Friday, May 15, 2009

Center For Biological Diversity v. Marina Point

May 14: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243 & 07-56574. In the case, Marina Point Development Associates, et al (collectively Marina Point) 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 appealed the district court’s order awarding attorney fees to the Center and the district court’s contempt order. In a partially split decision (on Justice concurring in part and dissenting in part), the Appeals Court vacated the district court’s judgment on the merits and instructed it to "dismiss for lack of jurisdiction." Additionally, the Appeals Court reversed the contempt order and vacated the order awarding attorney fees.

The case involved the bald eagle and protections as it was listed under the ESA. However, 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 conclusion, the majority 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 contempt order. We also vacate the award of attorney fees to the extent that it is based upon the CWA and remand so that the district court can determine what portion of the attorney fee award was based upon the ESA and reenter judgment as to that portion only."

Access the complete opinion (click here).