South Carolina Coastal v. United States Army Corp

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-01543-RMG. [999603824]. [14-1796]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1796

SOUTH CAROLINA COASTAL CONSERVATION LEAGUE,
Plaintiff - Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Charleston District;
SA JOHN M. MCHUGH, in his official capacity as the
Secretary of the US Army; LTG THOMAS P. BOSTICK, in his
official capacity as Chief of Engineers; UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, in her
official
capacity
as
Administrator
of
the
U.S.
Environmental Protection Agency; HEATHER MCTEER TONEY, in
her official capacity as Regional Administrator, Region IV,
U.S.
Environmental
Protection
Agency;
SOUTH
COAST
MITIGATION GROUP LLC; LTC JOHN T. LITZ, in his official
capacity as Commander of the Charleston District,
Defendants - Appellees.

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:

May 13, 2015

Decided:

June 17, 2015

Before GREGORY and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion in which Judge Gregory and Judge Harris joined.

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ARGUED: Catherine Moore Wannamaker, SOUTHERN ENVIRONMENTAL LAW
CENTER, Atlanta, Georgia, for Appellant. Robert Lundman, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Stanley E.
Barnett, SMITH, BUNDY, BYBEE & BARNETT, P.C., Mount Pleasant,
South Carolina, for Appellees.
ON BRIEF: Christopher K.
DeScherer, Heather A. Murray, SOUTHERN ENVIRONMENTAL LAW CENTER,
Charleston, South Carolina, for Appellant.
John C. Cruden,
Assistant Attorney General, Aaron P. Avila, Environment &
Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Federal Appellees. Ellison P. Smith, IV,
SMITH, BUNDY, BYBEE & BARNETT, P.C., Mount Pleasant, South
Carolina, for Appellee South Coast Mitigation Group, LLC.

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HAMILTON, Senior Circuit Judge:
South Carolina Coastal Conservation League (the League) is
the plaintiff/appellant in this case.
in

Charleston,

South

Carolina,

is

The League, headquartered
a

non-profit

founded in 1989 under South Carolina law.
approximately
“mission

is

5,000
to

members.

protect

the

The

natural

corporation

It currently has

League’s

self-described

environment

of

the

South

Carolina coastal plain and to enhance the quality of life of
South

Carolina

businesses,

and

communities
government

environmental problems.”

by
to

working
ensure

with

individuals,

balanced

solutions

to

(J.A. 36).

Generally speaking, the League brought the present action
against various parties under federal law to stop what it fears
will

be

significant

degradation

to

485

acres

of

wetlands and its conversion to saltwater wetlands.

freshwater
Having lost

below on the ground of mootness, the League now appeals.

The

League also appeals the district court’s denial of its motion to
amend its First Amended Complaint to add one additional claim.
We affirm.

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.

The entire tract is adjacent to
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two tributaries of the Back River fork of the Savannah River and
the Back River’s marsh system.
Canal and Shubra Canal.

The tributaries are Murray Hill

The tract is also adjacent to the west

side of a stretch of U.S. Highway 17, located approximately two
miles north of Savannah, Georgia.
Since 2009, the entire tract has been owned by South Coast
Mitigation Group, LLC (South Coast).

Of the approximately 700

acres, thirty-percent is tidal salt marsh subject to the ebb and
flow of the tide, 1 while the remaining seventy-percent (i.e., 485
acres) is separated from the Back River and its marsh system by
man-made earthen embankments first built more than 150 years ago
in order to create rice fields (the Embanked Tract).

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.

When the water control structures are

open, brackish water from the Back River and its tidal marsh
system enters the Embanked Tract.

South Coast possesses the

sole legal right to operate these water control structures and

1

The Back River is brackish due to its proximity to the
Atlantic Ocean and to the Army Corps of Engineers’ (the Corps)
dredging
of
the
Savannah
River’s
channel
to
maintain
navigability.

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is

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entitled

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to

do

so

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without

any

government

oversight.

Accordingly, South Coast controls when brackish water from the
Back River and its tidal marsh system enters the Embanked Tract.
Since the 1950s, the Embanked Tract has been managed for
recreational

activities

such

as

hunting

and

fishing.

