Center for Biological Diversity v. Marina Point Development Associates

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NOT FOR PUBLICATION AUG 08 2011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…

MEMORANDUM **

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 Fawnskin (collectively, “the Center”). We have jurisdiction under 28 U.S.C. § 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 re *845 manded 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 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…

I respectfully dissent for the reasons stated in my earlier dissent at 566 F.3d 794, 808 (9th Cir.2009) (Kleinfeld, J., dissenting).