Pit River Tribe v. United States Forest Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PIT RIVER TRIBE; NATIVE 
COALITION FOR MEDICINE LAKE
HIGHLANDS DEFENSE; MOUNT
SHASTA BIOREGIONAL ECOLOGY
CENTER,
No. 09-15385
Plaintiffs-Appellants,
D.C. No.
v.
 2:02-cv-01314-
UNITED STATES FOREST SERVICE; JAM-JFM
ADVISORY COUNCIL ON HISTORIC
OPINION
PRESERVATION; CALPINE
CORPORATION; UNITED STATES
DEPARTMENT OF THE INTERIOR,
Bureau of Land Management,
Defendants-Appellees.


Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding

Argued and Submitted
March 10, 2010—San Francisco, California

Filed August 2, 2010

Before: J. Clifford Wallace, Sidney R. Thomas, and
Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wallace

11045
 PIT RIVER TRIBE v. USFS 11049
COUNSEL

Deborah A. Sivas, Esq., and James R. Williams, Environmen-
tal Law Clinic, Mills Legal Clinic at Stanford Law School,
Stanford, California, for plaintiffs-appellants Pit River Tribe,
et al.

Mary Gabrielle Sprague, Esq., Appellate Section, Environ-
mental & Natural Resources Division, United States Depart-
ment of Justice, Washington, D.C., for defendants-appellees
Bureau of Land Management, United States Department of
the Interior, United States Forest Service, and Advisory Coun-
cil on Historic Preservation.

John A. Bryson, Esq., Holland & Hart LLP, Washington,
D.C., for defendant-appellee Calpine Corporation.

OPINION

WALLACE, Senior Circuit Judge:

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 (col-
lectively 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 Cal-
pine’s efforts to develop a geothermal power plant near Medi-
11050 PIT RIVER TRIBE v. USFS
cine 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 predeces-
sor. The leases provided for an initial term of ten years and
“granted the lessee the exclusive right to drill for, extract, pro-
duce, 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 utili-
zation 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 Sep-
tember 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 pro-
cess. 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 pre-
pared 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
 PIT RIVER TRIBE v. USFS 11051
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 viola-
tions constituted a violation of the agencies’ “minimum fidu-
ciary 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.

Id.

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 pres-
ent 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.
11052 PIT RIVER TRIBE v. USFS
After considering the parties’ submissions, the district court
entered summary judgment in favor of Pit River on the rele-
vant claims. In its memorandum of decision, the district court
considered, however, that the “court of appeals . . . . left this
[c]ourt 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 agen-
cies 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 retro-
actively 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 deci-
sions,” but that the “BLM shall have absolute discretion to
void or cancel the leases, deny lease extensions or unit com-
mitment, and add or modify lease conditions.” Pit River now
appeals.

I.

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).
 PIT RIVER TRIBE v. USFS 11053
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.

[1] 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 sec-
tion 1291. Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457
(9th Cir. 1990). A district court’s remand order may be con-
sidered 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
11054 PIT RIVER TRIBE v. USFS
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 [Endan-
gered 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.

[2] 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 stan-
dard, 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
 PIT RIVER TRIBE v. USFS 11055
1184 (“Although we conceive of none, there may be circum-
stances 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 dis-
trict 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 unlaw-
ful 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 dis-
trict 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 jurisdic-
tion to hear the appeal because the remand order was not a
final decision. Id. at 762. Citing our decision in Alsea, the
court observed that the agency might have been able to appeal
the remand order. Id. at 763. But as the case stood, the remand
order was not final.
11056 PIT RIVER TRIBE v. USFS
While acknowledging that remand orders are generally not
considered final for purposes of section 1291, Calpine argues
here that the district court’s remand order was effectively
final because it “intended to dispose of the entire case.” Cal-
pine asserts that a remand order, accompanied by dismissal of
the action, is the “equivalent of an order of dismissal” and
appealable under section 1291. In support of its position, Cal-
pine cites our decisions in City of Santa Clara v. Andrus, 572
F.2d 660 (9th Cir. 1978) and Eluska v. Andrus, 587 F.2d 996
(9th Cir. 1978).