The

habitat within the Embanked Tract “includes an open water pond,
a flooded field, mowed fields, forested wetlands, shrub/scrub
wetlands, and forested uplands.”
the

last

thirty

years,

(J.A. 63).

freshwater

from

For approximately
a

canal

system

constructed by the Corps further up the Savannah River has been
available

to

the

owner

impoundments thereon.

of

the

Embanked

Tract

to

flood

the

Prior to 2011, freshwater was obtained

from this canal system to flood the impoundments on the Embanked
Tract allowing for the existence of freshwater wetlands thereon.
However, since 2011, South Coast has chosen not to obtain water
from

this

freshwater

Embanked Tract.
drained

the

canal

to

flood

any

impoundments

on

the

Rather, in 2011, 2012, and 2013, South Coast

impoundments

from

February

to

October,

then

reflooded them in October and November of those respective years
with brackish water from the Back River and its tidal marsh
system

by

opening

the

water

control

structures

linking

the

impoundments to those areas.
The present litigation stems from South Coast’s desire to
connect

the

Embanked

Tract

with
5

the

Back

River

fork

of

the

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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

a

River.
use

as

functioning
South

a

tidal

Coast

commercial

also
tidal

wetlands mitigation bank. 2
To allow full integration of the Embanked Tract and the
Savannah

River,

material

used

South
to

Coast

create

desires

the

earthen

to

remove

all

embankments

of

the

currently

separating the Embanked Tract from the Savannah River and to
deposit such material in the adjacent ditches.

This process

would restore the natural elevation of the area.
Of relevance here, the Clean Water Act (CWA), 33 U.S.C.
§§ 1251 through 1387, authorizes the Corps, with oversight by

2

Federal guidelines define wetlands mitigation banking as:

[W]etland restoration, creation, enhancement, and in
exceptional
circumstances,
preservation
undertaken
expressly
for
the
purpose
of
compensating
for
unavoidable wetland losses in advance of development
actions, when such compensation cannot be achieved at
the
development
site
or
would
not
be
as
environmentally beneficial. It typically involves the
consolidation of small, fragmented wetland mitigation
projects into one large contiguous site.
Units of
restored, created, enhanced or preserved wetlands are
expressed as “credits” which may subsequently be
withdrawn to offset “debits” incurred at a project
development site.
Federal Guidance for the Establishment, Use and Operation of
Mitigation Banks, 60 Fed. Reg. 58,605–02, 58,606 (Nov. 28,
1995).

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the

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United

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States

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Environmental

Protection

Agency

(EPA),

id.

§ 1344(c), to issue permits for the discharge of fill material
into the waters of the United States, id. § 1344(a).

In June

2012, South Coast applied to the Corps for verification that
deposit of the material used to create the earthen embankments
currently separating the Embanked Tract from the Savannah River
into the adjacent ditches meets the requirements of Nationwide
Permit 27. 3

Nationwide Permit 27 allows for, among other things,

activities in waters of the United States associated with the
restoration,

enhancement,

and

non-tidal

wetlands

and

associated

with

removal

the

establishment

riparian
of

areas,

embankments.

of

tidal

including

and
those

Reissuance

of

Nationwide Permits, 77 Fed. Reg. 10,184, 10,275 (Feb. 21, 2012).
South Coast’s proposal would impact 0.65 acres of ditches and
0.65 acres of embankments.
South Coast also sought the Corps’ approval of a commercial
mitigation banking instrument which would govern the proposed
mitigation bank known as the Clydesdale Mitigation Bank.

The

Final Clydesdale Mitigation Banking Instrument defines the scope
of the Clydesdale Mitigation Bank and specifies how the tidal

3

Removal of such material by itself does not require a
permit if done without discharging material into the waters of
the United States.

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marsh

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to

be

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created

would

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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.

§ 1344(b)(1); 42 U.S.C. § 4332(2)(C).
impoundments

and

33

the

U.S.C.

