Center for Biological Diversity v. Blm ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 22-55317
DIVERSITY; DEFENDERS OF
WILDLIFE; SIERRA CLUB, D.C. No.
Plaintiffs-Appellees, 2:21-cv-02507-
GW-AS
v.
BUREAU OF LAND OPINION
MANAGEMENT; DEB HAALAND,
Secretary of Interior; NADA
CULVER, Senior Advisor to the
Secretary of the Department of the
Interior; KAREN MOURITSEN,
California Director, Bureau of Land
Mgmt.; ANDREW ARCHULETA,
California Desert District Manager,
Bureau of Land Mgmt.; MICHAEL
AHRENS, Needles Field Office
Manager, Bureau of Land Mgmt.,
Defendants-Appellees,
CADIZ, INC.; CADIZ REAL
ESTATE LLC,
Intervenor-Defendants-
Appellees,
v.
2 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
COMMUNITY BUILD, INC.;
SOUTHERN CHRISTIAN
LEADERSHIP CONFERENCE OF
GREATER LOS ANGELES; LOS
ANGELES METROPOLITAN
CHURCHES; NEWSTART
HOUSING CORPORATION; THE
TWO HUNDRED FOR
HOMEOWNERSHIP;
FARMWORKERS INSTITUTE FOR
EDUCATION & LEADERSHIP
DEVELOPMENT; LEAGUE OF
UNITED LATIN AMERICAN
CITIZENS OF CALIFORNIA; LA
COOPERATIVA CAMPESINA DE
CALIFORNIA, Proposed Defendant-
Intervenors,
Movants-Appellants.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted January 12, 2023
Pasadena, California
Filed May 26, 2023
Before: Paul J. Watford, Michelle T. Friedland, and Mark
J. Bennett, Circuit Judges.
Opinion by Judge Friedland;
Concurrence by Judge Friedland
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 3
SUMMARY*
Intervention
The panel dismissed for lack of jurisdiction an appeal
challenging the district court’s order denying several
organizations’ motion to intervene as defendants in a lawsuit
against the Bureau of Land Management (“BLM”)
challenging the grant of two rights-of-way.
While the appeal was pending, the district court held that
the decision to grant the rights-of-way was arbitrary and
capricious, vacated it, and remanded the matter to the
agency. The panel held that the district court’s ruling
mooted the intervention dispute.
Generally, if the underlying litigation is complete, an
appeal of a denial of intervention is moot and must be
dismissed. The panel held that an intervention dispute
would remain alive if this court could grant effectual relief,
or if there were some other way for the proposed intervenors
to obtain their desired relief.
Here, the district court’s proceedings are complete. No
party has filed an appeal of the district court’s merits order,
and under Alsea Valley Alliance v. Department of
Commerce, 358 F.3d 1181 (9th Cir. 2004), this Court would
not have jurisdiction over such an appeal brought by
Appellants even if they were granted intervention.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
Remands-without-vacatur are generally not considered
final. However, Alsea held that when a district court
declares an agency action invalid and orders remand-with-
vacatur, the district court’s order is treated as a final,
appealable judgment under 28 U.S.C. § 1291 if: “(1) the
district court conclusively resolves a separable legal issue,
(2) the remand order forces the agency to apply a potentially
erroneous rule which may result in a wasted proceeding, and
(3) review would, as a practical matter, be foreclosed if an
immediate appeal were unavailable.”
In Pit River Tribe v. U.S. Forest Serv., 5615 F.3d 1069(9th Cir. 2010), this court relied on Alsea’s third prong to
hold that it lacked appellate jurisdiction, reasoning that
because the agencies could either extend or decline to extend
two leases to develop geothermal power plants on remand,
any decision by this court prior to the decision on remand
could prove unnecessary, and thus the district court’s order
was not final and appealable. The panel held that this case
was indistinguishable from Pit River Tribe. BLM failed to
conduct the relevant statutory reviews before granting the
rights-of-way. The district court vacated the decision to
grant the rights-of-way but explicitly noted that BLM might
re-grant them on remand after performing the requisite
analyses. From Appellants’ perspective, eventual appellate
review about the rights-of-way is therefore not foreclosed,
so Alsea’s third requirement is not satisfied.
The panel also concluded that the “capable of repetition,
yet evading review” exception to mootness did not apply
because the intervention dispute is not inherently limited in
duration such that it is always likely to become moot before
federal court litigation is completed. There was no reason to
think that if another lawsuit arose regarding similar rights-
of-way and Appellants attempted to appeal a denial of
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 5
intervention, there would be another immediate remand that
would moot any intervention appeal.
Because the merits dispute has been remanded to the
agency and this court could not afford Appellants any path
to relief by granting intervention, Appellants’ appeal of the
denial of intervention is moot.
Judge Friedland, joined by Judge Bennett, concurred.