[3] In this case, it is true that the district court ordered that
any judicial action following remand “will be commenced by
filing a new complaint initiating a new federal district court
case.” The reasoning of Alsea remains persuasive, however.
Similar to the appellant in Alsea, Pit River will have an oppor-
tunity to participate in the agencies’ processes on remand.
Indeed, it is possible that the agencies may decide that no geo-
thermal power production should occur on the land and
decline to extend Calpine’s leases. As in Alsea, any decision
by this court may prove entirely unnecessary. See Alsea, 358
F.3d at 1185. As it stands now, the remand order is not a final
order appealable under section 1291.

The authorities cited by Calpine, City of Santa Clara and
Eluska, do not persuade us otherwise. City of Santa Clara is
distinguishable. In that case, both the plaintiff and the rele-
vant agency sought review of the district court’s remand
order. 572 F.2d at 663. City of Santa Clara therefore falls
within the exception discussed in Alsea, which permits an
agency’s appeal of a remand order where the agency will oth-
erwise be effectively foreclosed from appealing post-remand.

Eluska also does not establish the propriety of our jurisdic-
tion in this case. Calpine cites Eluska as establishing the prop-
osition that, where a district court intends to dispose of an
entire case, a remand order is equivalent to an order of dis-
missal. We do not read Eluska as Calpine urges. In Eluska,
 PIT RIVER TRIBE v. USFS 11057
the plaintiff applied for a land allotment pursuant to relevant
federal law. After denial of her claim, the plaintiff sued the
Secretary of the Interior, alleging that the agency wrongfully
denied her claim. 587 F.2d at 997-98. She asserted several
claims, including a due process right to a hearing, and a chal-
lenge to the agency’s application of a use-and-occupancy
requirement. Id. The district court agreed that the plaintiff had
a right to a hearing and remanded, id. at 998, but denied plain-
tiff’s motion for summary judgment regarding the use-and-
occupancy issue. We held that there was no appealable final
order, observing that “[n]either a remand order nor a denial of
summary judgment is ordinarily final and appealable.” Id. at
999. Plaintiff argued that the use-and-occupancy requirement
was being applied incorrectly by the agency, rendering
remand for a hearing futile. We stated that “in order to con-
clude that the judgement was final, we must first find that it
was equivalent to an order of dismissal.” Id. There, the district
court had not even dismissed the case, but instead had
“wished to retain jurisdiction.” Id. at 1000. The discussion in
Eluska of the “equivalent to an order of dismissal” referred
only to the fact that the district court had not even dismissed
the case, but instead had retained jurisdiction. Id. at 999. We
do not read Eluska as holding that a remand accompanied by
dismissal of the action in district court is always and necessar-
ily a final order.

[4] We therefore hold that, under the principles applied in
Alsea, the remand order here was not a final order for pur-
poses of section 1291. See generally Alsea, 358 F.3d at 1184.

B.

[5] Taking a different tack, Calpine asserts that we may
exercise jurisdiction over this appeal because the district
court’s remand order was the equivalent of an interlocutory
order refusing an injunction. See, e.g., Plata v. Davis, 329
F.3d 1101, 1106 (9th Cir. 2003) (“[A] line of cases . . . per-
mit[s] appellate jurisdiction over orders that have the ‘practi-
11058 PIT RIVER TRIBE v. USFS
cal effect’ of granting, denying, or modifying injunctive
relief”) (internal citations omitted). We have jurisdiction over
appeals from interlocutory orders of the district courts “grant-
ing, continuing, modifying, refusing or dissolving injunctions,
or refusing to dissolve or modify injunctions . . . .” 28 U.S.C.
§ 1292(a)(1). We have described section 1292(a)(1) as “a lim-
ited exception to the final-judgment rule,” which should be
construed “narrowly.” Alsea, 358 F.3d at 1186. To be appeal-
able under section 1292(a)(1), as having the “practical effect”
of an injunction, the district court’s order “must (1) have the
practical effect of entering an injunction, (2) have serious,
perhaps irreparable, consequences, and (3) be such that an
immediate appeal is the only effective way to challenge it.”
Calderon v. United States Dist. Court for the Cent. Dist. of
Cal., 137 F.3d 1420, 1422 n.2 (9th Cir.1998); see also Carson
v. Am. Brands, Inc., 450 U.S. 79 (1981).

