Montana Environmental Information Center v. Westmoreland Rosebud Mining LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2023
• Docket: 22-36002
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MONTANA ENVIRONMENTAL No. 22-36002 INFORMATION CENTER; et al., D.C. No. Plaintiffs-Appellees, 1:19-cv-00130-SPW-TJC

v. MEMORANDUM* DEB HAALAND, in her official capacity as Secretary of the Department of the Interior; et al.,

Defendants-Appellees,

v.

WESTMORELAND ROSEBUD MINING LLC; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 400,

Intervenor-Defendants- Appellants.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted November 13, 2023 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: McKEOWN and GOULD, Circuit Judges, and BAKER,** International Trade Judge.

Intervenor-Defendants Westmoreland Rosebud Mining Company LLC and

the International Union of Operating Engineers, Local 400 (collectively,

“Westmoreland”) appeal the district court’s decision remanding the approved

Environmental Impact Statement (“EIS”) for Westmoreland’s proposed Area F mine

expansion to the Office of Surface Mining (“OSM”). Plaintiffs-Appellees Montana

Environmental Information Center and the Sierra Club argue that we should dismiss

this appeal for lack of jurisdiction. Defendant federal officials agree that we lack

appellate jurisdiction.

Generally, administrative remand orders like the one at issue here are not

“final” for purposes of appellate jurisdiction under 28 U.S.C. § 1291. See Chugach

Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990) (“[I]n general, remand

orders are not considered final.”). Westmoreland contends that the issues it raises

(standing and the standard of review of the magistrate judge’s recommendations) are

final under an exception to the administrative remand rule recognized in Alsea Valley

Alliance v. Department of Commerce, 358 F.3d 1181, 1184–85 (9th Cir. 2004). That

exception has three separate requirements. While this appeal raises separable legal

issues whose resolution may spare the parties a wasted proceeding on remand, it is

** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.

2 nonetheless the case that appealing now is unnecessary for Westmoreland to obtain

all the relief it seeks, either on remand (for instance if OSM re-approves the Area F

expansion) or on appeal from an amended EIS issued on remand that blocks the

requested expansion. See Ctr. for Biological Diversity v. Bureau of Land Mgmt., 69

F.4th 588, 595 (9th Cir. 2023).1

Accordingly, we lack jurisdiction.

DISMISSED.

1 Westmoreland’s reliance on Crow Indian Tribe v. United States, 965 F.3d 662 (9th Cir. 2020), is misplaced. There, the district court remanded to the agency with instructions to undertake a certain action on remand—an action that intervenor- defendants/appellants opposed. Because the district court’s remand order foreclosed any relief to them as to that action, we held that appellate jurisdiction existed. Id. at 676. But as outlined above, on remand Westmoreland can obtain all the relief it seeks—re-approval of its requested mine expansion. Nothing in the district court’s order forecloses that possibility.