Reversal And Mootness Determinations Also Cause Fee Grant Order Reversal

Ninth Circuit Overturns Grant of Attorney’s Fees to Environmental Group under the Clean Water Act and Endangered Species Act.

            In Center for Biological Diversity v. Marina Point Development Co., Case No. 06-56193 (9^th Cir. Aug. 6, 2008), the Ninth Circuit Court of Appeals entertained a developer’s appeal from an adverse judgment in favor of plaintiff environmental group arising out of development along the north shore of Big Bear Lake and the east shore of Grout Bay in the San Bernardino Mountains.  The trial court determined that developer had violated the Clean Water Act (CWA) and Endangered Species Act (ESA), issuing a permanent injunction and then awarding attorney’s fees to the environmental group as the prevailing party.  Developer appealed and won upon review by the Ninth Circuit.

            No one disputed that the CWA provides for an award of attorney’s fees “to any prevailing or substantially prevailing party” when the court deems that to be appropriate in private enforcement suits.  (33 U.S.C. sec. 1365(d).)  However, the Ninth Circuit found the district judge was without subject matter jurisdiction over the CWA claim because the plaintiff had failed to provide sufficient notices of intention to sue.  No subject matter jurisdiction, no basis for fee recovery to plaintiff.

            Similarly, the ESA provides for an attorney’s fees award “whenever the court determines such award is appropriate.”  (16 U.S.C. sec. 1540(g)(4), which the Marina Point court construed as being “prevailing party” language despite its unorthodox syntax.)  However, a mootness concern arose because the object of the lawsuit—the bald eagle—became delisted as an endangered species during the pendency of the litigation.  The Ninth Circuit nevertheless conceded that some award might have been appropriate for plaintiff when it protected the bald eagle before the delisting occurred.  Unfortunately, the record showed a lack of causation to support an award on this “interim period theory” prior to the issue becoming moot:  nothing demonstrated a causation connection between developer’s conduct and disruption of the bald eagle’s behavioral patterns. 

            Finally, it did not matter that the district judge had earlier issued a preliminary injunction.  The reason:  prevailing party status can be dashed when a prior preliminary injunction is reversed, dissolved, or otherwise undone by a later final decision—which was the situation in Marina Point.  (See Sole v. Wyner, U.S. __, __, 127 S. Ct. 2188, 2195 (2007).)

            The Pacific Legal Foundation's blog on the ESA has a concise post on the Marina Point case.