Pueblo of Sandia v. Babbitt, Bruce

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

      Argued September 29, 2000   Decided November 17, 2000 

                     Nos. 98-5428 and 98-5451

                        Pueblo of Sandia, 
                             Appellee

                                v.

             Bruce Babbitt, in his official capacity 
              as Secretary of the Interior, et al., 
                            Appellants

          Appeals from the United States District Court 
                  for the District of Columbia 
                         (No. 94cv02624)

     David Lazerwitz, Attorney, United States Department of 
Justice, argued the cause for the federal appellants in No. 98-
5451.  Lois J. Schiffer, Assistant Attorney General, and Peter 
Coppelman, William Lazarus and Marta Hoilman, Attor-
neys, United States Department of Justice, were on brief.

     Thomas R. Bartman argued the cause for Sandia Mountain 
Coalition, et al., appellants in No. 98-5428, and the City of 
Albuquerque, amicus curiae in No. 98-5451.  Robert M. 
White was on brief.

     Reid Peyton Chambers argued the cause for the appellee.  
Donald J. Simon, David C. Mielke and Peter T. Grossi were 
on brief.  James M. Rosenthal entered an appearance.

     Before:  Ginsburg, Sentelle and Henderson, Circuit 
Judges.

     Opinion for the court filed by Circuit Judge Henderson.

     Karen LeCraft Henderson, Circuit Judge:  The County of 
Bernalillo, New Mexico and the Sandia Mountain Coalition 
(intervenor appellants) appeal the district court's remand 
order and grant of summary judgment to the appellee, the 
Pueblo of Sandia (Pueblo).  The federal appellants, Bruce H. 
Babbitt in his official capacity as Secretary of the United 
States Department of the Interior (Interior) and Dan Glick-
man in his official capacity as Secretary of the United States 
Department of Agriculture (Agriculture), move to withdraw 
their own appeal and to dismiss the intervenor appellants' 
appeal for lack of appellate jurisdiction.  For the reasons set 
forth below, we grant the federal appellants' motion and hold 
that the court lacks jurisdiction under 28 U.S.C. s 1291 to 
hear the intervenor appellants' appeal.

     In the proceedings below, the district court reviewed an 
opinion issued by the Solicitor of Interior (Solicitor) denying a 
request by the Pueblo for a corrected survey designating the 
eastern boundary of its land grant as the "main ridge" of the 
Sandia Mountains, located directly east of Albuquerque, New 
Mexico.  The Pueblo claimed that an 1859 survey commis-
sioned by the government erroneously set the Pueblo's east-
ern boundary at the base of the Sandia Mountains rather 
than along the Mountains' crest line, as allegedly set forth in 
the Pueblo's 1748 Spanish land grant confirmed by the United 
States Congress in 1858.  Interior rejected the Pueblo's 
claim, concluding that the original land survey accurately set 
the Pueblo's eastern boundary at the foothills of the Moun-

tains.  The Solicitor reasoned that the King of Spain, who 
originally granted the land to the Pueblo, intended to grant a 
"formal" pueblo only, not the larger area claimed.1

     The Pueblo sued the Secretaries of Interior and Agricul-
ture seeking a judgment designating the main ridge of the 
Sandia Mountains as the Pueblo's eastern boundary and 
directing the Interior Secretary to correct the 1859 survey. 
See Compl. 22-23;  Am. Compl. 18.  The district court grant-
ed motions to intervene filed by a coalition of homeowners in 
the affected region and by Bernalillo County.  After denying 
the federal appellants' motion to dismiss,2 the district court 
reviewed Interior's actions under the Administrative Proce-
dure Act (APA).  It found the circumstances surrounding the 
Sandia land grant ambiguous.  See Pueblo of Sandia v. 
Babbitt, Civ. No. 94-2624, slip op. at 10 (D.D.C. July 18, 
1998).  In light of the ambiguity, the court held that Interior 
should have applied the canon of construction resolving un-
clear language in favor of Indian claims instead of using the 
presumption of survey regularity.3  See id. at 9-11.  The 

__________
     1 A formal pueblo consists of four square leagues of land, the area 
within the extension of one league (2.6 miles) measured from the 
center of the settlement to the north, south, east and west.  See JA 
322-23 (Stanley M. Hordes, "History of the Boundaries of the 
Pueblo of SandIa, 1748-1860");  cf. Pueblo of Sandia v. Babbitt, Civ. 
No. 94-2624, 1996 WL 808067, at *2 n.3 (D.D.C. Dec. 10, 1996).

     2 See Pueblo of Sandia, 1996 WL 808067, at *9. The district court 
concluded that the APA governed the Pueblo's action, rejecting the 
federal appellants' contention that it was time barred by either the 
Quiet Title Act or the Indian Claims Commission Act.

