Appellate Court Imposes Strict Requirements on Citizen Suits

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SandBar 8:1, April, 2009 Appellate Court Imposes Strict Requirements on Citizen Suits Ctr. for Biological Diversity v. Marina Point Development Co., 535 F.3d 1026 (9th Cir. 2008). *Moses R. DeWitt, 2L, Florida State College of Law* In a case regarding alleged Clean Water Act (CWA) and Endangered Species Act (ESA) violations at a lakeside development, the United States Court of Appeals for the Ninth Circuit ruled in favor of the developer. The court held that the notice given to the developer was inadequate according to the CWA and that the violation of the ESA was moot because the bald eagle was no longer a listed species. Background Marina Point Development Company (Marina Point) purchased a 12.51 acre parcel of land on the north shore of Big Bear Lake and the east shore of Grout Bay in the San Bernardino Mountains of California. Marina Point planned to build a residential condominium project on the property that was previously used as a tavern, recreational vehicle park, campground, and commercial marina. However, some concern arose that this development would harm the bald eagle and its habitat. In response to that concern, Marina Point secured permits from the United States Army Corps of Engineers (Corps) and the United States Fish and Wildlife Service (FWS). Both agencies approved the planned development after determining that the upland portion of the site was not a suitable bald eagle habitat. However, to ensure the continued protection of the bald eagle’s habitat, the agency sought to protect the water quality of the lake and bay by forbidding Marina Point from placing rock at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands.1 Marina Point was also barred from working during winter months in order to protect bald eagles’ seasonal behaviors.2 Marina Point began development in May 2002. Shortly thereafter, the Center for Biological Diversity (Center) sent four separate notices of intent to commence a citizen suit and filed an action on April 7, 2004 to enjoin Marina Point from any further development, alleging violations of the CWA and the ESA. Specifically, Marina Point had stockpiled material below the ordinary high water mark and caused incidental fallback of soil into the lake, which could potentially damage the lake and the bald eagle’s habitat. The district court denied Marina Point’s motion to dismiss for lack of subject matter jurisdiction and “permanently enjoined Marina Point from any development on the site without the court’s prior authorization.”3 Marina Point appealed. Citizen Suit and the Clean Water Act A citizen suit allows a citizen or entity to bring an action for the purpose of enforcing a provision of an environmental regulation. Both the CWA and the ESA allow these types of lawsuits. However, the CWA has a strict notice requirement that must be complied with.4 The CWA requires a sixty-day notice of the intent to sue before a citizen action may be commenced. The notice must include “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the location of the alleged violation, and the full name, address, and telephone number of the person giving notice.”5 Requiring notice allows the governmental agencies to take responsibility for the enforcement of the regulation and allows the alleged violator to bring itself into compliance. This requirement is “intend[ed] to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.”6 The Court of Appeals for the Ninth Circuit held, in part, that the Center for Biological Diversity’s notice was insufficient because the notice refers to the violation in general terms and does not give specific details. The notice’s lack of details did not give governmental agencies or the alleged violator the opportunity to cure the problem and was not in compliance with the intent of the CWA. The Court of Appeals held that the district court did not have subject matter jurisdiction because a citizen’s action suit cannot be brought under the CWA when insufficient notice has been issued. This extensive specificity requirement is another hurdle citizens must overcome to enforce the regulations of the CWA. Acquiring such detailed information is an expensive and burdensome task that may deter many citizens and organizations from bringing suits against alleged violators. Bald Eagle and the Endangered Species Act The Center for Biological Diversity also brought a claim against Marina Point under the ESA for the destruction of the bald eagle’s habitat. However, after the district court’s ruling and during the appeal, the FWS delisted the bald eagle from the Endangered Species List. The Court of Appeals for the Ninth Circuit held that “to qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”7 The action filed was to protect the bald eagle in accordance with the ESA and, because the bald eagle is no longer listed as an endangered species, no present controversy remains. The Ninth Circuit did not address whether the controversy would re-arise if the bald eagle were to again be placed on the Endangered Species List. However, the ESA only allows for injunctive relief and the damage from Marine Point’s development would most likely already be completed. Therefore, no remedy would be available under the ESA. Conclusion The United States Court of Appeals for the Ninth Circuit held that a citizen suit must give the alleged violator of the CWA detailed notice of the specific violations. The court also held that the removal of a species from the Endangered Species List moots any claim or controversy of an ongoing appeal. Endnotes 1. Ctr. for Biological Diversity v. Marina Point Development Co., 2008 U.S. App. LEXIS 16599 (9th Cir. July 14, 2008). 2. Id. at 3. 3. Id.* at 5. 4. Id. at 7. 5. Id. at 10-11. 6. Id. at 7. 7. Id. at *19.
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SandBar 8:1, April, 2009

Ctr. for Biological Diversity v. Marina Point Development Co., 535 F.3d 1026 (9th Cir. 2008).

Moses R. DeWitt, 2L, Florida State College of Law

In a case regarding alleged Clean Water Act (CWA) and Endangered Species Act (ESA) violations at a lakeside development, the United States Court of Appeals for the Ninth Circuit ruled in favor of the developer. The court held that the notice given to the developer was inadequate according to the CWA and that the violation of the ESA was moot because the bald eagle was no longer a listed species.

Background
Marina Point Development Company (Marina Point) purchased a 12.51 acre parcel of land on the north shore of Big Bear Lake and the east shore of Grout Bay in the San Bernardino Mountains of California. Marina Point planned to build a residential condominium project on the property that was previously used as a tavern, recreational vehicle park, campground, and commercial marina. However, some concern arose that this development would harm the bald eagle and its habitat.
In response to that concern, Marina Point secured permits from the United States Army Corps of Engineers (Corps) and the United States Fish and Wildlife Service (FWS). Both agencies approved the planned development after determining that the upland portion of the site was not a suitable bald eagle habitat. However, to ensure the continued protection of the bald eagle’s habitat, the agency sought to protect the water quality of the lake and bay by forbidding Marina Point from placing rock at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands.1 Marina Point was also barred from working during winter months in order to protect bald eagles’ seasonal behaviors.2
Marina Point began development in May 2002. Shortly thereafter, the Center for Biological Diversity (Center) sent four separate notices of intent to commence a citizen suit and filed an action on April 7, 2004 to enjoin Marina Point from any further development, alleging violations of the CWA and the ESA. Specifically, Marina Point had stockpiled material below the ordinary high water mark and caused incidental fallback of soil into the lake, which could potentially damage the lake and the bald eagle’s habitat. The district court denied Marina Point’s motion to dismiss for lack of subject matter jurisdiction and “permanently enjoined Marina Point from any development on the site without the court’s prior authorization.”3 Marina Point appealed.

Citizen Suit and the Clean Water Act
A citizen suit allows a citizen or entity to bring an action for the purpose of enforcing a provision of an environmental regulation. Both the CWA and the ESA allow these types of lawsuits. However, the CWA has a strict notice requirement that must be complied with.4 The CWA requires a sixty-day notice of the intent to sue before a citizen action may be commenced. The notice must include “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the location of the alleged violation, and the full name, address, and telephone number of the person giving notice.”5
      Requiring notice allows the governmental agencies to take responsibility for the enforcement of the regulation and allows the alleged violator to bring itself into compliance. This requirement is “intend[ed] to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.”6
      The Court of Appeals for the Ninth Circuit held, in part, that the Center for Biological Diversity’s notice was insufficient because the notice refers to the violation in general terms and does not give specific details. The notice’s lack of details did not give governmental agencies or the alleged violator the opportunity to cure the problem and was not in compliance with the intent of the CWA. The Court of Appeals held that the district court did not have subject matter jurisdiction because a citizen’s action suit cannot be brought under the CWA when insufficient notice has been issued.
      This extensive specificity requirement is another hurdle citizens must overcome to enforce the regulations of the CWA. Acquiring such detailed information is an expensive and burdensome task that may deter many citizens and organizations from bringing suits against alleged violators.

Bald Eagle and the Endangered Species Act
The Center for Biological Diversity also brought a claim against Marina Point under the ESA for the destruction of the bald eagle’s habitat. However, after the district court’s ruling and during the appeal, the FWS delisted the bald eagle from the Endangered Species List. The Court of Appeals for the Ninth Circuit held that “to qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”7 The action filed was to protect the bald eagle in accordance with the ESA and, because the bald eagle is no longer listed as an endangered species, no present controversy remains.
The Ninth Circuit did not address whether the controversy would re-arise if the bald eagle were to again be placed on the Endangered Species List. However, the ESA only allows for injunctive relief and the damage from Marine Point’s development would most likely already be completed. Therefore, no remedy would be available under the ESA.

Conclusion
The United States Court of Appeals for the Ninth Circuit held that a citizen suit must give the alleged violator of the CWA detailed notice of the specific violations. The court also held that the removal of a species from the Endangered Species List moots any claim or controversy of an ongoing appeal.

Endnotes
1. Ctr. for Biological Diversity v. Marina Point Development Co., 2008 U.S. App. LEXIS 16599 (9th Cir. July 14, 2008).
2. Id. at *3.
3. Id. at *5.
4. Id. at *7.
5. Id. at *10-11.
6. Id. at *7.
7. Id. at *19.