Although precedent compelled the conclusion that the
intervention dispute was moot, she wrote separately to urge
the court to reconsider en banc Alsea’s holding—that orders
invalidating and then remanding and vacating agency
actions are nonfinal and not appealable unless three criteria
are satisfied—when the right opportunity arises. She urged
a more pragmatic approach to finality under which a
remand-with-vacatur is considered a final order.
COUNSEL
Rafe Petersen (argued), Holland & Knight, LLP,
Washington, D.C.; Jennifer L. Hernandez, Holland &
Knight, LLP, Los Angeles, California.; David A. Robinson
and Kevin J. Ashe, Holland & Knight, LLP, Irvine,
California; for Movants-Appellants.
Amelia G. Yowell (argued), Andrew C. Mergen, Daniel J.
Halainen, and Luther L. Hajek, Attorneys; Todd Kim,
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice;
Washington, D.C.; Laura L. Barhydt and Michael D. Smith,
Attorney-Advisors; Office of the Solicitor, United States
Department of Justice; Washington, D.C.; for Defendants-
Appellees.
6 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
Lisa T. Belenky and Aruna M. Prabhala, Center for
Biological Diversity, Oakland, California; Elizabeth Britta
Forsyth and Gregory Cahill Loarie, Earthjustice, San
Francisco, California; for Plaintiffs-Appellees.
Diana C. De Felice, Brownstein Hyatt Farber Schreck LLP,
Los Angeles, California; Christopher O. Murray,
Brownstein Hyatt Farber Schreck LLP, Denver, Colorado;
for Intervenor-Defendants-Appellees.
OPINION
FRIEDLAND, Circuit Judge:
Several organizations sought to intervene as defendants
in a lawsuit against the Bureau of Land Management
challenging the grant of two rights-of-way. The district
court denied intervention, and the proposed intervenors filed
this appeal. While the appeal was pending, the district court
held that the decision to grant the rights-of-way was arbitrary
and capricious, vacated it, and remanded the matter to the
agency. We hold that the district court’s ruling mooted the
intervention dispute, and we accordingly dismiss this appeal.
I.
In 2020, Cadiz Real Estate LLC applied to the Bureau of
Land Management (“BLM”) for two rights-of-way: one for
the right to use an existing natural gas pipeline and the
second to use that pipeline to transport water across federal
lands in California. In its application, Cadiz represented that
it would provide water for various municipal, agricultural,
and industrial uses but identified no specific plans. Although
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 7
the potential impacts of the proposed rights-of-way could
have triggered administrative review obligations under the
National Historic Preservation Act (“NHPA”), the National
Environmental Policy Act (“NEPA”), and the Federal Land
Policy and Management Act (“FLPMA”), BLM did not
conduct reviews under any of these statutes. It nonetheless
approved the application, reassigning to Cadiz the existing
gas pipeline and allowing its use for water transport.
In early 2021, the Center for Biological Diversity and
other environmental groups (collectively, “CBD”) filed the
lawsuit that led to this appeal. CBD challenged BLM’s
approval of the rights-of-way, arguing that BLM had
violated NEPA and FLPMA. On the same day, the Native
American Land Conservancy and the National Parks
Conservation Association also sued BLM, asserting that
approval of the rights-of-way had violated those same
statutes, as well as NHPA. Cadiz moved to intervene as a
defendant in both suits, which the district court permitted.
Because a new presidential administration had just
assumed office, both suits were stayed until late 2021 to
allow the new administration to assess its position on the
matter. BLM then admitted error—conceding
noncompliance with NEPA, failure to assess compliance
with FLPMA, and failure to evaluate impacts under NHPA.
In both suits, BLM moved for remand and vacatur of the
grant of the rights-of-way.
A coalition of civil rights, housing, and environmental
justice organizations serving disadvantaged communities in
Southern California (“Appellants”) subsequently moved to
8 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
intervene as defendants in this lawsuit.1 Appellants hoped
Cadiz’s water pipeline would be used to expand access to
clean, affordable water in their communities and sought to
present social and environmental justice reasons for
maintaining the grant of the rights-of-way to Cadiz. The
district court denied both intervention as of right and
permissive intervention, explaining that Appellants’
interests would be adequately represented by Cadiz.
Appellants appealed that decision to our court, and no one
sought a stay of the district court proceedings pending that
appeal.
While the parties were still briefing the intervention
dispute before our court, the district court granted BLM’s
motion for remand and vacatur in a combined order that
addressed both the suit brought by CBD and the suit brought
by the Native American Land Conservancy. The court
concluded that because BLM had not undertaken the
analyses required by NEPA, NHPA, and FLPMA, the
agency’s decision to grant the rights-of-way was arbitrary
and capricious. The district court remanded to BLM to allow
it to “reevaluate its decision” and vacated the grant of the
rights-of-way, explaining that vacatur was appropriate
because the “statutory processes were bypassed almost
entirely” and the water transportation project was still in a
preliminary phase. No one appealed that order.
