Tenth Circuit: A District Court’s Remand to an Agency “Without Vacatur” Is Ordinarily Not Immediately Appealable Under § 1291, and Practical Finality Does Not Apply Where Vacatur Is Discretionary

I. Introduction

In Western Watersheds Project v. United States Forest Service (10th Cir. June 26, 2026), three conservation organizations—Western Watersheds Project, Rocky Mountain Wild, and WildEarth Guardians (collectively, the “Conservation Groups”)—sought appellate review of a district court remedy order entered after an earlier Tenth Circuit decision found a NEPA violation in the U.S. Forest Service’s 2020 amendment to the Thunder Basin National Grassland management plan (the “2020 Plan Amendment”).

The posture is central. In the prior appeal, Western Watersheds Project v. Vilsack, No. 23-8081, 2024 WL 4589758 (10th Cir. Oct. 28, 2024) (unpublished) (Western Watersheds I), the Tenth Circuit held the 2020 Plan Amendment violated NEPA and remanded to the district court specifically to decide the remedy—whether remand to the agency should be with or without vacatur—under the two-factor test from Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1993).

On remand, the district court ordered remand to the Forest Service without vacatur and did not enter a final judgment. The Conservation Groups appealed, challenging only the “without vacatur” aspect. The Tenth Circuit dismissed for lack of appellate jurisdiction, holding that the order was a nonfinal administrative remand and that no exception (as invoked) applied.

II. Summary of the Opinion

The court (Matheson, J.) held:

  • The district court’s order remanding the matter to the Forest Service to correct NEPA deficiencies—while leaving the 2020 Plan Amendment in place (no vacatur)—was an administrative remand and thus not a “final decision” appealable under 28 U.S.C. § 1291.
  • The Conservation Groups failed to carry their burden to establish jurisdiction. See SeedX, Inc. v. Lincoln Strategy Grp. LLC, 158 F.4th 1166 (10th Cir. 2025); Mohamed v. Jones, 100 F.4th 1214 (10th Cir. 2024).
  • The practical finality exception did not apply because the only disputed issue—vacatur versus no vacatur under Allied-Signal—is a fact-intensive discretionary determination committed to the district court. See Diné Citizens Against Ruining Our Env't v. Haaland, 59 F.4th 1016 (10th Cir. 2023).

Judge Hartz concurred to stress that the circuit should keep tightly cabined any prior, atypical departures from the final-judgment rule, noting that the Supreme Court has discouraged judicial expansion of exceptions. See Mohawk Ind., Inc. v. Carpenter, 558 U.S. 100 (2009).

III. Analysis

A. Precedents Cited (and How They Shaped the Outcome)

1. Finality and § 1291 Framework

  • Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009)
    Used for the baseline proposition that appellate jurisdiction under § 1291 generally extends only to “final decisions,” and that exceptions are limited and typically left to Congress/rulemaking. Judge Hartz’s concurrence leaned on Mohawk to caution against expanding exceptions.
  • Ritzen Grp., Inc. v. Jackson Masonry, LLC, 589 U.S. 35 (2020) and Gelboim v. Bank of Am. Corp., 574 U.S. 405 (2015)
    Cited for the definition of finality: a decision ends the litigation and leaves nothing but execution of judgment. This supported treating the remedy remand order (which required further agency action) as nonfinal.
  • SeedX, Inc. v. Lincoln Strategy Grp. LLC, 158 F.4th 1166 (10th Cir. 2025)
    Provided the Tenth Circuit articulation that finality requires termination of all matters as to all parties/claims, reinforcing that the appellant bears the burden to establish jurisdiction.
  • City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089 (10th Cir. 2017)
    Cited for de novo review of appellate jurisdiction questions.

