*1 Develop Inc.; Investments, Northshore its discre- not abuse court did The district L.P., Associates, North ment e/s/a tion. L.P.; Associates, Development Shore Inc.; Associates, III. CONCLUSION Ken Dis Design Site Point; Venwest cenza; Marina VDLP af- court’s Inc., West Point, Venture Marina e/s/a firmed. Okovita, Defendants-Ap Irving Inc.; pellants. 07-55243, 06-56193, 07-56574.

Nos. of Appeals, Court States United Ninth Circuit. DIVER FOR BIOLOGICAL CENTER Fawnskin, SITY; Friends 14, 2008. July Submitted Argued and Plaintiffs-Appellees, 6, 2008. Filed Aug. v. DEVELOPMENT POINT MARINA March Amended Co.; In Oko Development CO.; Okon Develop Inc.;

vestments, Northshore North Associates, L.P., ment e/s/a L.P.; Associates, Development Shore Inc.; Dis Ken Associates, Design Site Point; Venwest cenza; Marina VDLP Inc., West Point, Venture Marina e/s/a Defendants-Ap Okovita, Irving Inc.; pellants. Diversity; Biological

Center Fawnskin, Friends Plaintiffs-Appellees,

v. Co.; Development Okon Point Marina Investments, Co.; Development Oko Development Associ Inc.; Northshore Develop L.P., ates, North Shore e/s/a Design As Associates, L.P.; Site ment Discenza; VDLP sociates, Inc.; Ken Point, Point; Marina Venwest Marina Irving Inc.; West Venture e/s/a Defendants-Appellants. Okovita, Diversity; Biological Center Fawnskin, Friends Plaintiffs-Appellees, Co.; Okon Development Co.; Oko Development *3 F. FERDINAND

Before: RYMER, FERNANDEZ, ANN PAMELA KLEINFELD, Circuit J. and ANDREW Judges. FERNANDEZ; Judge

Opinion RYMER; Partial Judge Concurrence by Judge Partial Dissent Concurrence KLEINFELD. AND AMENDING OPINION

