Documentos de Académico
Documentos de Profesional
Documentos de Cultura
No. 14-1796
Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Richard Mark Gergel, District
Judge. (2:13-cv-01543-RMG)
Argued:
Decided:
Charleston,
South
Carolina,
is
non-profit
is
5,000
to
members.
protect
the
The
natural
corporation
It currently has
Leagues
self-described
environment
of
the
South
Carolina
businesses,
and
communities
government
environmental problems.
by
to
working
ensure
with
individuals,
balanced
solutions
to
(J.A. 36).
be
significant
degradation
to
485
acres
of
freshwater
Having lost
The
I
This case involves a dispute over the use of 485 acres of
an almost 700-acre tract of privately owned real property in
Jasper County, South Carolina.
two tributaries of the Back River fork of the Savannah River and
the Back Rivers marsh system.
Canal and Shubra Canal.
The rice
fields have not been operated for the past eighty years.
The earthen embankments on the Embanked Tract include a
variety of water control structures which can be opened in order
to directly connect the Embanked Tract with the Back River and
its tidal marsh system.
open, brackish water from the Back River and its tidal marsh
system enters the Embanked Tract.
is
entitled
to
do
so
without
any
government
oversight.
activities
such
as
hunting
and
fishing.
The
last
thirty
years,
(J.A. 63).
freshwater
from
For approximately
a
canal
system
to
the
owner
impoundments thereon.
of
the
Embanked
Tract
to
flood
the
this
freshwater
Embanked Tract.
drained
the
canal
to
flood
any
impoundments
on
the
impoundments
from
February
to
October,
then
by
opening
the
water
control
structures
linking
the
the
Embanked
Tract
with
5
the
Back
River
fork
of
the
Savannah River and its tidal marsh system to allow the entire
almost 700-acre
marsh
tract
it
with
the
integrated
desires
to
dedicate
the
owns
to
Savannah
site
to
become
River.
use
as
functioning
South
tidal
Coast
commercial
also
tidal
River,
material
used
South
to
Coast
create
desires
the
earthen
to
remove
all
embankments
of
the
currently
This process
the
United
States
Environmental
Protection
Agency
(EPA),
id.
In June
enhancement,
and
non-tidal
wetlands
and
associated
with
removal
the
establishment
riparian
of
areas,
embankments.
of
tidal
including
and
those
Reissuance
of
The
marsh
to
be
created
would
be
protected
and
preserved
from
development.
Pursuant to the CWA and the National Environmental Policy
Act (NEPA), 42 U.S.C. 4321 through 4370h, the Corps prepared
an
environmental
Final
assessment
Clydesdale
of
Mitigation
the
project
Banking
and
surrounding
analyzed
Instrument.
and
33
the
U.S.C.
area,
analyzed
the
potential
(setting
assessment).
instrument
did
forth
requirements
The
Corps
concluded
not
require
of
an
that
preparation
See 40 C.F.R.
environmental
approval
of
an
of
such
environmental
excavated
from
material
the
embankments
into
the
adjacent
both
verified
that
Nationwide
(J.A. 123).
Permit
27
The Corps
applied
to
the
adjacent
ditches
and
approved
the
Final
Clydesdale
Mitigation
Banking
Instrument
in
April
2013
(the
Approved
Project).
Of
relevance
on
appeal,
on
August
16,
2013,
the
League
officials
(collectively
in
their
official
Defendants).
capacities,
According
to
and
the
South
First
Coast
Amended
(J.A. 36-37).
In the
of
the
freshwater
wetlands
thereon
to
saltwater
At this
alleges
the
Corps
and
the
EPA
acted
arbitrarily
and
capriciously
in
approving
Banking Instrument.
the
Final
Clydesdale
Mitigation
Id. 706(2).
EPAs
actions
in
granting
South
Coast
authorization,
Track
embankments.
with
the
material
removed
from
the
adjacent
rather
wetlands
constitutes
to
saltwater
an
unlawful
wetlands.
conversion
The
gist
of
of
freshwater
the
Leagues
from
the
adjacent
embankments
violates
applicable
regulatory guidelines.
Invoking the APA, in Count 4, the League alleges the Corps
violated NEPA and its implementing regulations by failing to
prepare an environmental impact statement prior to approving the
Final Clydesdale Mitigation Banking Instrument.
Relatedly, in
10
in
the
Corps
approval
of
the
Final
Clydesdale
Mitigation
Banking Instrument.
Finally, in Count 6, the League alleges the Corps violated
the
Endangered
1544, by
Species
approving
Instrument
and
Nationwide
Permit
Act
the
Final
authorizing
27
(ESA),
16
U.S.C.
Clydesdale
associated
without
1531
Mitigation
work
formally
to
through
Banking
proceed
consulting
under
with
the
manatees,
sturgeon,
and
wood
Id. 1536(a)(2).
that
the
Corps/EPAs
approval
of
the
Final
Clydesdale
Mitigation
Banking
Instrument;
and
(4)
costs,
On
October
24,
2013,
South
Coast
moved
to
dismiss
the
Coast
subsequently
conducted
tests
between
January
27, 2014 and February 14, 2014 regarding the salinity of the
water
inside
the
impoundments
on
the
Embanked
Tract
and
the
outside
the
Embanked
Tract
at
2.8
parts
per
thousand.
