UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CENTER FOR BIOLOGICAL No. 22-55317 DIVERSITY; DEFENDERS OF WILDLIFE; SIERRA CLUB, D.C. No. Plaintiffs-Appellees, 2:21-cv-02507- GW-AS v. BUREAU OF LAND OPINION MANAGEMENT; DEB HAALAND, Secretary of Interior; NADA CULVER, Senior Advisor to the Secretary of the Department of the Interior; KAREN MOURITSEN, California Director, Bureau of Land Mgmt.; ANDREW ARCHULETA, California Desert District Manager, Bureau of Land Mgmt.; MICHAEL AHRENS, Needles Field Office Manager, Bureau of Land Mgmt., Defendants-Appellees, CADIZ, INC.; CADIZ REAL ESTATE LLC, Intervenor-Defendants- Appellees,

v. 2 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.

COMMUNITY BUILD, INC.; SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE OF GREATER LOS ANGELES; LOS ANGELES METROPOLITAN CHURCHES; NEWSTART HOUSING CORPORATION; THE TWO HUNDRED FOR HOMEOWNERSHIP; FARMWORKERS INSTITUTE FOR EDUCATION & LEADERSHIP DEVELOPMENT; LEAGUE OF UNITED LATIN AMERICAN CITIZENS OF CALIFORNIA; LA COOPERATIVA CAMPESINA DE CALIFORNIA, Proposed Defendant- Intervenors, Movants-Appellants.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted January 12, 2023 Pasadena, California

Filed May 26, 2023 Before: Paul J. Watford, Michelle T. Friedland, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Friedland; Concurrence by Judge Friedland CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT. 3

SUMMARY*

Intervention

The panel dismissed for lack of jurisdiction an appeal challenging the district court’s order denying several organizations’ motion to intervene as defendants in a lawsuit against the Bureau of Land Management (“BLM”) challenging the grant of two rights-of-way. While the appeal was pending, the district court held that the decision to grant the rights-of-way was arbitrary and capricious, vacated it, and remanded the matter to the agency. The panel held that the district court’s ruling mooted the intervention dispute. Generally, if the underlying litigation is complete, an appeal of a denial of intervention is moot and must be dismissed. The panel held that an intervention dispute would remain alive if this court could grant effectual relief, or if there were some other way for the proposed intervenors to obtain their desired relief. Here, the district court’s proceedings are complete. No party has filed an appeal of the district court’s merits order, and under Alsea Valley Alliance v. Department of Commerce, 358 F.3d 1181 (9th Cir. 2004), this Court would not have jurisdiction over such an appeal brought by Appellants even if they were granted intervention.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 CTR. FOR BIOLOGICAL DIVERSITY V. BUREAU OF LAND MGMT.

Remands-without-vacatur are generally not considered final. However, Alsea held that when a district court declares an agency action invalid and orders remand-with- vacatur, the district court’s order is treated as a final, appealable judgment under 28 U.S.C. § 1291 if: “(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.” In Pit River Tribe v. U.S. Forest Serv., 5615 F.3d 1069 (9th Cir. 2010), this court relied on Alsea’s third prong to hold that it lacked appellate jurisdiction, reasoning that because t