NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 7 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-55664

Plaintiff, D.C. No. 3:51-cv-01247-GPC-RBB and

RAMONA BAND OF CAHUILLA and MEMORANDUM*

CAHUILLA BAND OF INDIANS,

Intervenor-Plaintiffs- Appellees,

v.

GREGORY BURNETT,

Defendant-Appellant,

and

FALLBROOK PUBLIC UTILITY

DISTRICT,

Defendant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted November 16, 2018

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Pasadena, California

Before: GOULD, PARKER,** and MURGUIA, Circuit Judges.

This appeal arises out of complex litigation concerning water rights in the

Santa Margarita River Watershed that has been ongoing since 1951. The district

court stayed the litigation pending settlement negotiations, and it has been stayed,

via the approval of motions to extend the stay repeated every 90 to 180 days, for

the past ten years. On January 31, 2017, Gregory Burnett—one of the individual

defendants in the litigation—moved for relief from the stay, asserting that the

length of the stay had burdened him and that the claims against him should be

adjudicated. The district court denied Burnett’s motion, and he appealed that

decision. We dismiss the appeal for lack of appellate jurisdiction.

1. We do not have jurisdiction over Burnett’s appeal under Moses H. Cone

Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983). Although

we have interpreted that decision as permitting the review of “lengthy and

indefinite stays [that] place a [party] effectively out of court,” we cannot say that

the stay here “amounts to a refusal to proceed to a disposition on the merits.” Blue

Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718,

723–24 (9th Cir. 2007). Nor do the procedures surrounding the stay suggest that

** The Honorable Barrington D. Parker, United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.

2 the district court does not “clearly foresee[] and intend[] that proceedings will

resume[.]” Stanley v. Chappell, 764 F.3d 990, 995 (9th Cir. 2014) (quoting

Lockyer v. Mirant Corp., 398 F.3d 1098, 1103 (9th Cir. 2005)). To be clear, Moses

H. Cone establishes that the district court cannot continue extending the stay in

perpetuity without at some point opening the stay to the possibility of appellate

review. We hold only that this case has not yet proceeded to the point at which

Burnett is “effectively out of court.” Moses H. Cone, 460 U.S. at 9 (quoting

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n.2 (1962) (per

curiam)).

2. Nor do we have appellate jurisdiction over Burnett’s appeal under the

collateral-order exception to the final-order doctrine. See Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546–47 (1949). The district court’s order

denying Burnett’s motion for relief from the stay does not “conclusively determine

the disputed question” of the timing of litigation. Puerto Rico Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (quoting Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). Because the district court

continually revisits the propriety of the stay and the stay must ultimately be lifted,

the order denying Burnett relief from the stay is one the district court “expect[s] to

reassess and revise . . . in response to events,” not one it expects “to settle the

3 matter for all time.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.

271, 277 (1988).

Because the district court’s order denying Burnett relief from the stay is not

a “final decision” under 28 U.S.C. § 1291, we lack jurisdiction to consider

Burnett’s appeal. We dismiss without prejudice to Burnett’s ability to challenge

the stay through a later appeal.

DISMISSED.

4

FILED

United States of America and Ramona Band of Cahuilla v. Burnett, 17-55664

JAN 7 2019

GOULD, Circuit Judge, Concurring:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

While I agree that the current stay has not yet put Burnett effectively out of

court, I express factors that influence this conclusion: First, settlement is salutary

and we recognize “a clear policy of favoring settlement.” Marek v. Chesney, 473

U.S. 1, 10 (1985). Second, water rights litigation is often complicated and

protracted, includes here large numbers of water users, and it is encouraging that

settlement talks to date have shown some signs of progress, including a prior water

rights settlement concerning water users in a different part of the watershed. Third,

for whatever benefit it may give to the district court and parties, I encourage all

parties to negotiate towards a prompt end of dispute by settlement, but if settlement

is not reached in a reasonable time, then proceeding to litigation will be necessary

because an indefinitely renewed stay is not viable. Finally, the Ninth Circuit has a

potential role to play in this process, and it is my personal view that either

appellate or mandamus jurisdiction will exist for us to review imposition of a stay

that has become objectively unreasonable in delaying adjudication of claims

against Burnett.