Scott Timber Co., et al. v. Oregon Wild, et al.

An order remanding a decision to an administrative agency may be appealed under 28 U.S.C. § 1291 if the order has the hallmarks of finality, or under 28 U.S.C. § 1292(a)(1) if the order has the effect of an injunction. The Ninth Circuit, straying from this Court’s jurisprudence, Federal Rule of Civil Procedure 24, and in tension with at least two other courts of appeals, has established a “general rule” that private-party intervenor defendants may not appeal a purported administrative remand order, regardless of the order’s practical finality or injunctive effect. Applying this rule to this case, the Ninth Circuit held, in conflict with the Tenth Circuit, that an order setting aside an agency’s approval of a project on public land, and preventing the project from proceeding unless a multiyear Environmental Impact Study is completed, may only be appealed by the agency, not by the project’s private proponents that were granted intervention as of right. The question presented is: Does jurisdiction under 28 U.S.C. §§ 1291 or 1292(a)(1) over a defendant-intervenor’s appeal in an action challenging an agency decision depend on whether the government chose to appeal, or is jurisdiction based on, respectively, a “practical finality” test, or whether the order effectively grants an injunction?