Thursday, August 7, 2008

Center for Biological Diversity v. Marina Point Development

Aug 6: In the Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243, & 07-56574. Marina Point Development Associates, et al appeal the district court’s judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively the Center) on their claims under the Clean Water Act (CWA), and under the Endangered Species Act (ESA). Marina Point also appeals the district court’s order awarding attorney fees to the Center and the district court’s contempt order. The Appeals Court vacated the district court’s judgment on the merits and instruct it to dismiss for lack of jurisdiction and reversed the order awarding attorney fees and the contempt order.

By way of background, the Corps granted a permit to Marina Point which authorized it to strengthen the existing shoreline. The permit authorized Marina Point to dredge the adjacent shoreline and the interior of the existing marina, and to use the dredged material as fill for building pads on the land. Marina Point was forbidden, however, from placing rip-rap at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands. In order to protect bald eagles’ seasonal behavioral habits, it was also barred from working during the winter months. Besides the permit from the Corps, Marina Point secured a number of other State and local permits.

On the CWA issues, the Appeals Court said, ". . . in light of the fact that the Corps and Marina Point did act to cease the activities that the Center claimed were wrongful and even acted to effect ongoing repairs for any problems caused by past activities, the district court did not have jurisdiction to hear the CWA action. It should have dismissed the action at the outset. Thus, in this respect the district court’s judgment must fall for lack of jurisdiction, and must be vacated."

On issues relating to the ESA and bald eagles, the Appeals Court said, "Now that the bald eagle has been delisted, nothing we decide can properly give the Center the relief it sought. If the district court erred, the injunction must fall, but if the district court was correct, the injunction must still fall because no activities by Marina Point could constitute a take within the meaning of the ESA. In fact, in a letter to this court, the Center has conceded mootness."

In its ruling the Appeals Court said, "The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. . . However, because it lacked jurisdiction over the CWA claims and because the ESA claims have become moot, we vacate its judgment and remand with directions to dismiss for lack of jurisdiction. Concomitantly, we reverse the award of attorney fees and the contempt order."

Access the complete opinion (
click here).

Southwest Marine, Inc. v. U.S.

Aug 6: In the Court of Appeals, Ninth Circuit, Case No. 07-55229. In this dispute over attorney fees in an environmental case, appellant Southwest Marine, Inc., appealed from a judgment of the United States District Court for the Southern District of California granting summary judgment in favor of the United States and the Secretary of the Navy. The case involves the Appeals Court determining whether fees incurred by Southwest Marine during its unsuccessful defense of a private party Clean Water Act lawsuit are allowable costs under Subpart 31.2 of the Federal Acquisition Regulation (FAR). The Appeals Court ruled that Southwest Marine’s costs are not allowable and affirmed the judgment of the District Court.

Access the complete opinion (click here).