1
Appellants did not move to intervene in the lawsuit brought by the
Native American Land Conservancy.
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 9
Once the parties informed us of the remand-with-
vacatur,2 we ordered supplemental briefing on whether this
intervention appeal had become moot, which the parties
submitted prior to oral argument. Appellants argue that their
appeal is not moot and that, because Cadiz could not
adequately represent their interests, the district court was
wrong to deny intervention. BLM argues that the district
court was correct to deny intervention but that we lack
jurisdiction to review that decision because the intervention
dispute was mooted by the district court’s order remanding
and vacating the grant of the rights-of-way.
II.
The denial of a motion to intervene as of right is a final,
appealable order, so we typically have jurisdiction over
appeals of such denials. See 28 U.S.C. § 1291; League of
United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302
(9th Cir. 1997). But an appeal of a denial of intervention is
moot if it is “impossible for the court to grant any effectual
relief whatever to the putative intervenor even if [the court]
were to determine that the district court erred in denying his
intervention.” United States v. Sprint Commc’ns, Inc., 855
F.3d 985, 990 (9th Cir. 2017) (quotation marks and citation
omitted). In other words, if reversing the district court’s
denial of intervention could not help the prospective
intervenors further their interests, the intervention dispute is
moot.
2
In this opinion, we use “remand-with-vacatur” to mean only the kind
of remand with vacatur that occurred here—one following a merits
determination holding the rule invalid. We do not include the rare
instances in which courts have impermissibly remanded and vacated
rules without first holding them unlawful. See In re Clean Water Act
Rulemaking, 60 F.4th 583, 593-94 (9th Cir. 2023).
10 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
That is the case here. As we will explain, the district
court’s remand-with-vacatur order terminated the
proceeding in which Appellants sought to intervene, and we
would not have jurisdiction over an attempted appeal of that
order, so there is no relief available to Appellants even if
they were to persuade us that the district court should have
granted intervention. The appeal is therefore moot.
A.
Generally, if the underlying litigation is complete, an
appeal of a denial of intervention is moot and must be
dismissed. See W. Coast Seafood Processors Ass’n v. Nat.
Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011)
(holding that because the underlying litigation had ended and
no party had appealed, we could not grant any “effective
relief” (quoting Outdoor Media Grp., Inc. v. City of
Beaumont, 506 F.3d 895, 900 (9th Cir. 2007))); Akina v.
Hawaii, 835 F.3d 1003, 1010 (9th Cir. 2016) (“[This court]
has no jurisdiction over an appeal that has become moot.”).
But if we could permit the proposed intervenors to
participate in ongoing district court proceedings or in an
appeal of a district court’s merits decision, that would
amount to “effectual relief,” so the intervention dispute
would remain alive.3 See, e.g., Allied Concrete & Supply
Co. v. Baker, 904 F.3d 1053, 1066 (9th Cir. 2018).
3
Our caselaw has been arguably inconsistent about whether, in cases in
which the district court reached a final judgment on the merits, the
absence of an existing appeal by a current party renders moot any appeal
of a denial of intervention. For example, in West Coast Seafood, we held
that an appeal of a denial of intervention was moot because the district
court had issued a final judgment on the merits “from which neither party
ha[d] appealed,” suggesting that the intervention dispute remains live
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 11
An intervention dispute may also remain alive if there is
some other way for the proposed intervenors to obtain their
desired relief. For instance, in Sprint Communications, the
parties had settled, and the district court had granted
voluntary dismissal of the suit before our court could rule on
the proposed intervenor’s appeal of the denial of
intervention. See 855 F.3d at 989-90. We held that because
the proposed intervenor “might be able to object to the
settlement or otherwise seek his share of the proceeds” from
the liable party, the appeal was not moot. Id. at 990.
only if an appeal has already been filed by existing parties. 643 F.3d at
704. By contrast, in DBSI/TRI IV Ltd. Partnership v. United States, 465
F.3d 1031 (9th Cir. 2006), we suggested that the potential for a future
merits appeal by the intervenors could keep the intervention dispute
alive. See id. at 1037. Even though DBSI and the government had
stipulated to the district court’s judgment in the quiet title action there,
see id. at 1036, signaling that they would not appeal, we held that the
proposed intervenors’ appeal of the denial of intervention was not moot
because “if it were concluded on appeal that . . . [they were] indeed
entitled to intervene . . . , then the [intervenors] would have standing to
appeal the district court’s judgment.” Id. at 1037 (quoting Canatella v.
California, 404 F.3d 1106, 1109 n.1 (9th Cir. 2005)).
We need not resolve any inconsistency in these cases because, as we
will explain, Appellants could not have appealed on the merits even if
they had been granted intervention in the district court in the first place.
Under our caselaw, the order remanding and vacating is not a final,
appealable judgment. Further, because that order is not a final,
appealable judgment, we need not consider whether any attempted
appeal by Appellants would be barred on timeliness grounds at this point.
