Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding. D.C. No. 2:02-cv-01314-JAM-JFM.
The opinion of the court was delivered by: Wallace, Senior Circuit Judge
Argued and Submitted March 10, 2010-San Francisco, California
Before: J. Clifford Wallace, Sidney R. Thomas, and Kim McLane Wardlaw, Circuit Judges.
This appeal arises out of an action by the Pit River Tribe, the Native Coalition For Medicine Lake Highlands Defense, and Mount Shasta Bioregional Ecology Center (collectively Pit River) against the Bureau of Land Management (BLM), the United States Forest Service, the Advisory Council on Historic Preservation, and the Department of the Interior (collectively agencies), and against Calpine Corporation (Cal-pine). This case has already resulted in one appeal to this court, Pit River Tribe v. United States Forest Service, 469 F.3d 768, 772 (9th Cir. 2006) (Pit River I).
A detailed factual history of this case is provided in Pit River I. Id. at 772-78. We will reiterate that factual history only briefly here. The underlying litigation concerns Calpine's efforts to develop a geothermal power plant near Medicine Lake, an area of spiritual significance to the Pit River Tribe and other Native American tribes in the region. In June 1988, pursuant to the Geothermal Steam Act, 30 U.S.C. § 1001 et seq., the BLM entered into two geothermal leases for land in the Medicine Lake area with Calpine's predecessor. The leases provided for an initial term of ten years and "granted the lessee the exclusive right to drill for, extract, produce, remove, utilize, sell, and dispose of the geothermal resources" in the land, subject to certain stipulations and to applicable law. 469 F.3d at 775-76. In 1995, after preliminary exploration, Calpine submitted to the agencies a plan of utilization for the proposed power plant at issue in this litigation: the Fourmile Hill Geothermal Development Project (the Four-mile Hill Plant). Id. at 776. In May 1998, the BLM extended Calpine's leases for five years, pursuant to a then-operative regulation, 43 C.F.R. § 3203.1-4(c) (1998), which allowed a five-year extension of such a lease if the lessee met certain diligence requirements. Pit River I, 469 F.3d at 777. In September 1998, the agencies issued a final Environmental Impact Statement (EIS) for the Fourmile Hill Plant, id.; and, in May 2000, issued a Record of Decision (ROD) approving the plant, id. at 777-78. In 2002, the BLM extended Calpine's leases for another 40 years. Id. at 778. In granting this 40-year extension, the BLM relied on a regulation, 43 C.F.R. § 3203.1-3 (1998), which allowed such an extension if the lease was producing geothermal resources in "commercial quantities." Id. Thereafter, Pit River sued the agencies and Calpine in the United States District Court for the Eastern District of California, alleging that the agencies had violated various federal laws during the leasing and development process. Id. The district court entered summary judgment for the agencies and Calpine, and Pit River appealed. Id.
In Pit River I, we reversed the district court's summary judgment. We held, in part, that the agencies should have prepared an EIS prior to granting the May 1998 lease extensions. We determined, furthermore, that this error was not cured by the later, September 1998 EIS completed in connection with the Fourmile Hill Plant approval process. Id. at 785-86. We held that the 1998 lease extensions "and the entire Fourmile Hill Plant approval process for development of the invalid lease rights" violated the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Id. at 787. We also held that these NEPA and NHPA violations constituted a violation of the agencies' "minimum fiduciary duty to the Pit River Tribe." Id. at 788. We concluded:
The agencies violated their duties under NEPA and NHPA and their fiduciary duty to the Pit River Tribe by failing to complete an environmental impact statement before extending Calpine's leases in 1998. Hence, both the five-year lease extensions and the subsequent forty-year extensions must be undone. The rest of the project approval process, including the 1998 EIS, was premised on Calpine's possession of a valid right to develop the land and therefore must be set aside. . . . We reverse the district court's summary judgment in favor of the agencies, and direct the district court to enter summary judgment in favor of Pit River consistent with this opinion.
On remand to the district court, the parties disputed the proper course to be followed. The agencies, joined by Cal-pine, argued that they need only reconsider the 1998 lease extensions and any subsequent decisions (e.g. the approval of the Fourmile Hill Plant and the 40-year lease extensions granted in 2002). Pit River argued that, because the original 1988 leases had expired by their terms, Calpine had no present lease rights remaining. Pit River argued that the leasing process must therefore begin from scratch, with the agencies treating Calpine as seeking a new initial lease. This would entail, among other things, a competitive bidding process. See 30 U.S.C. § 1003.
After considering the parties' submissions, the district court entered summary judgment in favor of Pit River on the relevant claims. In its memorandum of decision, the district court considered, however, that the "court of appeals . . . . left this [c]court to specify terms of judgment that would satisfy the mandate." In its order remanding the case to the agencies, the district court enjoined Calpine from engaging in any surface-disturbing activity pending proper NEPA and NHPA analysis and documentation. The district court also ordered the agencies to vacate the 1998 and 2002 lease extensions and the ROD approving the Fourmile Hill Plant. The district court remanded to the relevant agencies with instructions for the agencies to perform the proper NEPA and NHPA reviews, to conduct further consultation with Native American Tribes, and to prepare proper EIS documents regarding the lease extensions and the Fourmile Hill Plant plan of utilization.