However, the district court’s remand order was not tanta-
mount to an order respecting an injunction for purposes of
section 1292(a)(1). Calpine’s argument fails because it is
based on a misstatement of Pit River’s position. Calpine’s
argument proceeds as follows: on remand to the district court
following Pit River I, Pit River asked the district court to
“set[ ] aside the geothermal leases issued in 1988,” which
relief “would have required BLM to cancel those leases and
therefore would have constituted” injunctive relief. Calpine
misconstrues Pit River’s argument, because Pit River did not
request the cancellation or invalidation of the original 1988
leases. Instead, Pit River’s position was that the original 1988
leases had expired by their own terms; that is, the leases had
terminated in 1998 upon expiration of their 10-year terms. Pit
River did not ask the district court to issue an injunction or the
equivalent of an injunction. See, e.g., Black’s Law Dictionary
(8th ed. 2004) (defining “injunction” as “[a] court order com-
manding or preventing an action”). Pit River simply asserted
that, on remand proceedings before the agency, the original
1988 leases could not be extended as a matter of law, such
that Calpine could receive only an entirely new lease.
 PIT RIVER TRIBE v. USFS 11059
[6] Here again, the Alsea case is instructive. There, we
rejected a party’s assertion that a remand order had the
“ ‘practical effect’ of granting an injunction.” Alsea, 358 F.3d
at 1186. In Alsea, the district court had declared an agency
listing under the Endangered Species Act unlawful and set the
listing aside. We concluded that the district court’s order was
not equivalent to an injunction because it did not compel the
relevant agency to take or refrain from any action. We
explained that:

the only aspect of the summary judgment that
remotely resembles injunctive relief is that it prohib-
its, as a practical matter, the enforcement of the Ser-
vice’s listing decision as is. It would be far too
tenuous, however, to maintain that this is the practi-
cal equivalent of “enjoining” the Service. Taken to
its logical end, such reasoning would classify as “in-
junctive” all declaratory relief that deems an agency
rule unlawful.

Alsea, 358 F.3d at 1186. Similarly, the remand order at issue
here cannot be construed as an order granting or denying an
injunction; therefore, we lack appellate jurisdiction pursuant
to section 1292(a)(1).

C.

[7] The agencies and Calpine argue, in the alternative, that
we are given jurisdiction to hear this appeal by the All Writs
Act, 28 U.S.C. § 1651(a). The All Writs Act, section 1651(a),
provides that “all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their respec-
tive jurisdictions and agreeable to the usages and principles of
law.” Of relevance here, the “writ of mandamus has tradition-
ally been used . . . ‘to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it to exer-
cise its authority when it is its duty to do so.’ ” Will v. United
11060 PIT RIVER TRIBE v. USFS
States, 389 U.S. 90, 95 (1967), quoting Roche v. Evaporated
Milk Ass’n, 319 U.S. 21, 26 (1943).

[8] In Vizcaino v. United States District Court, we stated
that “when a lower court obstructs the mandate of an appellate
court, mandamus is the appropriate remedy. . . .” 173 F.3d
713, 718-19 (9th Cir. 1999). We stated that mandamus is jus-
tified to protect “the supervisory role of the courts of appeals
within the federal judicial system,” and because “litigants
who have proceeded to judgment in higher courts should not
be required to go through that entire process again . . . .” Id.
at 719 (internal citations and quotation marks omitted). We
said, further:

Mandamus to compel an inferior court to follow an
appellate mandate is closely related to the doctrine of
law of the case. The Supreme Court long ago empha-
sized that when acting under an appellate court’s
mandate, an inferior court is bound by the decree as
the law of the case; and must carry it into execution,
according to the mandate. . . . On remand, a trial
court can only consider any issue not expressly or
impliedly disposed of on appeal. . . . District courts
must implement both the letter and the spirit of the
mandate, taking into account the appellate court’s
opinion and the circumstances it embraces.

Id. (internal quotation marks and citations omitted).

[9] Although Pit River does not style its appeal as a request
for a writ of mandamus, we may construe an appeal as a peti-
tion for a writ of mandamus to compel compliance with an
earlier appellate decision. See Brown v. Baden, 815 F.2d 575,
576 (9th Cir. 1987). So construed, we next determine whether
we may examine the district court’s remand order pursuant to
Vizcaino and other relevant authority. In this regard, the
essence of Pit River’s appeal is that the district court’s entry
of summary judgment and order remanding to the agencies
 PIT RIVER TRIBE v. USFS 11061
violated our mandate as contained in our Pit River I opinion.
Vizcaino would recognize jurisdiction pursuant to the All
Writs Act to consider whether the district court’s orders
implemented the letter and spirit of our Pit River I mandate.

