Batt

dissenting:

I respectfully dissent.

My view of the result we should reach in this case can be expressed concisely in the following logical syllogism:

A party has the right to interlocutory review of an order modifying or continuing in effect an injunction beyond its present termination date, pursuant to 28 U.S.C. § 1292 (a)(1).

On May 19, 1995, the district court found that “good cause” existed to extend the injunction that was due to expire ex proprio vigore, upon the issuance of the record of decision by the United States Department of Energy, “no later than June 1, 1995.”

Because Judge Lodge’s order modified the June 1, 1995 termination date, as spelled out in the December 22,1993 amended injunction order, by extending it “until this matter is finally resolved,” this court has jurisdiction to review this appeal pursuant to section 1292(a)(1).

The majority has concluded that Judge Lodge’s May 19, 1995 order did not modify or extend the termination date of the injunction. I cannot join their number.

I

This dispute had its genesis in actions filed by the Public Service Company on February 9,1991, and the United States of America on February 19, 1991, against the Governor…

I.

This ease arises from the efforts of the United States, vigorously opposed by the State of Idaho, to ship spent nuclear fuel to the Idaho National Engineering Laboratory for storage. The United States appeals the district court’s order “continuing” an earlier injunction that prevents it from making such shipments. The determinative threshold question is whether the original injunction, issued and then modified in 1993, remains in effect of its own force, or whether the recent order of the district court modified or extended (“continued”) it when it otherwise would have expired of its own force. We conclude that the 1993 injunction remained in force of its own effect, and that it was not modified or extended by the district court’s recent order. The latter order is consequently not appealable as an order “granting, continuing, [or] modifying” an injunction within the meaning of 28 U.S.C. § 1292 (a)(1). We therefore dismiss the appeal for lack of appellate jurisdiction.

II.

On June 28, 1993, the district court issued an order requiring the Department of Energy to prepare an Environmental Impact Statement (EIS) regarding the effects on the natural and human environment…