2. The Administrative Remand Rule

  • Rocky Mtn. Wild v. Dallas, 98 F.4th 1263 (10th Cir. 2024)
    Anchored the “administrative remand rule”: a district court remand to an agency for further proceedings is ordinarily not appealable because it is not final. Also supplied the list of recognized exceptions.
  • Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984)
    An early statement of the remand rule and the logic of nonappealability when further agency proceedings are required.
  • Trout Unlimited v. U.S. Dep't of Agric., 441 F.3d 1214 (10th Cir. 2006)
    Reaffirmed that administrative remands are ordinarily not appealable.
  • N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) and Am. Wild Horse Pres. Campaign v. Jewell, 847 F.3d 1174 (10th Cir. 2016)
    These were pivotal comparators invoked by the Conservation Groups to argue the remand rule should not apply. The panel distinguished them because, in those cases, the district court orders were characterized as more akin to injunctions or had limited/no effect on the agency’s ability to proceed (or did not require recommencing proceedings). Here, the district court’s order explicitly required the Forest Service to “address the NEPA deficiencies” consistent with Western Watersheds I, making it a “traditional remand” in practical operation.
  • N.M. Health Connections v. U.S. Dep't of Health & Hum. Servs., 946 F.3d 1138 (10th Cir. 2019)
    Supplied the methodology for assessing finality in the remand context: look to both (i) the nature of the agency action (adjudicatory vs legislative vs nonadversarial licensing) and (ii) the character of the district court’s order (whether it returns the matter to the agency).
  • Caesar v. West, 195 F.3d 1373 (Fed. Cir. 1999)
    Cited for the proposition that a remand requiring further action “marks a continuation” rather than a conclusion of the case, reinforcing nonfinality.

3. Practical Finality Exception and Its Limits

  • C.W. ex rel. B.W. v. Denver Cnty. Sch. Dist. No. 1, 994 F.3d 1215 (10th Cir. 2021)
    Provided the two-step inquiry: (1) whether an issue is “important and urgent” (serious and unsettled, and not within trial court discretion), and (2) balancing injustice of delay versus costs of piecemeal review. It also stressed that practical finality must be narrowly construed.
  • Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, 968 F.3d 1156 (10th Cir. 2020)
    Reinforced that remands are only “sometimes” practically final and that the doctrine is narrow.
  • W. Energy All. v. Salazar, 709 F.3d 1040 (10th Cir. 2013)
    Supplied the requirement that the issue must be both important and urgent.
  • Diné Citizens Against Ruining Our Env't v. Haaland, 59 F.4th 1016 (10th Cir. 2023)
    Used to show that applying the Allied-Signal factors is typically a fact-intensive matter left to district court discretion—fatal to “importance” as defined for practical finality (since the issue must not be within trial court discretion).

4. Vacatur Review Standards (Underscoring Discretion)

  • Cigar Assoc. of Am. v. FDA, 132 F.4th 535 (D.C. Cir. 2025) and Neb. Dep't of Health & Hum. Servs. v. Dep't of Health & Hum. Servs., 435 F.3d 326 (D.C. Cir. 2006)
    These D.C. Circuit cases were cited to confirm that vacatur/remedy decisions are reviewed for abuse of discretion, reinforcing the panel’s conclusion that the issue is discretionary and thus not “important” for practical finality purposes.

5. Waiver/Forfeiture of Alternative Jurisdictional Theories

  • Avant v. Doke, 104 F.4th 203 (10th Cir. 2024), E.E.O.C. v. OJ Utah, LLC, 822 F.3d 536 (10th Cir. 2016), Raley v. Hyundai Motor Co., Ltd., 642 F.3d 1271 (10th Cir. 2011), and United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514 (10th Cir. 1996)
    These authorities supported the court’s refusal to consider uninvoked jurisdictional doctrines (collateral order doctrine, pendent appellate jurisdiction) and reinforced that the appellant must “lead” on jurisdiction.

6. The Underlying Remedy Framework

  • Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1993)
    Not a jurisdiction case, but essential to understanding why the dispute was discretionary. The two factors—(1) seriousness of deficiencies and (2) disruptive consequences of vacatur—made the district court’s “with or without vacatur” choice a fact-sensitive remedial call, which the panel treated as inconsistent with immediate appellate review under practical finality.
  • Western Watersheds Project v. Vilsack, No. 23-8081, 2024 WL 4589758 (10th Cir. Oct. 28, 2024) (unpublished) (Western Watersheds I)
    The prior decision defined the remand’s scope: the agency must correct identified NEPA errors (Purpose and Need, range of alternatives, and hard look at combined impacts on prairie dogs). Those instructions made the district court’s order a prototypical administrative remand requiring further agency work.