We acknowledge a different line of cases that authorizes
the issuance of a writ of mandamus under the All Writs Act
in “extraordinary cases.” To determine whether this case is
“extraordinary,” we have considered five questions, known as
the Bauman factors:

(1) whether the petitioner has no other means, such
as a direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced
in any way not correctable on appeal; (3) whether
the district court’s order is clearly erroneous as a
matter of law; (4) whether the district court’s order
is an oft repeated error or manifests a persistent dis-
regard of the federal rules; and (5) whether the dis-
trict court’s order raises new and important problems
or issues of first impression.

Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir.
2010), citing Bauman v. United States District Court, 557
F.2d 650, 645-55 (9th Cir. 1977). As we have said, not all fac-
tors need be met. Cole v. United States District Court, 366
F.3d 813, 817 (9th Cir. 2004) (“Evidence showing that all the
Bauman factors are affirmatively presented by a case does not
necessarily mandate the issuance of a writ, nor does a show-
ing of less than all, indeed of only one, necessarily mandate
denial; instead, the decision whether to issue the writ is within
the discretion of the court.”). Bauman provides a framework
for analysis, but the factors should not be mechanically
applied. Id.

[10] Vizcaino stated that reliance on the Bauman factors is
“misplaced” where “mandamus is sought on the ground that
the district court failed to follow the appellate court’s man-
11062 PIT RIVER TRIBE v. USFS
date.” Vizcaino, 173 F.3d at 719.1 Here, it appears that this
case would meet the requirements of Vizcaino and Bauman.

II.

Moving to the merits of the case, we review de novo the
district court’s compliance with the mandate of our court.
United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir.
2000). We review for an abuse of discretion the district
court’s equitable orders. United States v. Washington, 157
F.3d 630, 642 (9th Cir. 1998). Because questions of law are
reviewed de novo, a district court “abuses its discretion when
its equitable decision is based on an error of law.” Id. We
must determine whether the district court’s order interfered
with an issue that was “expressly or impliedly disposed of on
appeal” in Pit River I, and whether the district court’s order
“implement[ed] both the letter and the spirit of the mandate,
taking into account the [Pit River I] opinion and the circum-
stances it embraces.” Vizcaino, 173 F.3d at 719 (internal quo-
tation marks and citation omitted).

A.

Pit River first argues that Calpine’s leases are not capable
of extension as a matter of law and that the district court erred
by leaving open the possibility that Calpine’s leases could be
extended by the agencies on remand. Pit River argues: (1) the
1
Relying solely on the circumstance that two of our cases subsequent to
our Bauman opinion asserted mandamus jurisdiction over challenges to
whether the district court followed our remand order without specifically
citing Bauman, Vizcaino took the position that Bauman did not apply to
mandamus petitioners dealing with whether the district court followed an
appellate court mandate. Vizcaino, 173 F.3d at 719. Nothing in Bauman
allows for this exception and indeed it has not even been alluded to in the
subsequent 22 years after we filed Bauman until Vizcaino. Vizcaino’s dis-
agreement with the Bauman factors respected whether those factors were
necessary and appropriate to apply to a situation where the complaint on
appeal was a district court’s noncompliance with an appellate mandate.
 PIT RIVER TRIBE v. USFS 11063
original 1988 leases expired in 1998, pursuant to their express
terms and pursuant to Congress’s policy decision that the ini-
tial term of a geothermal lease should be ten years, see 30
U.S.C. § 1005(a), and (2) Pit River I directed that the exten-
sions “must be undone.” Based on these considerations, Pit
River argues that Calpine has no present lease rights, under
either the original 1988 leases or any extensions. According
to Pit River, even if the agencies fulfill their obligations on
remand and determine that lease extensions are appropriate,
the leases have expired according to their terms and, as a mat-
ter of law, cannot be extended. As a necessary consequence,
Pit River asserts, Calpine must start the leasing process from
scratch. We now take up these issues.

1.

