Baccarat Fremont Developers v. U.S. Army Corps of Engineers

ORDER GRANTING FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants United States Army Corps of Engineers and Lt. Col. Timothy O’Rourke (Federal Defendants) move for summary judgment. Plaintiff Baccarat Fremont Developers (Baccarat) opposes this motion. The matter was heard on March 14, 2003. Having considered all of the papers filed by the parties and oral argument on the motion, the Court GRANTS Federal Defendants’ motion.

BACKGROUND

Baccarat is a California company and the developer of the FremonL-Cushing Plaza Project, located on 30.98-acre site in Fremont, California. The United States Army Corps of Engineers (the Corps) is a federal agency having jurisdiction to regulate certain activities in navigable waters of the United States under the Clean Water Act. Lt. Col. Timothy O’Rourke is the District Engineer for the San Francisco District of the Corps. Baccarat contests Defendants’ assertion of regulatory jurisdiction over seasonal wetlands located on the FremonWCushing Plaza Project site.

The Fremont-Cushing Plaza Project site is roughly rectangular. It is bounded on the north by Cushing Parkway, on the east by Fremont Boulevard, and on the south and west by…