The district court disagreed with Pit River's contention that the leasing process must begin anew. Reasoning that a "mere finding of a NEPA violation does not automatically and retroactively invalidate anything," the district court determined that it had discretion to preserve the lease extensions even if they were issued in violation of NEPA. The district court then determined that "the 1998 lease extension . . . took effect and the 1988 leases did not expire." The district court concluded that the agencies need not "withdraw the 1988 leasing decisions," but that the "BLM shall have absolute discretion to void or cancel the leases, deny lease extensions or unit commitment, and add or modify lease conditions." Pit River now appeals.
We first must assure ourselves that we have jurisdiction to hear this appeal. We must determine whether we can properly exercise jurisdiction pursuant to 28 U.S.C. § 1291 or 1292(a), or, in the alternative, whether we have jurisdiction over this appeal pursuant to the All Writs Act, 28 U.S.C. § 1651(a).
The parties assert that appellate jurisdiction is appropriate under 28 U.S.C. § 1291. In this case, the district court entered summary judgment in favor of Pit River, pursuant to our order of remand. See Pit River I, 469 F.3d at 788. The district court then remanded this case to the relevant agencies for further proceedings, with instructions that the district court believed were necessary to effectuate the mandate of Pit River I. We conclude that the district court's entry of summary judgment and remand order do not constitute a "final decision" by the district court, and therefore jurisdiction cannot lie pursuant to section 1291.
 Under section 1291, appellate jurisdiction extends only to "final decisions of the district courts." Importantly, remand orders are generally not "final" decisions for purposes of section 1291. Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990). A district court's remand order may be considered final in certain circumstances, however:
A remand order will be considered final where (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.
Alsea Valley Alliance v. Dep't of Commerce, 358 F.3d 1181, 1184 (9th Cir. 2004) (internal quotation marks and citation omitted); see also Kaho v. Ilchert, 765 F.2d 877, 880-81 (9th Cir. 1985); Regents of Univ. of Cal. v. Heckler, 771 F.2d 1182, 1186-87 (9th Cir. 1985) (overruled on other grounds by Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993); Stone v. Heckler, 722 F.2d 464, 466-67 (9th Cir. 1983).
In Alsea, we discussed the circumstances in which a remand order may constitute an appealable final decision. In that case, Alsea challenged a final rule promulgated by the National Marine Fisheries Service (Fisheries Service); the rule at issue pertained to the designation of certain salmon populations as "threatened" for purposes of the Endangered Species Act. Id. at 1183. The district court granted summary judgment to Alsea, and then remanded the case to the Fish-eries Service for additional proceedings consistent with its decision. The district court directed the Fisheries Service to consider "the best available scientific information" on the issue presented. Id. The Fisheries Service agreed to comply with the court's directions and also announced that it would commence a comprehensive review of the policies at issue, including "a public rulemaking process to formulate [Endangered Species Act] listing standards for salmon . . . ." Id. The Oregon Natural Resources Council, fearing that the Service would not appeal the district court order, sought to intervene in the case as of right and simultaneously lodged a notice of appeal. Id. at 1184. The district court permitted the Oregon Natural Resources Council to intervene for purposes of appeal. Id.
 We concluded there that the district court's remand order did not constitute a final order appealable by the Oregon Natural Resources Council. We applied the three-part standard, set forth above, in making this determination. Id. We held that the remand order in Alsea failed to satisfy the third prerequisite, that "review would, as a practical matter, be foreclosed if an immediate appeal were unavailable." Id. (internal quotation marks omitted), citing Collord v. United States Dep't of the Interior, 154 F.3d 933, 935 (9th Cir. 1998). We explained that, generally, a remand order may be deemed a final order only where the agency appeals the remand: Because an agency cannot appeal its own decision, "only agencies compelled to refashion their own rules face the unique prospect of being deprived of review altogether." Id.
Alsea did not announce a hard-and-fast rule prohibiting a non-agency litigant from appealing a remand order. See id. at 1184 ("Although we conceive of none, there may be circumstances that would afford a non-agency litigant the ability to appeal a remand order, but we need not reach that question"). The Oregon Natural Resources Council, however, was not similarly-situated to an agency litigant. Instead, "no aspect of the district court's ruling [would] vitiate[ ] the Council's access to appellate review of the eventual outcome of the district court's decision." Id. at 1185. Indeed, we observed that "it [was] possible that the action taken by the Service on remand [would] provide the Council with all the relief it [was] seek[ing]." Id. Furthermore, the Oregon Natural Resources Council could participate during the public participation phase of the rulemaking process and would thereby have a chance to influence the formulation of new rules. Id. If the Council perceived the eventually resulting rule "to be unlawful and adverse to its interests," it could challenge the rule at that point. Id. But, we said that "[u]ntil all these contingencies have played out . . . any decision by us could prove entirely unnecessary." Id.
Alsea's reasoning was echoed by the Eighth Circuit in Izaak Walton League of America v. Kimbell, 558 F.3d 751 (8th Cir. 2009). There, Wilderness Watch and several other organizations sued the United States Forest Service, alleging that its decision to construct a snowmobile trail was unlawful. Id. at 753. The district court entered summary judgment for the Forest Service on certain claims, but also determined that the environmental assessment prepared by the Forest Service for the trail project had been inadequate. As a result, the district court remanded the case to the agency, with instructions to prepare an EIS. Id. Certain intervenor parties appealed the portion of the district court's decision remanding to the Forest Service. The Eighth Circuit concluded that it had no jurisdiction to hear the appeal because the remand order was ...