[11] We first address Pit River’s argument that the leasing
process must begin anew. As set forth above, Pit River argues
that the original leases have expired and the leasing process
must start over. We cannot accept Pit River’s argument. By
this logic, any successful challenge to a lease extension could
undo an entire lease relationship. A litigant could, by chal-
lenging a lease extension alone, force a lessee into a de novo
leasing process, including competitive bidding. Pit River’s
argument would render superfluous the statute of limitations
for challenging an initial lease decision. In Pit River I, how-
ever, we held that the statute of limitations had run on any
challenge to the original 1988 leases. 469 F.3d at 781. If we
were to accept Pit River’s argument, a litigant who was time-
barred from challenging an initial lease could attain the same
result, stripping a lessee of all contractual rights, simply by
mounting a successful challenge to the most recent lease
extension. In light of these considerations, we hold that a suc-
cessful challenge to a lease extension results only in the undo-
ing of the extension. The agency may properly reconsider its
decision to extend the leases. This is the course of action we
contemplated in Pit River I, wherein we stated that the exten-
sions “must be undone” and the decisions that followed them
11064 PIT RIVER TRIBE v. USFS
“must be set aside.” Id. at 788. In this case, we conclude that
Pit River’s challenge to extension of Calpine’s leases requires
reconsideration of the extensions, not a de novo leasing pro-
cess.

A consideration of the relief commonly awarded for NEPA
violations lends further support to this course of action. Our
courts have long held that relief for a NEPA violation is sub-
ject to equity principles. For example, in Conner v. Burford,
we held that certain gas leases need not be invalidated, even
though those leases had been sold in violation of NEPA. 848
F.2d 1441, 1461 (9th Cir. 1988). Rather, we held that it was
sufficient to enjoin “any surface-disturbing activity to occur
on any of the leases until they have fully complied with
NEPA” and to instruct that “future environmental analysis by
the federal agencies shall not take into consideration the com-
mitments embodied in the . . . leases already sold.” Id.; see
also N. Cheyenne Tribe v. Norton, 503 F.3d 836, 842 (9th Cir.
2007) (“a NEPA violation is subject to traditional standards
in equity for injunctive relief and does not require an auto-
matic blanket injunction against all development”); Oregon
Natural Res. Council v. B.L.M., 470 F.3d 818, 823 (9th Cir.
2006) (holding the BLM’s environmental assessment of a
project was inadequate, and instructing the district court “to
enjoin the remainder of the . . . project until the BLM pro-
vides a revised Environmental Assessment, including the
required hard look at cumulative impacts of the logging
already completed on contiguous habitat areas or neighboring
habitat areas to be impacted by contemplated future sales”).

Similarly, in Sierra Club v. Bosworth, we considered the
appropriate relief for an agency’s failure to make a reasoned
decision. 510 F.3d 1016, 1033 (9th Cir. 2007). In that case,
we held that an agency failed to show it made a reasoned
decision to promulgate a “categorical exclusion” for certain
projects. Id. at 1018. As to relief, we observed that “the public
interest favor[s] issuance of an injunction because allowing a
potentially environmentally damaging program to proceed
 PIT RIVER TRIBE v. USFS 11065
without an adequate record of decision runs contrary to the
mandate of NEPA.” Id. at 1033. Nevertheless, in balancing
the hardships, we “recognize[d] that the challenged [categori-
cal exclusion] was promulgated in 2003 and many individual
projects already have been approved and are in operational
stages.” Id. at 1034. In light of these countervailing interests,
therefore, we remanded to the district court “with instructions
to enter an injunction precluding the Forest Service from
implementing the [categorical exclusion] pending its comple-
tion of an adequate assessment.” Id. However, we ordered the
injunction to “be limited to those projects for which the Forest
Service did not issue approval prior to the initiation of this
lawsuit,” and left to the district court’s discretion “the deci-
sion as to which projects approved after the lawsuit was filed
are appropriate to exclude from the injunction because they
are at or near completion.” Id.