ORDER RE- FOR PETITION DISMISSING EN AND REHEARING HEARING OPINION AMENDED BANC AND

ORDER attorney fee

Upon reconsideration Au- filed on Opinion issues, amend our slip op. commencing at gust 1026, as follows: F.3d 535 (1) sentence the last revoke We at appears introductory paragraph, which 1029) (535 and substi- at F.3d op. 9925 slip re- place: its following in “We tute and vacate order contempt verse attorney fees.” awarding sentence (2) the last revoke We op. 9938 slip at Part I paragraph first 1036) the fol- and substitute (535 at F.3d below, explained “As place: in its lowing now is segregation the CWA upon based award portion based fall, portion while must Crockett, & Watkins Latham D. Robert stand.” must ESA CA, the defendants- for LLP, Angeles, Los appellants. B of Part (3) the whole revoke We (535 slip op. 9938 at commences which Conn, Robins, Kaplan, Miller & Bernice footnotes, and 1036), including the CA, the F.3d L.L.P., Angeles, Los Ciresi place: its following in substitute plaintiffs-appellees. publish- page put references Biologi- here-after as Center published case is 1. This Co., parentheses. Development Opinion in Diversity ed v. Marina cal Cir.2008), (9th we will F.3d 1026 ESA provides for an award of consider the attorney award of fees attorney fees “whenever the court deter- against intervenor); the appealing UFO such mines is appropriate.” award Chuting Hawaii, Smith, Inc. v. § 1540(g)(4). U.S.C. While that (9th Cir.2007) (stat F.3d 1196-97 the typical prevailing party it language, ing that if plaintiffs obtain direct benefit apparent must be taken moot, before ease becomes attorney fees mean and be limited to an award of fees proper); are Cammermeyer v. Perry, 97 parties prevail. who See Marbled Cir.1996) (stating Babbitt, Murrelet v. that “[t]he of an attorneys’ existence (9th Cir.1999); see also Ruckelshaus v. fees claim does not resuscitate an other *4 Club, Sierra 680, 693-94, 463 U.S. 103 wise moot controversy.”); Dahlem ex S.Ct. (1983) 77 L.Ed.2d 938 rel. Educ., Dahlem v. Bd. 901 F.2d of (in a Clean Air case, Act with the same (10th 1508, Cir.1990) 1512 (stating that language as ESA, that in the absent once case moot, becomes review does degree “some of success on the merits” not considering involve whether district of attorney award fees is not “appro- court correctly merits); decided the priate.”). Here, it could argued be that Palmer City v. Chicago, 806 F.2d of prevailed Center not has because 1316, (7th Cir.1986) 1321 (assuming, but judgment of the district court in its not deciding, that a plaintiff who obtains favor must be vacated as moot. fees, some relief can obtain even if the However, it cannot gainsaid that moot.); case becomes Bishop v. Comm. until the date of delisting, judgment 'l Conduct, on Ethics and 686 F.2d Prof of the district court had the (8th of 1278, effect Cir.1982) 1290 (stating that giving relief to the protect Center and where case has become moot party after ing the bald short, eagle. the Center relief, obtains the court will decide if obtained a substantial direct and benefit party prevailed regard “without to from that judgment. It is also plain whether think we the district court’s that mootness alone not preclude does decision the underlying merits is cor an award of attorneys fees. See Rich rect.”); Ford, United States v. 650 F.2d ard Dep’t v.S. Developmental Servs. 1141, (9th Cir.1981) 1144 1n. of (stating Cal., State 317 F.3d 1088-89 that of “there of is no right to review or (9th Cir.2003). redetermine any of the issues in the addition, weight of authority underlying action solely for purpose strongly that indicates when a of deciding matter the attorney’s fee ques becomes tion.”); moot appeal, Alioto, the court will Williams v. 625 F.2d not, cannot, (9th and Cir.1980) review the 847-48 merits of the (holding that underlying dispute for plaintiffs where of obtained some relief be determining whether an fore case moot, award of attor- became on appeal, attor ney fees was ney proper. That fees say, is to proper); were Curtis v. Taylor, although it can consider Cir.1980) whether 648-49 plaintiff prevailed all, at (stating it cannot “a claim ask for attorney’s fees ... whether the district court’s does not underlying salvage an otherwise moot decision on the merits case.”); Beal, erroneous. Bagby v. See Charles, (3rd Diamond Cir.1979) (declaring that when case 69-72, 1707-08, S.Ct. had become moot plaintiff after pre (1986) L.Ed.2d 48 (holding that where vailed at level, district court appellate plaintiff prevailed but case became moot court could not review the merits of the on appeal, there jurisdiction was no case to decide if fees should have been determined court is, the court plaintiff, awarded the CWA had violated indirectly what could do would violate violated or would either directly). do I, at F.Supp.2d See Center eschewing review ESA. the result While ju- However, it lacked led to that has 795-98. of a decision the merits may claims and be- attorney fees over CWA award risdiction a substantial times, have become disquieting claims the ESA be somewhat cause persua- ultimately principled and re- moot, see no its we vacate above from the to deviate reason lack sive dismiss for mand with directions instead, will, ad- authority. We line of jurisdiction. by appellate agreement to the wide here the con- we reverse Concomitantly, not undertake they should judges the award also vacate order. We tempt court’s of a district the details delve into that it is extent to the attorney fees has controversy that aof resolution remand so the CWA based to decide in order moot become since determine can court the district of fees. question ancillary attorney fee award portion what *5 true, por- the being the above All of and reenter the ESA based was based award attorney fee the tion of only. portion to that as judgment ESA still stands. upon the on the merits After Trial Judgment II, of Part (4) whole revoke the We 06-56193) RE- and (No. VACATED (535 slip op. commences at which to dismiss with instructions MANDED following 1037) the and substitute F.3d at (ESA) jurisdic- lack of and mootness for place: in its (No. Contempt (CWA).17 Order tion Contempt II. 07-56574) Order Award- REVERSED. is- it, contempt order the As seewe 07-55243) (No. VA- Attorneys Fees ing based court was by the district sued REMANDED. and CATED the terms violation of claimed upon a rehearing and for petition pending The judgment CWA court’s the district as DISMISSED rehearing en banc must judgment that but August petitions may new file The parties moot. Thus, jurisdiction. lack of fall rehearing opinion to the amended expanded contempt order the whether with accordance banc in rehearing en and judgment,15 merely explicated or Procedure. Appellate Federal Rules along fall inexorably must order judgment itself.16 with the OPINION (5) of the Conclu- the whole revoke We FERNANDEZ, Judge: Circuit slip op. at sion, commences which Associates, Development Marina Point 1038) fol- (535 substitute at Investments, Co., Development Oko Okon place: lowing in its short, Corps. Marina Inc., Records, ures directed Napster, v. Inc. & M 15. See A violated to have Cir.2002); be said (9th May Point cannot 1098-99 284 F.3d all, to much less judgment at Newland, terms of the weathers That would contemptuously. done have so Cir.2001). order, to setting require aside also extent, based, part, any, it was if merits of consider 16. Were the ESA. order, set necessarily have to be it would development on the plain It is aside. opinion is also vacated. court's plain 17.The equally And it is place. project took site I, F.Supp.2d at 789. Center See meas- fail take Point did that Marina Development Associates, Northshore upland portion of the was not site L.P., Okovita, Irving Design Site Associ- suitable eagle habitat, bald that a con- ates, Inc., Discenza, Ken VDLP Marina sultation pursuant to 16 U.S.C. 1536 was Point, L.P. Venwest Marina Inc. required. September 10, On 1991, the Point”) (collectively “Marina appeal the Corps granted permit to Marina Point district court’s judgment on the merits which authorized it strengthen the exist- favor of Biological Center for Diversity ing shoreline. See 33 U.S.C. and Friends of Fawnskin (collectively “the permit authorized Marina Point to Center”) on their claims under the Clean dredge adjacent shoreline and the inte- (CWA),1 Water Act and under the Endan- rior of existing marina, and to use the (ESA).2 gered Species Act Marina Point dredged material as fill for building pads appeals also the district court’s order on the land. Marina Point awarding attorney forbidden, fees to the Center and however, the district from placing court’s contempt rip-rap3 order. We eleva- vacate the district tions below court’s lake contours, bottom from merits and instruct it to dismiss for depositing lack of sand below ordinary high jurisdiction. We reverse the contempt or- mark, water and from transferring fill or der and vacate the order awarding attor- structures to neighboring wetlands. ney fees. protect eagles’ bald seasonal be- habits, havioral it was also barred from BACKGROUND working during the winter months. Be- Marina Point’s 12.51 development acre sides permit Corps, project site is located on the north shore of Point *6 permits secured from the County of Big Bear Lake and the east shore of Grout Bernardino, San Depart- California Bay in the San Bernardino Mountains. ment of Game, Fish and Big and Bear The property extends from edge of the Municipal Water addition, District. In trees to the lake. area, The land known as Regional California Water Quality Control Pines,” “Cluster as functioned a tav- Board issued a water discharge require- ern, recreational park, vehicle camp- ments order. ground, and licensed commercial marina began Work May 2002, from the early 1950’s until but 2001. Marina Marina Point Point’s acquired permit property the Corps in 1989 in expired on order to develop a September 10, 2002, residential condomini- after several exten- project um upon it. sions. Marina graded Point the land area permit before the expired. On October After acquiring property, Marina 2002, Marina Point’s Point contractor also began used a securing permits. The United grader to States remove Army trees on Corps of Engineers land. (Corps) Moreover, solicited public comment, Corps allowed and Marina ultimately Point concluded to proceed planned with development dredging permit without a could go forward. The as Corps long stated that did not result in more than the United States Fish and Wildlife Ser- “incidental fallback” of soil within the (FWS) vice had ultimately determined that Corps’ jurisdiction, but the Corps disal- 1.The CWAis §§ codified at 33 U.S.C. 1251- 2. The ESA §§ codified at 16 U.S.C. 1531— 1387. particularly, More the claims were 1544. particularly, More the claims were brought 1311, 1342, brought §§ under 33 U.S.C. under §§ U.S.C. 1538 and 1540. here, rock; 3. As rip-rap used it is used to protect against shorelines erosion. Thereafter, the district court awarded materials pulling or any pushing lowed prevail- attorney bed. fees the Center as along the lake party under the and the ing CWA ESA. in June of at the site Work resumed appealed ruling Point on Feb- Marina 23, 2003, July on until about and went ruary 15, 2007. a and Desist Corps issued Cease when the The Corps’ Point. stated Order Marina later, 7, 2007, Still November were that Marina reasons for district court determined that Marina bucket, rather dragline Point’s use of contempt Point various issued than dredge, caused more than clamshell appealed orders as result. soil, and that incidental fallback of that decision on November temporarily stockpil- had been contractor ordinary high below the water ing material STANDARD OF REVIEW mark. review issues of the district We 2003, Marina Point re- September subject jurisdiction matter de court’s novo. work. approval interim resume quested Co., Satey JPMorgan See Chase & an Initial Correc- Corps The then issued (9th Cir.2008). (ICMO) We also tive Order on October Measure 16, 2003, question Marina Point to novo the which review de whether actions De- notice under the was ade complete specific remedial Center’s CWA was ex- quate. 2003. That deadline Natural Res. Council v. cember See Def. Marine, December tended to SW. 995-96 difficulties, (9th Cir.2000). a forest fire such as unforeseen in the area. meantime, had sent a the Center JURISDICTION intent commence a

