Yesterday the Ninth Circuit issued a decision in Center for Biological Diversity v. Marina Point Development Co., 9th Cir. Doc. No. 06-56193 (filed Aug. 6, 2008).
In Marina Point, environmentalist plaintiffs filed citizen suit actions under the Clean Water Act (CWA) and the Endangered Species Act (ESA) against a developer defendant, contending that the latter’s construction project violated the two laws. Slip op. at 9927. Judgment was entered for the plaintiffs, and the developer appealed. On appeal, the developer argued that the plaintiffs had not met the 60-day notice requirement for their CWA claims, and that their ESA claims had become moot because of the delisting of the bald eagle during the pendency of the case. The Court agreed, finding that the CWA notice letter was deficient (because vague), id. at 9936, and that the ESA claims were moot, id. at 9938. Further, the Court held that both findings created irremediable jurisdictional defects. See id. at 9936, 9938. As a remedy, the Court ordered the vacatur not only of the district court’s judgment, id. at 9941, but also of the district court’s opinion, id. at 9941 n.19 ("The district court’s opinion is also vacated.").