[12] As these cases demonstrate, here the district court had
discretion to determine an appropriate remedy for the agen-
cies’ NEPA violations. The district court’s remand order
sought to approximate what would have happened had the
agencies used the proper procedures in 1998. That is, Calpine
would have been awaiting the agencies’ decision, based on a
valid EIS, as to whether to extend the leases. Calpine would
not have faced a full competitive bidding process. This is con-
sistent with both the letter and the spirit of our directive in Pit
River I. The district court’s remand order requires that the
agencies’ decisions to extend Calpine’s leases be “undone,”
void, as if they never happened. On remand, the agencies will
now reconsider the relevant decisions, with a proper record
and with proper environmental assessments. Contrary to Pit
River’s assertion, the district court did not “reinstate” the
original 1988 leases. The original 1988 leases are merely
deemed capable of extension on remand. Accordingly, the
district court did not abuse its equitable powers in ordering
that the original 1988 leases be treated as capable of exten-
sion. Instead, the district court placed the parties as closely as
possible to where they would and should have been in 1998:
11066 PIT RIVER TRIBE v. USFS
Calpine seeks extensions of its leases, and the agencies must
now properly act on that request.

2.

Pit River asserts that our Pit River I decision contemplated
that Calpine would possess no present rights in the leases. Pit
River points to the following passage in Pit River I:

Without the affirmative re-extension of the 1988
leases, Calpine would have retained no rights at all
to the leased property and would not have been able
to go forward with the Fourmile Hill Plant. The sta-
tus quo before the 1998 extensions was that Calpine
owned rights to produce geothermal steam valid
through May 31, 1998, after which Calpine owned
nothing.

469 F.3d at 784. Pit River argues that this statement shows
that Calpine must seek an entirely new lease.

[13] The above-quoted statement must be put in context. In
Pit River I, the agencies urged that the 1998 lease extensions
merely preserved the status quo and did not require a separate
EIS. See id.; cf. also Nat’l Wildlife Fed’n v. Espy, 45 F.3d
1337, 1344 (9th Cir. 1995) (“Discretionary agency action
that does not alter the status quo does not require an EIS.”);
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1114
(9th Cir. 2002) (“ ‘an EIS is not required in order to leave
nature alone’ ”) (citation omitted). We did not agree with the
agencies’ contention that the 1998 lease extensions preserved
the status quo, because extension of the 1988 leases was not
a mere continuation of use. Compare Pit River I, 469 F.3d at
784, with Espy, 45 F.3d at 1343-44. We described the situa-
tion as follows: “Instead of preserving the status quo, the
lease extensions gave Calpine an extra five years to develop
the land and the possibility of obtaining a future lease exten-
sion of up to forty years.” Pit River I, 469 F.3d at 784. Pit
 PIT RIVER TRIBE v. USFS 11067
River relies, therefore, on a statement made in the context of
our ruling that the 1998 extensions required an EIS because
they did not merely preserve the status quo. Id. We were not
explaining what result would follow from an invalidation of
the lease extensions on appeal.

Pit River also argues that evaluation of the lease extensions
alone will provide insufficient relief, if any at all. Pit River
argues that the agency process will be tainted by the momen-
tum the project has gained since 1998 and by the agencies’
longstanding relationship with Calpine. If the agencies recon-
sider only the lease extensions, Pit River argues the agencies
will be tempted to respect their prior commitments. Pit River
argues that this case is similar to Metcalf v. Daley, in which
we warned that a prior relationship between an agency and a
group might taint the agency process. 214 F.3d 1135, 1144
(9th Cir. 2000). There, the Makah Tribe wished to re-
commence whaling; the relevant agency had made a written
commitment to the Makah and taken “concrete efforts on their
behalf.” Id. We expressed concern that, under these circum-
stances, an environmental assessment might be biased in
favor of the Makah’s interests. Id.

While bureaucratic inertia may be a risk, we presume that
agencies will follow the law. See N. Cheyenne Tribe v. Hodel,
851 F.2d 1152, 1157 (9th Cir. 1988) (“Bureaucratic rational-
ization and bureaucratic momentum are real dangers, to be
anticipated and avoided by the Secretary. . . . We assume the
Secretary will comply with the law”). Unlike the agency in
Metcalf, 214 F.3d at 1144, the agencies here have not made
a commitment to support Calpine’s objectives. Moreover,
what “commitments” the agencies have made — in the form
of the 1998 and 2002 lease extensions and the Fourmile Hill
Plant approval — have been undone. The agencies are there-
fore in a position to take a “hard look” at these commitments
anew. There is indubitably some risk that the agencies may
feel pressure to extend the leases, due to their dealings with
Calpine over several decades. But these pressures are no
11068 PIT RIVER TRIBE v. USFS
greater than those inherent in any decision where the agency
already has a history of dealings with the counterparty, such
as a lessee.

