County of Josephine v. Andrus

Nos. 81-3036; -4030 (9th Cir. January 19, 1981)

In consolidated cases, the Ninth Circuit Court of Appeals rules that both a California and Oregon district court were without jurisdiction to enjoin the Department of the Interior from adding portions of five California rivers to the National Wild and Scenic Rivers System. The two lower courts, 11 ELR 20174 and 20178, had enjoined the Interior Department until plaintiffs are included in the evaluation process required by the National Environmental Policy Act. The appellate court holds that this action is not ripe for judicial resolution because there has been no final agency action and thus vacates the judgments of the lower courts.

Counsel for Appellants
Thomas C. Lee, Ass't U.S. Attorney
620 SW Main St., P.O. Box 71, Portland OR 97207
(503) 221-2101

Charles O'Connor, Ass't U.S. Attorney
Federal Bldg. & U.S. Cthse., 450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Counsel for State of California
M. Anne Jennings, Deputy Attorney General
6000 State Bldg., San Francisco CA 94102
(415) 557-2544

Counsel for Appellees
William F. Martson Jr., Bruce C. Berning
Tonkon, Torp, Galen, Marmaduke & Booth
1001 SW Fifth Ave., Portland OR 97204
(503) 221-1440

Alson R. Kemp
Pillsbury, Madison & Sutro
Standard Oil Bldg., 225 Bush St., San Francisco CA 94104
(415) 983-1000

Before Anderson, Alarcon, and Poole, JJ.

[11 ELR 20179]

Amended Order

These cases are treated as consolidated for purposes of this review. In both cases, we conclude that no final agency action has yet occurred.

The issues as framed are not ripe for judicial resolution. See Gardner v. Toilet Goods Association, Inc., 387 U.S. 167 (1967); Bennett Hills Grazing Association v. United States, 600 F.2d 1308, 1309 [9 ELR 20660] (9th Cir. 1979). Both district courts therefore were without jurisdiction.

The temporary restraining order entered in the United States District Court for the District of Oregon is vacated. The judgment and injunctive order of the United States District Court for the Northern District of California are vacated. Each case is remanded to the respective district court with directions to dismiss the action. This dismissal is without prejudice to appellee's rights to refile their actions if and when final agency action occurs.

The motions for stays are denied as moot.

Mandate to issue forthwith.