Ballona Wetlands Awarded Reprieve From 9th Circuit Court of Appeals
- Ballona Wetlands Awarded Reprieve
From 9th Circuit Court of Appeals
Wetlands Action Network NEWS
protecting & restoring wetlands along the Pacific Migratory Pathways
FOR IMMEDIATE RELEASE
CONTACT: Marcia Hanscom (310) 456-5604
SEPTEMBER 1, 2000, Los Angeles, CA...Late today environmental attorney Steve Crandall was notified by the 9th Circuit Court of Appeals that the Ballona Wetlands would be granted a reprieve and not be subject to imminent bulldozing that Wall Street developers Morgan Stanley Dean Witter and Goldman Sachs had planned. Developers wanted to rip down the two-year old orange fences protecting the wetlands without delay after learning of their 9th Circuit victory two weeks ago that overturned District Court Judge Ronald Lew's opinion that an Army Corps of Engineers permit was issued illegally. Developers also sought to shorten the time environmentalists could work on a possible appeal. The 9th Circuit said, "No. Motion denied."
Crandall represents Wetlands Action Network and CALPIRG (California Public Interest Research Group), two environmental public interest organizations who filed the original lawsuit for this case, along with the Ballona Wetlands Land Trust, in December, 1996. After a series of federal court hearings, Lew ruled in June, 1998, that the Army Corps issuance of the wetlands destruction permit was "arbitrary, capricious and otherwise not in accordance with the law." At once the developers were ordered to obey an injunction that required placing of orange snow fencing around the wetlands that were not to be touched due to this decision. The developers, Playa Capital, appealed, soon followed by the U.S. Army Corps' lawyers. On August 21, 2000, the 9th Circuit Court of Appeals reversed Lew's decision.
This last Tuesday evening, August 29, 2000, environmental lawyers were served with an emergency motion by Playa's lawyers, Latham & Watkins, requesting that the Court lift the injunction and shorten the time for environmental lawyers to file a petition for re-hearing. Wetlands Action Network and CALPIRG were contemplating filing a petition for re-hearing en banc, which, if granted, would give the wetlands a hearing before ten of the 9th Circuit Court of Appeals judges, as opposed to the panel of three that recently ruled in favor of the Corps and the developers. The emergency motion had to be answered by noon today.
While the developers' lawyers made this motion, the Army Corps of Engineers declined to join the motion, and, in fact, disagreed with developers that the filing time for environmentalists to request an en banc review should be shortened. In fact, the Corps' lawyers indicated concern that such a shortening of time would set a bad precedent. Crandall pointed out on behalf of Wetlands Action Network and CALPIRG that the developers had left out critical facts about their project that "negate any suggestion of the need for emergency relief."
In the developers' pleading with the Court, they sought to be allowed to immediately destroy the wetlands, including a saltmarsh wetland Playa Capital wants to dig up and dump the project's stormwater into. However, developers' lawyers failed to mention that all new permits (building permits, etc.) are being held up the City of Los Angeles due to the discovery of high volumes of explosive methane gas and other toxic contaminants, as well as the discovery of a new fault that is adjacent to this proposed stormwater basin. The developer insists on calling this stormwater basin a "freshwater marsh," even though several federal resource agencies, including the U.S. Fish & Wildlife Service, National Marine Fisheries Service and the U.S. Environmental Protection Agency, pled with the Army Corps not to issue the original permit because they were concerned that this fake marsh would not provide habitat values that would be lost by the destruction of the wetlands.
Besides the fact that the permit hold-ups at the development do not translate to an urgent need to have a functioning stormwater basin right away, Wetlands Action Network and CALPIRG also argued that an alternate plan for stormwater, one that would not destroy wetlands, has been designed by the developer and is nearing a final phase of approvals at the City. Also argued before the Court was the contention by Playa Capital that their bulldozers could only destroy wetlands during the months of September and October, due to the rainy season beginning in November and the nesting season following. This argument flies in the face of previous bulldozing the developers have done in wetland areas, which first began during the nesting season of 1996, beginning in April and ending in August of that year.
"This decision gives the wetlands a reprieve and gives us all hope for justice for the Ballona Wetlands," stated Marcia Hanscom, executive director of Wetlands Action Network.
Hanscom stated that the environmentalists, given this victory, will have until October 5, 2000 to file a petition for re-hearing en banc. She said that, due to the nature of the complex motions already being thrown at the environmentalists from a well-funded developer defense machine, it will be necessary to redouble fundraising efforts for the Ballona Legal Defense Fund if the appeals are to continue to the 9th Circuit Court of Appeals. Hanscom also expressed confidence in supporters that they will heed the call for support, especially given the strong original opinion issued by Judge Lew.
Tax deductible donations to the Ballona Legal Defense Fund can be made payable to: Wetlands Action Network, P.O. Box 1145, Malibu, CA 90265.
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P.O. Box 1145 Malibu, CA 90265 (310) 456-5604 fax: (310) 456-5612
Ballona Wetlands Granted Reprieve
September 1, 2000