UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

DINE CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE, Plaintiffs - Appellees,

v. AL KLEIN, in his official capacity as Western Regional Director, Office of Surface Mining Reclamation and Enforcement, Denve r, Colorado; OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, a federal agency within the U.S. Department of Interior, Defendants.

------------------------------ ARIZONA PUBLIC SERVICE COMPANY, Intervenor, BHP NAVAJO COAL COMPANY, Intervenor - Appellant. No. 11-1004 (D. Colo.) (D.C. No. 1:07- CV-01475-JLK)

ORDER DISMISSING APPEAL

Before O'BRIEN , GILMAN , and HOLMES , Circuit Judges. *

* Honorable Ronald Lee Gilman, Circuit Court Judge, United States Court of Appeals for the Sixth Circu it, sitting by designation. FILED United States Court of Appeals Tenth Circuit 

### August 26, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - The Office of Surface Mining Reclamati on and Enforcement (OSM) approved an application by BHP Navajo Coal Company (BN CC) to revise the mining plan at its Navajo Mine. Diné Citizens Against Ruin ing Our Environment an d San Juan Citizens Alliance (collectively Citiz ens) sought judicial review under the Administrative Procedures Act (APA), 5 U.S. C. §§ 701-706. The distri ct court concluded OSM had violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h, in approving the application and remanded the case for further proceedings. BNCC seeks to appeal from the district court’s remand order. 1 Lacking jurisdiction, we must dismiss the appeal as premature.
I. BACKGROUND The Navajo Mine is a large open pit coal mine on tribal reservation lands in northwestern New Mexico. 2 BNCC operates the mine under a long-standing lease with the Navajo Nation and a surface co al mining permit issued by OSM. 3 In December 2004, BNCC filed an application with OSM to revise its approved mining plan at the Navajo

1 BNCC also seeks to appeal from the dist rict court’s order denying its motion to dismiss based on, inter alia , Citizens’ failure to exhaust administrative remedies and the statute of limitations/laches. That order by itself is not immediately appealable. See Decker v. IHC Hosps. , Inc. , 982 F.2d 433, 435 (10th Cir. 1 992) (“Where . . . the basis of the motion to dismiss is not an immunity from suit, the courts hold that an order denying the motion is not immedi ately appealable.”). 2 Venue was proper in Colo rado under 28 U.S.C. § 1 391(e) because the agency decisions at issue in this case were made by OSM’s Western Regional office located in Denver, Colorado. Neither party contests venue.
3 OSM has permitting and other authority over BNCC’s mine operations pursuant to the Surface Mining Control and Reclam ation Act, 30 U.S.C. §§ 1201-1328.- 3 - Mine to include mining in a 3,800-acre area administratively designated as “Area IV North.” In October 2005, af ter performing an Environmen tal Analysis (2005 EA) and making a finding of no signifi cant impact (FONSI), OSM a pproved the application. In July 2007, C itizens filed the instant lawsuit. 4 BNCC intervened . The district court concluded OSM’s approval of BNCC’s application was the type of action which normally requires preparation of an Environm ental Impact Statement (EIS) under NEPA rather than a less comprehens ive Environmental Assessment. The court then turned to the 2005 EA, concluding it was deficient in se veral respects. It remanded the matter to OSM to correct the deficienci es and reassess its FONSI. 5 OSM and BNCC appealed. OS M later dismissed its appeal. It appears OSM is currently in the process of re-analyzing BNCC’s application.
II. DISCUSSION BNCC attacks the district court’s decision on all fronts. Citizens claim there is no final, appealable, order unde r 28 U.S.C. § 1291 because th e district court remanded the case to OSM for further proceedings. We agree. Our jurisdiction extends only to review of “final decisions of the district courts of the United States . . . .” 28 U.S.C. § 1291. “The purpose of the finality requirement is to avoid piecemeal review.” Bender v. Clark , 744 F.2d 1424, 1426 (10th Cir. 1984). “A

4 BNCC’s surface mining permit must be rene wed with OSM every five years. In 2004, OSM renewed the permit. Citizens contes ted that renewal, but the district court determined the issue was mooted by OSM’s re -renewal of the permit in 2009. Citizens have not challenged that determination on appeal. 5 While noting it could require OSM to prepare an EIS, the district court determined it was more appropriate to remand the matter, permitting OSM to reconsider.- 4 - final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Graham v. Hartford Life & Accident Ins. Co. , 501 F.3d 1153, 1156 (10th Cir. 2007) (quot ations omitted). “The remand by a district court to an administrative agency for further proceedings is ordinar ily not appealable because it is not a final decision.” Bender , 744 F.2d at 1426-27; see also Trout Unlimited v. United States Dep’t of Agric. , 441 F.3d 1214, 1218 (10th Cir. 2006); Baca-Prieto v. Guigni , 95 F.3d 1006, 1008 (10th Cir. 1996 ). This is often referred to as the administrative-remand rule. See, e.g. , S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 970 (10th Cir. 2008); Trout Unlimited , 441 F.3d at 1218; Baca-Prieto , 95 F.3d at 1008. 6 There is a “narrow” excepti on to the rule “when the issu e presented is both urgent and important.” Trout Unlimited , 441 F.3d at 1218-19. “If th ese two conditions are met, this court will apply a balancing test and asse rt jurisdiction if the danger of injustice by delaying appellate review outweighs the inco nvenience and costs of piecemeal review.” Id. at 1218 (quotations omitted). In this case, although the issues may be important (an issue we need not decide), they are not urgent. Issues are urgent when the party (usually the federal agency) raising them would be foreclosed from raising them in later proceedings. See, e.g. , S. Utah Wilderness Alliance, 525 F.3d at 970 (concluding the issue was not urgent where potential intervenors can re-raise legal claims if BLM issues unsatisfactory decision on remand); Trout Unlimited, 441 F.3d at 1219 (the issue wa s not urgent where Defendants-