number of notices of outset, At must consider whether against action Marina Point.4 citizen’s jurisdiction federal over this there was April filed action on then this Center filed, dispute complaint was when the *7 2004. jurisdiction still remains. For the whether The court denied Marina Point’s below, the answer is no. reasons discussed subject lack of mat- motion to dismiss for jurisdiction. proceeded case ter The then Act. I. Clean Water trial, 12, 2006, the district and on June to brought by can be general, actions opinion5 an in which it deter- court issued the pur- entities for private persons and Point had violated the mined that Marina many provisions of the pose enforcing ensuing the ESA. Its CWA and 1365(a). That See 33 U.S.C. CWA. 21, 2006, enjoined August permanently on to as the citizen suit usually is referred any development Marina Point However, an action is provision. before authorization, prior the court’s site without commenced, 60-day a give the citizen must any Point to follow reme- directed Marina to Id. intent sue. notice Corps, imposed a from the dial orders 1365(b)(1)(A). fact, that no- absent it. statutory penalty tice, Id. 22, prohibited. action August appealed 2003, 30, Biological Diversity v. Marina Point July 5. Ctr. were on June 4. Notices issued (C.D.Cal.2006) Assocs., 17, 8, 2003, 1, F.Supp.2d August December Dev. (C I). enter important notice serves public pur- Moreover, the giving of a 60-day poses; litigation this kind of is not like a notice is simply not desideratum; it is a mere private dispute. That is underscored jurisdictional necessity. See Waterkeepers by the fact notice must given N. Cal. v. AG Indus. Mfg., only violator,6 alleged to the but also to Cir.2004); Natural Res. Def. Administrator,7 and to the State where Council, 236 F.3d at 995. Supreme As the alleged violation occurred.8 The Su- Court put has it: “Under a literal reading preme explicated Court has purpose statute, of the compliance with the 60-day requirement behind the of notice in this provision notice is a mandatory, op litigation. kind of As it pointed has out: tional, precedent condition suit.” legislative history [T]he indicates an in- Hallstrom, 493 U.S. at 110 S.Ct. at 309. tent to strike balance between en- And the reading literal is what controls. couraging citizen enforcement of envi- When a party does not fulfill that thresh regulations ronmental and avoiding old requirement, “the district court must burdening the federal courts with ex- dismiss the action as barred the terms cessive numbers of citizen suits. Re- statute.” Id. at at 312; S.Ct. quiring citizens to comply with the no- see also Waterkeepers, 375 F.3d at 916. tice delay requirements serves this That is to say, the notice just is not congressional goal in ways. First, two annoying piece paper intended as