See Evans v. Synopsys, Inc., 34 F.4th 762, 770 (9th Cir. 2022) (holding
that the appeal deadline in 28 U.S.C. § 2107 applies to appeals by
intervenors).
12 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
B.
Here, the district court’s proceedings are complete.
Nothing remains pending before the district court: The court
resolved all of the claims in its merits order and noted on the
docket that “this matter is now closed.” The only potential
path to relief for Appellants, then, would be through
participation in an appeal of the merits order. But no party
has filed such an appeal, and under Alsea Valley Alliance v.
Department of Commerce, 358 F.3d 1181 (9th Cir. 2004),
we would not have jurisdiction over such an appeal brought
by Appellants even if they were granted intervention.
Remands-with-vacatur are generally not considered
final. See id. at 1184-86. Alsea held, however, that when a
district court declares an agency action invalid and orders
remand-with-vacatur, the district court’s order is treated as a
final, appealable judgment under 28 U.S.C. § 1291 if: “(1)
the district court conclusively resolves a separable legal
issue, (2) the remand order forces the agency to apply a
potentially erroneous rule which may result in a wasted
proceeding, and (3) review would, as a practical matter, be
foreclosed if an immediate appeal were unavailable.” Id. at
1184 (quoting Collord v. U.S. Dep’t of Interior, 154 F.3d
933, 935 (9th Cir. 1998)). This framework applies to
attempted appeals brought by both agency and non-agency
litigants. See, e.g., Collord, 154 F.3d at 935 (applying the
inquiry to an appeal brought by an agency); Pit River Tribe
v. U.S. Forest Serv., 615 F.3d 1069, 1072-77 (9th Cir. 2010)
(applying the three-prong inquiry to an appeal brought by
non-agency litigants).
In Alsea, the third prong alone dictated that appellate
jurisdiction was lacking. The district court there had
declared unlawful and set aside the National Marine
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 13
Fisheries Service’s final rule designating as “threatened”
under the Endangered Species Act one type of salmon but
not a related type. 358 F.3d at 1183. The district court had
remanded to the agency for reconsideration of the salmon
categorization, and several environmental organization
intervenors appealed. See id. at 1184. We evaluated
whether future appellate review “would, as a practical
matter, be foreclosed” from the perspective of the party
attempting to appeal—the intervenors. Id. (quoting Collord,
154 F.3d at 935). Because the agency on remand could still
issue a salmon-designation rule that satisfied the
intervenors’ concerns and because, if the agency did not, the
intervenors could “bring suit at that point to challenge the
Service’s action,” a later appeal by the intervenors was not
foreclosed, and “any decision by us could [have] prove[n]
entirely unnecessary.” Id. at 1185.4 We therefore held that
the remand-with-vacatur was not a final, appealable order
under 28 U.S.C. § 1291. See id.5
Alsea contrasted the situation there with one in which an
agency appellant “compelled to refashion [its] own rules”
could “face the unique prospect of being deprived of review
4
Alsea treated the part of the district court’s order that remanded the
regulation as inseparable from the part of the order that vacated it. See
358 F.3d at 1185-86 (rejecting the intervenors’ efforts to “tr[y] to parse
the district court’s order [by] arguing that setting aside the [rule] is a
separately appealable district court decision, distinct from declaring the
[rule] unlawful”).
5
In Alsea, we also rejected the argument that the order was appealable
under 28 U.S.C. § 1292. See 358 F.3d at 1186. We observed that
Section 1292(a)(1) gives us jurisdiction over appeals of interlocutory
orders “granting . . . injunctions.” Id. (quoting 28 U.S.C. § 1292(a)(1)).
But we held that the remand-with-vacatur did not have the “practical
effect” of granting an injunction. Id. at 1186-87.
14 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
altogether” if an immediate appeal were unavailable. Id. at
1184. For instance, in Collord, the district court had held
that the Equal Access to Justice Act applied to the agency
proceedings and remanded for the agency to consider the
merits of an application for fees under that Act. See 154 F.3d
at 935. The Secretary of the Interior appealed, and we
explained that if immediate review of the applicability of the
Act were not available, review of the Secretary’s position
that the statute did not apply might be foreclosed altogether:
The Secretary would not be able to appeal “his own agency’s
decision” if it was favorable to the applicants on remand. Id.The remand order was thus final for the purposes of the
Secretary’s appeal. See id.In Pit River Tribe, we held that the situation was more
like that in Alsea than that in Collord and again relied on the
third prong to hold that we lacked appellate jurisdiction.
There, BLM had extended two leases to develop geothermal
power plants without conducting the statutorily required
environmental reviews. See 615 F.3d at 1073-74. The
district court accordingly ordered vacatur of BLM’s actions
and remanded with instructions for the agencies involved to
perform the required analyses before ruling on the leases.
