditional” criteria,
a plaintiff must show “(1) a strong likelihood of success on
the merits, (2) the possibility of irreparable injury to plaintiff
if preliminary relief is not granted, (3) a balance of hardships
favoring the plaintiff, and (4) advancement of the public inter-
est (in certain cases).” Johnson v. Cal. State Bd. of Accoun-
tancy, 72 F.3d 1427, 1430 (9th Cir. 1995). Alternatively, a
court may grant the injunction if the plaintiff “demonstrates
either a combination of probable success on the merits and the
possibility of irreparable injury or that serious questions are
raised and the balance of hardships tips sharply in his favor.”
Id. (internal quotation marks omitted).
As we have said many times regarding the two alternative
formulations of the preliminary injunction test: “These two
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5715
formulations represent two points on a sliding scale in which
the required degree of irreparable harm increases as the prob-
ability of success decreases. They are not separate tests but
rather outer reaches of a single continuum. Baby Tam & Co.
v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998)
(internal quotation marks and citations omitted).
A district court’s order with respect to preliminary injunc-
tive relief is subject to limited review and will be reversed
only if the district court “abused its discretion or based its
decision on an erroneous legal standard or on clearly errone-
ous findings of fact.” United States v. Peninsula Communica-
tions, Inc., 287 F.3d 832, 839 (9th Cir. 2002). Our review may
be de novo under circumstances in which the district court’s
ruling rests solely on a premise of law and the facts are either
established or undisputed. A&M Records, Inc. v. Napster,
Inc., 284 F.3d 1091, 1096 (9th Cir. 2002). However, here, the
district court’s order was grounded in its factual findings.
Mere disagreement with the district court’s conclusions is
not sufficient reason for us to reverse the district court’s deci-
sion regarding a preliminary injunction. Sports Form, Inc. v.
United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir. 1982)
(“[U]nless the district court’s decision relies on erroneous
legal premises, it will not be reversed simply because the
appellate court would have arrived at a different result if it
had applied the law to the facts of the case. Rather, the appel-
late court will reverse only if the district court abused its dis-
cretion.”).
Under our deferential standard of review, we conclude that
the district court did not abuse its discretion in granting the
preliminary injunction. There are no clearly erroneous factual
findings made by the district court, and the district court did
not apply an incorrect legal standard. Rather, the district court
made the determinations of hardships based on its factual
findings and balanced the hardships appropriately in conclud-
5716 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
ing that the issuance of a preliminary injunction was war-
ranted.
B
[2] The district court correctly held that the Corps had
improperly constrained its NEPA analysis to the washes,
rather than considering the development’s effect on the envi-
ronment as a whole. NEPA requires federal agencies to pre-
pare an environment impact statement for all “major Federal
actions significantly affecting the quality of the human envi-
ronment.” 42 U.S.C. § 4332(2)(C). A section 404 permit
issued by the Corps is a “Federal action” to which NEPA
applies. Tillamook County v. U.S. Army Corps of Eng’rs, 288
F.3d 1140, 1142 (9th Cir. 2002). The Corps must determine
the potential impact that a proposed development would have
on the jurisdictional waters, and on “those portions of the
entire project over which the district engineer has sufficient
control and responsibility to warrant Federal review.” 33
C.F.R. Pt. 325, App. B § 7(b)(1). The Corps has “control and
responsibility” for portions of the project in which “the Fed-
eral involvement is sufficient to turn an essentially private
action into a Federal action. These are cases where the envi-
ronmental consequences of the larger project are essentially
the products of the Corps permit action.” Id. § 7(b)(2). The
typical factors to consider in order to determine the circum-
stances under which the potential environmental conse-
quences on non-jurisdictional land are such that the Corps has
control and responsibility are:
(i) Whether or not the regulated activity comprises
“merely a link” in a corridor type project (e.g., a
transportation or utility transmission project).
(ii) Whether there are aspects of the upland facility
in the immediate vicinity of the regulated activity
which affect the location and configuration of the
regulated activity.