The Corps described the

area,

analyzed

the

potential

environmental impacts of the Final Clydesdale Mitigation Banking
Instrument, and assessed potential alternatives.
§ 1501.4

(setting

assessment).
instrument

forth

requirements

The
did

Corps

concluded

not

require

of

an

that

preparation

See 40 C.F.R.
environmental

approval

of

an

of

such

environmental

impact statement and issued a finding of no significant impact.
The Corps analyzed Nationwide Permit 27’s applicability to
South Coast’s proposed action to impact 0.65 acres of waters of
the United States.

The Corps determined that placement of the

excavated

from

material

the

embankments

into

the

adjacent

ditches would “restore natural elevations” and “not result in a
loss of waters of the [United States].”
then

both

verified

that

Nationwide

(J.A. 123).

Permit

27

The Corps

applied

to

the

removal of the embankments and the deposit of such material into
the

adjacent

ditches

and

approved

8

the

Final

Clydesdale

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Mitigation

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Banking

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Instrument

in

April

2013

(the

Approved

Project).
Of

relevance

on

appeal,

on

August

16,

2013,

the

League

filed its First Amended Complaint against the Corps, certain
Corps officials in their official capacities, the EPA, certain
EPA

officials

(collectively

in

their

official

Defendants).

capacities,

According

to

and

the

South

First

Coast

Amended

Complaint, “[t]he League represents the interests of members who
live or recreate in the immediate and general vicinity of the
proposed project, and have an ongoing interest in protecting
water quality and conserving wildlife and wildlife habitat in
the areas impacted by the project.”

(J.A. 36-37).

In the

League’s view, unless the Approved Project is stopped, saline
water from the Savannah River, its tributaries, and its tidal
marshland will intrude onto the Embanked Tract and cause the
conversion

of

the

freshwater

wetlands

thereon

to

saltwater

wetlands, thus impairing its members’ use and enjoyment of the
Lower Savannah River ecosystem.
The First Amended Complaint alleges six counts.

At this

point, we set forth only the portions of those six counts at
issue on appeal.

Proceeding under the Administrative Procedure

Act (the APA), 5 U.S.C. §§ 701 through 706, in Count 1, the
League

alleges

the

Corps

and

the

9

EPA

acted

arbitrarily

and

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capriciously

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in

approving

Banking Instrument.

the

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Final

Clydesdale

Mitigation

Id. § 706(2).

In Counts 2 and 3, the League invokes the CWA’s citizen
suit provision, 33 U.S.C. § 1365(a), to challenge the Corps’ and
the

EPA’s

actions

in

granting

South

Coast

authorization,

pursuant to Nationwide Permit 27, to fill in the ditches on the
Embanked

Track

embankments.

with

the

material

removed

from

the

adjacent

The gist of the League’s grievance in Count 2 is

that the permitted activity does not constitute restoration of
saltwater wetlands within the meaning of Nationwide Permit 27,
but

rather

wetlands

constitutes

to

saltwater

an

unlawful

wetlands.

conversion
The

gist

of

of

freshwater

the

League’s

grievance in Count 3 is that granting South Coast approval to
fill in the ditches on the Embanked Tract with the material
removed

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

Count 5, the League invokes the APA to challenge as conclusory,
unsupported, arbitrary, capricious, and an abuse of discretion
in violation of NEPA, the Corps’ no-significant-impact finding

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in

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the

Corps’

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approval

of

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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

National Marine Fisheries Service or the United States Fish and
Wildlife Service regarding the impact of the Approved Project on
endangered
storks.

manatees,

sturgeon,

and

wood

Id. § 1536(a)(2).

With respect to relief, the First Amended Complaint seeks:
(1) various declarations to the effect that the Corps’/EPA’s
verification that placement of the embankment material into the
adjacent ditches meets the requirements of Nationwide Permit 27
and

that

the

Corps’/EPA’s

approval

of

the

Final

Clydesdale

Mitigation Banking Instrument violates the CWA, the APA, NEPA,
and the ESA; (2) vacature of the verification under Nationwide
Permit 27 and the approval of the Final Clydesdale Mitigation
Banking Instrument; (3) an injunction enjoining all defendants
from authorizing any action or construction associated with the
Nationwide Permit 27 verification and the approval of the Final
Clydesdale

Mitigation

Banking

Instrument;

and

(4)

costs,

including reasonable attorneys’ fees and expert witness fees.
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On

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October

24,

2013,

Pg: 12 of 22

South

Coast

moved

to

dismiss

the

entire action as moot because, as owner of the property, it had
the authority to flood the impoundments on the Embanked Tract
with brackish water anytime it so chose.