notice allows agencies Government stumbling block for people take responsibility for who want to enforcing envi- sue; regulations, ronmental it is purposive in thus obviating nature and the the need for Second, citizen purpose suits.... accomplish corrections where gives notice the alleged violator “an op- needed without the necessity of a citizen portunity bring itself into complete action. As Supreme Court has said in compliance with the Act and thus like- the similar context of past claims for viola wise render unnecessary a citizen suit.” tions: This policy would be frustrated if citi- It follows logically that zens could immediately bring suit with- notice to alleged give violator is to out involving federal or state enforce- an opportunity bring itself into com- agencies. ment Giving full effect to the plete compliance with the Act and thus words of preserves the statute the com- likewise render unnecessary a citizen promise by Congress. struck suit. If assume, respondents Hallstrom v. County, Tillamook urge, that citizen may suits target whol- S.Ct. 107 L.Ed.2d 237 *8 ly past violations, the requirement (1989) (citations of omitted). That spe- has notice to the alleged violator becomes cial because, relevance here as we will gratuitous. Indeed, respondents, in explain further, pro- this case perfect is a ex- pounding ample interpretation their speedy Act, of of government the enforcement; can action the think Corps which, of no reason large Congress in meas- to ure, the require obviated need for such a citizen suit notice other than that “it regarding Marina Point’s alleged viola- seemed right” to inform alleged an viola- tions. tor that it was about to be sued. § 6. 33 1365(b)(1)(A)(iii). U.S.C. 1365(b)( )(A)(ii). § 8.33 U.S.C. 1365(b)(l)(A)(i). § Id. The Administrator the Administrator of the Environmental Pro- (EPA). Agency tection 1251(d). 33 U.S.C. in that game guessing a play to v. Chesa Smithfield, Ltd. Gwaltney of case, that we determined In one Found., Inc., respect. Bay peake nega- was a kind 382-83, difficulty L.Ed.2d the where 108 S.Ct. suit were avoid too, plan if a citizen to (1987). Here, prepare failure tive—the already been wrongdoing correction date of brought specific when pollution—a governmen of a the behest at was no undertaken there given not be could gratu become would notice Council, the agency, tal Res. Natural specific date. Def. say: on to went But, the Court as itous. chose not to demand We F.3d at 996. only ‘ifthe Feder proper are “citizen suits Thus, notice sufficed. the impossible. fail to exercise State, agencies al, and local ” re- we also later cases In two Id. at responsibility.’ their enforcement cases, of the one some extent. laxed to omitted). (citation 60, 108 at 383 S.Ct. forth series notice set plaintiffs therefore, those over- must, keep We dates, specific specific violations twelve as we mind purposes arching public other included numerous complaint but the us. To controversy before approach frame. time within same violations suffi- them, notice must accomplish Env’t Restoration Cmty. and, if the desired Ass’nfor perforce, in itself cient 943, 951-52 F.3d Dairy, 305 Henry Bosma delineated properly change has been Cir.2002). complained defendant too, that, obviates accomplished, has been dates, said that added but about the suit. That a citizen or the need alerted the defendant certainly the notice a sufficient- say just what exactly does wrong and the inclu- be, doing we have it was might but to what notice ly detailed was, the cir- under specific area also. dates in that sion. guidance re- cumstances, an action enough to allow adopted requirements start with We or dates at on other discharges garding as follows: Those are the EPA. and of the same ilk time the same about alleged violation of regarding Notice it, put As we at 953. Id. those listed. or of or limitation standard an effluent “[bjased that violations the fact thereto, shall in- respect with an order source, were the same originated permit information clude sufficient easily nature, identifi- and were the same identify specific recipient notice plaintiffs’] able, [the find' that we- limitation, alleged to standard, or order pre- case Id. The other adequate.” violated, activity alleged have been There, of issue. kind the same sented violation, person or to constitute wrongdoing were alleged dates of fourteen alleged viola- for the responsible persons also notice, notice violation, and the in the listed tion, alleged of the location violation, were avail- all dates of such stated while or dates the date oc- address, telephone wrongdoing name, plaintiff, the full able notice. loaded person giving ships were date number on each curred BayKeep- facility. S.F. the defendant’s 135.3(a). spe- It is from 40 C.F.R. 1153, 1158 er, Corp., v. Tosco Inc. our later statement and clear cific *9 Cir.2002). the detail (9th found that We proceeded. have cases be- the circumstances under was sufficient forgiv- slightly been sometimes We have given, the defen- specifics cause from area, but even at in this plaintiffs ing to “the nature readily ascertain could dants abandoned never we have our most lenient violations, as well as alleged of the true be notice there a requirement that ' Id. violations.” likely of those dates alleged- it precisely what target a that tells 1159. target The is not wrong, and when. ly did general

We followed the same approach insufficient. Wash. Trout v. McCain in a later Foods, ease where the defendant Inc., was 1351, (9th 1354-55 in a ten-page accused detailed Cir.1995). letter of did despite We so assertion improper discharges during each and ev by the plaintiffs that the error was techni- ery rain certain intensity, event and cal and we overly should not strict. Id. days rain intensity of that event were rejected at 1354. We By notion. Id. Cal., Waterkeepers listed. See N. 375 F.3d way, the notice in that case also at 917. We declared to be sufficient deficiency dates, regarding but we did not detail. Id. at 917-18. address that. See at 1352. id. hand, On the other when a notice told short, requirements set the defendant that it had committed one 135.3(a) forth in § 40 C.F.R. are not to be specific violation, the defendant was not looked as mere technicalities to be “required speculate as to all possible accepted with cold reserve and embraced attacks ... that might be added to a citi- with velleity. They are to be taken seri zen suit” at a later time. ONRC Action v. ously as a of carrying means out important Plywood, Columbia 286 F.3d public policies. Our deviations from their (9th Cir.2002). We found that precise language been have minor. insufficient, notice was except as to timeli- ness, When those authorities and their that the claim was error. We principles yardstick, are used then it explained: “[b]ecause timeliness was apparent the sole that the challenge notice, notices in this raised case were was not reasonable to sufficient to conclude that no action support ju court in response to 60-day ONRC’s risdiction. An notice was analysis of the notices will required.” Also, Id. echoing the Supreme explain why that is so. The first of the concerns, Court’s we went on to state: notices on June declared that Had specified ONRC’s notice “Section its 404 of other being CWA”9 was vio theories, Oregon either by or the EPA lated began activities that June might well have decided that those theo- which activities were placing “enor ries had sufficient merit to call agen- mous amounts of fill” into the lake and cy action. jurisdic- Were we to exercise were accompanied by grading below the tion over such claims they when were ordinary high water mark. The notice did disclosed notice, the citizen suit any mention § claims under 402 of the we would usurp right applica- CWA,10 give any nor did it detail whatsoev governmental ble agencies to evaluate er regarding just what “wetlands” were and act upon merits of the claims allegedly being affected or how.11 It also prior judicial review. gave no specific other dates. The second Id. at 1144. notices, July dated is of the on,

