*1 аny not did not address in detail his tion. The BIA found that Kumker was er that he eligible underlying reopen substantive re- motion to evidence alleged changed sought.2 presented lief he and how brief, him. In his conditions will affect petition for Kumker filed a counseled stating Kumker refers to articles that at- Ap States Court of review United in- had tacks civilians Catholics Circuit, peals for the Second which was creased, and that Islamic fundamentalism transferred to this We Court. review grown, explain but he does not how had reopen BIA’s denial of a motion to for an these events relate to his claim based Gonzales, Borges abuse of discretion. v. by Party Kumk- threats Refah members. (3d Cir.2005). 398, 404 402 F.3d Under er has not that the BIA abused its shown standard, we will disturb the BIA’s denying reopen. his motion to discretion irrational, only arbitrary, decision if it is or contrary Accordingly, deny petition to Id3 law. will for review. ap BIA argues
Kumker that plied wrong legal requir standard prima showing him to make a facie withholding he entitled to remov
al, opposed asylum. to Kumker asserts one-year statute of limitations apply allegеd changed not because he
does
country The con conditions. Government that, notwithstanding a time-barred cedes CLUB, Jersey In- Public SIERRA asylum entry of a application removal Lobby, Group terest Research Citizens order, asylum an alien seek in a mo Inc., Environmentаl and New changed country reopen tion to based on Federation, Appellants conditions, if the evidence is material and v. previous proceed not at the available ARMY CORPS OF 1229a(c)(7)(C)(ii). UNITED STATES ing. See 8 U.S.C. ENGINEERS, Richard J. Colonel Government, however, correctly ar Jr., Polo, and Meadowland gues that Kumker cannot meet his burden Mills/ Partnership. Limited Mack-Cali because he proof under standard credible, asylum his claim is was found not No. 06-4887. political perse based on the same claim of Appeals, United States Court presented, and his previously cution new Third Circuit. credibility. is unrelated to his evidence Argued March 2008. argues also that he estab Kumker Filed: a rise in Islamic fundamentalism lished persecution. him in places danger credibility Kumk- problem, Even absent a removal, asylum, withholding denial of
2. The BIA also noted that seven of Kumker's eight Against exhibits were available before the BIA Torture. relief under the Convention order, earlier and did not constitute only timely issued its petition Kumker's for review is not at "new” evidence. This conclusion is denying respect the BIA's оrder his to appeal. issue on I.N.S., reopen. See Stone motion 386, 405-06, 115 S.Ct. jurisdiction review the BIA’s 3. We lack (1995). L.Ed.2d 465 appeal dismissing Kumker’s from decision *2 (Argued), Gray, Esq. T. United Michael Justice, Environ- Department States Division, Virgi- Resources ment & Natural Albrecht, DePippo, Esq., David J. nia S. Lashway, Esq., Eric J. Esq., David C. & Murdock, (Argued), Hunton Esq. D.C., Benjamin Williams, Washington, Cole, Clarke, Esq., R. DeCo- Esq., Michael Taneck, Wisler, tiis, & Fitzpatrick Cole NJ, Appellee. for Defendant McKEE, Before: RENDELL *, Judges. TASHIMA Circuit Rendell, THE Judge, concurring filed OPINION OF COURT opinion. TASHIMA, Judge. Senior Circuit
At the heart of this case lie 7.69 acres оf once located in the wetlands Meadowlands (“MSC”), Sports Complex prop- a 684-acre erty located in the Hackensack Meadow- Rutherford, Jersey. lands of East New 18, 2005, Defendant-Appellee On March Army Corps Engineers States United (“Corps”) granted Dеfendant-Appellee Limited Meadowland Mills/Mack-Cali Partnership1 (“Partnership”) fill pursuant the wetlands to Section 404 (“CWA”), Act Clean Water U.S.C. Club, § 1344. Plaintiffs Sierra New Jer- sey Group Lobby, Public Interest Citizens Inc., Environmental Fed- New legali- brought challenging eration suit ty permit, contending violations 1251-1387; §§ 33 U.S.C. (“APA”), Procedure Act Administrative 500-596; §§ the National Environ- U.S.C. (“NEPA”), 42 Policy mental Act U.S.C. 4321-4375; §§ and Harbors Lloyd, Rivers Esq. (Argued), Edward Columbia Law, York, NY, Act, 401-467n; §§ imple- University School U.S.C. menting regulations. The District Plaintiff-Appellant. Court * Tashima, Developer Judge Lim- Honorable A. Wallace Senior its name to thе Meadowlands Appeals simplicity, of the United States Court of Partnership. ited For sake of Circuit, sitting by designation. Ninth Defendant-Appellee "Partnership” refer to 22, 2006, throughout. the Meadowlands 1. On November Partnership changed Limited Mills/Mack-Cali