The district court

found this argument unpersuasive, stating:
The Court disagrees and finds this case is not moot.
South Coast does not allege that it has in fact
allowed saltwater intrusion or that the facts or
circumstances underlying this case have changed.
Rather, it asserts that they might hypothetically
change in the future.
Unless circumstances in fact
change, the Court finds that it can provide an
effective remedy to Plaintiff by vacating the approval
of the proposed project under [Nationwide Permit] 27
and approval of the [Final Clydesdale Mitigation
Banking Instrument].
(J.A. 300-01).
South

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

salinity of the water immediately outside the Embanked Tract in
the Back River and its marshland system.

The tests reflected

the average salinity of the water inside the Embanked Tract at
3.4 parts per thousand and the average salinity of the water
immediately

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,

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failed to adequately consider a proposed new mitigation bank
known

as

the

Murray

Hill

Mitigation

Bank

as

cumulative impact analysis required by NEPA.
newly

obtained

salinity

readings,

shortly

part

of

the

Armed with the
thereafter,

South

Coast moved to dismiss the entire action as moot, or in the
alternative, for summary judgment on the ground that the water
which the League seeks to keep out of the impoundments on the
Embanked Tract is actually less saline than the water within the
impoundments on the Embanked Tract.
the

League’s

primary

feared

According to South Coast,

harm

(i.e.,

the

conversion

of

freshwater wetlands to saltwater wetlands) had already occurred.
After

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

Coast’s

test

However, the League did contest South Coast’s factual

assertion that the freshwater wetlands inside the Embanked Tract
had

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

affidavits of three wetlands experts——Dr. Daniel Tufford, Dr.
Richard Porcher, and Robert Perry.

At this point, we quote the

critical excerpts of each expert’s affidavit.
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Dr. Daniel Tufford, Ph.D in environmental health sciences
from the University of South Carolina, opined:
In my experience, one would need a salinity of
approximately 20 ppt or higher to create a salt marsh.
As indicated by South Coast’s own monitoring, the
salinity readings of waters inside and immediately
outside the impoundments revealed an average salinity
of 3.4 ppt.
This level of salinity is far short of
what would be required to either create salt marshes
(or even brackish marshes) or to irreversibly convert
the freshwater wetlands into salt marshes.
This
conclusion is further supported by our recent site
visit, where it was clear that much of the site was
still
dominated
by
freshwater
wetland
plants.
Moreover, with access to freshwater from the federal
diversion canal, there is no doubt that these
impoundments
can
continue
to
be
maintained
as
freshwater wetlands.
(J.A. 404).
Dr.

Richard

Porcher,

Jr.,

Ph.D.

in

biology

from

University of South Carolina, opined:
Based on [my] May 12, 2014 site visit, I see no reason
why all of the impounded areas on the Clydesdale tract
on the Savannah River cannot be returned or restored
to their natural freshwater nature given the right of
South Coast to demand freshwater from the federal
diversion canal.
I believe South Coast’s contentions
that
these
impounded
areas
no
longer
resemble
freshwater wetlands or can no longer be managed as
freshwater wetlands are wrong in a number of respects.
*

*

*

. . . Given the vegetation I observed, all three
impounded areas will respond to flooding by freshwater
and can be managed as freshwater wetlands.
*