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5717
(iii) The extent to which the entire project will be
within Corps jurisdiction.
(iv) The extent of cumulative Federal control and
responsibility.
Id.; see also Sylvester v. U.S. Army Corps of Eng’rs, 884 F.2d
394, 398-99 (9th Cir. 1989).
[3] Although the Corps’ permitting authority is limited to
those aspects of a development that directly affect jurisdic-
tional waters, it has responsibility under NEPA to analyze all
of the environmental consequences of a project. Put another
way, while it is the development’s impact on jurisdictional
waters that determines the scope of the Corps’ permitting
authority, it is the impact of the permit on the environment at
large that determines the Corps’ NEPA responsibility. The
Corps’ responsibility under NEPA to consider the environ-
mental consequences of a permit extends even to environmen-
tal effects with no impact on jurisdictional waters at all.
[4] An examination of the record leads us to conclude that
the district court did not abuse its discretion in determining
there were serious questions as to whether the Corps had cor-
rectly confined its analysis. Flowers, 227 F. Supp. 2d at 1115.
It is significant at the onset to recall that two federal agencies,
the EPA and the FWS — not the usual suspects in opposing
the action of a federal agency — disagreed with the acreage
limitations set forth in the permit applications and thus with
the Corps’ interpretation of its NEPA responsibility. It is also
of importance to our conclusion regarding the Corps’ NEPA
responsibility that the Corps concluded that the “no action”
alternative — denying the permit — would have the effect of
halting the project.
[5] The district court made key factual findings that support
its conclusion that the Corps violated NEPA by failing to con-
duct an appropriately broad NEPA analysis. First, the district
5718 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
court found, and it is undisputed, that the sixty-six permit sites
are scattered throughout the entire property. The district court
determined that the desert washes “run through the property
like lines run through graph paper,” Flowers, 227 F. Supp. 2d
at 1114. The district court determined that the construction is
“dictated” by the interconnectedness of the land and washes.
Id. at 1114. The district court noted that the Corps’ own envi-
ronmental assessment bolstered this conclusion because the
Corps concluded that denial of a permit would prevent the site
from developing in a manner consistent with the developer’s
purpose. In short, the entire development was affected by the
decisions concerning the washes, and the district court cor-
rectly determined that the Corps improperly constrained its
NEPA analysis. Because the jurisdictional waters run
throughout the property like capillaries through tissue, any
development the Corps permits would have an effect on the
whole property. The NEPA analysis should have included the
entire property.
The Supreme Court’s recent decision in DOT v. Public Cit-
izen, 541 U.S. 752, 124 S. Ct. 2204 (2004), is not to the con-
trary. In Public Citizen, the Supreme Court excluded from the
scope of NEPA analysis any environmental effect that does
not have a “reasonably close causal relationship” to the pro-
posed development. 541 U.S. 752, 124 S. Ct. 2204, 2215
(internal quotation marks omitted). Here, the district court
found that any development permitted by the Corps would
affect the entire property. Public Citizen’s causal nexus
requirement is satisfied.
For these reasons, the district court also properly rejected
Lone Mountain’s contention it could confine the Corps’
NEPA review by submitting sixty-six different permit sites. In
essence, Lone Mountain’s argument is that it can constrain the
Corps’ responsibility under NEPA by submitting a gerryman-
dered series of permit applications. However, the scope of the
Corps’ responsibility under NEPA is not dictated by the appli-
cant; rather, it is directed by statute. As we have discussed,
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5719
Lone Mountain’s narrow interpretation of the Corp’s respon-
sibility is contrary to the NEPA compliance regulation.
[6] In sum, given the factual findings made by the district
court, we see no abuse of discretion in the district court’s con-
clusion that the Corps had improperly constrained its NEPA
analysis.
C
The district court’s conclusion that the Corps had improp-
erly confined its NEPA analysis does not end our analysis as
to the propriety of the preliminary injunction. The authority
to enjoin development extends only so far as the Corps’ per-
mitting authority. Although the Corps’ improperly con-
strained analysis violated NEPA, the district court could only
enjoin the developer from acts that required a Corps permit.