Earlier same gives when ilk. It faced with a little notice that more detail about did not list all of the complaining parties, activities regarding the lake itself and we declared that purposes of an action more detail regarding wetlands or listed, those not § notice was fatally 402. Those questionable notices are re- 9. § 33 U.S.C. 1344. See, land was itself e.g., at all. wetlands 330.3; Co., C.F.R. United States S. Inv. 10. U.S.C. Cir.1989). Corps (and not) did not does think so. Marina Point especially problematic That here hardly be- guessed could have at what the Center cause it is doubtful that Marina Point’s own speaking about.

913 regarding the lake problems § 404 ceived insufficient and § violations garding from the obtaining permission § 402 any claimed without and wetlands regarding was, short, it the as weak as Corps. violations.12 indeed, if, job job, the done its had notice how- significance, more is of even What the notice. being done without was was any action ever, long before is that 1, 2003, no- the December fact, days gone had That leaves and, in before filed is, anything, even less infor- tice, and desist its cease which if Corps the issued by, activity by notices. 23, 2003, all than the earlier helpful and and July mative on Point stopped lake it that Principally, the asserts Marina regarding Point Marina fact, coverage in That, is the of in reflected forward without going to. it had was notice, that August said that document third ICMO because Center’s the the it the activities 2003. by that December it to cease wherein stated was work day because, each in However, of occurred was error complained Center 25, 2003. 17, 2003, through July developed, that had problems to June due FWS, with ex- consultation Corps, after to claim goes then third notice 24, 2003. As to December the date tended descriptive less language even in violations was, by ceased December the work it It prior notices. in the used that than what Marina to see It is difficult that were material only piles to refers por- to do about that supposed was Point ordinary below discharges causing Probably nothing. See of the notice. tion lake, and declares mark of the water high at 1143. Be- Plywood, Columbia worse could be made the situation that that, that it indicated Center yond it, level see rain. As we it should pro- was if the work really tell could compatible really is not again, generality, terms of to the ceeding pursuant require- of the notice purposes with That, too, the kind of hardly was ICMO. the CWA. under ments contemplates. that the CWA notice in that But, if were sufficient even at fine, were insufficient the notices in to stepped Corps again here regard, and regarding inception wetlands their any problems. and ameliorate obviate violations, to the extent and possible before days later and slightly over Just so, sufficient, barely as to if they were action, Corps this commencement efficiency violations, their § 404 possible 16, 2003, autho- ICMO its October issued Marina Corps prompt limited per- directing Marina Point rizing in say, light is to action. That Point of corrective complete a number form notices, light of and in in the defects 1, 2003, for by December measures Point did Corps and Marina that the fact lake from protecting the Center activities that cease the act August alluded problems kinds acted to wrongful and were even claimed also notable It notice. any problems repairs ongoing effect nine was issued ICMO although Corps’ activities, court the district by past caused expired, had days after the days the CWA to hear jurisdiction have did not to under- permission applied had the ac- have dismissed It should action. September work on take Thus, respect this the outset. tion days run. Of the 60 was before which must fall for district court’s have been course, could not Marina Point be vacated. and must jurisdiction, correcting per- lack actually begin expected court, action in the in this ence order in its interesting even to note that It claim. of a there is mention pretrial confer- complaint and the ultimate *11 Endangered Species II. Act ties a legally cognizable lack interest the outcome. The basic question is give Plaintiffs were also no- whether there a present exists contro- bringing tice before an action under the versy as to which effective relief can be § 1540(g)(2). See 16 U.S.C. There ESA. is granted.” no claim that the notice was not sufficient respect, it appear does to be eagle delisted, Because the bald has been However, there proper. different present controversy no can remain. problem here' —mootness. In Society Humane the United States The ESA allows a citizen suit for the (D.C.Cir. Kempthorne, 527 F.3d 181 obtaining injunctive only. relief 2008), the Court of Appeals for the District course, § 1540(g)(1)(A). Id. at Of that is of Columbia Circuit was faced with simi looking, forward pre- is intended to case, lar situation. litigation while vent a defendant from an taking endan- regarding gray for the protection was wolf gered or species. threatened See id. appeal, the wolf was removed 1538(a)(1)(B); § § 50 C.F.R. 17.31. That endangered species list. Id. at 182. That person means that a may not harass or so, being parties agreed that the case species. harm listed See 16 U.S.C. necessarily moot, become and the 1532(19). Here, the claim was that Ma- court agreement. accepted Id. The rina Point’s and planned project activities specific reason for that explicated was not would harass eagles bald by disrupting but, doubt, appeared obvious to all their “normal patterns.” behavioral See concerned that there was no work further 50 C.F.R. 17.3. injunction. be served Ctr. Cf. problem The is that less than a Biological Norton, Diversity v. 254 F.3d year after the district judgment court’s Cir.2001) 837 n. 4 (stating that and, course, was issued13 while this case where suit brought to regard force action was still on appeal, the FWS delisted the ing a frog, once frog was listed eagle.14 Therefore, bald might whatever moot). case became have been the case previously, Marina The appears same here. Now that the Point cannot violate the regarding ESA eagle bald delisted, has been nothing eagle, regardless bald we any decision decide can properly give we render here. Center the sought. relief it If erred, the district court As explained in Council of injunction fall, must but if the district Agents Ins. & Molasky-Arman, Brokers v. correct, court injunction still must (9th Cir.2008) (citations fall because no activities Marina Point omitted): could constitute a take within the meaning qualify “To as a case fit for federal-court fact, ESA. in a letter to this adjudication, an actual controversy must court, the Center has conceded mootness. review, extant at all stages of merely Thus, the time the complaint jurisdiction there is no further “A claim filed.” is moot proceed, when issues and the district court’s judgment presented are no longer par- or live under the ESA must be vacated. August was entered er 48 From the Endangered States List of & Wildlife, 37,346 Fed.Reg. Threatened (July 9, 2007). Endangered 14. See & Wildlife & Threatened Plants; Removing Eagle the Bald in the Low-