*

*

. . . [I]t is my understanding that South Coast has
the right to demand freshwater from the U.S. Fish &
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Wildlife Service via the federal diversion canal.
With access to a supply of freshwater, there is no
doubt in my mind that the impounded areas on the site
proposed for the Clydesdale Club Mitigation Bank can
still be managed as a freshwater wetland resource.
(J.A. 413-14).
Robert D. Perry, Masters Degree in wildlife biology from
Clemson University and the Director of Environmental Programs
for the South Carolina Department of Natural Resources, opined:
It will take many years of flooding at low salinities,
. . . along with drought, to cause any change in the
plant community of the [Embanked Tract]. Even so, the
effects of flooding for several years with low
salinity would be minor and could easily be reversed
with one or two years of flooding with freshwater.
Normal rainfall captured inside the [Embanked Tract]
will negate the effect on the plant community of low
salinity in the ditches of the Project.
*

*

*

. . . Based on my many years of field experience,
research, and management of tidal wetlands in all
salinity regimes, and based on my familiarity with the
[Embanked Tract], I conclude that the marshes within
the [Embanked Tract] indeed have been and continue to
be freshwater marshes.
They can be managed in the
future
with
fresh
or
low-salinity
tidal
water
introduced through existing water control structures,
the capture of rainfall or by the [Corps’] freshwater
canal system.
There is no evidence of vegetation
indicative of flooding with brackish water for any
prolonged period.
The presence of plants that can
thrive in both freshwater and low-salinity water does
not constitute conversion to a “brackish marsh.”
Any
opinion that the marshes of the [Embanked Tract] “are
no longer fresh water impoundments in any sense of the
term” cannot be supported by observable evidence and
available science.
(J.A. 424-25).

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On the record before it, the district court agreed with
South Coast’s argument that the case was moot and dismissed the
case on July 11, 2014, reasoning as follows:
Here, the harm sought to be enjoined——preventing the
intrusion of brackish water into the freshwater
impoundments——has already occurred.
In fact, the
water inside the impoundments is more saline than the
water Plaintiff seeks to prevent from entering the
impoundments.
The Court finds that under these
circumstances it cannot provide meaningful relief and
that this case is therefore moot.
(J.A.

488).

The

district

court

further

denied

the

League’s

motion to amend the First Amended Complaint as futile because
the proposed amendment would not alter the nature of the case.
This timely appeal followed.

II
On appeal, the League contends this action is not moot, and
therefore, the League seeks vacature of the district court’s
July 11, 2014 order and a remand for further proceedings.

The

League’s contention is without merit.
Federal

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

standing to challenge the defendant’s alleged misconduct.
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

and

Lujan

To satisfy

Article III’s standing requirement, “[t]he plaintiff must have

16

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suffered

or

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be

imminently

Pg: 17 of 22

threatened

with

a

concrete

and

particularized ‘injury in fact’ that is fairly traceable to the
challenged action of the defendant and likely to be redressed by
a favorable judicial decision.”
Control

Components,

Inc.,

Lexmark Int’l, Inc. v. Static

134

S.

Ct.

1377,

1386

(2014)

(quoting Lujan, 504 U.S. at 560).
When a case or controversy ceases to exist, the litigation
is moot, and the court’s subject matter jurisdiction ceases to
exist also.

Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70

(1983) (per curiam).

A case can become moot due either to a

change in the facts or a change in the law.
F.2d

689,

693–94

(4th

Cir.

1983).

court’s mootness determination de novo.

We

Ross v. Reed, 719

review

the

district

See Simmons v. United

Mortg. & Loan Inv., LLC, 634 F.3d 754, 762 (4th Cir. 2011).
Moreover,

“[w]e

review

a

district

court’s

jurisdictional

findings of fact on any issues that are not intertwined with the
facts central to the merits of the plaintiff’s claims under the
clearly

erroneous

standard

of

review

. . . .”

U.S.

ex

rel.

Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009).
Here, the district court concluded the League’s claims had
become moot due to a change in the facts.

Specifically, the

court concluded that, because the water inside the impoundments
in the Embanked Tract is now more saline than the water the
League seeks to prevent from entering the impoundments in the
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Pg: 18 of 22

Embanked Tract, the court cannot provide meaningful relief with
respect

to

Embanked

the

Tract

League’s
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

court’s

making

such

determination the district court ignored the declarations of its
experts explaining that the salinities measured by South Coast
are

not

nearly

high

enough

to

work

a

conversion

of

the

impoundments on the Embanked Tract from freshwater wetlands to
saltwater wetlands and the current salinity readings could be
reversed

by

obtaining

operated by the Corps.

freshwater

from

the

freshwater

canal

By ignoring this evidence, the League

asserts, the district court erroneously construed the facts in
the light most favorable to South Coast instead of construing
the facts in the light most favorable to the League as the party
opposing summary judgment.

