ORDER Upon reconsideration of the attorney fee issues, we amend our Opinion filed on August 6, 2008, and commencing at slip op. 9919, 535 F.3d 1026, as follows:
The original opinion is published as Center for Biological Diversity v. Marina Point Development Co., 535 F.3d 1026 (9th Cir. 2008).
See also Carbonell, supra, 429 F.3d at 899: "[A]lthough Carbonell obtained relief that was not an enforceable judgment on the merits or a consent decree, he nonetheless can qualify as a prevailing party." But see Center for Biological Diversity v. Marina Development Co., 535 F.3d 1026, 1037 n. 16 (9th Cir. 2008): The mere fact that the Center achieved a preliminary injunction will not support an award of fees.