                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________
                                                         FILED
                        Nos. 10-13613, 10-13830 U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                      APRIL 8, 2011
                D. C. Docket No. 3:10-cv-00564-HLA-JBT JOHN LEY
                                                        CLERK

SIERRA CLUB, INC.,
PEOPLE FOR PROTECTING PEACE RIVER, INC.,
MANASOTA-88, INC.,

                                                           Plaintiffs-Appellees,

                                  versus

UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,


                                                                   Defendants,

MOSAIC FERTILIZER, LLC,

                                                Intervenor-Defendant-Appellant.

                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (April 8, 2011)

Before MARTIN, FAY and BLACK, Circuit Judges.
PER CURIAM:

      Defendant-Appellant Mosaic Fertilizer, LLC (Mosaic), a phosphate mining

company engaged in significant operations in Hardee County, Florida, appeals the

order by the district court remanding a mining-permit issued by the United States

Army Corps of Engineers (Corps) back to the agency and further enjoining Mosaic

from conducting operations approved in that permit. Specifically, the district

court concluded the permit’s issuance did not comply with the requirements of the

Clean Water Act, 33 U.S.C. §§ 1251-1376, and that the Plaintiff-Appellees had

demonstrated they were entitled to preliminary injunctive relief. In this

interlocutory appeal, Mosaic argues the district court’s order was a de facto

determination of the merits of the Clean Water Act issue that exceeded the proper

scope of preliminary injunctive relief. Based upon our review of the briefs, and

with the benefit of oral argument, we conclude the district court’s remand of the

permit to the Corps was improper because it was effectively a final judgment on

the merits.

       The district court based the entry of the preliminary injunction entirely on

letters from the Environmental Protection Agency which expressed concerns with

the permit, and failed to apply the arbitrary and capricious standard in evaluating

the Corps’ practicable alternatives analysis. While the Environmental Protection

                                          2
Agency letters may prove to be helpful in evaluating the ultimate merits of the

Clean Water Act claim, the full record will need to be analyzed through the

deferential lens mandated by the Administrative Procedure Act to determine

whether the Corps came to a rational conclusion.

          Based on the limited record before us, and the lack of a response from the

Corps on appeal, we are presently no better equipped to resolve this dispute than

was the district court.1 We therefore vacate the preliminary injunction, set aside

the remand to the Corps, and remand this case to the district court for

consideration on the merits, after receiving the full Administrative Record.2

          Due to the unique circumstances presented by this case, we direct the

district court to stay the issuance of the permit for 90 days from the date of this

order to permit the district court to proceed to a merits determination on the full

record.3

          VACATED AND REMANDED.




          1
          Counsel for Mosaic requested additional time to file a supplemental response. We have
determined a supplemental response to the issue he wished to address would not have any effect
on this decision.
          2
              We take no position on the merits of the Plaintiff-Appellees’ alternative grounds for
relief.
          3
              The parties may stipulate to a shorter or longer stay.

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