     3 The United States Supreme Court has long recognized the 
canon of construction that resolves ambiguity in any document 
related to Indian lands in favor of the Indian claim. See, e.g., 
Antoine v. Washington, 420 U.S. 194, 199 (1975) ("The canon of 
construction applied over a century and a half by this Court is that 
the wording of treaties and statutes ratifying agreements with the 
Indians is not to be construed to their prejudice.");  County of 
Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226, 
247-48 (1985) (court resolves ambiguity in favor of Indian claims).  
The canon of survey regularity provides that surveys of the United 

court denied the federal appellants' motion for summary 
judgment and granted the Pueblo's motion for summary 
judgment.  See id. at 11.  Finding Interior's actions arbitrary 
and capricious, the court vacated the Solicitor's Opinion and 
remanded the case "to the Interior Department for agency 
action consistent with [the court's] Opinion."  Id.

     The intervenor appellants filed a notice of appeal on August 
13, 1998.  To protect the government's right to appeal, the 
federal appellants filed their notice on September 15, 1998.  
This court consolidated the appeals sua sponte and on Octo-
ber 29, 1998 granted the parties' joint motion to hold the 
appeals in abeyance pending settlement negotiations.  The 
Pueblo, the federal appellants, the intervenor appellants, the 
Sandia Peak Tram Company (which moved to participate as 
amicus curiae in the district court proceedings) and the City 
of Albuquerque (which appeared as amicus curiae in this 
court) then entered into negotiations under the auspices of a 
private mediator.  The intervenors and the City withdrew 
from mediation in August 1999.  Nevertheless, the continuing 
negotiations among the government, the Pueblo and the Tram 
Company were successful and resulted in a settlement.4  The 
federal appellants then filed a motion to dismiss both appeals. 
We deferred ruling on the motion until the case was heard on 
the merits. Because this court may not proceed without 
appellate jurisdiction, we must address the motion to dismiss 

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States are presumed correct and in compliance with statutory 
requirements.  See Nina R. B. Levinson, 1 I.B.L.A. 252, 256 (Feb. 
2, 1971).

     4 Although the parties agreed to settle the pending litigation and 
related matters on the terms set forth in the "Agreement of 
Compromise and Settlement," the settlement agreement requires 
ratifying legislation to effectuate its terms.  See Plaintiff-Appellee 
Sandia Pueblo's Response in Support of Federal Appellants' Mo-
tions to Dismiss Appeals, for Leave to File a Dispositive Motion 
Later than 45 Days after Docketing the Case, and to Defer Briefing 
pending Resolution of these Motions, at Appendix A ("Agreement of 
Compromise and Settlement"), Pueblo of Sandia v. Babbitt, Nos. 
98-5428 & 98-5451 (Apr. 13, 2000).

before considering the arguments on the merits.  Cf. Steel Co. 
v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

     The jurisdiction of the courts of appeals to review district 
court actions is limited to "final orders."  See 28 U.S.C. 
s 1291.  Section 1291 "entitles a party to appeal not only 
from a district court decision that 'ends the litigation on the 
merits and leaves nothing more for the court to do but 
execute the judgment,' but also from a narrow class of 
decisions that do not terminate the litigation, but must, in the 
interest of 'achieving a healthy legal system,' nonetheless be 
treated as 'final.' "  Digital Equip. Corp. v. Desktop Direct, 
511 U.S. 863, 867 (1994) (citations omitted).  Because the 
district court's decision here does not end the litigation on the 
merits, we grant the motion to dismiss for lack of jurisdiction.

     "It is well settled that, as a general rule, a district court 
order remanding a case to an agency for significant further 
proceedings is not final."  In re St. Charles Preservation 
Investors, Ltd., 916 F.2d 727, 729 (D.C. Cir. 1990);  see 
American Hawaii Cruises v. Skinner, 893 F.2d 1400, 1403 
(D.C. Cir. 1990).  This rule "best serves the interests of 
judicial economy and efficiency" because it "avoids the pros-
pect of entertaining two appeals, one from the order of 
remand and one from entry of a district court order reviewing 
the remanded proceedings."  In re St. Charles Preservation 
Investors, Ltd., 916 F.2d at 729.  Deferring review also leaves 
open the possibility that no appeal will be taken in the event 
the proceedings on remand satisfy all parties.  See id.  The 
intervenor appellants ask the court to apply a case-specific 
approach to the determination of appealability.  The United 
States Supreme Court, however, has "warned that the issue 
of appealability under s 1291 is to be determined for the 
entire category to which a claim belongs, without regard to 
the chance that the litigation at hand might be speeded, or a 
'particular injustice' averted by a prompt appellate court 
decision."  Digital Equip. Corp., 511 U.S. at 868 (citation 
omitted) (holding that district court's refusal to enforce settle-
ment agreement purporting to shelter party from suit alto-
gether does not qualify for immediate appeal under s 1291);  
see Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 439-40 

(1985) (holding that "orders disqualifying counsel in civil 
cases, as a class, are not sufficiently separable from the 
merits to qualify for interlocutory appeal").  Because the 
district court's order comes within the category of a remand 
for significant further proceedings, we are without jurisdic-
tion to review it because, as noted, remand orders as a 
category are not final.  See In re St. Charles Preservation 
Investors, Ltd., 916 F.2d at 729.

