Cottonwood Environmental Law Center v. Greg Gianforte

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COTTONWOOD ENVIRONMENTAL
LAW CENTER,
Plaintiff-Appellant,
v.
GREG GIANFORTE, in his official capacity
as Governor of the State of Montana; DEB
HAALAND, in her official capacity as
Secretary of the Interior; CAM SHOLLY, in
his official capacity as Park Superintendent,
Yellowstone National Park; LEANNE
MARTEN, in her official capacity as
Regional Forester, U.S. Forest Service;
NATIONAL PARK SERVICE; U.S.
FOREST SERVICE; USDA-ANIMAL &
PLANT HEALTH INSPECTION SERVICE,
Defendants-Appellees.
No. 20-36125
D.C. No. 2:18-cv-00012-SEH
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted February 11, 2022
Portland, Oregon
Before: PAEZ and NGUYEN, Circuit Judges, and EATON,** Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Cottonwood Environmental Law Center appeals the district court’s orders
dismissing the Governor of Montana and remanding consideration of the
Interagency Bison Management Plan (“IBMP”) to the National Park Service
without vacatur. To the extent Cottonwood appeals the district court’s remand,
that decision is not a final order and we lack jurisdiction to review it. See Alsea
Valley All. v. Dep’t of Com., 358 F.3d 1181, 1184 (9th Cir. 2004); see also Pit
River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1076 (9th Cir. 2010) (holding that
order remanding and closing the case was non-final because the plaintiff would
“have an opportunity to participate in the agencies’ processes on remand” and “any
decision by [the Court of Appeals] may prove entirely unnecessary”). We
therefore dismiss that portion of the appeal.
Insofar as Cottonwood appeals the district court’s decision to deny
injunctive relief, we have jurisdiction under 28 U.S.C. § 1292(a)(1). See Shee
Atika v. Sealaska Corp., 39 F.3d 247, 248 (9th Cir. 1994). We previously held that
the district court’s order dismissing the Governor is not a final order and that we
lack jurisdiction to review it directly. See Cottonwood Env’t L. Ctr. v. Bullock, No.
20-35588 (9th Cir. Oct. 14, 2020). While that is still the case, the district court’s
denial of injunctive relief against the Governor is inextricably intertwined with its
** Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.

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decision to dismiss the Governor. Therefore, we can review the dismissal order
under our pendent appellate jurisdiction. See Arc of Cal. v. Douglas, 757 F.3d 975,
994 (9th Cir. 2014).
Reviewing the district court’s denial of a preliminary injunction for abuse of
discretion and its underlying legal conclusions de novo, see CDK Glob. LLC v.
Brnovich, 16 F.4th 1266, 1274 (9th Cir. 2021), we affirm.
1. The district court properly dismissed the Governor as a defendant.
Cottonwood’s claims arise under the National Environmental Policy Act of 1969
(“NEPA”). “State actors may not be enjoined under NEPA simply because a state
project involves major federal action.” Fund for Animals, Inc. v. Lujan, 962 F.2d
1391, 1397 (9th Cir. 1992). Rather, they may be enjoined only if “federal and state
projects are sufficiently interrelated to constitute a single ‘federal action’ for NEPA
purposes.” Id. (quoting Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329
(9th Cir. 1975)).
The district court ruled that the Governor is not subject to and therefore may
not be enjoined under NEPA because Montana agencies’ participation in the IBMP
does not render the State’s bison management projects part of a single federal
action. By not addressing this ruling in its briefs, Cottonwood has forfeited any
contention of error. See Barnes v. FAA, 865 F.3d 1266, 1271 n.3 (9th Cir. 2017).

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Cottonwood argues instead that the Governor is a proper defendant because
“the Federal Government can control state activities on federal lands” under the
Supremacy Clause of the U.S. Constitution. As a preliminary matter, Cottonwood
did not make this argument in the district court; thus, the argument appears
waived. Regardless, it is unavailing. No one disputes that “federal courts have the
power to enjoin state officials for violations of federal statutes.” Fund for Animals,
962 F.2d at 1397. But because the Governor is not subject to NEPA, he cannot be
held liable for violating NEPA or enjoined pursuant to that statute. Thus, we
affirm the district court’s determination that the Governor is not a proper
defendant.
2. Cottonwood contends that the district court should have granted its
motion for a preliminary injunction and vacated a portion of the IBMP, thereby
“enjoin[ing] the state and federal defendants from hazing Yellowstone bison while
on federal lands.” This is slightly different from the relief sought in the third
amended complaint—an injunction without vacatur.1 While the district court “has
broad equitable power to remedy legal violations” through injunctive relief, LA All.
for Human Rights v. County of Los Angeles, 14 F.4th 947, 961 (9th Cir. 2021), it
“does not have the authority to issue an injunction based on claims not pled in the
1 Cottonwood’s counsel confirmed at oral argument that the two forms of
relief differed.

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complaint,” id. at 957 (cleaned up) (quoting Pac. Radiation Oncology, LLC v.
Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015)).
In the third amended complaint, Cottonwood asserted NEPA claims
pursuant to section 706(1) and (2) of the Administrative Procedure Act, 5 U.S.C.
§ 706, but is no longer pursuing its section 706(2) claim. The district court granted
the only relief Cottonwood sought—a remand to the agency to consider new
information. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989) (explaining that NEPA “does not mandate particular results”); Mount St.
Helens Mining & Recovery Ltd. P’ship v. United States, 384 F.3d 721, 728 (9th
Cir. 2004) (holding that Ҥ 706(1) of the APA does not empower the district court
to . . . order the agency to reach a particular result,” even if the agency “unlawfully
withheld or unreasonably delayed its decision”). The district court did not abuse
its discretion by denying additional relief not requested in Cottonwood’s
complaint.2
The parties shall bear their own costs on appeal.
2 Given our conclusion that no additional injunctive relief was warranted, we
need not address Cottonwood’s argument that the district court should have held an
evidentiary hearing or made factual findings. In the event further district court
proceedings become necessary, this matter need not be reassigned to a different
judge “to preserve the appearance of justice.” United States v. Walker River
Irrigation Dist., 890 F.3d 1161, 1173 (9th Cir. 2018) (quoting United States v.
Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012)). Judge Haddon did not make biased
comments by paraphrasing relevant authority.

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DISMISSED in part; AFFIRMED in part.

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