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

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 15-35336 · judgment May 11, 2017


Certiorari denied · February 20, 2018
Pre-decision estimate: 7% cert probability (95% interval 5%–10%)

Before the decision, about 1.7× the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a Ninth Circuit decision below, and a business petitioner.

Question presented

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?

Counsel of record

For petitioner
Lawson Emmett Fite
American Forest Resource Council

For respondent
Nicholas Cady
Cascadia Wildlands

Case

Subject area
Judicial Power (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Amicus briefs
3 cert-stage

Linked docket
17A389

Order
Order list, February 20, 2018 · Certiorari denied

Proceedings

  1. Feb 20 2018
    Petition DENIED.
  2. Jan 31 2018
    DISTRIBUTED for Conference of 2/16/2018.
  3. Jan 19 2018
    Brief amicus curiae of National Association of Home Builders filed.
  4. Jan 19 2018
    Brief amicus curiae of Pacific Legal Foundation filed.
  5. Jan 18 2018
    Brief amici curiae of Public Lands Council, et al. filed.
  6. Jan 17 2018
    Waiver of right of respondents Oregon Wild, et al. to respond filed.
  7. Dec 21 2017
    Blanket Consent filed by Petitioner, Scott Timber Co., et al.
  8. Dec 18 2017
    Petition for a writ of certiorari filed. (Response due January 19, 2018)
  9. Oct 12 2017
    Application (17A389) granted by Justice Kennedy extending the time to file until December 16, 2017.
  10. Oct 05 2017
    Application (17A389) to extend the time to file a petition for a writ of certiorari from October 17, 2017 to December 16, 2017, submitted to Justice Kennedy.