OPINION
This аppeal arises out of an action by the Pit River Tribe, the Native Coalition
*1073
For Medicine Lake Highlands Defense, and Mount Shasta Bioregional Ecology Center (collectively Pit River) against the Bureau of Land Management (BLM), the United States Forest Service, the Advisory Council on Historic Preservation, and the Department of the Interior (collectively agencies), and against Calpine Corporation (Calpine). This case has already resulted in one appeal to this court,
Pit River Tribe v. United States Forest Service,
A detailed factual history of this case is provided in
Pit River I. Id.
at 772-78. We will reiterate that factual history only briefly here. The underlying litigation concerns Calpine’s efforts to develop a geothermal power plant near Medicine Lake, an area of spiritual significance to the Pit River Tribe and other Native American tribes in the region. In June 1988, pursuant to the Geothermal Steam Act, 30 U.S.C. § 1001
et seq.,
the BLM entered into two geothermal leаses for land in the Medicine Lake area with Cal-pine’s predecessor. The leases provided for an initial term of ten years and “granted the lessee the exclusive right to drill for, extract, produce, remove, utilize, sell, and dispose of the geothermal resources” in the land, subject to certain stipulations and to applicable law.
In Pit River I, we reversed the district court’s summary judgment. We held, in part, that the agencies should have prepared an EIS prior to granting the May 1998 lease extensions. We determined, furthermore, that this error was not cured by the later, September 1998 EIS completed in connection with the Fourmile Hill Plant approval process. Id. at 785-86. We held that the 1998 lease extensions “and the entire Fourmile Hill Plant approval process for development of the invalid lease rights” violated the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Id. at 787. We also held that these NEPA and NHPA violations constituted a violation of the agencies’ “minimum fiduciary duty to the Pit River Tribe.” Id. at 788. We concluded:
The agencies violated their duties under NEPA and NHPA and their fiduciary duty to the Pit River Tribe by failing to complete an environmental impact statement before extending Calpine’s leases in 1998. Hence, both the five-year lease extensions and the subsequent forty-year extensions must be undone. The rest of the project approval process, including the 1998 EIS, was premised on *1074 Calpine’s possession of a valid right to dеvelop the land and therefore must be set aside____ We reverse the district court’s summary judgment in favor of the agencies, and direct the district court to enter summary judgment in favor of Pit River consistent with this opinion.
Id.
On remand to the district court, the parties disputed the proper course to be followed. The agencies, joined by Calpine, argued that they need only reconsider the 1998 lease extensions and any subsequent decisions (e.g. the approval of the Fourmile Hill Plant and the 40-year lease extensions granted in 2002). Pit River argued that, because the original 1988 leases had expired by their terms, Calpine had no present lease rights remaining. Pit River argued that the leasing process must therefore begin from scratch, with the agencies treating Calpine as seeking a new initial lease. This would entail, among other things, a competitive bidding process. See 30 U.S.C. § 1003.
After considering the parties’ submissions, the district court entered summary judgment in favor of Pit River on the relevant claims. In its memorandum of decision, the district court considered, however, that the “court of appeals .... left this [c]ourt to specify terms of judgment that would satisfy the mandate.” In its order remanding the case to the agencies, the district court enjoined Calpine from engaging in any surface disturbing activity pending proper NEPA and NHPA analysis and documentation. The district court also ordered the agencies to vacate the 1998 and 2002 lease extensions and the ROD approving the Fourmile Hill Plant. The district court remanded to the relevant agencies with instructions for the agencies to perform the proper NEPA and NHPA reviews, to conduct further consultation with Native American Tribes, and to prepare proper EIS documents regarding the lease extensions and the Fourmile Hill Plant plan of utilization.
The district court disagreed with Pit River’s contention that the leasing process must begin anew. Reasoning that a “mere finding of a NEPA violation does not automatically and retroactively invalidate anything,” the district court determined that it had discretion to preserve the lease extensions even if they were issued in violation of NEPA. The district court then determined that “the 1998 lease extension ... took effect and the 1988 leases did not expire.” The district court concluded that the agencies need not “withdraw the 1988 leasing decisions,” but that the “BLM shall have absolute discretion to void or cancel the leases, deny lease extensions or unit commitment, and add or modify lease conditions.” Pit River now appeals.
I.
We first must assure ourselves that we have jurisdiction to hear this appeal. We must determine whether we can properly exercise jurisdiction pursuant to 28 U.S.C. § 1291 or 1292(a), or, in the alternative, whether we have jurisdiction over this appeal pursuant to the All Writs Act, 28 U.S.C. § 1651(a).
A.
The parties assert that appellate jurisdiction is appropriate under 28 U.S.C. § 1291. In this case, the district court entered summary judgment in favor of Pit River, pursuant to our order of remand.
See Pit River I,
Under section 1291, appellate jurisdiction extends only to “final decisions of the district courts.” Importantly, remand orders are generally not “final” decisions for purposes of section 1291.
Chugach Alaska Corp. v. Lujan,
A remand order will be considered final where (1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.
Alsea Valley Alliance v. Dep’t of Commerce,
In Alsea, we discussed the circumstances in which a remand order may constitute an appealable final decision. In that case, Alsea challenged a final rule promulgated by the National Marine Fisheries Service (Fisheries Service); the rule at issue pertained to the designation of сertain salmon populations as “threatened” for purposes of the Endangered Species Act. Id. at 1183. The district court granted summary judgment to Alsea, and then remanded the case to the Fisheries Service for additional proceedings consistent with its decision. The district court directed the Fisheries Service to consider “the best available scientific information” on the issue presented. Id. The Fisheries Service agreed to comply with the court’s directions and also announced that it would commence a comprehensive review of the policies at issue, including “a public rule-making process to formulate [Endangered Species Act] listing standards for salmon----” Id. The Oregon Natural Resources Council, fearing that the Service would not appeal the district court order, sought to intervene in the case as of right and simultaneously lodged a notice of appeal. Id. at 1184. The district court permitted the Oregon Natural Resources Council to intervene for purposes of appeal. Id.
We concluded there that the district court’s remand order did not constitute a final order appealable by the Oregon Natural Resources Council. We applied the three-part standard, set forth above, in making this determination.
Id.
We held that the remand order in
Alsea
failed to satisfy the third prerequisite, that “review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.”
Id.
(internal quotation marks omitted),
citing Collord v. United States Dep’t of the Interior,
Alsea did not announce a hard-and-fast rule prohibiting a non-agency litigant from appealing a remand order. See id. at 1184 (“Although we conceive of none, there may be circumstances that would afford a non-agency litigant the ability to appeal a remand order, but we need not reach that question”). The Oregon Natural Re *1076 sources Council, however, was not similarly-situated to an agency litigant. Instead, “no aspect of the district court’s ruling [would] vitiate[] the Council’s access to appellate review of the eventual outcome of the district court’s decision.” Id. at 1185. Indeed, we observed that “it [was] possible that the action taken by the Service on remand [would] provide the Council with all the relief it [was] seeking].” Id. Furthermore, the Oregon Natural Resources Council could participate during the public participation phаse of the rule-making process and would thereby have a chance to influence the formulation of new rules. Id. If the Council perceived the eventually resulting rule “to be unlawful and adverse to its interests,” it could challenge the rule at that point. Id. But, we said that “[u]ntil all these contingencies have played out ... any decision by us could prove entirely unnecessary.” Id.
