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
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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.