FILED NOT FOR PUBLICATION OCT 14 2010
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-35772
Plaintiff, D.C. Nos. 2:89-sp-00002-RSM 2:70-cv-09213-RSM and
LOWER ELWHA BAND OF MEMORANDUM * S'KLALLAMS; JAMESTOWN BAND OF S'KLALLAMS; PORT GAMBLE BAND OF S'KLALLAMS;
Plaintiffs - Appellants,
v.
STATE OF WASHINGTON,
Defendant,
and
LUMMI INDIAN TRIBE,
Defendant - Appellee,
and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. TULALIP TRIBE,
Interested party - Appellee,
PUYALLUP TRIBE; MAKAH INDIAN TRIBE; SUQUAMISH INDIAN TRIBE; CONFEDERATED TRIBES & BANDS OF THE YAKAMA INDIAN NATION; MUCKLESHOOT INDIAN TRIBE; QUINAULT INDIAN NATION; QUILEUTE INDIAN TRIBE; NISQUALLY INDIAN TRIBE; SWINOMISH TRIBAL COMMUNITY; HOH INDIAN TRIBE; UPPER SKAGIT INDIAN TRIBE,
Interested parties.
Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted October 6, 2010 Seattle, Washington
Before: KOZINSKI, Chief Judge, THOMAS and M. SMITH, Circuit Judges.
Our prior decision in this dispute sets forth the appropriate standard for
jurisdiction under 28 U.S.C. § 1291: "[A] ruling is final for purposes of § 1291 if it
(1) is a full adjudication of the issues, and (2) clearly evidences the judge's
intention that it be the court's final act in the matter." United States v. Lummi
Indian Tribe, 235 F.3d 443, 448 (9th Cir. 2000) (quoting Nat'l Distribution Agency
v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997)). The current
appeal satisfies neither requirement. The district court denied the motion "without
prejudice to renewal as a new subproceeding" and even retained paper copies of
the parties' pleadings "so that [their] effort need not be duplicated." The district
court also explained that the parties' substantive dispute "remains to be
determined." Accordingly, we lack jurisdiction over this appeal.
DISMISSED.