On March 14, 2014, the League sought leave to amend its
First Amended Complaint to include a claim that the Corps, in
approving
the
Final
Clydesdale
12
Mitigation
Banking
Instrument,
as
the
Murray
Hill
Mitigation
Bank
as
obtained
salinity
readings,
shortly
part
of
the
South
Leagues
primary
feared
harm
(i.e.,
the
conversion
of
being
granted
time
to
conduct
its
own
salinity
testing of the waters inside and outside the Embanked Tract, the
League
did
results.
not
contest
the
accuracy
of
South
Coasts
test
already
been
the
fully
According
to
League,
Embanked
Tract
had
support
of
not
converted
to
the
freshwater
yet
fully
saltwater
wetlands
converted
to
wetlands.
inside
the
saltwater
wetlands.
In
its
position,
the
League
submitted
the
Richard
Porcher,
Jr.,
Ph.D.
in
biology
from
the
15
488).
The
district
court
further
denied
the
Leagues
II
On appeal, the League contends this action is not moot, and
therefore, the League seeks vacature of the district courts
July 11, 2014 order and a remand for further proceedings.
The
courts
controversies,
controversy
U.S.
does
are
limited
Const.
not
exist
art.
to
III,
unless
resolving
2,
the
and
cases
a
plaintiff
case
or
possesses
and
Lujan
To satisfy
16
suffered
or
be
imminently
threatened
with
concrete
and
Components,
Inc.,
134
S.
Ct.
1377,
1386
(2014)
689,
69394
(4th
Cir.
1983).
We
review
the
district
Mortg. & Loan Inv., LLC, 634 F.3d 754, 762 (4th Cir. 2011).
Moreover,
[w]e
review
district
courts
jurisdictional
findings of fact on any issues that are not intertwined with the
facts central to the merits of the plaintiffs claims under the
clearly
erroneous
standard
of
review
. . . .
U.S.
ex
rel.
Specifically, the
to
Embanked
the
Tract
Leagues
turning
feared
from
harm
of
freshwater
the
wetlands
wetlands
to
on
the
saltwater
wetlands.
Although given sufficient opportunity to present evidence
challenging the salinity readings relied upon by the district
court in making its mootness determination, the League did not
do
so.
mootness
Instead,
the
determination
League
on
attacks
the
ground
that
the
district
in
courts
making
such
not
nearly
high
enough
to
work
conversion
of
the
by
obtaining
freshwater
from
the
freshwater
canal
Serv., Inc., 135 S. Ct. 1338, 1347 (2015) (on summary judgment,
the district court must view the evidence in the light most
favorable
argues,
to
the
caused
nonmoving
the
district
party).
court
18
Such
to
error,
accept
the
South
League
Coasts
obvious
a
full
problem
with
conversion
of
the
Leagues
the
once
position
completely
is
that
freshwater
Embanked
Tract
any
more
saline
than
it
currently
is.
Indeed, the League concedes in its Reply Brief that vacating the
Corps decision allowing South Coast to fill the ditches on the
Embanked Tract with material from the embankments pursuant to
Nationwide Permit 27 and vacating the Corps approval of the
Final Clydesdale Mitigation Banking Instrument may not reduce
the salinity of the water that regularly is introduced into the
impoundments
. . . .
Appellants
Reply
the
nonredressability
Br.
at
(internal
the
Leagues
alleged
legal
obligation
to
obtain
fresh
water
from
the
fresh
water
canal operated by the Corps and has not done so for at least the
last four years.
The League tries to sidestep the pellucidity of the above
lack-of-redressability analysis by arguing that even if a full
conversion has occurred, the district [c]ourt could stillat a
bare minimumaward [it] meaningful relief on its claims that
the Corps . . . approval [of the Final Clydesdale Mitigation
Banking
Instrument]
prevent
the
is
arbitrary
development
of
and
capricious,
mitigation
bank
which
at
the
would
site.
because it misses the point that for the League to have Article
III
standing
to
challenge
the
Corps
approval
of
the
Final
imminently
threatened
with
suffering
concrete
and
likely
decision.
might,
the
to
be
redressed
by
favorable
has
not
identified
any
such
judicial
Try as it
concrete
and
bad
idea
for
the
environment
20
is
insufficient
to
establish
jurisdictional
litigation.
standing
to
continue
the
current
is
insufficient
by
itself
to
meet
Art.
IIIs
requirements.).
For
the
reasons
stated,
we
affirm
the
district
courts
III
We
next
turn
courts
denial
Amended
Complaint
to
of
the
its
to
Leagues
motion
add
for
claim
challenge
to
leave
to
amend
its
the
Corps
failed
that
the
district
First
to
bank
at
adjacent
property
as
required
by
NEPA
should
have
granted
it
leave
to
amend.
Notably,
the
discretion
in
denying,
on
21
the
ground
of
futility,
the
Leagues
motion
seeking
leave
to
amend
its
First
Amended
Complaint.
IV
In conclusion, we affirm the district courts July 11, 2014
order dismissing this action as moot and affirm the district
courts denial of the Leagues motion seeking leave to amend its
First Amended Complaint.
AFFIRMED
22