Alsea's reasoning was echoed by the Eighth Circuit in
Izaak Walton League of America v. Kimbell,
While acknowledging that remand orders are generally not considered final for purposes of section 1291, Calpine argues here that the district court’s remand order was effectively final because it “intended to dispose of the entire case.” Calpine asserts that a remand order, accompanied by dismissal of the action, is the “equivalent of an order of dismissal” and appeal-able under section 1291. In support of its position, Calpine cites our decisions in
City of Santa Clara v. Andrus,
In this case, it is true that the district court ordered that any judicial action following remand “will be commenced by filing a new complaint initiating a new federal district court case.” The reasoning of
Alsea
remains persuasive, however. Similar to the appellant in
Alsea,
Pit River will have an opportunity to participate in the agencies’ processes on remand. Indeed, it is possible that the agencies may decide that no geothermal power production should occur on the land and decline to extend Calpine’s leases. As in
Alsea,
any decision by this court may prove entirely unnecessary.
See Alsea,
The authorities cited by Calpine,
City of Santa Clara
and
Eluska,
do not persuade us otherwise.
City of Santa Clara
is distinguishable. In that case, both the plaintiff
and
the relevant agency sought review of the district court’s remand order.
Eluska
also does not establish the propriety of our jurisdiction in this case.
*1077
Calpine cites
Eluska
as establishing the proposition that, where a district court intеnds to dispose of an entire case, a remand order is equivalent to an order of dismissal. We do not read
Eluska
as Cal-pine urges. In
Eluska,
the plaintiff applied for a land allotment pursuant to relevant federal law. After denial of her claim, the plaintiff sued the Secretary of the Interior, alleging that the agency wrongfully denied her claim.
We therefore hold that, under the principles applied in
Alsea,
the remand order here was not a final order for purposes of section 1291.
See generally Alsea,
B.
Taking a different tack, Calpine asserts that we may exercise jurisdiction over this appeal because the district court’s remand order was the equivalent of an interlocutory order refusing an injunсtion.
See, e.g., Plata v. Davis,
However, thе district court’s remand order was not tantamount to an order respecting an injunction for purposes of section 1292(a)(1). Calpine’s argument fails because it is based on a misstatement of Pit River’s position. Calpine’s argument proceeds as follows: on remand to the district court following Pit River I, Pit River asked the district court to “set[ ] aside the geothermal leases issued in 1988,” which relief “would have required BLM to cancel those leas *1078 es and therefore would have constituted” injunctive relief. Calpine misconstrues Pit River’s argument, because Pit River did not request the cancellation or invalidation of the original 1988 leases. Instead, Pit River’s position was that the original 1988 leases had expired by their own terms; that is, the leases had terminated in 1998 upon expiration of their 10-year terms. Pit River did not ask the district court to issue an injunction or the equivalent of an injunction. See, e.g., Black’s Law Dictionary (8th ed.2004) (defining “injunction” as “[a] court order commanding or preventing an action”). Pit River simply asserted that, on remand proceedings before the agency, the original 1988 leases could not be extended as a matter of law, such that Calpine could receive only an entirely new lease.
Here again, the
Alsea
case is instructive. There, we rejected a party’s assertion that a remand order had the “ ‘practical effect’ of granting an injunction.”
Alsea,
the only aspect of the summary judgment that remotely resembles injunctive relief is that it prohibits, as a practical matter, the еnforcement of the Service’s listing decision as is. It would be far too tenuous, however, to maintain that this is the practical equivalent of “enjoining” the Service. Taken to its logical end, such reasoning would classify as “injunctive” all declaratory relief that deems an agency rule unlawful.
Alsea,
C.
The agencies and Calpine argue, in the alternative, that we are given jurisdiction to hear this appeal by the All Writs Act, 28 U.S.C. § 1651(a). The All Writs Act, section 1651(a), provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Of relevance here, the “writ of mandamus hаs traditionally been used ... ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’”
Will v. United States,
In
Vizcaino v. United States District Court,
we stated that “when a lower court obstructs the mandate of an appellate court, mandamus is the appropriate remedy....”
Mandamus to compel an inferior court to follow an appellate mandate is closely related to the doctrine of law of the case. The Supreme Court long ago emphasized that when acting under an appellate court’s mandate, an inferior court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate---- On re *1079 mand, a trial court can only consider any issue not expressly or impliedly disposed of on appeal---- District courts must implement both the letter and the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.
Id. (internal quotation marks and citations omitted).
Although Pit River does not style its appeal as a request for a writ of mandamus, we may construe an appeal as a petition for a writ of mandamus to compel compliance with an earlier appellate decision.
See Brown v. Baden,
We acknowledge a different line of cases that authorizes the issuance of a writ of mandamus under the All Writs Act in “extraordinary cases.” To determine whether this case is “extraordinary,” we have considered five questions, known as the Bauman factors:
(1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s order is an oft repeated еrror or manifests a persistent disregard of the federal rules; and (5) whether the district court’s order raises new and important problems or issues of first impression.
Perry v. Schwarzenegger,
Vizcaino
stated that reliance on the
Bauman
factors is “misplaced” where “mandamus is sought on the ground that the district court failed to follow the appellate court’s mandate.”
Vizcaino,
*1080 II.
Moving to the merits of the case, we review de novo the district court’s compliance with the mandate of our court.
United States v. Kellington,
A.
Pit River first argues that Calpine’s leases are not capable of extension as a matter of law and that the district court erred by leaving open the possibility that Calpine’s leases could be extended by the agencies on remand. Pit River argues: (1) the original 1988 leases expired in 1998, pursuant to their express terms and pursuant to Congress’s policy decision that the initial term of a geothermal lease should be ten years, see 30 U.S.C. § 1005(a), and (2) Pit River I directed that the extensions “must be undone.” Based on these considerations, Pit River argues that Calpine has no present lease rights, under either the original 1988 leases or any extensions. According to Pit River, even if the agencies fulfill their obligations on remand and determine that lease extensions are appropriate, the leases have expired according to their terms and, as a matter of law, cannot be extended. As a necessary consequence, Pit River asserts, Calpine must start the leasing process from scratch. We now take up these issues.
1.
We first address Pit River’s argument that the leasing process must begin anew. As set forth above, Pit River argues that the original leases have expired and the leasing process must start over. We cannot accept Pit River’s argument. By this logic, any successful challenge to a lease
extension
could undo an entire lease relationship. A litigant could, by challenging a lease extension alone, force a lessee into a de novo leasing process, including competitive bidding. Pit River’s argument would render superfluous the statute of limitations for challenging an initial lease decision. In
Pit River I,
however, we held that the statute of limitations had run on any challenge to the original 1988 leases.
A consideration of the relief commonly awarded for NEPA violations lends further support to this course of action. Our courts have long held that relief for a
*1081
NEPA violation is subject to equity principles. For example, in
Conner v. Burford,
we held that certain gas leases need not be invalidated, even though those leases had been sold in violation of NEPA.
Similarly, in
Sierra Club v. Bosworth,
we considered the appropriate relief for an agency’s failure to make a reasoned decision.
As these cases demonstrate, here the district court had discretion to determine an appropriate remedy for the agencies’ NEPA violations. The district court’s remand order sought to approximate what would have happened had the agencies used the proper procedures in 1998. That is, Calpine would have been awaiting the agencies’ decision, based on a valid EIS, as to whether to extend the leases. Cal-pine would not have faced a full competitive bidding process. This is сonsistent with both the letter and the spirit of our directive in Pit River I. The district court’s remand order requires that the agencies’ decisions to extend Calpine’s leases be “undone,” void, as if they never happened. On remand, the agencies will now reconsider the relevant decisions, with a proper record and with proper environmental assessments. Contrary to Pit River’s assertion, the district court did not “reinstate” the original 1988 leases. The original 1988 leases are merely deemed capable of extension on remand. Accordingly, the district court did not abuse its equitable powers in ordering that the original 1988 leases be treated as capable of extension. Instead, the district court *1082 placed the parties as closely as possible to where they would and should have been in 1998: Calpine seeks extensions of its leases, and the agencies must now proрerly act on that request.
2.
Pit River asserts that our Pit River I decision contemplated that Calpine would possess no present rights in the leases. Pit River points to the following passage in Pit River I:
Without the affirmative re-extension of the 1988 leases, Calpine would have retained no rights at all to the leased property and would not have been able to go forward with the Fourmile Hill Plant. The status quo before the 1998 extensions was that Calpine owned rights to produce geothermal steam valid through May 31, 1998, after which Calpine owned nothing.
The above-quoted statement must be put in context. In
Pit River I,
the agencies urged that the 1998 lease extensions merely preserved the status quo and did not require a separate EIS.
See id.; cf. also Nat’l Wildlife Fed’n v. Espy,
Pit River also argues that evaluation of the lease extensions alone will provide insufficient relief, if any at all. Pit River argues that the agency process will be tainted by the momentum the project has gained since 1998 and by the agencies’ longstanding relationship with Calpine. If the agencies reconsider only the lease extensions, Pit River argues the agencies will be tempted to respect their prior commitments. Pit River argues that this case is similar to
Metcalf v. Daley,
in which we warned that a prior relationship between an agency and a group might taint the agency process.
While bureaucratic inertia may be a risk, we presume that agencies will follow the law.
See N. Cheyenne Tribe v. Hodel,
Seeking to bolster this argument, Pit River asserts that the district court remand order created “new property rights” in Calpine, which “resurrects the specter of a constitutional taking[s] claim” in the event that the agencies deny the lease extensions. Pit River argues that the remand order gives Calpine a “credible litigation threat” to pursue claims for takings or breach of contract, which will “cast[ ] a significant pall over the objectivity of the remand process.” Any possible claims by Calpine are not before us, and are in any case unripe. We will not opine on the merits of such speculative claims. We reiterate and will instruct the district court on remand, however, to clarify that the 1998 extensions and all subsequent decisions did not “take effect,” but rather are simply deemed capable of extension.
3.
Pit River alternatively argues that, if the status of Calpine’s leases was not resolved by operation of law аnd by Pit River I, their status should be determined by the agencies in the first instance, and on a proper administrative record. To accept Pit River’s argument in this regard, we must first accept Pit River’s characterization of the district court’s remand order as a decision to “reinstate” the original 1988 leases. As explained above, the original 1988 leases have not been and need not be reinstated. Rather, they are deemed to be capable of extension under proper circumstances and need only be deemed capable of extension upon remand to the agencies.
In light of our holding that the district court did not err in treating the original 1988 leases as capable of extension on remand, we need not reach the argument advanced by Calpine and the agencies that a provision of the Administrative Procedure Act, 5 U.S.C. § 558(c), renders the originаl 1988 leases operational until a valid extension decision is made on remand.
The district court’s reasoning was incorrect on one point. The district court construed Pit River I as vesting it with the option of either invalidating the leases as of 1998 or enjoining any surface-disturbing activity pending remand to the agency. The district court considered that
The court of appeals decision makes clear that the mere finding of a NEPA violation does not automatically and retroactively invalidate anything. The two alternative remedies identified by the court of appeals which would ensure full compliance were: (1) invalidating the leases as of 1998 thus nullifying the 2002 extensions; or (2) enjoining any surface-disturbing activity until the agencies comply fully with NEPA and other statutes. [Pit River I,]469 F.3d at 779 .
The district court chose the latter course of action, enjoining surface-disturbing activity, holding that “despite noncompliance, the 1998 lease extension in this case took effect and the 1988 leases did not expire.”
This was error. The district court relied on language from our
Pit River I
opinion concerning
standing,
that is, whether Pit River’s claimed injuries were redressable for purpose of standing. On the issue of
relief,
our opinion in
Pit River I
was clear that the 1998 and 2002 lease extensions “must be undone” and the subsequent decisions “premised on Calpine’s possession of a valid right to develop the
*1084
land” be “set aside.”
B.
Pit River also argues that the district court erred in prescribing “ad hoc procеdures” for the BLM’s reconsideration of the extensions. As discussed above, courts have discretion to formulate equitable relief to remedy a NEPA violation. We conclude that the district court properly gave guidance to the agencies on how to reconcile the Pit River I mandate with certain post-1998 changes in the law of geothermal leases.
