## Facts

- A developer planned a 794-home gated community on a 608-acre desert parcel near Phoenix, Arizona.
- The parcel included 31.3 acres of braided, ephemeral desert washes dispersed throughout the site; the washes qualified as “waters of the United States.”
- The developer obtained a Clean Water Act (CWA) § 404 permit from the U.S. Army Corps of Engineers to place fill into 7.5 acres of washes to build infrastructure.
- For NEPA compliance, the Corps prepared an Environmental Assessment limited largely to the jurisdictional washes and the permitted fill, issued a Finding of No Significant Impact, and did not prepare an Environmental Impact Statement.
- An environmental organization sued under the Administrative Procedure Act, asserting the Corps unlawfully narrowed NEPA review and sought to stop construction.
- The district court issued a temporary restraining order and then a preliminary injunction halting development; it found serious questions on the merits and that hardships favored the plaintiff, and it required a $50,000 Rule 65(c) bond.
- The Corps did not appeal; the developer appealed the injunction and bond amount, and the plaintiff cross-appealed the bond.

## Issues

1. Whether the environmental organization had associational standing to challenge the § 404 permit under NEPA and the APA.
2. Whether the district court abused its discretion in granting a preliminary injunction based on serious questions on the merits and a sharply favorable balance of hardships.
3. Whether it was likely arbitrary or improper under NEPA for the Corps to limit environmental review to the jurisdictional washes rather than the full 608-acre development.
4. Whether the district court could enjoin work across the entire project site, including non-jurisdictional uplands, to preserve meaningful NEPA review.
5. Whether the district court abused its discretion in setting a $50,000 bond (including whether any bond was required).

## Decision

- The Ninth Circuit affirmed the preliminary injunction.
- The court held the organization had standing through members alleging concrete aesthetic and recreational injuries tied to the affected area, traceable to the permit, and redressable by injunctive relief.
- The court held the district court did not abuse its discretion in finding serious questions that NEPA required analysis beyond the washes, given the washes’ dispersion and their functional connection to the overall development.
- The court upheld the injunction’s project-wide scope because upland work and wash impacts were closely linked and allowing upland construction could pre-commit resources and defeat effective NEPA relief.
- The court affirmed the $50,000 bond as within Rule 65(c) discretion in a public-interest environmental case.

## Legal Principles

- Associational standing exists when members would have Article III standing, the interests are germane to the organization’s purpose, and neither the claim nor requested relief requires individual member participation.
- Under the Ninth Circuit’s preliminary injunction standard, relief may issue upon “serious questions” on the merits and a balance of hardships tipping sharply toward the movant, particularly where environmental harm may be irreparable.
- NEPA review may not be artificially narrowed when federal authorization is a key component of a larger, functionally connected project; segmentation is improper where actions are connected or interdependent.
- A court may enjoin activities beyond the precise footprint of permitted jurisdictional waters when necessary to preserve the status quo and prevent actions that would frustrate meaningful NEPA compliance.
- Under Rule 65(c), bond amounts are committed to district court discretion; in public-interest environmental litigation, courts may set reduced security to avoid barring meritorious challenges.

## Conclusion

The Ninth Circuit sustained a preliminary, project-wide halt to development authorized in part by a CWA § 404 permit, concluding that the plaintiff had standing, that serious NEPA questions existed about limiting analysis to jurisdictional washes, that broader injunctive relief was permissible to preserve effective NEPA review, and that a modest bond was within the district court’s discretion.


Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005)