United States Ninth Circuit

In a challenge to decisions of two federal agencies approving the construction of a business park on protected wetlands in California, summary judgment for defendants is affirmed where: 1) the Army Corps of Engineers applied the proper presumption under 40 C.F.R. section 230.10(a)(3), and found that it had been rebutted under the appropriate standard; 2) the Corps' consideration of the project's stated purpose was not unreasonable; 3) while it was true that the Corps made compensatory mitigation a condition of the permit, there was no indication that such mitigation was meant as an obligation in place of the city's responsibility to adopt the least environmentally damaging practicable alternative, as opposed to an obligation in addition to it; and 4) the Fish and Wildlife Service's finding of no "adverse modification" was neither arbitrary nor capricious.

Appellate Information

• Argued 02/11/2010
• Decided 06/01/2010
• Published 06/01/2010

Judges

• Before DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT and RICHARD A. PAEZ, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Donald B. Mooney, of the Law Office of Donald B. Mooney, Davis, CA, argued the cause for the plaintiff-appellant and filed a brief.


• For Appellees:
  
• Kurt Kastorf, of the U.S. Department of Justice, argued the cause for defendant-appellees the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service. Jason Walta, of the U.S. Department of Justice Environment and Natural Resources Division, filed a brief. Veronica Rowan, of the Department of the Interior, Lisa H. Clay, of the U.S. Army Corps of Engineers, John C. Cruden, Acting Assistant Attorney General, David C. Shilton, of the U.S. Department of Justice Environment and Natural Resources Division, Lewis M. Barr, of the U.S. Department of Justice Environment and Natural Resources Division, and Meredith L. Flax, of the U.S. Department of Justice Environment and Natural Resources Division, were also on the brief., Rick W. Jarvis, of Jarvis, Fay, Doporto & Gibson, LLP, Oakland, CA, filed a brief on behalf of defendant-appellee the City of Redding., Brandon M. Middleton, of the Pacific Legal Foundation, Sacramento, CA, filed a brief on behalf of the Pacific Legal Foundation as amicus curiae in support of the defendants-appellees. M. Reed Hopper, of the Pacific Legal Foundation, was also on the brief.