See Young v. United States Parcel

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
Coast’s

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assertion that a conversion of freshwater wetlands to saltwater
wetlands had already occurred inside the impoundments in the
Embanked Tract.
The
whether

obvious
a

full

problem

with

conversion

of

the

League’s

the

once

position

completely

is

that

freshwater

wetlands within the Embanked Tract to saltwater wetlands has
occurred or not is irrelevant to the mootness analysis given
that allowing South Coast to level the embankments and place the
fill dirt in the adjacent ditches will not make the water within
the

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

. . . .”

Appellant’s

Reply

quotation marks and citation omitted).
circumstances,

the

nonredressability

Br.

at

5

(internal

Under these undisputed
of

the

League’s

alleged

harm via success on any of its claims in the present litigation
is plain.

The record on appeal does not support the proposition

that granting the League the relief it seeks on any of its
claims will likely prevent the water within the Embanked Tract
from becoming more saline.

Moreover, South Coast is under no
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Appeal: 14-1796

legal

Doc: 42

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obligation

to

obtain

Pg: 20 of 22

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 still——at a
bare minimum——award [it] meaningful relief on its claims that
the Corps’ . . . approval [of the Final Clydesdale Mitigation
Banking

Instrument]

prevent

the

is

arbitrary

development

of

Appellant’s Reply Br. at 6.

a

and

capricious,

mitigation

bank

which

at

the

would
site.”

The League’s argument is circular

because it misses the point that for the League to have Article
III

standing

to

challenge

the

Corps’

approval

of

the

Final

Mitigation Banking Instrument, its members must have suffered or
be

imminently

threatened

with

suffering

a

concrete

and

particularized injury in fact that is fairly traceable to the
Corps’ approval of the Final Mitigation Banking Instrument and
is

likely

decision.
might,

the

to

be

redressed

by

a

favorable

Lexmark Int’l, Inc., 134 S. Ct. at 1386.
League

has

not

identified

particularized injury in fact.

any

such

judicial
Try as it

concrete

and

The League’s disagreement with

the wisdom of the Corps’ challenged approvals in this case and
the League’s general belief that saltwater mitigation banks are
a

bad

idea

for

the

environment
20

is

insufficient

to

establish

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jurisdictional
litigation.

standing

Pg: 21 of 22

to

continue

the

current

Diamond v. Charles, 476 U.S. 54, 62 (1986) (“The

presence of a disagreement, however sharp and acrimonious it may
be,

is

insufficient

by

itself

to

meet

Art.

III’s

requirements.”).
For

the

reasons

stated,

we

affirm

the

district

court’s

dismissal of this action as moot.

III
We

next

turn

court’s

denial

Amended

Complaint

to

of

the

its
to

League’s

motion
add

a

for

claim

challenge

to

leave

to

amend

its

the

Corps

failed

that

the

district
First
to

consider the cumulative impact of permitting another salt marsh
mitigation

bank

at

adjacent

property

regulation 40 C.F.R. § 1508.7.

as

required

by

NEPA

According to the League, because

the district court’s mootness ruling is in error, the district
court

should

have

granted

it

leave

to

amend.

Notably,

the

League offered no additional basis for standing with respect to
the claim it sought to add.
This issue need not detain us long.

Because the district

court’s mootness ruling is sound and the League has offered no
additional basis for standing, the district court did not abuse
its

discretion

in

denying,

on

21

the

ground

of

futility,

the

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League’s

motion

Filed: 06/17/2015

seeking

leave

Pg: 22 of 22

to

amend

its

First

Amended

Complaint.

IV
In conclusion, we affirm the district court’s July 11, 2014
order dismissing this action as moot and affirm the district
court’s denial of the League’s motion seeking leave to amend its
First Amended Complaint.
AFFIRMED

22