March 27, 2009; see amended opinion filed May 14, 2009
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding D.C. No. CV-04-07036-R D.C. No. CV-04-07036-R-RZ
The opinion of the court was delivered by: Fernandez, Circuit Judge
Argued and Submitted July 14, 2008-Pasadena, California
Filed August 6, 2008; Amended March 27, 2009
Before: Ferdinand F. Fernandez, Pamela Ann Rymer, and Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Fernandez; Concurrence by Judge Rymer; Partial Concurrence and Partial Dissent by Judge Kleinfeld
Marina Point Development Associates, Okon Development Co., Oko Investments, Inc., Northshore Development Associates, L.P., Irving Okovita, Site Design Associates, Inc., Ken Discenza, VDLP Marina Point L.P. and Venwest Marina Point, Inc. (collectively "Marina Point") appeal the district court's judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively "the Center") on their claims under the Clean Water Act (CWA),*fn1 and under the Endangered Species Act (ESA).*fn2 Marina Point also appeals the district court's order awarding attorney fees to the Center and the district court's contempt order. We vacate the district court's judgment on the merits and instruct it to dismiss for lack of jurisdiction. We reverse the contempt order and vacate the order awarding attorney fees.
Marina Point's 12.51 acre development project site is located on the north shore of Big Bear Lake and the east shore of Grout Bay in the San Bernardino Mountains. The property extends from the edge of the trees to the lake. The land area, known as "Cluster Pines," had functioned as a tavern, recreational vehicle park, campground, and licensed commercial marina from the early 1950's until 2001. Marina Point acquired the property in 1989 in order to develop a residential condominium project upon it.
After acquiring the property, Marina Point began securing permits. The United States Army Corps of Engineers (Corps) solicited public comment, and ultimately concluded that the planned development could go forward. The Corps stated that the United States Fish and Wildlife Service (FWS) had ultimately determined that the upland portion of the site was not a suitable bald eagle habitat, and that a consultation pursuant to 16 U.S.C. § 1536 was not required. On September 10, 1991, the Corps granted a permit to Marina Point which authorized it to strengthen the existing shoreline. See 33 U.S.C. § 1344.
The permit authorized Marina Point to dredge the adjacent shoreline and the interior of the existing marina, and to use the dredged material as fill for building pads on the land. Marina Point was forbidden, however, from placing rip-rap*fn3 at elevations below lake bottom contours, from depositing sand below the ordinary high water mark, and from transferring fill or structures to neighboring wetlands. In order to protect bald eagles' seasonal behavioral habits, it was also barred from working during the winter months. Besides the permit from the Corps, Marina Point secured permits from the County of San Bernardino, the California Department of Fish and Game, and Big Bear Municipal Water District. In addition, the California Regional Water Quality Control Board issued a water discharge requirements order.
Work began in May 2002, but Marina Point's permit from the Corps expired on September 10, 2002, after several extensions. Marina Point graded the land area before the permit expired. On October 7, 2002, Marina Point's contractor also used a grader to remove trees on the land. Moreover, the Corps allowed Marina Point to proceed with dredging without a permit as long as that did not result in more than "incidental fallback" of soil within the Corps' jurisdiction, but the Corps disallowed any pushing or pulling of materials along the lake bed.
Work resumed at the site in June of 2003 and went on until about July 23, 2003, when the Corps issued a Cease and Desist Order to Marina Point. The Corps' stated reasons for the order were that Marina Point's use of a dragline bucket, rather than a clamshell dredge, caused more than incidental fallback of soil, and that the contractor had been temporarily stockpiling material below the ordinary high water mark.
In September 2003, Marina Point requested interim approval to resume work. The Corps then issued an Initial Corrective Measure Order (ICMO) on October 16, 2003, which required Marina Point to complete specific remedial actions by December 1, 2003. That deadline was extended to December 24, 2003, because of unforeseen difficulties, such as a forest fire in the area.
In the meantime, the Center had sent a number of notices of intent to commence a citizen's action against Marina Point.*fn4
The Center then filed this action on April 7, 2004.
The district court denied Marina Point's motion to dismiss for lack of subject matter jurisdiction. The case then proceeded to trial, and on June 12, 2006, the district court issued an opinion*fn5 in which it determined that Marina Point had violated the CWA and the ESA. Its ensuing judgment on August 21, 2006, permanently enjoined Marina Point from any development on the site without the court's prior authorization, directed Marina Point to follow any remedial orders from the Corps, and imposed a statutory penalty upon it. Marina Point appealed on August 22, 2006.
Thereafter, the district court awarded attorney fees to the Center as the prevailing party under the CWA and the ESA. Marina Point appealed that ruling on February 15, 2007.
Still later, on November 7, 2007, the district court determined that Marina Point was in contempt and issued various orders as a result. Marina Point appealed that decision on November 19, 2007.
We review issues of the district court's subject matter jurisdiction de novo. See Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1090 (9th Cir. 2008). We also review de novo the question of whether the Center's notice under the CWA was adequate. See Natural Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 995-96 (9th Cir. 2000).
At the outset, we must consider whether there was federal jurisdiction over this dispute when the complaint was filed, and whether jurisdiction still remains. For the reasons discussed below, the answer is no.
 In general, actions can be brought by private persons and entities for the purpose of enforcing many of the provisions of the CWA. See 33 U.S.C. § 1365(a). That is usually referred to as the citizen suit provision. However, before an action is commenced, the citizen must give a 60-day notice of intent to sue. Id. § 1365(b)(1)(A). In fact, absent that notice, the action is prohibited. Id.
 The notice serves important public purposes; this kind of litigation is not like a mere private dispute. That is underscored by the fact that the notice must be given not only to the alleged violator,*fn6 but also to the Administrator,*fn7 and to the State where the alleged violation occurred.*fn8 The Supreme Court has explicated the purpose behind the requirement of notice in this kind of litigation. As it has pointed out:
[T]he legislative history indicates an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits. Requiring citizens to comply with the notice and delay requirements serves this congressional goal in two ways. First, notice allows Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits. . . . Second, notice gives the alleged violator "an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit." This policy would be frustrated if citizens ...