granted summary judgment patсh, bordering in favor of each and on opposite all Jersey Turnpike. Defendants on claims. See Sierra Club sides the New Army Eng’rs, question before us is whether (D.N.J.2006). all F.Supp.2d 503 Because substantial wetlands —7.57 but 0.12 of the 7.69 acres of acres *3 out of 7.69 acres—has rendered Plаintiffs’ been top have filled and construction on of claims moot. categories There exist two substantially the former is com- of mootness: Article III mootness and plete, can no Plaintiffs longer provide we prudential Cangemi, v. 419 mootness. Ali any meaningful Acсordingly, relief. with (8th (en Cir.2005) 722, banc); F.3d 723 opinion the district court’s we vacate and see also Int'l Bhd. v. Boilermakers Kel of remand to with instructions dismiss the (3d Cir.1987) (“In ly, 912, 815 F.2d 915 action as moot. addition to its threshold di constitutional mension, parties, Because write for the incorporates we wе mootness doctrine well.”). only necessary prudential include those facts considerations as Our disposition Partnership jurisdiction of this case. The is III limited Article Constitution, won a bid to construct the judicial Meadowlands which ties our au Project Redeveloрment part thority Xanadu of to the of a or existence “case con plan redevelop troversy.” a state-run to the Rumsfeld, Continen- Rendell v. 484 F.3d (“Arena Site”) (3d Cir.2007) 236, tal Arena (citing Airlines Site at 240 Int'l Bhd. of 914). Boilermakers, the MSC. Because the 104-acre redevel- 815 F.2d at If a сase opment sense, site contained acres of 7.69 wet- becomes moot in the Article III we lands, Partnership applied the to the do not jurisdiction. have Id. at 241. Un Corps doctrine, for a fill permit pursuant prudential to 404 of der mootness however, Corps permit CWA. The issued the we decline to exercise our 18, 2005, on March and grant declaratory injunc Plaintiffs filed discretion to and 30, complaint them on March 2005. Plain- if controversy tive relief is “so attenu tiffs contended that the issued the ated that of prudence cоnsiderations and APA, comity in govern violation for coordinate of branches NEPA, Act, hand, and the Harbors stay Rivers and ment counsel the court to its alleged inju- and recreational aesthetic power and to withhold relief it has the to grant.” ries that would result from thе loss of the Chamber Commerce v. U.S. 2005, Dep’t 289, filed a Energy, wetlands. Plaintiffs 627 291 F.2d (cited (D.C.Cir.1980) preliminary injunction, motion for which approval Int’l 7, Boilermakers, July 915); denied on 2005. The district Bhd. 815 F.2d at granted summary judgment court in favor see also Blanciak v. Allegheny Ludlum (3d Cir.1996) Septem- 690, of the Defendants on all Corp., claims 77 F.3d 700 (“ 28, timely appealed.2 discretionary power ber 2006. Plaintiffs ‘The in withhold junctive declaratory pruden relief for commenced in March Construction reasons, tial in a case not constitu even 2006, By January 6.97 acres of wetlands ”) tionally moot, is еstablished.’ well filled, August had been and between (quoting Spangler, S-1 v. 832 F.2d and October four more small wet- (4th Cir.1987)). filled, for a lands were total 7.57 acres Today, patches question prudential filled. two small of wet- The central in a “ analysis changes acre and 0.03 acre moоtness is lands remain: ‘whether grant appeal Act claim. 2. Plaintiffs do not sum- mary judgment on their Rivers and Harbors In the injuries. and aesthetic begin- creational at prevailed circumstances meaningful for any possibility absence litigation have forestalled ning of the ” rеlief, to hold that the case are free Int’l for relief.’ occasion moot. prudentially Boilermakers, F.2d at 915 Bhd. Light Jersey Cent. Power & Co. (quoting opinion vacate Accordingly, we will (3d Cir.1985)). Jersey, F.2d court and of the district judgment alleged injuries are harms instructions that Plaintiffs’ the case with remand moot. dismiss the case as and aesthetic interests district court them recreational from the 7.69 result would RENDELL, Judge, concurring. in the Arena site. Be- acres of wetlands meaning- “hik- there is no agree I cause Plaintiffs used the wetlands While *4 plaintiffs that can afford ful relief we watching, study, nature and wild- ing, bird the at development parcel of based on the they that appreciation,” they alleged life of issue, to note an area separately I write fill of by any be harmed unlawful would encountered confusion thаt we would have However, those the wetlands wetlands. under scope analysis the of regarding of enjoyed beginning Plaintiffs at the this NEPA, The had we reached the merits. cannot be re- litigation gone are now and require at issue an assessment regulations that the ex- stоred. Plaintiffs do not ask impact specific of the of the environmental removed, isting structures be and redress- permit required— a is activity for which ing alleged procedural Plaintiffs’ harms the