See id. at 1074. The plaintiffs who had challenged BLM’s
actions appealed, disputing the scope of the district court’s
vacatur. See id. at 1072-74. We held that because the
agencies could either extend or decline to extend the leases
on remand, any decision by our court prior to the decision on
remand could prove unnecessary and thus the district court’s
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 15
order was not final and appealable under Alsea. See id at
1074-77.6
This case is indistinguishable from Pit River Tribe.
BLM failed to conduct the relevant statutory reviews before
granting the rights-of-way to Cadiz. The district court
vacated the decision to grant the rights-of-way but explicitly
noted that BLM might re-grant them on remand after
performing the requisite analyses. If BLM reissues the
rights-of-way on remand, Appellants will have gotten what
they wanted. If BLM does not reissue the rights-of-way,
Appellants will be able to challenge that decision then,
including through an eventual appeal as needed. From
Appellants’ perspective, eventual appellate review about the
rights-of-way is therefore not foreclosed, so Alsea’s third
requirement is not satisfied.7
Appellants attempt to distinguish this case from Alsea by
arguing that Alsea was about the validity of a regulation, not
about rights granted to private parties. But Pit River Tribe
concerned geothermal leases given to private parties—quite
akin to the rights-of-way here. See 615 F.3d at 1073. And
6
In addition to determining that we lacked jurisdiction under 28 U.S.C.
§ 1291 as interpreted in Alsea, Pit River Tribe also followed Alsea with
respect to § 1292. Because the district court “did not compel the relevant
agency to take or refrain from any action,” Pit River Tribe, 615 F.3d at
1078, but merely prohibited, as “a practical matter, the enforcement of
the [agency’s] decision as is,” we held that “[i]t would be far too tenuous
. . . to maintain that this is the practical equivalent of ‘enjoining’ the
[agency],” id. (quoting Alsea, 358 F.3d at 1186).
7
Although from BLM’s perspective, future appellate review might be
foreclosed, that makes no difference here. “[A]ppellant-intervenors ‘do
not succeed to the agency’s right to appeal which is unique to itself.’”
Alsea, 358 F.3d at 1185 (quoting Smoke v. Norton, 252 F.3d 468, 472
n.1 (D.C. Cir. 2001) (Henderson, J., concurring)).
16 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
our cases have in no way suggested that the type of agency
action or whom it impacts should change our analysis under
Alsea.
C.
Appellants also assert that, regardless of the availability
of an appeal on the merits, the “capable of repetition, yet
evading review” exception to mootness applies to the
intervention question here. To satisfy the second
requirement of this exception (“evading review”), the
controversy must be “inherently limited in duration such that
it is likely always to become moot before federal court
litigation is completed.” W. Coast Seafood, 643 F.3d at 705(quoting Ctr. for Biological Diversity v. Lohn, 511 F.3d 960,
965 (9th Cir. 2007)). As we recognized in West Coast
Seafood, denials of intervention will not typically evade
review because they usually do not become moot before
appellate review is complete. See id.Whether the controversy over a proposed intervenor’s
right to intervene is moot “depends on the duration of the
underlying litigation.” Id. Where the underlying merits
dispute about the validity of the agency’s action could
continue for multiple years, the intervention dispute is not
“inherently limited in duration.” Id. (quoting Lohn, 511 F.3d
at 965). In both West Coast Seafood and here, the underlying
case would have remained alive but for one of the party’s
actions: There, the plaintiff voluntarily dismissed the appeal,
see id., and here, BLM conceded error and requested
remand. Such a quick resolution of the merits through a
voluntary remand is not the norm. To the contrary, we
frequently reverse denials of intervention while litigation is
still pending before the district court. See, e.g., Citizens for
Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 895
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 17
(9th Cir. 2011); California ex rel. Lockyer v. United States,
450 F.3d 436, 445 (9th Cir. 2006). We have also exercised
jurisdiction over appeals of denials of intervention after
district court proceedings have ended but while participation
in an appeal is still possible. See, e.g., Canatella v.
California, 404 F.3d 1106, 1109 n.1 (9th Cir. 2005); Wilson,
131 F.3d at 1301 n.1. There is no reason to think that if
another lawsuit arose regarding similar rights-of-way and
Appellants attempted to appeal a denial of intervention, there
would be another immediate voluntary remand that would
moot any intervention appeal. The “capable of repetition,
yet evading review” exception to mootness therefore does
not apply.
III.
Because the merits dispute has been remanded to the
agency and we could not afford Appellants any path to relief
by granting intervention, Appellants’ appeal of the denial of
intervention is moot. We therefore DISMISS for lack of
jurisdiction.
FRIEDLAND, Circuit Judge, with whom BENNETT,
Circuit Judge, joins, concurring:
Our precedent compels us to conclude that the
intervention dispute here is moot, but I write separately to
express my concern about that precedent. The holding in
Alsea Valley Alliance v. Department of Commerce, 358 F.3d
1181 (9th Cir. 2004)—that orders invalidating and then
remanding and vacating agency actions are nonfinal and not
appealable unless three criteria are satisfied—rests on
flawed assumptions and risks serious injustice in high-stakes
18 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
disputes. At least in the context of formal regulations and
other agency actions resembling the Bureau of Land
Management’s grant of the rights-of-way here, vacatur1
operates like a final judgment or an injunction such that we
should have jurisdiction over appeals of remands-with-
vacatur under 28 U.S.C. § 1291, § 1292, or both. I urge my
colleagues to reconsider en banc Alsea’s rule when the right
opportunity arises.2
I.
Alsea failed to recognize that, in a case challenging an
agency action, vacatur of that agency action effectively ends
the parties’ dispute and allows practical costs and benefits to
immediately accrue, causing the vacatur to operate as a final
judgment under 28 U.S.C. § 1291.
In Alsea, we held that “remand orders generally are not
‘final decisions’ for purposes of section 1291” and that this
remained true when the remand order included vacatur of a
regulation. 358 F.3d at 1184-86 (citation omitted).
Assuming that “vacatur of an unlawful agency rule normally
accompanies a remand,” we declined to separately evaluate
a vacatur’s finality. Id. at 1185-86. We recognized only a
narrow exception to the rule of nonfinality that resembles the
1
When I refer herein to district court orders using the terms “vacatur” or
“remand-with-vacatur,” I speak only of orders that occur after the district
court has held the agency action to be invalid. I do not mean to include
remand and/or vacatur orders that occur without a merits determination,
such as the one reviewed in In re Clean Water Act Rulemaking, 60 F.4th
583 (9th Cir. 2023). See id. at 592-93.
2
For reasons related to a parallel lawsuit brought by the Native American
Land Conservancy challenging the grant of the rights-of-way here, I do
not think this particular case is a good vehicle for reconsidering Alsea en
banc.
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 19
three-prong test for a reviewable collateral order.3 We
concluded, in other words, that a remand order—whether
accompanied by vacatur of the challenged agency action or
not—is by nature nonfinal, but may on rare occasion qualify
as the kind of collateral order treated as final for purposes of
appeal.
Alsea was wrong to treat vacatur of a regulation as not
adding anything significant to a remand and to treat the two
together as presumptively nonfinal. Under general finality
principles, an order that “ends the litigation on the merits”
by resolving the “core dispute,” granting one party the
desired relief, and “leav[ing] nothing for the court to do but
execute the judgment” is final under 28 U.S.C. § 1291. In re
Clean Water Act Rulemaking, 60 F.4th 583, 591-93 (9th Cir.
2023) (first and third passages quoting Coopers & Lybrand
v. Livesay, 437 U.S. 463, 467 (1978)). This inquiry is more
pragmatic than technical. See Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949).
3
Compare Alsea, 358 F.3d at 1184 (“A remand order will be considered
‘final where (1) the district court conclusively resolves a separable legal
issue, (2) the remand order forces the agency to apply a potentially
erroneous rule which may result in a wasted proceeding, and (3) review
would, as a practical matter, be foreclosed if an immediate appeal were
unavailable.’” (quoting Collord v. U.S. Dep’t of Interior, 154 F.3d 933,
935 (9th Cir. 1998))), with United States v. Pace, 201 F.3d 1116, 1119
(9th Cir. 2000) (“Under the collateral order doctrine, a small class of
decisions are appealable under § 1291 even though they do not terminate
the underlying action. We have jurisdiction to hear an appeal of a district
court’s interlocutory order if the order (1) conclusively determines the
disputed question; (2) resolves an important issue completely separate
from the merits of the action; and (3) is effectively unreviewable on
appeal from a final judgment.” (quotation marks omitted)).
20 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
Of course, a remand order does not necessarily operate
as a final judgment. In a case in which a district court
remands but does not vacate a challenged regulation, for
example, the remand itself merely returns jurisdiction to the
agency where the proceedings continue. In the meantime,
the remand does not award practical relief to those
challenging the regulation because the regulation remains
enforceable throughout the agency’s review process.
Appellate review in such a case may be premature: The
dispute is ongoing, and the status quo is unchanged.
But when the district court also vacates an agency rule,
that order is fundamentally a final judgment. A remand with
vacatur terminates the parties’ “core dispute” over whether
the challenged agency action will remain in effect. In re
Clean Water Act Rulemaking, 60 F.4th at 593. The remand-
with-vacatur grants relief to the plaintiff and restores the
state of the law to the status quo before the challenged
agency action, ushering in real-world consequences—at
least for the time that it takes for the agency to make a new
decision and potentially indefinitely. See id. at 591 (holding
that an order granting remand-with-vacatur that lacked a
merits ruling was final because it “gave Plaintiffs everything
they wanted”).
In Alsea, we focused only on the potential for the
agency’s original rule to eventually be reinstated (i.e., that
the particular type of salmon could once again be protected
as “threatened” under the Endangered Species Act) and
ignored the impact of the vacatur in the interim. See 358
F.3d at 1185-86. The proposed intervenors had argued that
“immediate harm” could befall the “salmon once stripped of
the protections” of “threatened” status. Id. at 1185. Indeed,
in the time it could have taken for the agency to act, the
relevant salmon population could have been seriously
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 21
depleted or even gone extinct. But Alsea entirely
disregarded this aspect of remands-with-vacatur. In my
view, it is critical to the finality analysis that an agency may
take years to reevaluate its rule (and may not issue a new rule
at all), causing vacatur of the agency action to have
consequences in the meantime at least as severe and as final
as other “final” judgments.
Our jurisprudence has recognized and addressed this risk
of practical harm during the pendency of remands by
requiring district courts to weigh the severity of the
“agency’s errors” against the “disruptive consequences” of
vacatur before deciding whether to order vacatur. See Cal.
Cmtys. Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992
(9th Cir. 2012). But our judicial system also recognizes that
judges can make mistakes, and appellate review exists to
provide an opportunity to fix such mistakes.4 After vacatur
of an agency rule, however, justice is often denied under
Alsea by delaying appellate review indefinitely until the
agency issues a new decision. I urge a more pragmatic
approach to finality under which a remand-with-vacatur is
considered a final order.5
4
Although an appeal can also take time, parties can seek a stay pending
appeal in a situation where we would have jurisdiction over the appeal.
See, e.g., Lair v. Bullock, 697 F.3d 1200, 1203-04 (9th Cir. 2012).
5
Alternatively, a remand-with-vacatur should be appealable as a
collateral order under the traditional collateral order doctrine, without the
modifications to that test reflected in Alsea. See supra note 3. Vacatur
is “conclusive” in the sense that it is a formal remedy that completes the
district court litigation and carries immediate impact, as opposed to a
provisional stance. See Cohen, 337 U.S. at 546 (explaining that a matter
is conclusive where it fully disposes of the issue rather than leaving it
open or unfinished). It inherently resolves an important legal issue
22 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
II.
For similar reasons, Alsea was also wrong to hold that an
order vacating a regulation is not the functional equivalent
of an injunction that could be appealed under 28 U.S.C.
§ 1292.
Section 1292(a)(1) accords appellate jurisdiction over
orders “granting . . . injunctions.” 28 U.S.C. § 1292(a)(1).
To qualify under this provision, an order “must (1) have the
practical effect of entering an injunction, (2) have serious,
perhaps irreparable, consequences, and (3) be such that an
immediate appeal is the only effective way to challenge it.”
Calderon v. U.S. Dist. Ct., 137 F.3d 1420, 1422 n.2 (9th Cir.
1998) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84
(1981)). We have previously applied this test to hold, for
example, that escrow orders have the “practical effect” of an
injunction because they coerce a particular party and accord
substantive relief. See United States v. Cal-Almond Inc., 102
F.3d 999, 1002-03 (9th Cir. 1996). But lis pendens orders,
which only serve as notice of an interest in a property
without “absolutely forbid[ding]” any action, do not.
Orange County v. Hongkong & Shanghai Banking Corp.
Ltd., 52 F.3d 821, 825-27 (9th Cir. 1995).
separate from the merits—that is, the equitable determination that the
potentially disruptive consequences of vacating the rule are outweighed
by the seriousness of the agency’s error. See Cal. Cmtys. Against Toxics,
688 F.3d at 992. And this equitable determination is effectively
unreviewable if an immediate appeal is unavailable. Once the agency
makes a new decision, any new challenge in court will not concern the
propriety of the vacatur; that question will be moot, and the practical
impacts will have already occurred, potentially irreparably.
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 23
Alsea rejected the argument that an order remanding and
vacating an agency rule has the “practical effect” of granting
an injunction, stating:
The order does not compel the Service to
remove Oregon coast coho salmon from the
threatened species list or take any other
actions. Indeed, the only aspect of the
summary judgment that remotely resembles
injunctive relief is that it prohibits, as a
practical matter, the enforcement of the
Service’s listing decision as is. It would be
far too tenuous, however, to maintain that this
is the practical equivalent of “enjoining” the
Service.
358 F.3d at 1186. We warned that, if we took the conclusion
that this had “the practical equivalent of ‘enjoining’ the
Service . . . to its logical end, such reasoning would classify
as ‘injunctive’ all declaratory relief that deems an agency
rule unlawful.” Id.Contrary to this reasoning, vacatur operates just like a
preliminary injunction. Indeed, by setting aside and thus
forbidding the enforcement of the salmon listing in Alsea,
the district court’s vacatur did specifically compel the
agency to remove the particular type of salmon from the
threatened list—at least while the agency’s new decision on
remand was pending. See id. at 1185-86. Likewise, in this
litigation, the vacatur of the grants of the rights-of-way
accorded substantive relief to the plaintiffs by forcing the
agency to prohibit Cadiz from developing the pipeline at
least while the agency reconsiders whether to re-grant Cadiz
24 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
the rights-of-way. There is nothing “tenuous” about the
analogy to an injunction.