The Geothermal Steam Act was amended in 2005 to provide (among other things) that lease extensions were mandatory, not discretionary, so long as the lessee met certain conditions unrelated to NEPA of" NHPA obligations.
Pit River I,
A mandatory extension, however, would clearly be counter to our mandate in Pit River I. To avoid that result, the district court ordered that on remand:
Notwithstanding amendments to the Geothermal Steam Act and its implementing regulations, and regardless of whether Calpine elects to subject the leases to the new regulations, BLM shall have absolute discretion to void or cancel the leases, deny lease extensions or unit commitment, and add or modify lease conditions; BLM shall have absolute discretion to deny, approve, or modify the plan of utilization [for the Four-mile Hill Plant]; and the Forest Service shall have absolute discretion to deny, approve, or modify proposed surface use or development on National Forest System lands affected by the leases. In the event Calpine elects to subject the Four-mile Leases to the new regulations, BLM shall issue a decision suspending application of the election as it pertains to the term of the leases pending and conditioned upon the analysis required under Paragraph 9.
Paragraph 9, in turn, stated that notwithstanding the statutory amendments and Calpine’s election, the agencies must prepare an EIS which must “include a ‘no action’ alternative and a ‘hard look’ at whether lands affected by the leases should be developed for energy at all.”
These instructions represent a reasonable exercise of the district court’s equitable powers to resolve the potential conflict between the current regulations and our mandate in Pit River I. Our directive in Pit River I, and the district court’s task оn remand, was to require the agencies to do now what they should have done in 1998. If in 1998, after compliance with NEPA and NHPA, the Calpine leases had been validly extended, Calpine would eventually have been given the option to make an *1085 election to have its pre-2005 leases governed by the new regulations. The district court’s remand order has specified that any such election will not interfere with a “hard look” at the 1998 extension and subsequent decisions, but also ensured that should those decisions survive further agency scrutiny, Calpine’s election will be operative thereafter.
C.
Pit River argues that the district court’s remand order is internally inconsistent. Pit River points out that a passage of the district court’s remand order provides that the “BLM shall have absolute discretion to void or cancel the leases, deny lease extensions or unit commitment, and add or modify lease conditions” and “to deny, approve, or modify the plan of utilization.” Another provision of the district court’s remand order “directs the BLM to issue a decision that ‘reserves absolute right to deny lease extensions, until commitment, and/or development of the leases.’” In geothermal leasing, “unit commitment” refers to regulations that allow lessees in a geographic area to “commit” multiple leases to a “unit agreement,” pursuant to which separately owned interests in geothermal resources may be treated as a single consolidated unit for certain purposes. See 43 C.F.R. §§ 3280.1, 3280.2, 3281.9(b). In 2002, Cal-pine committed several leases, including the two at issue here, to a unit agreement. Pit River thus argues that the district court order only gives the BLM the power to deny lease extensions “until commitment,” and because commitment has already happened, the BLM will not be аble to deny the extensions.
Pit River’s fear is misplaced for two reasons. First, the 2002 unit commitment of the two leases occurred after the faulty 1998 extension decision, and is thus governed by
Pit River Ps
directive that “[t]he rest of the project approval process ... was premised on Calpine’s possession of a valid right to develop the land and therefore must be set aside.”
III.
In conclusion, we substantially uphold the district court’s remand; and we remand with instructions to correct (1) the statement that “the 1998 lease extension in this case took effect and the 1988 leases did not expire” as explained in Part II.A of this opinion, and (2) the typographical error using the word “until” instead of the word “unit,” as explained in Part II.C of this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS AND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Notes
. Relying solely on the circumstance that two of our cases subsequent to our
Bauman
opinion asserted mandamus jurisdiction over challenges to whether the district court followed our remand order without specifically citing
Bauman, Vizcaino
took the position that
Bauman
did not apply to mandamus petitioners dealing with whether the district court followed an appellate court mandate.
Vizcaino,