In this case, the district court found the washes subject to fed-
eral jurisdiction could not be segregated from private lands;
the district court had the power to enjoin the entire project.
[7] Under the facts as found by the district court, and based
on the CWA’s mandate to regulate the flow of pollutant’s into
navigable waters, the Corps’ permitting authority extends to
the entire development proposed by Lone Mountain. Specifi-
cally, the CWA is a comprehensive statute, designed to “re-
store and maintain the chemical, physical, and biological
integrity of the Nation’s Waters,” 33 U.S.C. § 1251(a). The
CWA prohibits the discharge of any pollutant, including
dredged or fill material, into navigable waters unless autho-
rized by a CWA permit. Id. § 1311(a). The desert washes are
considered navigable waters and therefore fall under the juris-
diction of the federal government. See 33 C.F.R.
§ 328.3(a)(3). As a result, development impacting the washes
requires permission from the Corps by way of a CWA Section
404 permit pursuant to 33 U.S.C. § 1344. The scope of the
Corps’ permit granting authority is driven by the develop-
ment’s impact on jurisdictional waters.
5720 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
Because the district court found that any development by
Lone Mountain would impact jurisdictional waters, the whole
of the property falls under the Corps’ permitting authority and
the court’s authority to enjoin development. The district court
grounded its conclusion regarding the Corps’ broad permit-
ting authority over the project on the unique geographic fea-
tures of this property. Specifically, the district court
determined that the desert washes “run through the property
like lines run through graph paper,” Flowers, 227 F. Supp. 2d
at 1114, and that the washes are “a dominant feature of the
land and [that] no development of the property could occur
without affecting the washes,” id. at 1113.
Based on these findings, the district court correctly con-
cluded that the instant facts are analogous to those set forth
in Stewart v. Potts, 996 F. Supp. 668 (S.D. Tex. 1998). The
wetlands in Stewart comprised approximately 1% of the total
acreage, but were scattered throughout the property. Id. at
673. There were approximately 720 pockets of wetlands that
ranged in size from “a couple of feet in diameter to less than
one-quarter of an acre each.” Id. at 673; see also id. at 683
n.15. The wetlands were scattered underneath a forested area,
and the Corps originally determined that it did not have juris-
diction over the trees. Id. at 673. The district court reversed,
finding that the Corps limited its analysis without a rational
or legally sound basis. Id. at 682-83. The district court con-
cluded that the Corps had jurisdiction over the wooded area
because the pockets of wetlands were immediately adjacent
to, underneath, and surrounding the trees. The construction of
the golf course that involved the filling of wetlands therefore
could not be considered a separate and distinct project from
the plans to fell the trees. Id. at 683. The “tasks necessary to
accomplish [the development of the proposed golf course] are
so interrelated and functionally interdependent as to bring the
entire project within the jurisdiction of the Corps, and there-
fore under the mandate of NEPA.” Id. Stewart determined
that the Corps erred by not considering the environmental
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5721
impact that the proposed golf course would have on the
wooded area.
Because of the interconnected nature of the washes and the
surrounding area, the district court found the facts at issue in
this case distinguishable from those found in Wetland Actions
Network v. U.S. Army Corps of Engineers, 222 F.3d 1105 (9th
Cir. 2000). In Wetland Actions, we upheld the limitation of
the scope of the Corps’ jurisdiction to the wetland portion of
a major development project. Id. at 1118-19. We reached this
conclusion based on the findings that the direct impact on the
wetland portion of the development was a separate and inde-
pendent phase of the master project, that the wetland portion
of the project did not have to be completed for the master
plans to continue or to exist, and that, in fact, during the
period of the injunction, the master plan continued while the
wetland project was stayed. Id. at 1110-11, 1117. Here, in
contrast, the district court noted that the uplands are not on
separate lots, nor are they separable from the navigable
waters; rather, the uplands “are interspersed through the sec-
tion surrounded by washes on every side.” Flowers, 227 F.
