Newport Yacht Club, a Washington nonprofit corporation, individually v. City of Bellevue, a Washington municipal corporation

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEWPORT YACHT CLUB, a
Washington nonprofit corporation,
individually and on behalf of its members;
et al.,
Plaintiffs - Appellants,
v.
CITY OF BELLEVUE, a Washington
municipal corporation,
Defendant - Appellee.
No. 12-35388
D.C. No. 2:09-cv-00589-MJP
MEMORANDUM*
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
FILED
JUN 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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

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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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