Northwest Environment Advocates Center for Marine Conservation San Francisco Baykeeper v. U.S. Environmental Protection Agency

340 F.3d 853 NORTHWEST ENVIRONMENT ADVOCATES; Center for Marine Conservation; San Francisco Baykeeper, Plaintiffs-Appellees, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant. No. 02-15826. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 12, 2002 — San Francisco, California. Filed August 19, 2003. As Amended September 15, 2003. Thomas L. Sansonetti, Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, Washington, DC, for The United States. Nina Bell, Executive Director, Northwest Environmental Advocates, Linda Sheehan, Pacific Regional Director, The Ocean Conservancy, Leo O'Brien, Executive Director, San Francisco Baykeeper, for plaintiffs-appellees. Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-01-01297-MJJ. Before: Alex KOZINSKI and Andrew J. KLEINFELD, Circuit Judges, and Ralph R. BEISTLINE, * District Judge. Order; Concurrence by Judge BEISTINE; Dissent by Judge KLEINFELD. ORDER On September 17, 2002, the parties were referred to the Ninth Circuit Mediation Program to explore a settlement.…

dissenting.

I respectfully dissent.

The parties do not need an equitable decree from us to accomplish the legitimate objective of dismissing this appeal after having worked out a satisfactory settlement privately. Under Federal Rule of Appellate Procedure 42(b), appeals are ordinarily dismissed by a “signed dismissal agreement specifying how costs are to be paid.” 1

*854 It is far from certain that we have authority to issue an equitable decree, as opposed to a simple order of dismissal. Rule 42 says that an appeal “may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court,” 2 which may provide authority, but the question is not beyond argument. My objection is not that an appellate court lacks the power to enforce settlements between the parties by issuing consent decrees (though I do not concede that we have this power), but whether doing so in the manner outlined below is the prudent exercise of our power.

Unlike a district court, we do not try cases, we do not hold evidentiary hearings, and we do not make findings of fact. Our lack of fact-finding ability makes us unsuitable to enforcement of a consent decree. Also, consent decrees…

Order; Concurrence by Judge BEISTINE; Dissent by Judge KLEINFELD.

ORDER

On September 17, 2002, the parties were referred to the Ninth Circuit Mediation Program to explore a settlement. After extensive discussions, they reached a settlement. The parties’s joint motion to enter the attached stipulated consent decree is GRANTED. Submission of this case is deferred pending further order of this court. In the event that the matter has not been dismissed according to the timetable laid out in the consent decree, the parties shall file a status report on this ease by September 12, 2003.

concurring.

Judge Kleinfeld’s dissent to the proposed consent decree is well reasoned and quite thorough. The issues he raises are significant and should be considered seriously by the parties as they continue their negotiations. There is certainly no assurance how the court would rule on the questions of first impression presented here nor is there any reason to believe that the Court would approve a final resolution that appeared on its face to be unfair or collusive or that failed to consider input from interested parties.

In the present case however the Court referred the parties to mediation and the parties have gone to great efforts to resolve the issues without further litigation. Whether they will ultimately succeed is uncertain for their challenge is not easy. In my view a delay to afford the parties more time to address their differences in this very unique situation will not lead to significant prejudice to either side and should not be viewed as a new procedure that the Court is inclined to follow in the future.