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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Rejecting CBD, and reversing lower court, 9th Circuit rules for developer of California waterfront condominium

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Center for Biological Diversity v. Marina Point Development Co., No. 06-56193, (9th Circuit, Aug. 5, 2008)

BigBearLakeCabins.jpg
Cabins on leased U.S. Forest Service lands along North Shore of Big Bear Lake, near the proposed Marina Point development.  Photo from Chris Atkins' Big Bear Lake Real Estate blog.

KEITHINKING: Although the Ninth Circuit is often thought to be a preferred forum by environmental plaintiffs, this case defies such simplistic characterizations -- see also ESA blawg (July 7, 2008) -- because the Nines wholly rejected a lower court opinion and the Center for Biological Diversity's efforts to enforce the Clean Water Act and Endangered Species Act.  Instead, a three judge panel ruled in favor of a private developer of a California waterfront condominium, and (a) reversed the lower court on the substance of the CWA and ESA issues based on jurisdictional barriers related to inadequate notice and mootness, and (b) reversed the lower court on the award of fees and the issuance of sanctions.  

BACKGROUND (from Opinion of the Court): "Marina Point’s 12.51 acre development project site is located on the north shore of Big Bear Lake and the east shore of Grout Bay in the San Bernardino Mountains. The property extends from the edge of the trees to the lake. The land area, known as “Cluster Pines,” had functioned as a tavern, recreational vehicle park, campground, and licensed commercial marina from the early 1950’s until 2001. Marina Point acquired the property in 1989 in order to develop a residential condominium project upon it. After acquiring the property, Marina Point began securing permits. The United States Army Corps of Engineers (Corps) solicited public comment, and ultimately concluded that the planned development could go forward. The Corps stated that the United States Fish and Wildlife Service (FWS) had ultimately determined that the upland portion of the site was not a suitable bald eagle habitat, and that a consultation pursuant to 16 U.S.C. § 1536 was not required. On September 10, 1991, the Corps granted a permit to Marina Point which authorized it to strengthen the existing shoreline. See 33 U.S.C. § 1344. "

CASE HISTORY: "On June 12, 2006, the district court issued an opinion in which it determined that Marina Point had violated the Clean Water Act (CWA) and the Endangered Species Act (ESA). Its ensuing judgment on August 21, 2006, permanently enjoined Marina Point from any development
on the site without the court’s prior authorization, directed Marina Point to follow any remedial orders from the Corps, and imposed a statutory penalty upon it. Marina Point appealed on August 22, 2006. Thereafter, the district court awarded attorney fees to the Center as the prevailing party under the CWA and the ESA. Marina Point appealed that ruling on February 15, 2007. Still later, on November 7, 2007, the district court determined that Marina Point was in contempt and issued various orders as a result. Marina Point appealed that decision on November 19, 2007."

CLEAN WATER ACT RULING (finding CBD's notices of intent to sue failed to meet the CWA jurisdictional requirements): "In fine, the notices were insufficient at their inception regarding wetlands and possible § 402 violations, and to the extent that they were sufficient, if barely so, as to possible § 404 violations, their efficiency was limited by prompt Corps and Marina Point action. That is to say, in light of the defects in the notices, and 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."

ENDANGERED SPECIES ACT RULING (finding CBD's case to be moot due to delisting of the bald eagle): "The ESA allows a citizen suit for the purpose of obtaining injunctive relief only. 16 U.S.C. 1540(g)(1)(A). Of course, that is forward looking, and is intended to prevent a defendant from
taking an endangered or threatened species. See id. § 1538(a)(1)(B); 50 C.F.R. §17.31. That means that a person may not harass or harm a listed species. See 16 U.S.C. § 1532(19). Here, the claim was that Marina Point’s activities and planned project would harass bald eagles by disrupting their “normal behavioral patterns.” See 50 C.F.R. § 17.3. The problem is that less than a year after the district court's judgment was issued and, of course, while this case was still on appeal, the FWS delisted the bald eagle. Therefore, whatever might have been the case previously, Marina Point cannot violate the ESA regarding the bald eagle, regardless of any decision we render here."

ATTORNEY'S FEES RULING: "The district court awarded attorney fees to the Center and against Marina Point on both the CWA and the ESA claims. It did not segregate the two. Nevertheless, because, as more particularly set forth below, fees cannot be awarded on either claim, the entire award must fall."

CONTEMPT RULING: "Because, as we have already demonstrated, the district court’s August 21, 2006, judgment must fall for lack of jurisdiction, whether the contempt order expanded or merely explicated the judgment, that order must inexorably fall along with the judgment. In addition, to the extent that the contempt order was premised on violations of the ESA injunction, it fails because that injunction would be reversed on the merits were it not moot."