     The intervenor appellants ask this court to consider the 
district court's remand order a final decision because the 
order left nothing for the agency to do on remand other than 
the ministerial act of issuing a corrected boundary. We dis-
agree with their characterization for two reasons.

     First, although the Pueblo's complaint sought an order 
directing the Interior Secretary to issue a corrected survey, 
the district court's order neither entered a "judgment declar-
ing that the 1748 Spanish land grant...identifies and desig-
nates the true boundaries" of the Pueblo nor directed Interior 
to issue a new survey.  Am. Compl. 18.  Rather, the court 
remanded the case to Interior for further proceedings. The 
intervenor appellants' assertion disregards the court's role in 
reviewing agency action under the APA.  Under the APA, if 
the record does not support the agency's decision, then the 
court must remand to the agency for additional investigation 
or explanation. See Florida Power & Light Co. v. Lorion, 470 
U.S. 729, 743-44 (1985).  "The reviewing court is not entitled 
to conduct a de novo inquiry into the matter being reviewed 
and to reach its own conclusions based on such an inquiry."  
Id. at 744.  In the proceedings below, the district court 
reviewed Interior's actions, and the Solicitor's in particular, 
under the APA. The court first recognized that under the 
APA "it may set aside an agency action only where it finds 
the action 'arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with law.' "  Slip op. at 5 (quoting 
5 U.S.C. s 706(2)(A)).  The court then reviewed the record, 
including its factual component, and determined that Interi-
or's actions were arbitrary and capricious, concluding that the 
Solicitor's Opinion "unjustifiably denigrate[d] the Indian-
favoring policy and elevate[d] the presumption of survey 

regularity."  Slip op. at 8.  Although the result on remand 
may be the issuance of a corrected survey, that result is not 
directed by the court's decision.

     Second, while we acknowledge that several courts, includ-
ing this one, have noted that remand orders may be consid-
ered final where a court remands for solely "ministerial" 
proceedings, see In re St. Charles Preservation Investors, 
Ltd., 916 F.2d at 729;  see also Koyo Seiko Co. v. United 
States, 95 F.3d 1094, 1096-1097 (Fed. Cir. 1996) (finding 
district court's remand for sole purpose of correcting two 
computer programming errors ministerial);  Tallahassee 
Mem. Regional Med. Ctr. v. Bowen, 815 F.2d 1435, 1443 n.12 
(11th Cir. 1987) (finding remand directing agency to pay 
plaintiff's medical bills final), here the district court's remand 
order contemplates more than the ministerial act of issuing a 
corrected survey.  On remand, Interior is to reconsider the 
facts contained in the nine-volume administrative record un-
der the Indian claim-favoring canon.  It must also reconsider 
its position that it lacks the legal authority to issue a correct-
ed survey.5  Given the twelve-year period of time since 
Interior finished its earlier proceedings and the continuing 
interest in the matter, it will have the option of re-opening 
the record to solicit additional comments from the public 
before conducting its reevaluation.  Finally, if Interior does 
issue a corrected boundary, it must commission a survey to 
determine where the "main ridge" of the Sandia Mountains 
lies.

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     5 The Solicitor maintained that even if the Pueblo established "by 
a preponderance of the evidence that the [original survey] was 
either fraudulent or grossly erroneous," the Secretary would be 
without authority to issue a new patent "unless he found that the 
United States never owned the disputed land."  JA 1124-1125 
(Solicitor's Opinion at 12-13 & n.6).  The district court rejected the 
Solicitor's reasoning, holding that the Secretary has supervisory 
authority over all public lands, including the authority to survey 
Indian lands, to correct erroneous land surveys and to correct 
patents of conveyances to eliminate errors. See Pueblo of Sandia, 
1996 WL 808067, at *7.

     For the foregoing reasons, the federal appellants' motion 
both to withdraw their own appeal in 98-5451 and to dismiss 
the intervenor appellants' appeal in 98-5428 is granted and 
the appeals in both of the consolidated cases are hereby 
dismissed.6

                                                              So ordered.

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     6 Because of our conclusion that we lack jurisdiction, we do not 
reach the merits of the contention of both sets of appellants that the 
district court's review under the APA was improper. See supra note 
2.  In addition, because the intervenor appellants do not rely on the 
collateral order doctrine to support appealability, we need not reach 
that issue either.