                                                                               FILED
                                                                   United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                    Tenth Circuit

                                     TENTH CIRCUIT                       August 26, 2011

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
DINE CITIZENS AGAINST RUINING
OUR ENVIRONMENT; SAN JUAN
CITIZENS ALLIANCE,

        Plaintiffs - Appellees,

v.                                                       No. 11-1004
                                                          (D. Colo.)
AL KLEIN, in his official capacity as           (D.C. No. 1:07-CV-01475-JLK)
Western Regional Director, Office of
Surface Mining Reclamation and
Enforcement, Denver, 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.



                                 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 Circuit, sitting by designation.
       The Office of Surface Mining Reclamation and Enforcement (OSM) approved an

application by BHP Navajo Coal Company (BNCC) to revise the mining plan at its

Navajo Mine. Diné Citizens Against Ruining Our Environment and San Juan Citizens

Alliance (collectively Citizens) sought judicial review under the Administrative

Procedures Act (APA), 5 U.S.C. §§ 701-706. The district 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 coal 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 district 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. 1992) (“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 immediately appealable.”).
       2
        Venue was proper in Colorado under 28 U.S.C. § 1391(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 Reclamation Act, 30 U.S.C. §§ 1201-1328.
                                           -2-
Mine to include mining in a 3,800-acre area administratively designated as “Area IV

North.” In October 2005, after performing an Environmental Analysis (2005 EA) and

making a finding of no significant impact (FONSI), OSM approved the application.

       In July 2007, Citizens 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 Environmental Impact Statement (EIS) under NEPA

rather than a less comprehensive Environmental Assessment. The court then turned to

the 2005 EA, concluding it was deficient in several respects. It remanded the matter to

OSM to correct the deficiencies and reassess its FONSI.5

       OSM and BNCC appealed. OSM 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 under 28 U.S.C. § 1291 because the 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 renewed with OSM every five years. In
2004, OSM renewed the permit. Citizens contested 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.
                                            -3-
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) (quotations omitted). “The remand by a district court to an

administrative agency for further proceedings is ordinarily 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” exception to the rule “when the issue presented is both urgent

and important.” Trout Unlimited, 441 F.3d at 1218-19. “If these two conditions are met,

this court will apply a balancing test and assert jurisdiction if the danger of injustice by

delaying appellate review outweighs the inconvenience 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 was 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.
                                             -4-
Intervenors can seek administrative and judicial 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 following remand proceedings); Bender,

744 F.2d at 1428 (finding urgency where agency 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 appeal and BNCC is not foreclosed from re-

raising (if necessary) its current issues in later proceedings or attacking any adverse

decision resulting from remand. Although postponed review in this case might result in

added costs, delay and uncertainty, such “inconveniences . . . 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 Cir. 1993) (“Although well-

established 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 duplication that could result from multiple or ill-

timed appeals.”) (quotations omitted).

       In opposing dismissal, BNCC principally 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 Resource Management Plan, but concluded the

BLM had violated NEPA in failing to conduct a site-specific environmental analysis prior

                                            -5-
to issuing the oil and gas lease. It directed the BLM to prepare such analysis if it wished

to execute the lease. The State of New Mexico, a coalition of environmental groups, and

an organization promoting the interests of oil and gas producers in the State appealed.

The BLM argued we lacked jurisdiction under the administrative-remand rule. We

disagreed for two reasons. First, the administrative-remand rule is “most appropriate”

when the agency has 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 policymaking decision, it was acting in a quasi-

legislative, 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 recommence a proceeding, or indeed to take
       any action at all--it simply 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 approval of BNCC’s application was quasi-

adjudicative because it settled BNCC’s right to revise its mining plan 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 adjudication 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 remanded this case to OSM to conduct further

proceedings consistent with NEPA.

                                             -6-
       Finally, BNCC argues Citizens are estopped from claiming the district court’s

order is not final or appealable because they made the opposite argument in a motion for

summary decision before the United States Department of Interior’s Office of Hearing

and Appeals (OHA).7 This argument lacks merit because “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 (1982) (citation omitted); see also

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178 (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 application to revise its mining plan to
include mining in Area IV North, it also proposed realigning Burnham Road, a public
road traversing a portion of the Navajo Mine. OSM’s approval of the application was
conditioned on, among other things, BNCC following OSM’s regulatory procedures for
relocating a public road prior to disturbing Burnham Road. The district court concluded
the realignment of Burnham Road was a “connected action” to BNCC’s revision of its
mining plan and therefore NEPA required both actions to be addressed in the same
environmental impact analysis. Prior to the district court’s decision, BNCC had applied
for and received OSM’s approval to realign Burnham Road. Citizens challenged that
approval with the OHA. In their motion for summary decision with the OHA, Citizens
argued the OHA should vacate OSM’s approval of the realignment because the district
court in this action had already determined the Burnham Road realignment was a
connected action to the Area IV North mine expansion and therefore must be addressed
in the same environmental impact analysis. They based their argument on principles of
collateral estoppel and res judicata.
                                             -7-
