Friends of Hope Valley v. United States Forest Service

203 F. App'x 883

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 2006
• Docket: No. 04-17376
• Status: Published

Opinion

MEMORANDUM

**

We do not have jurisdiction over Appellant Friends of Hope Valley’s (“Friends”) appeal of the district court’s order vacating and remanding the Forest Service’s winter recreation management decision for the Forestdale Creek Area of the Humboldt-Toiyabe National Forest. See Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1184 (9th Cir.2004) (“Subject to a few exceptions!,] ... appellate jurisdiction only extends over ‘final decisions of the district courts,’ 28 U.S.C. § 1291, and remand orders generally are not ‘final decisions’ for purposes of section 1291."). As the government conceded during oral argument, “a holding of nonappealability would [not] ... deprive the litigants of an opportunity to obtain review.” Id. at 1184-85 (internal quotation marks omitted).

If aggrieved by the outcome, Friends may obtain appellate review of the Forest Service’s decision after remand, including review of all issues pertaining to jurisdiction under 43 U.S.C. § 932 (“R.S. § 2477 rights of way”) over the Forestdale Creek Road. See id. at 1185. If Friends believes the resulting rule on remand is (“unlawful and adverse to its interests, it can bring suit at that point to challenge the [Forest Service’s] action. If dissatisfied with the district court’s determination, [Friends] would then be able to appeal to th[e court of appeals].”). Id.; see also Mall Props., Inc. v. Marsh, 841 F.2d 440, 443 & n. 3 (1st Cir.1988) (per curiam) (dismissing a remand order for lack of jurisdiction and concluding that the remand order will not have res judicata consequences because a prerequisite to applying “res judicata principles is a final judgment”).

We do have jurisdiction under 28 U.S.C. § 1292(a) to consider Friends’s interlocutory appeal of the district court’s denial of injunctive relief. Because Friends failed to show legal entitlement to complete closure of the Forestdale Creek Area to snowmobile use under the Forest Service’s new Travel Management Regulations, see 36 C.F.R. pt. 212 (2005), we conclude that the district court did not abuse its discretion in denying preliminary relief pending further review by the Forest Service, see Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply Inc., 106 F.3d 894, 903 (9th Cir.1997). Each party shall bear its own costs on appeal.

DISMISSED in part; AFFIRMED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.