6 As we explained in New Mexico ex rel. Bill Richardson v. BLM , 565 F.3d 683, 698 (10th Cir. 2009), and reiterate infra , the administrative-remand rule is most appropriate when the action at issue is adjudicative or quasi-adjudicative.- 5 - Intervenors can seek administrative and judici al review if dissatisfied with the Forest Service’s decision on remand); Baca-Prieto , 95 F.3d at 1009 (appellate review was appropriate where agency would have no appeal follo wing remand proceedings); Bender , 744 F.2d at 1428 (finding urgency where ag ency could not seek review of its own administrative decisions and therefore may be precluded from appealing after remand). Here, OSM has no interest in pursuing this ap peal and BNCC is not foreclosed from reraising (if necessary) its curre nt issues in later proceedings or attacking any adverse decision resulting from remand. Although postpon ed review in this case might result in added costs, delay and uncertainty, such “i nconveniences . . . do not create appellate jurisdiction where it does not otherwise exist.” Trout Unlimited , 441 F.3d at 1219 n.2; see also Boughton v. Cotter Corp. , 10 F.3d 746, 752 (10th Ci r. 1993) (“Although wellestablished rules of appealability might at times cause an action to be determined unjustly, slowly, and expensively, they have nonetheless the great virtue of forestalling the delay, harassment, expense, and dupli cation that could resu lt from multiple or illtimed appeals.”) (quotations omitted). In opposing dismissal, BNCC pr incipally relies on our decision in New Mexico ex rel. Bill Richardson v. BLM , 565 F.3d 683 (10th Cir. 2009), but it is inapposite. That case involved the BLM’s decision to amend the Resource Management Plan for New Mexico’s Otero Mesa to allow fluid mineral development and its later grant of an oil and gas lease on a portion of those lands. The district court found in favor of the BLM as to the claims pertaining to the amended Re source Management Plan, but concluded the BLM had violated NEPA in failin g to conduct a site-specific environmental analysis prior- 6 - to issuing the oil and gas lease. It directed the BLM to prepare such anal ysis if it wished to execute the lease. The State of New Me xico, a coalition of envi ronmental groups, and an organization promoting the interests of o il and gas producers in the State appealed. The BLM argued we lacked jurisdiction und er the administrative-remand rule. We disagreed for two reasons. First, the admi nistrative-remand rule is “most appropriate” when the agency ha s acted in an adjudicative capacity, i.e. , when the agency has adjudicated rights. 565 F.3d at 697-98. Because the BLM’s decision to amend the Resource Management Plan was a policymak ing decision, it was acting in a quasilegislative, not adjudicative, capacity. Id. at 698. Second, we determined the district court’s order did not square with the traditional notion of a “remand,” wherein the reviewing court returns an action to a lower court for further proceedings. The court’s order did not require BLM to recommenc e a proceeding, or indeed to take any action at all--it simp ly enjoined BLM from further NEPA violations. If [BLM] wishes to allow oil and gas leasing in the plan area it must undertake additional analysis based on the district court’s memorandum opinion, but it retains the option of ceasing such proceedings entirely. Id. at 698. Here, to the contrary, OSM’s approva l of BNCC’s application was quasiadjudicative because it settled BNCC’s right to revise its mining pl an to include mining in Area IV North. See id. at 699 n.17 (stating an agency’s issuance of a permit “falls closer to the traditional concept of adjudi cation than the resource management plan process at issue here because it settles the rights of specific parties”). And, unlike in Richardson , the district court specifically remande d this case to OSM to conduct further proceedings consistent with NEPA.- 7 - Finally, BNCC argues Citizens are estoppe d from claiming the district court’s order is not final or appealable because th ey made the opposite argument in a motion for summary decision before the United States Depa rtment of Interior’s Office of Hearing and Appeals (OHA). 7 This argument lacks merit becau se “no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant [and] principles of estoppel do not apply . . . .” Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1 982) (citation omitted); see also Goodyear Atomic Corp. v. Miller , 486 U.S. 174, 17 8 (1988) (a court “must independently determine as a threshold matter that [it has] jurisdiction”).
APPEAL DISMISSED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge

7 When BNCC filed its December 2004 app lication to revise its mining plan to include mining in Area IV North, it also proposed realigning Burn ham Road, a public road traversing a portion of the Navajo Mine . OSM’s approval of the application was conditioned on, among other things, BNCC fo llowing OSM’s regulatory procedures for relocating a public road prior to disturbing Burnham Road. The dist rict court concluded the realignment of Burnham Road was a “c onnected action” to BNCC’s revision of its mining plan and therefore NEPA required both actions to be addressed in the same environmental impact an alysis. Prior to the district court’s decision, BNCC had applied for and received OSM’s approval to reali gn Burnham Road. Citizens challenged that approval with the OHA. In their motion fo r summary decision with the OHA, Citizens argued the OHA should vacate OS M’s approval of the realignment because the district court in this action had already determin ed the Burnham Road realignment was a connected action to the Area IV North mine expansion and therefor e must be addressed in the same environmental impa ct analysis. They based th eir argument on principles of collateral estoppel and res judicata.