Supp. 2d at 1114. Because no development could occur with-
out impacting jurisdictional waters, the whole property can be
covered by the injunction.
[8] In sum, because the uplands are inseparable from the
washes, the district court was correct to conclude that the
Corps’ permitting authority, and likewise the court’s authority
to enjoin development, extended to the entire project. Lone
Mountain cannot begin developing any portion of the land in
the absence of an appropriately broad NEPA analysis by the
Corps. Given all of this, it is clear that the district court did
not abuse its discretion in concluding that SOS has raised seri-
ous issues that go to the merits of the case. The objections
filed by other federal agencies underscore the conclusion that
this was not a meritless issue. The district court correctly ana-
lyzed controlling law and applied it to the facts.
5722 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
D
Nor did the district court err in its hardship analysis. The
Supreme Court has recognized that “[e]nvironmental injury,
by its nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long duration,
i.e., irreparable.” Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 545 (1987). Here, the district court properly
observed that once the desert is disturbed, it can never be
restored. Thus, the court concluded, the plaintiffs had ade-
quately demonstrated the possibility of irreparable harm. This
reasoning and conclusion are consistent with controlling pre-
cedent. See, e.g., Nat’l Parks & Conservation Ass’n v. Bab-
bitt, 241 F.3d 722, 738 n.18 (9th Cir. 2001).
[9] Lone Mountain argues that there is no presumption of
irreparable harm in procedural violations of environmental
statutes. This is doubtless an accurate observation, see id., but
it is irrelevant here, because the district court did not apply
such a presumption. Rather, the district court carefully con-
cluded that an expanded assessment of the project by the
Corps would have a dramatic effect on the nature of the
development and, thus, on the surrounding environment.
Therefore, the court concluded, proceeding with immediate
development of the property without a proper environmental
assessment could result in unauthorized development and
environmental injury to the jurisdictional waters. In short, the
district court conducted a proper analysis of the nexus
between the challenged procedure and environmental injury.
Lone Mountain also quarrels with the district court’s fac-
tual conclusions concerning the nature of the area, but our
review of the record indicates that the district court’s factual
findings are not clearly erroneous. Indeed, one of Lone Moun-
tain’s selling points for the development project is the natural
beauty of the area. In short, the district court properly applied
controlling precedent and conducted a proper analysis in mak-
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5723
ing its conclusions regarding the potential for environmental
injury to areas under federal jurisdiction.
[10] The district court did not abuse its discretion in balanc-
ing the hardships. The district court determined that the bal-
ance of hardships tipped in SOS’s favor because, if
wrongfully restrained, Lone Mountain “may suffer financial
harm,” but if an injunction does not issue, unlawful disruption
to the desert is likely irreparable. The district court’s analysis
is a classic, and quite proper, examination of the relative hard-
ships in an environmental case. Indeed, we have long held
that “when environmental injury is ‘sufficiently likely, the
balance of harms will usually favor the issuance of an injunc-
tion to protect the environment.’ ” Sierra Club v. U.S. Forest
Serv., 843 F.2d 1190, 1195 (9th Cir. 1988) (quoting Amoco,
480 U.S. at 545).
Lone Mountain argues that the district court erred because
the financial hardship it faces from the injunction is concrete
and supported by evidence whereas SOS’s claims of harm are
not. However, a careful examination of the record supports
the district court’s balancing of the relative hardships. Con-
trary to Lone Mountain’s assertions, the district court did con-
sider the financial evidence presented by Lone Mountain, and
it did not abuse its discretion in balancing the hardships.
E
In sum, the district court did not abuse its discretion in its
traditional preliminary injunction analysis. Given the factual
findings of the court, the Corps improperly limited the scope
of its NEPA analysis.