915 benefit tained a substantial and direct ISSUES OTHER that judgment. plain It is also from that Attorney Fees I. preclude alone does not mootness attorney fees court awarded The district attorneys fees. See Richard S. v. award of against the Center Dep’t Developmental Servs. State of of of claims. It did and the ESA the CWA both (9th Cir.2003). Cal., 1080, 1088-89 317 F.3d be- explained the two. As segregate addition, authority weight low, now segregation that a matter be strongly indicates when upon based of the award portion not, appeal, moot on the court will comes fall, portion based while the must CWA cannot, merits of the un review the must stand. upon the ESA dispute for the of deter derlying attorney an award of fees mining whether A. CWA say, although That proper. at- for an award of provides The CWA pre plaintiff can consider whether any prevailing or substan- torney fees “to all, it cannot ask whether the vailed the court tially prevailing party” when underlying decision on the district court’s 33 U.S.C. appropriate. that to be deems v. was erroneous. See Diamond merits discussed, 1365(d). already As we have Charles, 54, 69-72, 106 S.Ct. mat- subject court was without the district (1986) 1707-08, (holding 90 L.Ed.2d 48 claim. over the CWA jurisdiction ter plaintiff prevailed but case be that where Therefore, fall to award of fees must juris appeal, claim. came moot on there was it is based the extent that attorney diction to consider the award B. ESA intervenor); against appealing fees Hawaii, Smith, Chuting Inc. v. UFO award of provides for an The ESA (9th Cir.2007) (stat 1189, 1196-97 F.3d the court deter 508 attorney fees “whenever plaintiffs if direct benefit appropriate.” ing 16 obtain such award is mines moot, attorney fees 1540(g)(4). that is not the case becomes While before U.S.C. ap it is party language, Cammermeyer Perry, v. typical prevailing proper); are (9th Cir.1996) mean and (stating that it must be taken to parent F.3d parties an award of fees to attorneys’ be limited to claim of an fees existence “[t]he v. Marbled Murrelet prevail. See who moot an otherwise does not resuscitate (9th Cir.1999); Babbitt, 1091, 1095 182 F.3d Dahlem v. controversy.”); Dahlem ex rel. Club, v. Sierra (10th see also Ruckelshaus Educ., 1508, 1512 Bd. 901 F.2d 693-94, 103 S.Ct. U.S. Cir.1990) (stating that once case becomes (in (1983) Air Act a Clean L.Ed.2d 938 moot, considering not involve review does case, in the language as that with same correctly decided district court whether ESA, degree “some of success absent merits); City Chicago, Palmer v. attorney an award of fees is the merits” Cir.1986) (assum (7th 1316, 1321 806 F.2d Here, it could be ar “appropriate.”). who deciding, plaintiff that a ing, but not prevailed has not gued that the Center fees, if relief can obtain even obtains some judgment of the district court because the moot.); Bishop v. the case becomes as moot. in its favor must be vacated Conduct, 686 'l Ethics and Comm. on Prof Cir.1982) (stating that However, gainsaid it cannot be party moot after case has become where judg delisting, that until the date relief, party if the court will decide obtains had the effect of ment of the district court regard to whether “without prevailed protecting to the Center and giving relief on the court’s decision short, think the district the Center ob- eagle. the bald correct.”); underlying merits is United II. Contempt Ford, States 1144 n. 1 it, As we contempt see (9th Cir.1981) (stating “there is no issued the district court was based upon right to any *13 review or redetermine of the a claimed violation of the terms in underlying solely issues action judgment court’s CWA August purpose deciding attorney’s fee 21, 2006, judgment but that must fall for Alioto, question.”); Williams v. 625 F.2d jurisdiction. Thus, lack of whether (9th Cir.1980) 845, 847-48 (holding that contempt expanded order or merely expli plaintiffs where obtained some relief be cated the judgment,15 that order must in moot, fore case appeal, became on attorney exorably along fall judgment with the its proper); fees were Taylor, Curtis v. 625 elf.16 (5th Cir.1980) F.2d 648-49 (stating “a attorney’s

