## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 27 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SOUTHERN UTAH WILDERNESS ALLIANCE and the SIERRA CLUB, Plaintiffs - Appellees, v. THE BUREAU OF LAND MANAGEMENT, Defendant - Appellee, and SAN JUAN COUNTY, UTAH; TYLER LEWIS, San Juan County Commissioner; KANE COUNTY, UTAH; and GARFIELD COUNTY, UTAH, Defendants - Appellants.

NATURAL RESOURCES DEFENSE COUNCIL, NATIONAL PARKS & CONSERVATION ASSOCIATION, THE WILDERNESS SOCIETY, ALASKA CENTER FOR THE ENVIRONMENT, ALASKA WILDERNESS LEAGUE, SOUTHEAST ALASKA CONSERVATION COUNCIL, NORTHERN ALASKA ENVIRONMENTAL CENTER, Amici Curiae. No. 01-4173 (D.C. No. 96-CV-836C) (D. Utah)* This Order and Judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. - 2 - ORDER AND JUDGMENT *

Before TACHA , Chief Judge, HOLLOWAY , and EBEL , Circuit Judges.

Defendants-Appellants, three Utah counties and one of their commissioners (collectively “the Counties”), seek to appeal the d istrict court’s order upholding a Bureau of Land Management (BLM) determination again st them and the Counties also seek to strike the BLM’s reply to their appeal as untimely. The district court decision below upheld the BLM’s denial of all but o ne of the Counties’ claims to certain rights-of-way over federal land. We need n ot reach the merits of the Counties’ arguments, however, because we find that we lack jurisdiction to hear this appeal. The district court’s order neither gr anted injunctive relief nor damages as requested, and therefore is not a final decision as required for the exercise of appellate jurisdiction under 28 U.S.C. § 1291, nor is it an appealable interlocutory decision under 28 U.S.C. § 1292(a)(1)

. Accordingly, we DISMISS the appeal for lack of jurisdiction and DENY the Counties’ motion to strike the BLM’s response a s moot.1 This right-of-way provision was R.S. 2477, which provided that “the

right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” R.S. 2477, recodi fiedat 43 U.S.C. § 932 (1938) (repealed). R.S. 2477 was repealed on October 21, 1976 by the Federal Land Policy and Management Act (FLPMA), but claims in ex istence at the time of its repeal were to be honored thereafter. FLPMA, § 706 (a), Pub. L. No. 94-579, 90 Stat. 2743, 2793 (1976). - 3 - BACKGROUND Because we are dismissing this case for lack of app ellate jurisdiction, we will not extensively discuss the facts relevant to the substantive issues implicated in this case. We will, however, briefly review the factual basis of the Counties’ claim and the procedural posture of the dispute in order to explain why the district court’s grant of summary judgment is not appealable at this time. The three Utah counties in this case attempted to c onstruct roads through federal wilderness without the permission of the fe deral government. The Southern Utah Wilderness Alliance (SUWA) and the Si erra Club filed suit against the Counties in federal district court to enjoin th eir actions, and the environmental organizations added the United States as a party. Proceedings were suspended for the Bureau of Land Management (BLM) to study whethe r the Counties were entitled to the land under the right-of-way provisi on that they asserted. 1 The BLM ultimately agreed with the environmental organi zations that the Counties did not have valid claims to most of the land.- 4 -

SUWA and the Sierra Club thereafter filed a “motionfor summary judgment” in the federal district court proceeding to enforce the conclusion of the BLM’s report. They prayed for declaratory judgmentand for injunctive relief. The federal government joined the SUWA and Sierra C lub’s motion, and also requested damages for trespass. The district courtproperly interpreted the motion for summary judgment as an appeal of informal agenc y action rather than treating it as a summary judgment motion. SUWA v. Dabney , 222 F.3d 819, 824 n.4 (10th Cir. 2000) (citing Olenhouse v. Commodity Credit Co rp. , 42 F.3d 1560, 1579 - 80 (10th Cir. 1994)). As the BLM is the agency charge d with the management of federal lands, the district court reviewed the BLM’ s decision under the arbitrary and capricious standard of the Administrative Proce dure Act (APA). It found substantial evidence for the BLM’s decision and aff irmed the agency’s determination regarding the merit of the Counties’ claims. The district court’s order, however, did not dispos e of all requests the parties made in their motions. The environmental g roups requested declaratory judgment and injunctive relief; the federal governm ent had requested damages. The district court, though, merely reviewed the BLM ’s decision; it effectively granted declaratory judgment, but failed to rule onthe pending requests for injunctive relief or for damages.2The applicable text of 28 U.S.C. § 1291 reads: “T he courts of appeals . . .

shall have jurisdiction of appeals from all final d ecisions of the district courts of the United States . . . .” - 5 - The Counties now appeal, and SUWA, the Sierra Club, and the BLM filed a series of cross-motions. We find that we need not reach the merits of the case because we lack jurisdiction to hear it under 28 U. S.C. § 1291.

