NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GALLATIN WILDLIFE ASSOCIATION No. 16-35665 and YELLOWSTONE BUFFALO FOUNDATION, D.C. No. 2:15-cv-00027-BMM
Plaintiffs-Appellants, MEMORANDUM* and
WILDEARTH GUARDIANS and WESTERN WATERSHEDS PROJECT,
Plaintiffs,
v.
UNITED STATES FOREST SERVICE; et al.,
Defendants-Appellees,
HELLE LIVESTOCK, a partnership; et al.,
Intervenor-Defendants- Appellees.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Argued and Submitted July 9, 2018
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,** District Judge.
Gallatin Wildlife Association and Yellowstone Buffalo Foundation
(collectively “Gallatin”) appeal the district court’s partial grant of summary
judgment in favor of the U.S. Fish and Wildlife Service, the U.S. Forest Service,
and Regional Forester Leanne Martin (collectively “Federal Appellees”), and the
district court’s remand of two of Gallatin’s claims to the Forest Service for further
environmental review. Federal Appellees argue that we lack jurisdiction over this
appeal. Because Gallatin has the burden of establishing our jurisdiction, see
Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016), and Gallatin has
not carried its burden, we dismiss this appeal for lack of jurisdiction.1
1. Jurisdiction is not available under 28 U.S.C. § 1291 because the
district court’s June 14, 2016 order is not a “final decision[].” A final decision
under § 1291 is “a decision by the District Court that ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.”
Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1074 (9th Cir. 1994)
** The Honorable Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. 1 Big Wild Adventures and Natural Exposures’ motion for leave to file an amicus curiae brief (ECF No. 20) is GRANTED.
2 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). Partial
summary judgment and remand orders are generally not “final decisions” under
§ 1291. See Cheng v. Comm’r, 878 F.2d 306, 309 (9th Cir. 1989) (partial summary
judgment orders); Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1075 (9th
Cir. 2010) (remand orders). And neither is the district court’s June 14, 2016 order.
Gallatin has not demonstrated that the district court’s partial grant of
summary judgment in Federal Appellees’ favor is a final decision. Generally, the
party appealing from a partial summary judgment order must “obtain [Federal Rule
of Civil Procedure] 54(b) certification in order to appeal.” Dannenberg, 16 F.3d at
1075. But Gallatin did not even attempt to obtain Rule 54(b) certification here.
And, meanwhile, the district court has proceeded as if this case remains pending
before it. The district court’s June 14, 2016 order, at the very least, expresses the
court’s intent to review the Forest Service’s subsequent environmental analysis,
and the district court’s scheduling order ensures that the district court will be able
to do so on an expedited basis. We are therefore unpersuaded that the partial grant
of summary judgment “leaves nothing for the court to do.” See id. at 1074.
Nor has Gallatin demonstrated that the portion of the district court order that
remanded two claims to the Forest Service for further environmental review is a
final decision. We may treat a remand order as a final decision only if “(1) the
district court conclusively resolves a separable legal issue, (2) the remand order
3 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.” Pit River, 615 F.3d at 1075 (quoting Alsea
Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1184 (9th Cir. 2004)). But
no one argues here that the district court asked the Forest Service to apply a
“potentially erroneous rule.” The Forest Service is complying with the district
court’s remand instructions, and the remand order, which instructs the Forest
Service to “issue a supplemental EIS” and “conduct a review” of five new issues,
is not out of the ordinary.
2. Nor is jurisdiction proper under 28 U.S.C. § 1292(a)(1). Section
1292(a)(1) is an exception to § 1291’s final-judgment rule that confers jurisdiction
over appeals from interlocutory orders of the district courts “granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions . . . .” 28 U.S.C. § 1292(a)(1). “Because § 1292(a)(1) was intended to
carve out only a limited exception to the final-judgment rule, we have construed
the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be
available only in circumstances where an appeal will further the statutory purpose
of ‘permit[ting] litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable, consequence.’” Carson v. Am. Brands, Inc., 450 U.S. 79, 84
(1981) (alteration in original) (quoting Baltimore Contractors, Inc. v. Bodinger,
4 348 U.S. 176, 181 (1955)). Gallatin has not demonstrated that § 1292(a)(1)’s
limited exception applies here.
As an initial matter, we are unpersuaded that the district court’s June 14,
2016 order amounts to a direct denial of a request for a permanent injunction. At
oral argument and in the district court proceedings, Gallatin failed to clearly
articulate whether it was seeking a preliminary injunction of sheep grazing pending
the Forest Service’s further environmental review or whether it sought to enjoin
domestic sheep grazing permanently. And the district court order did not make
specific findings as to the balance of hardships or the public interest––an omission
that counsels against treating the district court’s June 14, 2016 order as a direct
denial of an injunction.2
Nor has Gallatin demonstrated that the June 14, 2016 order is immediately
appealable under the three-part test derived from Carson. See 450 U.S. at 84. To
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GALLATIN WILDLIFE ASSOCIATION No. 16-35665 and YELLOWSTONE BUFFALO FOUNDATION, D.C. No. 2:15-cv-00027-BMM
Plaintiffs-Appellants, MEMORANDUM* and
WILDEARTH GUARDIANS and WESTERN WATERSHEDS PROJECT,
Plaintiffs,
v.
UNITED STATES FOREST SERVICE; et al.,
Defendants-Appellees,
HELLE LIVESTOCK, a partnership; et al.,
Intervenor-Defendants- Appellees.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Argued and Submitted July 9, 2018
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,** District Judge.
Gallatin Wildlife Association and Yellowstone Buffalo Foundation
(collectively “Gallatin”) appeal the district court’s partial grant of summary
judgment in favor of the U.S. Fish and Wildlife Service, the U.S. Forest Service,
and Regional Forester Leanne Martin (collectively “Federal Appellees”), and the
district court’s remand of two of Gallatin’s claims to the Forest Service for further
environmental review. Federal Appellees argue that we lack jurisdiction over this
appeal. Because Gallatin has the burden of establishing our jurisdiction, see
Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016), and Gallatin has
not carried its burden, we dismiss this appeal for lack of jurisdiction.1
1. Jurisdiction is not available under 28 U.S.C. § 1291 because the
district court’s June 14, 2016 order is not a “final decision[].” A final decision
under § 1291 is “a decision by the District Court that ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.”
Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1074 (9th Cir. 1994)
** The Honorable Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. 1 Big Wild Adventures and Natural Exposures’ motion for leave to file an amicus curiae brief (ECF No. 20) is GRANTED.
2 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). Partial
summary judgment and remand orders are generally not “final decisions” under
§ 1291. See Cheng v. Comm’r, 878 F.2d 306, 309 (9th Cir. 1989) (partial summary
judgment orders); Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1075 (9th
Cir. 2010) (remand orders). And neither is the district court’s June 14, 2016 order.
Gallatin has not demonstrated that the district court’s partial grant of
summary judgment in Federal Appellees’ favor is a final decision. Generally, the
party appealing from a partial summary judgment order must “obtain [Federal Rule
of Civil Procedure] 54(b) certification in order to appeal.” Dannenberg, 16 F.3d at
1075. But Gallatin did not even attempt to obtain Rule 54(b) certification here.
And, meanwhile, the district court has proceeded as if this case remains pending
before it. The district court’s June 14, 2016 order, at the very least, expresses the
court’s intent to review the Forest Service’s subsequent environmental analysis,
and the district court’s scheduling order ensures that the district court will be able
to do so on an expedited basis. We are therefore unpersuaded that the partial grant
of summary judgment “leaves nothing for the court to do.” See id. at 1074.
Nor has Gallatin demonstrated that the portion of the district court order that
remanded two claims to the Forest Service for further environmental review is a
final decision. We may treat a remand order as a final decision only if “(1) the
district court conclusively resolves a separable legal issue, (2) the remand order
3 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.” Pit River, 615 F.3d at 1075 (quoting Alsea
Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1184 (9th Cir. 2004)). But
no one argues here that the district court asked the Forest Service to apply a
“potentially erroneous rule.” The Forest Service is complying with the district
court’s remand instructions, and the remand order, which instructs the Forest
Service to “issue a supplemental EIS” and “conduct a review” of five new issues,
is not out of the ordinary.
2. Nor is jurisdiction proper under 28 U.S.C. § 1292(a)(1). Section
1292(a)(1) is an exception to § 1291’s final-judgment rule that confers jurisdiction
over appeals from interlocutory orders of the district courts “granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions . . . .” 28 U.S.C. § 1292(a)(1). “Because § 1292(a)(1) was intended to
carve out only a limited exception to the final-judgment rule, we have construed
the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be
available only in circumstances where an appeal will further the statutory purpose
of ‘permit[ting] litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable, consequence.’” Carson v. Am. Brands, Inc., 450 U.S. 79, 84
(1981) (alteration in original) (quoting Baltimore Contractors, Inc. v. Bodinger,
4 348 U.S. 176, 181 (1955)). Gallatin has not demonstrated that § 1292(a)(1)’s
limited exception applies here.
As an initial matter, we are unpersuaded that the district court’s June 14,
2016 order amounts to a direct denial of a request for a permanent injunction. At
oral argument and in the district court proceedings, Gallatin failed to clearly
articulate whether it was seeking a preliminary injunction of sheep grazing pending
the Forest Service’s further environmental review or whether it sought to enjoin
domestic sheep grazing permanently. And the district court order did not make
specific findings as to the balance of hardships or the public interest––an omission
that counsels against treating the district court’s June 14, 2016 order as a direct
denial of an injunction.2
Nor has Gallatin demonstrated that the June 14, 2016 order is immediately
appealable under the three-part test derived from Carson. See 450 U.S. at 84. To
2 The district court’s April 16, 2018 order (Dist. Ct. ECF No. 202), filed while this case was pending on appeal, only further muddies the waters. Without addressing the ambiguity in the June 2016 order, the district court’s April 2018 order retroactively characterizes its June 2016 order as a denial of “Plaintiffs’ request for Injunction IV.” But, even in the April 2018 order, the district court remains unclear about the scope of Gallatin’s request for injunctive relief. Although the district court construes Gallatin’s motion for an injunction pending appeal as a “motion for reconsideration,” the district court fails to appreciate that the injunctive relief that Gallatin subsequently requested––an injunction pending appeal––is not the same as the permanent injunction that it originally requested in its motion for summary judgment. We are therefore unpersuaded that the April 2018 order retroactively renders the June 2016 order an appealable decision.
5 be appealable under § 1292(a)(1) under this test, the district court’s 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. Court, 137 F.3d 1420, 1422
n.2 (9th Cir. 1998) (citing Carson, 450 U.S. at 84). Even if we agree that the
district court’s June 14, 2016 order had the practical effect of denying a
preliminary injunction of domestic sheep grazing during the interim period
between the date the order issued and the completion of the Forest Service’s
further environmental review, Gallatin has not demonstrated that “serious” or
“irreparable consequences” have resulted or will result from the denial. The
district court’s expedited scheduling order minimizes the worst potential damage to
Gallatin’s members, and Gallatin’s minimal evidence of disease transmission
between domestic sheep and bighorn sheep does not convince us that immediate
injunctive relief is warranted.
Appeal DISMISSED.