UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PUEBLO OF SANDIA

v.

BABBITT, BRUCE


98-5428a

D.C. Cir. 2000


*	*	*


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




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n 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]


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


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


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


(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]


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




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n 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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n 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.