[14] Seeking to bolster this argument, Pit River asserts that
the district court remand order created “new property rights”
in Calpine, which “resurrects the specter of a constitutional
taking[s] claim” in the event that the agencies deny the lease
extensions. Pit River argues that the remand order gives Cal-
pine a “credible litigation threat” to pursue claims for takings
or breach of contract, which will “cast[ ] a significant pall
over the objectivity of the remand process.” Any possible
claims by Calpine are not before us, and are in any case
unripe. We will not opine on the merits of such speculative
claims. We reiterate and will instruct the district court on
remand, however, to clarify that the 1998 extensions and all
subsequent decisions did not “take effect,” but rather are sim-
ply deemed capable of extension.

3.

Pit River alternatively argues that, if the status of Calpine’s
leases was not resolved by operation of law and by Pit River
I, their status should be determined by the agencies in the first
instance, and on a proper administrative record. To accept Pit
River’s argument in this regard, we must first accept Pit
River’s characterization of the district court’s remand order as
a decision to “reinstate” the original 1988 leases. As
explained above, the original 1988 leases have not been and
need not be reinstated. Rather, they are deemed to be capable
of extension under proper circumstances and need only be
deemed capable of extension upon remand to the agencies.

In light of our holding that the district court did not err in
treating the original 1988 leases as capable of extension on
remand, we need not reach the argument advanced by Calpine
and the agencies that a provision of the Administrative Proce-
dure Act, 5 U.S.C. § 558(c), renders the original 1988 leases
 PIT RIVER TRIBE v. USFS 11069
operational until a valid extension decision is made on
remand.

The district court’s reasoning was incorrect on one point.
The district court construed Pit River I as vesting it with the
option of either invalidating the leases as of 1998 or enjoining
any surface-disturbing activity pending remand to the agency.
The district court considered that

The court of appeals decision makes clear that the
mere finding of a NEPA violation does not automati-
cally and retroactively invalidate anything. The two
alternative remedies identified by the court of
appeals which would ensure full compliance were:
(1) invalidating the leases as of 1998 thus nullifying
the 2002 extensions; or (2) enjoining any surface-
disturbing activity until the agencies comply fully
with NEPA and other statutes. [Pit River I,] 469 F.3d
at 779.

The district court chose the latter course of action, enjoining
surface-disturbing activity, holding that “despite noncompli-
ance, the 1998 lease extension in this case took effect and the
1988 leases did not expire.”

This was error. The district court relied on language from
our Pit River I opinion concerning standing, that is, whether
Pit River’s claimed injuries were redressable for purpose of
standing. On the issue of relief, our opinion in Pit River I was
clear that the 1998 and 2002 lease extensions “must be
undone” and the subsequent decisions “premised on Calpine’s
possession of a valid right to develop the land” be “set aside.”
469 F.3d at 788. Thus, the district court was incorrect to the
extent that it held that “the 1998 lease extension in this case
took effect.” As a practical matter, this error is harmless
because the district court’s order directed the lease extensions
to be vacated, but for the avoidance of doubt, we order the
district court to clarify on remand that the 1998 extensions did
11070 PIT RIVER TRIBE v. USFS
not take effect; rather, the original 1988-1998 leases are sim-
ply deemed capable of extension.

B.

Pit River also argues that the district court erred in prescrib-
ing “ad hoc procedures” for the BLM’s reconsideration of the
extensions. As discussed above, courts have discretion to for-
mulate equitable relief to remedy a NEPA violation. We con-
clude that the district court properly gave guidance to the
agencies on how to reconcile the Pit River I mandate with cer-
tain post-1998 changes in the law of geothermal leases.

The Geothermal Steam Act was amended in 2005 to pro-
vide (among other things) that lease extensions were manda-
tory, not discretionary, so long as the lessee met certain
conditions unrelated to NEPA or NHPA obligations. Pit River
I, 469 F.3d at 780. The BLM subsequently issued “transition
rules” explaining how the 2005 amendments would impact
leases issued before August 8, 2005. Id. at 781. The transition
rules, which were issued after our decision in Pit River I, pro-
vide that a lessee of a lease issued before August 8, 2005
“may elect to be subject to” the new regulations, if they made
such an election by December 1, 2008. 43 C.F.R. § 3200.7.
Calpine submitted such an election. Thus, under the amended
regulations, the BLM would be obliged to grant Calpine’s
extension without regard to NEPA or NHPA review.

