Center for Bio. Div. V. Marina Point Dev.

• Decision Date: 06 August 2008
• Docket Number: No. 07-56574.,No. 06-56193.,No. 07-55243.,06-56193.,07-55243.,07-56574.
• Citation: 560 F.3d 903
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Friends of Fawnskin, Plaintiffs-Appellees, v. MARINA POINT DEVELOPMENT CO.; Okon Development Co.; Oko Investments, Inc.; Northshore Development Associates, L.P., e/s/a North Shore Development Associates, L.P.; Site Design Associates, Inc.; Ken Discenza; VDLP Marina Point; Venwest Marina Point, Inc., e/s/a Venture West Inc.; Irving Okovita, Defendants-Appellants. Center for Biological Diversity; Friends of Fawnskin, Plaintiffs-Appellees, v. Marina Point Development Co.; Okon Development Co.; Oko Investments, Inc.; Northshore Development Associates, L.P., e/s/a North Shore Development Associates, L.P.; Site Design Associates, Inc.; Ken Discenza; VDLP Marina Point; Venwest Marina Point, Inc., e/s/a Venture West Inc.; Irving Okovita, Defendants-Appellants. Center for Biological Diversity; Friends of Fawnskin, Plaintiffs-Appellees, v. Marina Point Development Co.; Okon Development Co.; Oko Investments, Inc.; Northshore Development Associates, L.P., e/s/a North Shore Development Associates, L.P.; Site Design Associates, Inc.; Ken Discenza; VDLP Marina Point; Venwest Marina Point, Inc., e/s/a Venture West Inc.; Irving Okovita, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

560 F.3d 903

CENTER FOR BIOLOGICAL DIVERSITY; Friends of Fawnskin, Plaintiffs-Appellees, v. MARINA POINT DEVELOPMENT CO.; Okon Development Co.; Oko Investments, Inc.; Northshore Development Associates, L.P., e/s/a North Shore Development Associates, L.P.; Site Design Associates, Inc.; Ken Discenza; VDLP Marina Point; Venwest Marina Point, Inc., e/s/a Venture West Inc.; Irving Okovita, Defendants-Appellants.

Center for Biological Diversity; Friends of Fawnskin, Plaintiffs-Appellees, v. Marina Point Development Co.; Okon Development Co.; Oko Investments, Inc.; Northshore Development Associates, L.P., e/s/a North Shore Development Associates, L.P.; Site Design Associates, Inc.; Ken Discenza; VDLP Marina Point; Venwest Marina Point, Inc., e/s/a Venture West Inc.; Irving Okovita, Defendants-Appellants.

Center for Biological Diversity; Friends of Fawnskin, Plaintiffs-Appellees, v. Marina Point Development Co.; Okon Development Co.; Oko Investments, Inc.; Northshore Development Associates, L.P., e/s/a North Shore Development Associates, L.P.; Site Design Associates, Inc.; Ken Discenza; VDLP Marina Point; Venwest Marina Point, Inc., e/s/a Venture West Inc.; Irving Okovita, Defendants-Appellants.

No. 06-56193.

No. 07-55243.

No. 07-56574.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2008.

Filed August 6, 2008.

Amended March 27, 2009.

Robert D. Crockett, Latham & Watkins LLP, Los Angeles, CA, for the defendants-appellants.

Bernice Conn, Robins, Kaplan, Miller & Ciresi L.L.P., Los Angeles, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV-04-07036-R-RZ.

Before: FERDINAND F. FERNANDEZ, PAMELA ANN RYMER, and ANDREW J. KLEINFELD, Circuit Judges.

Opinion by Judge FERNANDEZ; Concurrence by Judge RYMER; Partial Concurrence and Partial Dissent by Judge KLEINFELD.

ORDER AMENDING OPINION AND DISMISSING PETITION FOR REHEARING AND REHEARING EN BANC AND AMENDED OPINION

ORDER

Upon reconsideration of the attorney fee issues, we amend our Opinion filed on August 6, 2008, and commencing at slip op. 9919¹, 535 F.3d 1026, as follows:

(1) We revoke the last sentence of the introductory paragraph, which appears at slip op. 9925 (535 F.3d at 1029) and substitute the following in its place: "We reverse the contempt order and vacate the order awarding attorney fees."

(2) We revoke the last sentence of the first paragraph of Part I at slip op. 9938 (535 F.3d at 1036) and substitute the following in its place: "As explained below, segregation is now required because the portion of the award based upon the CWA must fall, while the portion based upon the ESA must stand."

(3) We revoke the whole of Part B which commences at slip op. 9938 (535 F.3d at 1036), including the footnotes, and substitute the following in its place:

The ESA provides for an award of attorney fees "whenever the court determines such award is appropriate." 16 U.S.C. § 1540(g)(4). While that is not the typical prevailing party language, it is apparent that it must be taken to mean and be limited to an award of fees to parties who prevail. See Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095 (9th Cir.1999); see also Ruckelshaus v. Sierra Club, 463 U.S. 680, 693-94, 103 S.Ct. 3274, 3282, 77 L.Ed.2d 938 (1983) (in a Clean Air Act case, with the same language as that in the ESA, absent "some degree of success on the merits" an award of attorney fees is not "appropriate."). Here, it could be argued that the Center has not prevailed because the judgment of the district court in its favor must be vacated as moot.

