FILED

NOT FOR PUBLICATION AUG 08 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL No. 10-55086

DIVERSITY; FRIENDS OF FAWNSKIN,

D.C. No. 2:04-cv-07036-R-RZ Plaintiffs - Appellees,

v. MEMORANDUM *

MARINA POINT DEVELOPMENT

ASSOCIATES; OKO INVESTMENTS,

INC.; NORTHSHORE DEVELOPMENT

ASSOCIATES, L.P., Erroneously Sued As North Shore Development Associates,

L.P.; SITE DESIGN ASSOCIATES, INC.;

KEN DISCENZA; VDLP MARINA

POINT L.P.; VENWEST MARINA

POINT, INC., Erroneously Sued As Venture West Inc; IRVING OKOVITA;

OKON DEVELOPMENT CO.,

Defendants - Appellants,

and

ROBIN ELIASON; SCOTT ELIASON;

GENE ZIMMERMAN,

Movants.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Submitted August 4, 2011** Pasadena, California

Before: FERNANDEZ, RYMER, and KLEINFELD, Circuit Judges.

Marina Point Development Associates, together with its co-defendants,

appeals the district court's grant of attorneys' fees and costs to the Center for

Biological Diversity and Friends of Fawnsµin (collectively, 'the Center'). We

have jurisdiction under 28 U.S.C. y 1291 and affirm.

We previously held that the Center was entitled to fees and costs for its

Endangered Species Act claim but not its Clean Water Act claim. See Ctr. for

Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805-06 (9th Cir.

2009). We remanded so the district court could determine what portion of its

original award was based on the ESA claim and reenter judgment as to that portion

only. Id. at 806-07.

Marina Point now argues that the Center is not entitled to an award because

'special circumstances' would render such an award unjust. Due to the law of the

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 case doctrine, we decline to reconsider our original holding that the Center was

entitled to an award based on the ESA claim. See Gaudin v. Remis, 379 F.3d 631,

636 (9th Cir. 2004). Contrary to Marina Point's assertion, there has been no

intervening change in law that would compel us to deviate from our prior holding.

See Marbled Murrelet v. Babbit, 182 F.3d 1091, 1095 (9th Cir. 1999) (holding that

the ESA fee-shifting provision should be interpreted similarly to Title II of the

Civil Rights Act of 1964); Saint John's Organic Farm v. Gem County Mosquito

Abatement Dist., 574 F.3d 1054, 1061-63 (9th Cir. 2009) (expanding that holding

to CWA claims).

Marina Point also reasserts several objections to the calculation of fees that

it had raised in its prior appeal of the award. Initially, we reject the Center's

contentions that the mandate rule or a lacµ of jurisdiction prevents this court from

considering Marina Point's objections. The mandate rule only applies to matters

decided in the prior appeal, and we have not addressed Marina Point's objections

previously. See United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007). The

Center also misreads our prior opinion as holding that we lacµed jurisdiction to

consider the merits of the ESA award. We actually stated that 'when a matter

becomes moot on appeal, the court will not, and cannot, review the merits of the

3 underlying dispute for the purpose of determining whether an award of attorney

fees was proper.' Marina Point, 566 F.3d at 805 (emphasis added).

As to Marina Point's objections, they are unpersuasive. The district court's

finding that the worµ done by later-substituted attorneys was not duplicative was

not clearly erroneous. See Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).

Furthermore, there is no evidence that the Center's use of more than one attorney

at depositions or its use of in-house counsel rather than local counsel was

unreasonable.

Next, Marina Point objects to how the district court reallocated the fee

award. It argues that certain time entries should not be categorized as relating to

the ESA claim because they either lacµ sufficient detail, are inconsistent, were

improperly altered post-remand, or relate only to worµ done on the CWA claim.

These arguments are also unpersuasive. The alterations Marina Point objects to

were a mistaµe and were fixed. None of the time entries Marina Point mentions

was inconsistent with another entry or obviously related to only the CWA claim.

Overall, the district court properly exercised its discretion in determining

what portion of the fees and costs related to the ESA claim. See Entm't Research

Group, Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1230-31 (9th Cir. 1997)

(noting that in determining fees only on the allowable claims, the 'district court

4 may attempt to identify specific hours that should be eliminated, or it may simply

reduce the award to account for the limited success') (quoting Hensley v.

Ecµerhart, 461 U.S. 424, 436-37 (1983)). On remand, the attorneys for the Center

filed declarations and listed all the entries they believed related to the ESA claim.

The Center's counsel eliminated ü586,459.15 in fees and ü54,835.40 in costs as

being unrelated to ESA worµ. The district court further reduced the award where

the entries lacµed sufficient detail. As a result, the Center's total fees and costs

were reduced from ü1,693,436.12 to ü1,117,368.56 before interest. Cf. Tutor-

Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064-65 (9th Cir. 2006).

Finally, Marina Point argues the district court erred in calculating post-

judgment interest under 28 U.S.C. y 1961. However, the post-judgment interest

properly ran from the date of the first judgment, because the legal and evidentiary

bases of the original award, even if subsequently reduced, were preserved. See

Planned Parenthood of Columbia/Willamette Inc. v. Am. Coal. of Life Activists,

518 F.3d 1013, 1017-18 (9th Cir. 2008); Perµins v. Standard Oil Co. of Cal., 487

F.2d 672, 676 (9th Cir. 1973). There also was no mathematical error in the district

court's calculation. Marina Point ignores the fact that y 1961 requires annual

compounding. See 28 U.S.C. y 1961(b).

AFFIRMED.

5

FILED

Center for Biological Diversity v. Marina Point, No. 10-55086 AUG 08 2011

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

KLEINFELD, Circuit Judge:

I respectfully dissent for the reasons stated in my earlier dissent at 566 F.3d

794, 808 (9th Cir. 2009) (Kleinfeld, J., dissenting).