A mandatory extension, however, would clearly be counter
to our mandate in Pit River I. To avoid that result, the district
court ordered that on remand:

Notwithstanding amendments to the Geothermal
Steam Act and its implementing regulations, and
regardless of whether Calpine elects to subject the
leases to the new regulations, BLM shall have abso-
lute discretion to void or cancel the leases, deny
lease extensions or unit commitment, and add or
 PIT RIVER TRIBE v. USFS 11071
modify lease conditions; BLM shall have absolute
discretion to deny, approve, or modify the plan of
utilization [for the Fourmile Hill Plant]; and the For-
est Service shall have absolute discretion to deny,
approve, or modify proposed surface use or develop-
ment on National Forest System lands affected by
the leases. In the event Calpine elects to subject the
Fourmile Leases to the new regulations, BLM shall
issue a decision suspending application of the elec-
tion as it pertains to the term of the leases pending
and conditioned upon the analysis required under
Paragraph 9.

Paragraph 9, in turn, stated that notwithstanding the statutory
amendments and Calpine’s election, the agencies must pre-
pare an EIS which must “include a ‘no action’ alternative and
a ‘hard look’ at whether lands affected by the leases should
be developed for energy at all.”

[15] These instructions represent a reasonable exercise of
the district court’s equitable powers to resolve the potential
conflict between the current regulations and our mandate in
Pit River I. Our directive in Pit River I, and the district court’s
task on remand, was to require the agencies to do now what
they should have done in 1998. If in 1998, after compliance
with NEPA and NHPA, the Calpine leases had been validly
extended, Calpine would eventually have been given the
option to make an election to have its pre-2005 leases gov-
erned by the new regulations. The district court’s remand
order has specified that any such election will not interfere
with a “hard look” at the 1998 extension and subsequent deci-
sions, but also ensured that should those decisions survive fur-
ther agency scrutiny, Calpine’s election will be operative
thereafter.

C.

Pit River argues that the district court’s remand order is
internally inconsistent. Pit River points out that a passage of
11072 PIT RIVER TRIBE v. USFS
the district court’s remand order provides 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” and “to deny, approve, or modify the plan of utili-
zation.” Another provision of the district court’s remand order
“directs the BLM to issue a decision that ‘reserves absolute
right to deny lease extensions, until commitment, and/or
development of the leases.’ ” In geothermal leasing, “unit
commitment” refers to regulations that allow lessees in a geo-
graphic area to “commit” multiple leases to a “unit agree-
ment,” pursuant to which separately owned interests in
geothermal resources may be treated as a single consolidated
unit for certain purposes. See 43 C.F.R. §§ 3280.1, 3280.2,
3281.9(b). In 2002, Calpine committed several leases, includ-
ing the two at issue here, to a unit agreement. Pit River thus
argues that the district court order only gives the BLM the
power to deny lease extensions “until commitment,” and
because commitment has already happened, the BLM will not
be able to deny the extensions.

Pit River’s fear is misplaced for two reasons. First, the
2002 unit commitment of the two leases occurred after the
faulty 1998 extension decision, and is thus governed by Pit
River I’s directive that “[t]he rest of the project approval pro-
cess . . . was premised on Calpine’s possession of a valid right
to develop the land and therefore must be set aside.” 469 F.3d
at 788. Second, both the agencies and Calpine have repre-
sented in their briefs that the word “until,” as it appears in the
above-quoted passage from the district court’s remand order,
is a typographical error that was intended to read “unit.” For
the avoidance of doubt, we order the district court to correct
this typographical error on remand; once it is corrected, the
apparent contradiction in the order will be remedied.

III.

[16] In conclusion, we substantially uphold the district
court’s remand; and we remand with instructions to correct
 PIT RIVER TRIBE v. USFS 11073
(1) the statement that “the 1998 lease extension in this case
took effect and the 1988 leases did not expire” as explained
in Part II.A of this opinion, and (2) the typographical error
using the word “until” instead of the word “unit,” as
explained in Part II.C of this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS AND FOR FUR-
THER PROCEEDINGS CONSISTENT WITH THIS
OPINION.