                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 14 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NEWPORT YACHT CLUB, a                            No. 12-35388
Washington nonprofit corporation,
individually and on behalf of its members;       D.C. No. 2:09-cv-00589-MJP
et al.,

              Plaintiffs - Appellants,           MEMORANDUM *

  v.

CITY OF BELLEVUE, a Washington
municipal corporation,

              Defendant - Appellee.



                  Appeal from the United States District Court
                     for the Western District of Washington
                Marsha J. Pechman, Chief District Judge, Presiding

                              Submitted June 7, 2013 **
                                Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: ALARCÓN, GILMAN ***, and IKUTA, Circuit Judges.

      The Newport Yacht Club, along with William and Leanne Weinstein (the

Weinsteins) appeal the district court’s determination that the City of Bellevue did

not breach a settlement agreement regarding the Weinsteins’ development of a

“salmon habitat enhancement project” on their property. We affirm.

      The district court did not exceed the scope of the Ninth Circuit’s remand

order. See United States v. Washington, 172 F.3d 1116, 1118 (9th Cir. 1999).

Because the parties’ dispute over the meaning of the phrase “salmon habitat

enhancement project” raised a factual issue, we held that the district court erred in

resolving this dispute as a matter of law, and we directed the district court to

determine the mutual intent of the parties at trial. On remand, the district court

properly held a trial, made the necessary determination regarding the parties’

intent, and resolved the parties’ dispute.

      The district court did not clearly err in finding after trial that the parties

intended the term “salmon habitat enhancement project” to mean a project that

enhanced the raw land. See Ingram v. ACandS, Inc., 977 F.2d 1332, 1340 (9th Cir.

1992). This finding was supported by testimony regarding the history and context



        ***
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.

                                             2
of the settlement agreement, as well as testimony by a fisheries expert that the

phrase “salmon habitat enhancement project” in an environmental context refers to

enhancement of natural land. Because the Weinsteins’ project was found not to be

a salmon habitat enhancement project, we find no error in the district court’s

holding that Bellevue did not breach its contractual requirement to cooperate with

the Weinsteins in the permitting of such a project. Accordingly, the district court

did not err in holding that Bellevue was the prevailing party.

      AFFIRMED.




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