claim for ... fees does not sal CONCLUSION ease.”); vage otherwise Bagby moot The district court determined that Mari- Beal, (3rd Cir.1979) (de 606 F.2d na Point had violated the CWA had claring that when case become moot either violated or would violate the ESA. plaintiff after prevailed at district court I, See Center F.Supp.2d at 795-98. level, appellate court could not review the However, jurisdiction because it lacked merits of the case to if decide fees should over the CWA claims and because the is, been have awarded to plaintiff, moot, ESA claims have become we vacate court would not indirectly do what it could its judgment and remand with directions directly). not do to dismiss for jurisdiction. lack of While the of eschewing result re Concomitantly, we contempt reverse the view of the merits of decision that has order. We also vacate the award of attor- led to a substantial of attorney award fees ney fees to the extent that it upon is based may be times, somewhat disquieting at the CWA and remand so that the district see no ultimately principled persuasive court can determine portion what reason to deviate from the above line of attorney fee award was upon based authority. will, instead, We adhere to the ESA and reenter judgment por- as to that agreement by wide appellate judges that only. tion they should not undertake to delve into the Judgment (No. After Trial on the merits details of a district court’s resolution of a 06-56193) VACATED and REMANDED controversy that has since become moot in with instructions to dismiss for mootness decide the ancillary question of (ESA) (CWA).17 jurisdiction and lack of fees. (No. 07-56574) Order of Contempt RE- All true, of the above being portion VERSED. Awarding Attorneys Order attorney (No. fee award based 07-55243) Fees VACATED and RE- ESA still stands. MANDED. Records, See A & Napster, M Inc. v. short, Corps. ures directed (9th Cir.2002); May 1098-99 Point cannot be said to have violated the Newland, weathers v. all, judgment terms of the much less to Cir.2001). have done contemptuously. so That would order, require setting also extent, aside the to the based, any, Were we to consider the if part, merits that it was on order, necessarily it would the ESA. have to be set plain aside. It is development that no on the project place. site equally took it plain And is 17.The opinion district court’s is also vacated. I, that Marina Point did fail to take meas- F.Supp.2d See Center 434 at 789. that it violated the ESA. ruling court’s

RYMER, Judge, concurring: Circuit challenge, in this it Had succeeded Judge Fernandez’s fully I concur party prevailing would not be Center However, ques- I do opinion.1 amended could awarded. whom fees us compelling case law wisdom of tion the circumstances, why isn’t case In these attorney’s fees an award uphold moot for all for one that is moot Endangered claim under the Center’s if claim say, That is to the ESA purposes? (ESA) became moot Act Species is, moot, thereby preventing now appeal. merit, why shouldn’t review of its appellate prelimi moot as to both the the claim be fees attributable While *14 award consequence and its collateral may achieved injunction the Center nary —an each be Why shouldn’t attorney’s of fees? relief footing that the on defensible the be are, effectively, incontesta- as both vacated all, presum was, appealed after Williams, 450 U.S. ble? See Alioto while it was eagle bald ably protected the 1012, 1012-14, 68 L.Ed.2d 101 S.Ct. ultimately force, relief was permanent in (1981) J., dissenting from (Rehnquist, 213 par obvious that the It isn’t not secured. certiorari). for a writ of petition denial of relief, but preliminary ty who obtained Supreme Court left reason, Thirty years ago the has neverthe it for whatever loses open. In Lewis v. Continen- question the appropri are that fees prevailed such less 472, 483, 110 Corp., Bank tal along the for all the work ately recoverable (1990), it L.Ed.2d 400 108 S.Ct. 74, 127 Wyner, 551 U.S. Sole v. way. See there could plaintiff the asked whether (2007). 2188, 167 1069 L.Ed.2d S.Ct. the district party” in “prevailing a deemed ob- Here, relief permanent judgment was moot- though its court even Cen- this is because the Although tained. the but before being rendered ed after by de-listing was mooted claim ter’s ESA challenge appeal— it on could losing party that the the fact remains eagle, the bald noted, diffi- “of some the Court question, day with no benefit. the Center ends time, it certainly Perhaps culty.” It is. dissolved, and “otherwise injunction was case, to be for the question the and this is case. in decision this by undone” our final pan- Unfortunately, our afresh. answered Sole, (holding pre- at 2195 127 S.Ct. disentangled doing from so hamstrung el is attend “does not vailing party status to follow. obliged we are precedent from injunction preliminary of a achievement KLEINFELD, J., part in concurring dissolved, reversed, or otherwise dissenting part: in in same decision by the final undone time, case”). de-listing the majority At the parts same in all I concur appeal regarding Point’s except portion eagle opinion mooted bald the Endan- attorneys’ fees on it of thereby depriving award of judgment, I Because Act claims. Species gered challenge the merits opportunity Denver v. Bd. Educ. (quoting Dahlem by Chitt I feel bound UFO I concur because (10th Schs., Cir. Smith, Haw., Pub. 508 F.3d 1189 ing Inc. v. 1990)). Supreme UFO, decided after UFO was Cir.2007). party 'a we “when said Wyner, 551 U.S. in Sole v. by Court's decision objective suit means of its ... achieves (2007), I court[, so L.Ed.2d 127 S.Ct. injunction the district issued of an my advisedly. In court, opinion said this take party in that notwith prevailing ais it] view, precisely the moot, language describes standing that the case becomes the fact we, Thus, defendant, I posture this case. believe by the through acquiescence no ” affirm. three-judge panel, are constrained appeal.’ Id. at on while the order is attorneys’ would vacate award of fees which is to vacate the judgment with di- claims, I respectfully Lewis, those dissent. rections to dismiss.5 Under we should vacate the fee award because there The Center is not a “prevailing party” is then longer judgment a valid in favor vacating judgment because we are of the Center. claims, Endangered Species Act which is the basis for the fee award. Since the It is true that until de-listing, the date of longer prevailing party, Center is no preliminary injunction, we first the and then attorneys’ should also vacate the award of permanent injunction, temporarily appropriate fees. This is the gave course under sought. Center the relief it Un- Supreme decision in Supreme Court’s Lewis v. der the Court’s recent decision in Corp.1 Continental Bank As the Court ex- Wyner, Sole v. temporary victory this does Lewis, plained “ordinary practice in not make the Center a “prevailing party.”6 disposing of a status, case has become moot “Prevailing party hold, does not on appeal is to vacate the with attend achievement of a preliminary in- directions to dismiss.”2 The effect junction reversed, dissolved, of an that is or oth- vacating a judgment on mootness erwise undone the final decision *15 grounds “deprive is to plaintiff] [the of its rejected same case.”7 The Court the dis- claim attorney’s ... fees because such trict court’s analyzing method of plain- only fees are available party to a that tiffs success in “phases,” empha- instead ‘prevails’ by winning the relief it sizing seeks.”3 plaintiff gained “had no The Court did not ordinary follow this enduring ‘chang[e] legal [in] the relation- practice in only Lewis because remanded ship’ between herself and the state officials for further proceedings, having concluded she sued.”8 plaintiff might have “some residu- Here, it does not matter that the Center al claim” under the new statutory frame- temporarily “prevailed” during earlier work.4 phases of the litigation, because the Center case,

