ELR Citation: ELR 20764
No(s). CV-02-00761-PHX-SRB (D. Ariz. May 30, 2002)

The court grants an environmental group's motion for a preliminary injunction to enjoin a developer from engaging in any activities authorized by a U.S. Army Corps of Engineers' (Corps') permit allowing the construction of road crossings and other facilties over U.S. waters in Phoenix, Arizona. Although the development area is desert, washes run east to west throughout the entire parcel. The group argued that the Corps' environmental assessment for the project was too narrow in scope because the Corps simply looked at the washes and not at the entire parcel of land. The court first grants the injunction and suspends the permit. Serious questions exist as to the merits of the case. The washes and the land are part and parcel of the same project. Although U.S. waters constitute only about 5% of the total area, the washes are a dominant feature of the land and no development of the property could occur without affecting the washes. Thus, although the land itself is private property, federal control of the entire area could be extensive due to the strands of public water running throughout it. Further, the Corps limited its review to the area immediately adjacent to the crossings, yet the location of the uplands and washes dictate where construction will be. In addition, the balance of the hardships tips in favor of the environmental group. If the desert land is disrupted, it cannot be restored.

The full text of this decision is available from ELR (4 pp. ELR Order No. L-531).

Counsel for Plaintiff
Myron L. Scott
Law Offices of Myron L. Scott
P.O. Box 210, Tempe AZ 85281
(480) 968-2179

Counsel for Defendants
Richard G. Patrick
U.S. Attorney's Office
230 N. First Ave., Phoenix AZ 85025
(602) 514-7500