DISCUSSION Under 28 U.S.C. § 1291, federal courts of appeal have jurisdiction to review only the “final decisions” of district court s. 228 U.S.C. § 1291. A final decision is one that fully resolves all claims for relief. Liberty Mutual Ins. Co v. Wetzel , 424 U.S. 737, 744 (1976). Orders that leave the “assessment of damages or [th e] awarding of other relief . . . to be resolved have never been conside red to be ‘final’ within the meaning of 28 U.S.C. § 1291.” Id. ; see also McKinney v. Gannett Co., Inc. , 694 F.2d 1240, 1246 (10th Cir. 1982) (finding judgments that merely determine liability cannot be final under 28 U.S.C. § 1291). On its face then, “[a] judgment that does not recite the relief granted but merely states that the plaintiff’s motion for summary judgment is granted is . . . likely to be nonfinal.” Buchanan v. United States , 82 F.3d 706, 708 (7th Cir. 1996).- 6 -

Unless there is a certification pursuant to Federal Rule of Civil Procedure 54(b), “any order or other form of decision, howeve r designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties” for purposes of appeal. Fed. R. Civ. P. 54(b); 10 Char les Alan Wright et al., Federal Practice and Procedure § 2656, at 47 (3d ed. 2002) (“No ruling can be app ealed until a certification is obtained under Rule 54(b) or until all the remaining issues in the case have been decided.”). Here the distric t court made no certification under Rule 54(b) that the parties’ claims could be separately adjudicated. Even if the district court’s order were to adjudicate one i ssue in its entirety, but fail to adjudicate the remainder of the parties’ claims, we would not hear the appeal. See Harolds Stores, Inc. v. Dillard Department Stores, Inc. , 82 F.3d 1533, 1541 (10th Cir. 1996); Bristol v. Fibreboard Corp. , 789 F.2d 846, 848 (10th Cir. 1986). The district court’s order was not final as require d by 28 U.S.C. § 1291, and we therefore lack jurisdiction to hear the Counties’ appeal. The various parties requested three remedies from the district court: declaratory judgment, injunctive relief, and damages. The sum of the dis trict court’s order was that the “BLM’s determinations regarding the validity . . . of the rights-of-way claimed by the Counties are AFFIRMED.” Although this may cons titute a declaratory- 7 -

judgment, it cannot be construed as specific injunc tive relief or a method for calculating damages. We find no injunction present in the district court ’s order in either form or effect. We are particularly careful to examine the language of a district court’s order when injunctive relief may be at stake. UnderFederal Rule of Civil Procedure 65(d), injunctions must “set forth the re asons for [their] issuance, . . . be specific in terms; . . . [and] describe in reaso nable detail . . . the act or acts sought to be restrained . . . .” The language of the district court’s order simply a ffirmed the BLM’s determinations regarding the Counties’ claims to th e rights-of-way; it did not attempt to control the parties’ actions in any mann er. See Schmidt v. Lessard , 414 U.S. 473, 476 (1974) (per curiam) (“[T]he speci ficity provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those face d with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.”) By its omission of any words of com mand, the district court’s order fundamentally failed to describe what behavio rs might be acceptable and what might not. Keyes v. School Dist. No. 1, Denve r, Colo. , 895 F.2d 659, 668 (10th Cir. 1990) (noting that “an injunction [must] be reasonably specific in identifying what acts are prohibited or required, b oth to give notice to the- 8 -

defendant of what is prohibited, and to guide an ap pellate court in reviewing the defendant's compliance or noncompliance with the in junction.”). An order that does not expressly grant or deny an i njunction, but has the practical effect of doing so, may possibly be appea lable under § 1292(a)(1) if “a litigant can show that an interlocutory order of th e district court might have a ‘serious, perhaps irreparable consequence,’ and that the order can be ‘effectively challenged’ only by immediate appeal . . . .” Cars on v. American Brands, Inc. , 450 U.S. 79, 84 (1981); Gillis v. United States Dep ’t of HHS , 759 F.2d 565, 567 (6th Cir. 1985). The Counties, however, make no sh owing here of consequences, serious, irreparable, or otherwise. We similarly find no ruling on the claim for damage s in the district court’s order. An order involving a claim for damages will be considered final for purposes of appeal only where any remaining calculation of damages is ministerial and can be made pursuant to a predeterm ined procedure. Albright v. UNUM Life Ins. Co. of America , 59 F.3d 1089, 1093 (10th Cir. 1995) (citing Goodman v. Lee , 988 F.2d 619, 626 - 27 (5th Cir. 1993) (per curiam)). The district court’s brief affirmation of the BLM’s det ermination regarding rights-ofway here establishes no formula for how or if the f ederal government should be awarded damages for trespass.- 9 - CONCLUSION Accordingly, we DISMISS for lack of jurisdiction. We also DENY the Counties’ motion to strike the government’s respons e as moot.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge