                                                                              FILED
                             NOT FOR PUBLICATION                              NOV 03 2010

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


LA JOLLA FRIENDS OF THE SEALS, a                 No. 09-55828
nonprofit organization and JAMES H.N.
HUDNALL, Jr., an individual,                     D.C. No. 3:08-cv-01847-WQH-
                                                 POR
                Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION’S
NATIONAL MARINE FISHERIES
SERVICE, an agency of the U.S. Dept. of
Commerce; et al.,

                Defendants - Appellees.


                     Appeal from the United States District Court
                       for the Southern District of California
                     William Q. Hayes, District Judge, Presiding

                        Argued and Submitted October 6, 2010
                                Pasadena, California

Before: CUDAHY,** WARDLAW and W. FLETCHER, Circuit Judges.


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, sitting by designation.
         La Jolla Friends of the Seals (“Friends”) appeals the dismissal of its claims

against the City of San Diego (“City”), the National Marine Fisheries Service

(“NMFS”), and various federal officials, for lack of subject matter jurisdiction.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We dismiss the claim against

the City as moot, and affirm the district court’s dismissal of the claim against the

federal defendants. We remand Friends’ request for attorney’s fees to the district

court.

         1. After Friends filed this lawsuit, California amended the Children’s Pool

Beach trust to allow for the protection of marine mammals, and the state court

vacated its temporary restraining order enjoining installation of a protective barrier

during seal pupping season. These developments have provided “everything

[Friends] hoped to achieve by this action,” as to the City. Chem. Producers &

Distribs. Ass’n v. Helliker, 463 F.3d 871, 876 (9th Cir. 2006). Friends’ contention

that the harm could recur due to the spectre of future litigation is too speculative to

support Article III jurisdiction. See Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1390

(9th Cir. 1985). Therefore Friends’ claim against the City is dismissed as moot.

         2. The district court correctly concluded that it lacked jurisdiction over

Friends’ claim against the federal defendants because there is no statutory basis for

review. The Administrative Procedure Act authorizes lawsuits to challenge “final


                                             2
agency action.” 5 U.S.C. § 704; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882

(1990). The statement by the local NMFS director who explained how certain

exceptions to the Marine Mammal Protection Act could apply at a meeting of the

City Council is not final agency action. See Franklin v. Massachusetts, 505 U.S.

788, 797 (1992); Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th

Cir. 1999).

      3. The district court has not yet ruled on Friends’ request for attorney’s fees,

which it raises on appeal for the first time in its reply brief. Therefore, we remand

the request to the district court, which had jurisdiction because Friends’ state law

claim raised a substantial issue of federal law, see Grable & Sons Metal Prods.,

Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005), and “retains equitable

jurisdiction” over attorney’s fees “even when the underlying case is moot,” Zucker

v. Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir. 1999).

      AFFIRMED in part; DISMISSED in part; REMANDED in part.




                                          3