In our de-listing of the bald has not any obtained permanent relief. eagle has not any left “residual claims” We are dissolving permanent injunc- that the Center could tion, assert on remand. preliminary injunction’s effect Accordingly, this by case is controlled is “otherwise by undone” our decision in “ordinary practice” in case, Lewis for disposing this which will allow Marina Point to of cases that have become on appeal, proceed.9 moot A “prevailing party” must se- 472, 1249, 1. 494 U.S. 110 S.Ct. 108 (holding L.Ed.2d judgement appro- vacatur of a (1990). priate “prevented when review is through happenstance,” such as controversy when the 482, 2. (citing Id. at 110 S.Ct. 1249 Deakins v. presented for review has "become moot due Monaghan, 523, 484 U.S. 108 S.Ct. to circumstances any unattributable to of the (1988); 98 L.Ed.2d 529 United States v. Mun parties”); 40, Munsingwear, 340 U.S. at 36, 39-40, singwear, 340 U.S. 71 S.Ct. S.Ct. 104. 104, (1950)). 95 L.Ed. 36 480, 3. Id. at (citing 110 S.Ct. 1249 74, Rhodes v. 2188, 6. 551 U.S. 127 S.Ct. 167 L.Ed.2d Stewart, 488 U.S. 109 S.Ct. (2007). (1988) curiam); (per L.Ed.2d 1 Hewitt v. Helms, 482 U.S. 107 S.Ct. 7. Id. at 2195. (1987)). L.Ed.2d 654 (alterations original). 8. Id. at 2196 in 482-83, Id. at 110 S.Ct. 1249. Id.; see May, also Karcher v. 9. See id. at 2195. 82-83, (1987) 108 S.Ct. 98 L.Ed.2d 327 judgment in “somehow change also show sanctioned “judicially cure parties.”10 affected the behavior of the defendant to- relationship between legal “judgment” Here, plaintiff.”17 there is no enforceable wards the We held that the Sole, it. vacating As we are plaintiffs temporary “victory” securing — appeal this “victory” in effect while entry permanent injunction —was to make the Cen- ephemeral too pending is by change in the negated subsequent no It makes party.11 a prevailing ter plaintiffs law which the claims were on a attorneys’ fees based to award sense based. (because longer that no exists “judgment” Chuting In UFO the district court did it), that entitles the vacating we are err, change and the in law that mooted relief. legally enforceable party to injunction.18 out the vindicated the appeal distinguish our decision UFO I would case, contrast, In our the district court Hawaii, to the Inc. v. Smith Chuting of err, granted injunction an based did suggesting a language it contains extent things, application in the on two error the facts and the contrary result.12 Both Act, and a Clean Water differ Chuting procedural posture UFO Act vitiated Endangered Species about the materially this case. In UFO Chut regulatory change. Since UFO plaintiffs a granted the district court ing, Sole, Chuting did not cite I do not think it en injunction, which barred permanent interpretation stands as a Ninth Circuit that the court of a Hawaii law forcement Sole, that must be followed.19 In Sole by federal law.13 preempted found to be wanted, plaintiffs actually got they what effect, injunction was in Con After the *16 beach, display themselves naked on the law.14 changed applicable federal gress just they right were denied the to do change in federal intervening Based on the their again.20 Supreme Court said law, stayed per then the district court victory “ephemeral” prevailing too prior injunction and vacated its manent victory A party fortiori, status.21 affirmed the judgment.15 appeal, On ephemeral prevailing party here for too attorneys’ plaintiffs, fees to the denial of fees, attorneys’ status and because attorneys’ fees.16 We ex grant not a what it wanted under Center never won in a entry party’s plained only got Act. It Endangered Species automatically render favor “does not ” on the now-moot delay development based for the party ‘prevailing party’ Act claims and the award, Endangered Species plaintiff must of a fee Home, Id. Inc. v. W. 16. at 1197-98. 10. Buckhannon Bd. & Care Res., Dep’t Human Va. Health & 598, 600, 605, 121 S.Ct. 149 L.Ed.2d Id. at 17. 1197. (2001). See id. at 1198. 18. Rhodes, Sole, 2196;

11. See 127 S.Ct. at cf. 202. 488 U.S. at 109 S.Ct. Gammie, 889, 899- Miller v. 19. Cf. (9th Cir.2003) (en banc); Sentry see also (9th Cir.2007). 12. 508 F.3d 1189 Am., Royal Ins. Co. Select Ins. Co. v. Cir.2007). 1191. 13. Id. at at 2193-94. 20. 127 S.Ct. 14. Id. at 1191-92. Id. at2195. 21.

15.Id. at 1192. district court’s error on the Clean Water Act claims. STORE, INC.,

The GENERAL Plaintiff-Appellant, LOAN, Richard VAN Director of Indus- try Division, Operations, Field Seattle

Bureau of Alcohol Tobacco and Fire-

arms, ATF, Defendant-Appellee.

No. 07-35417. Appeals, United States Court of Ninth Circuit. Argued and Submitted Oct. 2008.

Filed Dec. Amended March *17 (argued), Fairfax,

Richard E. Gardiner VA, appellant. McDevitt,

James A. Attorney, U.S. Rolf H. Tangvald (argued), Assistant U.S. At- torney, Spokane, WA, appellee.