B. Legal Reasoning

1. Why the Order Was Not Final Under § 1291

The panel applied the Tenth Circuit’s remand-finality approach: assess (i) the nature of the agency proceeding and (ii) the character of the district court order. Even assuming the Forest Service’s 2020 Plan Amendment had quasi-legislative features (a plan amendment rather than an adjudication), the panel emphasized that the district court order’s character was decisive.

The order did not simply prohibit future NEPA violations in the abstract; it returned the matter to the Forest Service and required corrective work “consistent with the Tenth Circuit’s Order and Judgment.” The court highlighted that the agency could not “invoke the same analysis” or simply stop proceedings; it had to revise its NEPA process in concrete ways identified in Western Watersheds I. That meant the litigation was effectively ongoing in the administrative forum, so the district court had not issued a final, appealable decision.

2. Why Practical Finality Failed

The Conservation Groups invoked only practical finality. The court rejected it at the threshold because the only disputed question—vacatur versus no vacatur—was a discretionary remedial determination under Allied-Signal. Under Tenth Circuit doctrine, an issue is not “important” for practical finality if it is “within the trial court’s discretion.” Because that condition was not met, the exception could not apply and the court did not proceed to any balancing of harms.

3. The Opinion’s Quiet But Material Procedural Message

In a footnote, the panel noted secondary routes that might have been attempted (without endorsing them): appeal under 28 U.S.C. § 1291(a)(1) as an injunction-related order, certification under 28 U.S.C. § 1292(b), or invocation of the collateral order doctrine (citing Wright & Miller). The Conservation Groups did not pursue these routes, and the court expressed no opinion on viability—underscoring that jurisdictional framing choices can be outcome-determinative.

C. Impact

1. Immediate Impact in NEPA/APA Litigation

  • Remand-without-vacatur remedy orders will often be unreviewable immediately when they require further agency action, even if the plaintiff wants vacatur now.
  • Parties should expect that remedy disputes under Allied-Signal will generally be treated as discretionary and thus poorly suited for practical-finality review.
  • The decision encourages litigants to consider alternative procedural avenues (e.g., seeking certification, or developing an injunction-based theory where appropriate) if immediate review is strategically necessary.

2. Doctrinal Impact in the Tenth Circuit

  • The opinion limits the reach of N.M. ex rel. Richardson v. Bureau of Land Mgmt. and Am. Wild Horse Pres. Campaign v. Jewell, stressing that those cases are not broad licenses to appeal remand-like orders in quasi-legislative settings.
  • Judge Hartz’s concurrence reinforces a trend toward strict adherence to the final-judgment rule and skepticism of judge-made exceptions, echoing the Supreme Court’s tone in Mohawk Ind., Inc. v. Carpenter.

IV. Complex Concepts Simplified

  • “Vacatur”: A court order nullifying an agency action (treating it as set aside). If vacated, the plan amendment typically cannot be relied on while the agency fixes errors.
  • “Remand without vacatur”: The agency action stays in effect, but the agency must fix legal deficiencies (here, NEPA analysis problems). Courts often use this to avoid disruption while errors are corrected.
  • “Final decision” under 28 U.S.C. § 1291: Usually a decision that ends the case in the district court. If the case is sent back to an agency for more work, appellate courts often treat that as not final.
  • Administrative remand rule: The general rule that district court orders remanding to agencies for further proceedings are not immediately appealable.
  • Practical finality: A narrow exception allowing appeal of some nonfinal remand orders when an issue is urgent, important, and not discretionary—designed to prevent serious injustice from waiting.
  • Allied-Signal factors: A two-part test (seriousness of deficiencies; disruption from vacatur) used to decide whether an unlawful agency action should be vacated or left in place during remand.

V. Conclusion

This decision’s core contribution is jurisdictional and procedural: when a district court sends a matter back to an agency to correct NEPA defects and merely disputes whether the remand should be accompanied by vacatur, the resulting “remand without vacatur” order is ordinarily a nonfinal administrative remand not immediately appealable under § 1291. The practical finality exception will not rescue jurisdiction where the only contested question is a discretionary Allied-Signal remedy determination.

In the broader legal context, the opinion reinforces final-judgment discipline in administrative law appeals and narrows the practical reach of earlier Tenth Circuit cases that deviated from the typical administrative remand rule—signaling that litigants must carefully select, preserve, and argue any alternative jurisdictional pathway if they seek immediate review of remedial choices.