Filed: Jun. 17, 2015
Latest Update: Mar. 02, 2020
Summary: 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 Agenc
Summary: 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..
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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.
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.
2
HAMILTON, Senior Circuit Judge:
South Carolina Coastal Conservation League (the League) is
the plaintiff/appellant in this case. The League, headquartered
in Charleston, South Carolina, is a non-profit corporation
founded in 1989 under South Carolina law. It currently has
approximately 5,000 members. The League’s self-described
“mission is to protect the natural environment of the South
Carolina coastal plain and to enhance the quality of life of
South Carolina communities by working with individuals,
businesses, and government to ensure balanced solutions to
environmental problems.” (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 freshwater
wetlands and its conversion to saltwater wetlands. 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
3
two tributaries of the Back River fork of the Savannah River and
the Back River’s marsh system. The tributaries are Murray Hill
Canal and Shubra Canal. 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.
4
is entitled to do so 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.” (J.A. 63). For approximately
the last thirty years, freshwater from a canal system
constructed by the Corps further up the Savannah River has been
available to the owner of the Embanked Tract to flood the
impoundments thereon. 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 canal to flood any impoundments on the
Embanked Tract. Rather, in 2011, 2012, and 2013, South Coast
drained the 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 the Back River fork of the
5
Savannah River and its tidal marsh system to allow the entire
almost 700-acre tract it owns to become a functioning tidal
marsh integrated with the Savannah River. South Coast also
desires to dedicate the site to use as a commercial tidal
wetlands mitigation bank. 2
To allow full integration of the Embanked Tract and the
Savannah River, South Coast desires to remove all of the
material used to create the earthen embankments 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).
6
the United States 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 establishment of tidal and
non-tidal wetlands and riparian areas, including those
associated with the removal of embankments. 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.
7
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 assessment of the project and analyzed the
Final Clydesdale Mitigation Banking Instrument. 33 U.S.C.
§ 1344(b)(1); 42 U.S.C. § 4332(2)(C). The Corps described the
impoundments and surrounding area, analyzed the potential
environmental impacts of the Final Clydesdale Mitigation Banking
Instrument, and assessed potential alternatives. See 40 C.F.R.
§ 1501.4 (setting forth requirements of an environmental
assessment). The Corps concluded that approval of such
instrument did not require preparation of an 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 material from the embankments into the adjacent
ditches would “restore natural elevations” and “not result in a
loss of waters of the [United States].” (J.A. 123). The Corps
then both verified that Nationwide Permit 27 applied to the
removal of the embankments and the deposit of such material into
the adjacent ditches and approved the Final Clydesdale
8
Mitigation Banking 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 in their official capacities, and South Coast
(collectively Defendants). According to the First 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 EPA acted arbitrarily and
9
capriciously in approving the Final Clydesdale Mitigation
Banking Instrument. 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 with the material removed from the adjacent
embankments. 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 constitutes an unlawful conversion of freshwater
wetlands to saltwater wetlands. The gist of 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
10
in the Corps’ approval of the Final Clydesdale Mitigation
Banking Instrument.
Finally, in Count 6, the League alleges the Corps violated
the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 through
1544, by approving the Final Clydesdale Mitigation Banking
Instrument and authorizing associated work to proceed under
Nationwide Permit 27 without formally consulting with the
National Marine Fisheries Service or the United States Fish and
Wildlife Service regarding the impact of the Approved Project on
endangered manatees, sturgeon, and wood
storks. 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.
11
On October 24, 2013, 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 Mitigation Banking Instrument,
12
failed to adequately consider a proposed new mitigation bank
known as the Murray Hill Mitigation Bank as part of the
cumulative impact analysis required by NEPA. Armed with the
newly obtained salinity readings, shortly 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. According to South Coast,
the League’s primary feared 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 not contest the accuracy of South Coast’s test
results. However, the League did contest South Coast’s factual
assertion that the freshwater wetlands inside the Embanked Tract
had already been fully converted to saltwater wetlands.
According to the League, the freshwater wetlands inside the
Embanked Tract had not yet fully converted to saltwater
wetlands.
In support of 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.
13
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 the
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 &
14
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).
15
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 are limited to resolving cases and
controversies, U.S. Const. art. III, § 2, and a case or
controversy does not exist unless the plaintiff possesses
standing to challenge the defendant’s alleged misconduct. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To satisfy
Article III’s standing requirement, “[t]he plaintiff must have
16
suffered or be imminently 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.” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 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. Ross v. Reed,
719
F.2d 689, 693–94 (4th Cir. 1983). We review the district
court’s mootness determination de novo. 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
17
Embanked Tract, the court cannot provide meaningful relief with
respect to the League’s feared harm of the wetlands on the
Embanked Tract turning from freshwater wetlands to 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. Instead, the League attacks the district court’s
mootness determination on the ground that in 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 freshwater from the freshwater canal
operated by the Corps. 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 to the nonmoving party). Such error, the League
argues, caused the district court to accept South Coast’s
18
assertion that a conversion of freshwater wetlands to saltwater
wetlands had already occurred inside the impoundments in the
Embanked Tract.
The obvious problem with the League’s position is that
whether a full conversion of the once completely 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 Br. at 5 (internal
quotation marks and citation omitted). Under these undisputed
circumstances, the nonredressability 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
19
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 still——at a
bare minimum——award [it] meaningful relief on its claims that
the Corps’ . . . approval [of the Final Clydesdale Mitigation
Banking Instrument] is arbitrary and capricious, which would
prevent the development of a mitigation bank at the site.”
Appellant’s Reply Br. at 6. 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 to be redressed by a favorable judicial
decision. Lexmark Int’l, Inc., 134 S. Ct. at 1386. Try as it
might, the League has not identified any such concrete and
particularized injury in fact. 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 is insufficient to establish
20
jurisdictional standing to continue the current
litigation. 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 to the League’s challenge to the district
court’s denial of its motion for leave to amend its First
Amended Complaint to add a claim that the Corps failed to
consider the cumulative impact of permitting another salt marsh
mitigation bank at adjacent property as required by NEPA
regulation 40 C.F.R. § 1508.7. 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 the ground of futility, the
21
League’s motion seeking leave 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