In fact, in scenarios virtually indistinguishable from
Alsea or this litigation, district courts have sometimes
chosen to enjoin agency enforcement of a rule—rather than
vacate it—pending further analysis. For instance, in High
Sierra Hikers Association v. Blackwell, 390 F.3d 630(9th Cir. 2004), the district court ordered the agency to
complete the required National Environmental Policy Act
(“NEPA”) analysis and enjoined enforcement of its prior
policy until the analysis was complete. See id. at 638, 642-
43. The impact of the vacatur here is the same: The agency
is forbidden from taking a certain action (i.e., granting and
enforcing the rights-of-way) until the statutorily required
analyses are complete.
Given the functional equivalence of an order enjoining
enforcement of an unlawful rule and an order vacating one,
our current practice of reviewing the former but not the latter
makes no sense and is inconsistent with the § 1292(a)(1)
“practical effect” inquiry. Compare, e.g., Env’t Def. Ctr. v.
Bureau of Ocean Energy Mgmt., 36 F.4th 850, 866-71
(9th Cir. 2022), petition for cert. filed, No. 22-703 (Jan. 27,
2023) (exercising jurisdiction over an appeal of the district
court’s injunction ordering agencies to stop approving
permits for well stimulation until the statutorily required
environmental review was complete); Bair v. Cal. Dep’t of
Transp., 982 F.3d 569, 576-77 (9th Cir. 2020) (exercising
jurisdiction over an appeal of the district court’s injunction
halting a transportation development project until the
environmental impact statement was finalized); and High
Sierra Hikers Ass’n, 390 F.3d at 638-39 (exercising
jurisdiction over an appeal of a district court’s order
modifying agency activity pending the required NEPA
CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 25
analysis), with Alsea, 358 F.3d at 1187 (dismissing for lack
of jurisdiction an appeal of a district court’s remand-with-
vacatur that prohibited the agency from enforcing the
existing salmon listing). Although district courts have
discretion to determine the appropriate remedy, they should
not be able to insulate their orders from review by selecting
between forms of relief that differ only nominally. As the
Supreme Court has held, “[t]he ‘practical effect’ inquiry
prevents such manipulation.” Abbott v. Perez, 138 S. Ct.
2305, 2320 (2018). It should “not allow[] district courts to
‘shield their orders from appellate review’ by avoiding the
label ‘injunction.’” Id. (quoting Sampson v. Murray, 415
U.S. 61, 87 (1974)). Yet Alsea encourages district courts to
do just that.
Further, concluding that remand-with-vacatur of an
invalid agency action is practically equivalent to an
injunction would not, as Alsea feared, result in us
“classify[ing] as ‘injunctive’ all declaratory relief that deems
an agency rule unlawful.” Alsea, 358 F.3d at 1186. First,
Alsea wrongly assumed that vacatur always accompanies
remand. See Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337,
1343 (9th Cir. 1995) (holding, nearly a decade before Alsea
was decided, that “[a]lthough [a] district court has [the]
power to do so, it is not required to set aside every unlawful
agency action”); see also Cal. Cmtys. Against Toxics, 688
F.3d at 992 (adopting the holding in Allied-Signal, Inc. v.
U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150-51
(D.C. Cir. 1993), that a court should evaluate the severity of
the agency’s errors and “the disruptive consequences of an
interim change that may itself be changed” to determine if
vacatur is appropriate). To the contrary, a court could
declare a rule unlawful and remand it but refuse to set it aside
due to equitable considerations; such declaratory relief
26 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.
would then not be injunctive. Second, the other two prongs
of the § 1292(a)(1) inquiry limit when we would classify
vacatur as injunctive, at least for purposes of appellate
review. The consequences would need to be “serious,
perhaps irreparable,” and an immediate appeal would need
to be the only way to address them. See Calderon, 137 F.3d
at 1422 n.2 (citation omitted). But where these two criteria
are satisfied, a specious distinction between the effects of
vacatur and the effects of injunctive relief should not
preclude us from exercising jurisdiction under § 1292.
***
Agency actions take many forms, and a one-size-fits-all
approach to the finality of remands-with-vacatur may not
necessarily be appropriate. But at least for agency actions
similar to the one here, remand-with-vacatur operates as a
final judgment. A remand-with-vacatur resolves the parties’
core dispute; compels the agency to take or refrain from
taking a certain action; and can inflict serious, sometimes
irreparable consequences, even if agency policy is subject to
future change. Sections 1291 and 1292 thus grant us
appellate jurisdiction to review remands-with-vacatur.
Alsea’s holding to the contrary should be reconsidered.