However, we emphasize that our review at this juncture is
limited. The grant of a preliminary injunction does not make
the grant of permanent injunctive relief inevitable. Nor does
it mean that Lone Mountain may not seek a modification of
the preliminary injunction. The key district court finding, and
5724 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
the one that distinguishes this case from Wetlands Action Net-
work, is that no portion of the project can go forward without
the permit because the washes subject to federal jurisdiction
cannot be segregated from private lands. Here, as the Corps
itself noted (as opposed to the situation in Wetlands Action
Network), denying the permit “would not allow the site to be
developed in a manner that would accomplish the applicant’s
project purpose.” If Lone Mountain can demonstrate to the
district court that a portion of the contested property can be
developed without affecting the jurisdictional waters, so that
no Section 404 permit would be required, then the preliminary
injunction must be modified accordingly. It is the effect on
the jurisdictional waters, not on the environment in general,
that determines the proper scope of the preliminary injunc-
tion. Any injunction must be tailored accordingly.
IV
The district court required SOS to provide a $50,000 secur-
ity pursuant to Fed. R. Civ. P. 65(c). Both parties contend that
the district court abused its discretion in determining such an
amount. Lone Mountain claims that the amount is not suffi-
cient; SOS argues that it is too high.
[11] As we have observed, a “district court is in a far better
position to determine the amount and appropriateness of the
security required under Rule 65, and we will review the
court’s determination only for an abuse of discretion.”
Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.
1999). “The district court has discretion to dispense with the
security requirement, or to request mere nominal security,
where requiring security would effectively deny access to
judicial review.” Cal. ex rel. Van De Kamp v. Tahoe Reg’l
Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985) (find-
ing proper the district court’s exercise of discretion in allow-
ing environmental group to proceed without posting a bond),
amended on other grounds, 775 F.2d 998 (9th Cir.);
Barahona-Gomez, 167 F.3d at 1237 (determining $1,000
SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN 5725
bond in class action not to be an abuse of discretion in light
of the showing that “the vast majority of aliens [affected by
class action] were very poor”).
[12] Here, the district court considered the relative hard-
ships and reached a conclusion as to an appropriate bond
amount. Its analysis clearly fell within the latitude of discre-
tion afforded district courts in setting the amount of bond. It
is true, as SOS points out, that we have affirmed the district
court’s approval of nominal bonds in public interest cases.
However, each case is fact-specific. So long as a district court
does not set such a high bond that it serves to thwart citizen
actions, it does not abuse its discretion. See, e.g., Friends of
the Earth, Inc. v. Brinegar, 518 F.2d 322, 323 (9th Cir. 1975)
(reversing the district court’s unreasonably high bond of
$4,500,000). Here, the district court conducted a hearing. SOS
had the opportunity to show that the imposition of anything
other than a nominal bond would constitute an undue hard-
ship; however, SOS did not tender such evidence at the hear-
ing. The district court’s conclusions were supported by the
record.
Lone Mountain contends that the bond amount is too low
and that, as a matter of law, district courts are required to set
bonds that approximate actual damages, relying on Sylvester,
884 F.2d at 397, 401. Sylvester, however, does not stand for
this proposition. Indeed, we specifically noted in Sylvester
that “[w]e do not address the appealability of the bonding
order because our modification of the injunction requires the
district court to reconsider the amount of the bond in any
event.” Id. at 397 n.2. Lone Mountain’s authority does not
support its proposition. Indeed, the legal proposition urged by
Lone Mountain would contradict our long-standing precedent
that requiring nominal bonds is perfectly proper in public
interest litigation. See Tahoe Reg’l Planning Agency, 766
F.2d at 1325.
5726 SAVE OUR SONORAN v. 56TH & LONE MOUNTAIN
V
[13] In summary, applying our very deferential standard of
review, we conclude that the district court did not abuse its
discretion either in granting the preliminary injunction or in
setting the bond amount. We affirm the orders of the district
court and remand for the remaining proceedings in the case.
In reaching this decision, we express no opinion on the ulti-
mate merits of the case, and our decision is without prejudice
to Lone Mountain seeking a modification of the preliminary
injunction.
AFFIRMED.