Ctr. for Biological Diversity v. Bureau of Land Mgmt.

Docket Number22-55317
Decision Date26 May 2023
PartiesCENTER FOR BIOLOGICAL DIVERSITY; DEFENDERS OF WILDLIFE; SIERRA CLUB, Plaintiffs-Appellees, v. BUREAU OF LAND MANAGEMENT; DEB HAALAN 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. 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Argued and Submitted January 12, 2023 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:21-cv-02507-GW-AS George H Wu, District Judge, Presiding

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.

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.

Before: Paul J. Watford, Michelle T. Friedland, and Mark J. Bennett, Circuit Judges.

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.

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 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.

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 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 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...

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