here, mean the of that would NEPA, the APA under the B, 325, App. 33 Part wetlands. C.F.R. any conceivably not restore wet- would (“The 7.b(l) engineer district should estab- lands on the Arena site.3 Because the (e.g., scope lish the of the NEPA document substantially complete fill the forecloses EIS) of impacts EA or to address the the opportunity any meaningful for relief to per- a DA specific activity requiring the alleged injuries, Plaintiffs’ hold that ...”). However, examples the set mit. prudentially this case is moot. in terms of the im- speak forth thereafter notwithstanding We reach this result the on the area pact of what is constructed fact 0.12 remain that acres wetlands require that assess- question here, would — ruling unfilled. A could built impact Plaintiffs’ favor the of the structure be wetlands, theoretically protect those and and the activities to be conducted. 7.b(3) (“[I]f B, an App. Part the III C.F.R. preserves requirement thus Article permit a DA to fill applicant seeks waters However, controversy. for a case or the other construction or or wetlands which remaining split are into even wetlands two proposed, responsi- the control and work is a parсels: parcel smaller a .09 acre and .03 bility Corps, of the as well as its overall adjacent parcel. acre These wetlands are extend to the Federal involvement would separated by the Turn- to and portions project to be located on pike. Preserving parcels small of wet- fill.”). permitted lands, by major a separated and bordered thoroughfare, provide vastly would not are differ- The two assessments re- ent. There are various sections alleged relief to Plaintiffs’ complaint mitigation re- Plaintiffs did not claim in their 3. Additional off-site would not injuries per- mitigation necessary; they either. The fill dress Plaintiffs' rather further preservation and en- provided mit site be asked that the 7.69 acres on the Arena of wetlands to hancement of over 600-acres prеserved. mitigate the acres to be filled. loss regulations that seem to each Army Corps Engineers permit, would favor the de- interpretation. veloper Several courts have had to will rush to fill the grapple construction, language regula- commence disrupting the tion, wetlands, and most example mooting controversy, have relied support rendering any judicial the more comprehensive impractical assess- relief if impossible. cases, not appellants urge ment meritorious but was not haste to fill the performed very here. See wetlands nullifies the Valley Ohio Env. essence of the regulations statutes and Army Corps Eng’rs, Coalition (S.D.W.Va.2007) designed to protect our F.Supp.2d environment. (“if part project which locat- Litigants and districts courts alike may excluded, еd on the fill regu- be these should be mindful of this risk. Where meaningless. lations are rendered harm, there is potential a temporary Corps would never have to consider more restraining stay order or a a pending deci- than portion the filled of the stream. This prеliminary sion on motion for a injunc- result contrary would be to the clear state- tion appropriate. Ideally, be the reg- ment paragraph second implementing ulations or statute would be 7(b)(3)....”); Potts, Stewart v. provide amended to peri- for some limited (S.D.Tex.1998) (conclud- F.Supp. od of time between issuance of the *5 Corps irrationally by acted and the start of construction in order to excluding the forest located on the wet- judicial facilitate preserve review and review). lands from its NEPA A clarifica- remedies, in the interest of all regulation tion of the itself would be help- concerned. courts, and,
ful to the presumably,
agency. that,
I also write to note although we moot,
conclude that the case is this conclu-
sion is specific dictated circum- presented
stances present here.
case, the Partnership already engaged has in mitigation of over-600 acres of wetlands BOLING, Appellant Oliver M. and filled all but .12 acres of contaminated and dispеrsed wetlands. Edifices have SMITH; been top constructed on all of Warden J. Parole almost fill, rendering Commission. remediation the filled impossible. point At this No. 05-4920. process, simply possible there is no reme- Appeals, United States Court dy appellants. Third Circuit. This plaintiffs’ situation is not of cre- Submitted Third Under ation, However, for they swiftly. moved 34.1(a) 6, LAR March 2008. developer lightning speed moved with accomplish April the fill.4 Filed: 2008. recog- We need to danger pat- nize the inherent fact where,
tern following the issuance of an 4. The issued a on March acres of wetlands had been filled. Dis- 2005; compliant Sierra Club filed its on preliminary injunction trict denied Court preliminary March 30th and moved for a in- July 25th, junction By May 5th.