However, it cannot be gainsaid that until the date of delisting, the judgment of the district court had the effect of giving relief to the Center and protecting the bald eagle. In short, the Center obtained a substantial and direct benefit from that judgment. It is also plain that mootness alone does not preclude an award of attorneys fees. See Richard S. v. Dep't of Developmental Servs. of State of Cal., 317 F.3d 1080, 1088-89 (9th Cir.2003).

In addition, the weight of authority strongly indicates that when a matter becomes moot on appeal, the court will not, and cannot, review the merits of the underlying dispute for the purpose of determining whether an award of attorney fees was proper. That is to say, although it can consider whether the plaintiff prevailed at all, it cannot ask whether the district court's underlying decision on the merits was erroneous. See Diamond v. Charles, 476 U.S. 54, 69-72, 106 S.Ct. 1697, 1707-08, 90 L.Ed.2d 48 (1986) (holding that where plaintiff prevailed but case became moot on appeal, there was no jurisdiction to consider the award of attorney fees against the appealing intervenor); UFO Chuting of Hawaii, Inc. v. Smith, 508 F.3d 1189, 1196-97 (9th Cir.2007) (stating that if plaintiffs obtain direct benefit before case becomes moot, attorney fees are proper); Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir.1996) (stating that "[t]he existence of an attorneys' fees claim does not resuscitate an otherwise moot controversy."); Dahlem ex rel. Dahlem v. Bd. of Educ., 901 F.2d 1508, 1512 (10th Cir.1990) (stating that once case becomes moot, review does not involve considering whether district court correctly decided the merits); Palmer v. City of Chicago, 806 F.2d 1316, 1321 (7th Cir.1986) (assuming, but not deciding, that a plaintiff who obtains some relief can obtain fees, even if the case becomes moot.); Bishop v. Comm. on Prof'l Ethics and Conduct, 686 F.2d 1278, 1290 (8th Cir.1982) (stating that where case has become moot after party obtains relief, the court will decide if party prevailed "without regard to whether we think the district court's decision on the underlying merits is correct."); United States v. Ford, 650 F.2d 1141, 1144 n. 1 (9th Cir.1981) (stating that "there is no right to review or redetermine any of the issues in the underlying action solely for the purpose of deciding the attorney's fee question."); Williams v. Alioto, 625 F.2d 845, 847-48 (9th Cir.1980) (holding that where plaintiffs obtained some relief before case became moot, on appeal, attorney fees were proper); Curtis v. Taylor, 625 F.2d 645, 648-49 (5th Cir.1980) (stating "a claim for attorney's fees ... does not salvage an otherwise moot case."); Bagby v. Beal, 606 F.2d 411, 414 (3rd Cir.1979) (declaring that when case had become moot after plaintiff prevailed at district court level, appellate court could not review the merits of the case to decide if fees should have been awarded to plaintiff, that is, the court would not do indirectly what it could not do directly).

While the result of eschewing review of the merits of a decision that has led to a substantial award of attorney fees may be somewhat disquieting at times, we see no ultimately principled and persuasive reason to deviate from the above line of authority. We will, instead, adhere to the wide agreement by appellate judges that they should not undertake to delve into the details of a district court's resolution of a controversy that has since become moot in order to decide the ancillary question of fees.

All of the above being true, the portion of the attorney fee award based upon the ESA still stands.

(4) We revoke the whole of Part II, which commences at slip op. 9940 (535 F.3d at 1037) and substitute the following in its place:

II. Contempt

As we see it, the contempt order issued by the district court was based upon a claimed violation of the terms of the district court's CWA judgment of August 21, 2006, but that judgment must fall for lack of jurisdiction. Thus, whether the contempt order expanded or merely explicated the judgment,¹⁵ that order must inexorably fall along with the judgment itself.¹⁶

(5) We revoke the whole of the Conclusion, which commences at slip op. 9941 (535 F.3d at 1038) and substitute the following in its place:

The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. See Center I, 434 F.Supp.2d at 795-98. 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.

Judgment After Trial on the merits (No. 06-56193) VACATED and REMANDED with instructions to dismiss for mootness (ESA) and lack of jurisdiction (CWA).¹⁷ Order of Contempt (No. 07-56574) REVERSED. Order Awarding Attorneys Fees (No. 07-55243) VACATED and REMANDED.

The pending petition for rehearing and rehearing en banc is DISMISSED as moot. The parties may file new petitions as to the amended opinion for rehearing and rehearing en banc in accordance with the Federal Rules of Appellate Procedure.

OPINION

FERNANDEZ, Circuit Judge:

Marina Point Development Associates, Okon Development Co., Oko Investments Inc., Northshore Development Associates, L.P., Irving Okovita, Site Design Associates, Inc., Ken Discenza, VDLP Marina Point L.P. and Venwest Marina Point, Inc. (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),¹ and under the Endangered Species Act (ESA).² Marina Point also appeals the district court's order awarding attorney fees to the Center and the district court's contempt order. We vacate the district court's judgment on the merits and instruct it to dismiss for lack of jurisdiction. We reverse the contempt order and vacate the order awarding attorney fees.

BACKGROUND

Marina...