NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

COTTONWOOD ENVIRONMENTAL No. 20-36125

LAW CENTER,

D.C. No. 2:18-cv-00012-SEH Plaintiff-Appellant,

v. MEMORANDUM*

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.

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. 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.

2 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).

3 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.

4 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 “§ 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.

5 DISMISSED in part; AFFIRMED in part.

6