Order stopping Fawnskin condo project thrown out by court
10:00 PM PDT on Wednesday, August 6, 2008

By RICHARD K. DE ATLEY
The Press-Enterprise

A federal judge's 2006 order to stop a 133-condominium development in Fawnskin on the north shore of Big Bear Lake in the San Bernardino Mountains was thrown out in its entirety Wednesday by an appellate court.

A three-judge U.S. 9th Circuit Court of Appeals panel said the case lacked federal jurisdiction because a series of Clean Water Act violation notices filed against Marina Point Development Co. were insufficient to bring the matter to court.

"It should have been dismissed at the outset," the judges ruled. They lifted a permanent injunction imposed by U.S. District Judge Manuel Real.

Marina wants the project to resume, although that will be tempered by the housing market, an attorney for the developer said Wednesday.

Attorneys for the Center for Biological Diversity, which brought the 2004 lawsuit along with the activist group Friends of Fawnskin, said they were weighing their appeal options.

The ruling also overturned Real's penalty finding of $1.3 million against Marina Point and the other defendants.

The appellate justices additionally denied an almost $1.7 million attorney-fee award for the Center for Biological Diversity.

Part of the original court action claimed Marina's activities would harm local bald eagles in violation of the Endangered Species Act. The eagles have since been removed from the U.S. Fish and Wildlife Service list of endangered species.

While the eagle's removal ended it as a legal issue, judges found "there was no basis for a finding that there was some sort of rational causal connection between Marina Point's activities and any disruption of the behavioral patterns of the bald eagle. ....The district court's judgment in favor of the Center would have to be reversed, even if the claim had not become moot."

The judges also revoked a contempt order against Marina Point, which would have made the company remove nine acres of old landfill, said attorney Robert D. Crockett, who represented the developer during the 2005 court trial before Real.

"My clients feel thoroughly vindicated," said Crockett. "They were manifestly abused at trial by both the plaintiffs who presented questionable witnesses, and the trial court who would not let us put on a full case."

The Center for Biological Diversity can ask the 9th Circuit judges to reconsider their ruling.

"We're terribly disappointed with the ruling and we respectfully disagree with the judges' decision and analysis," said center attorney Adam F. Keats.

"I think that the opinion on the (Clean Water Act) runs contrary to the letter of the law and the spirit of the law," said Keats. By tossing the case on a technicality, he added, the judges "unfortunately did not reach the substance of the allegations that we brought and proved in court."

Crockett said the appellate judges were "able to dispense justice against plaintiffs willing to engage in any tactic they thought would work."

"I strong disagree with that," the center's Keats said. "The evidence was overwhelming in our favor."

If developed, Marina Point will roughly double the population of rustic Fawnskin.

In his ruling that was overturned Wednesday, Real said he found overwhelming evidence of the San Diego-based developers' "repeated breach of and disregard for their obligations under the law."

Reach Richard K. De Atley at 951-368-9573 or rdeatley@PE.com

I've been watching it for a few years now and may buy one when they get this project going.