ELR Citation: ELR 20798
No(s). s. 92-4173 et al (10th Cir. Jan 31, 1994)

The court holds that it lacks jurisdiction to review a district court's order denying a motion to approve and enter a consent decree that would settle Utah's claim under the Comprehensive Environmental Response, Compensation, and Liability Act against a mining operator for natural resource damages resulting from groundwater contamination. The court holds that it lacks jurisdiction because the order is not a final judgment: It is not a decision on the merits that ends litigation, but rather it ensures that the litigation will continue in district court. The court also holds that the district court's denial of the motion does not fall within the collateral-order exception to the final judgment rule. The order does not conclusively determine the parties' right to settle because the trial court may still consider future settlement proposals. The order also does not resolve any important issue completely separate from the merits of the action. Although without immediate appeal, the parties will lose the opportunity to avoid the costs and risks of trial and protracted litigation, they have not demonstrated a right not to be tried. The court next holds that the case is not sufficiently unique or exceptional to warrant application of the pragmatic finality doctrine, under which an order may be deemed immediately appealable if the danger of injustice from delaying appellate review outweighs the inconvenience and cost of piecemeal review. The court next holds that the order is not entitled to the finality exception in 28 U.S.C. §1292(a)(1) for orders with the practical effect of granting or refusing an injunction. The consent decree does not contain any equitable or prospective relief, injunctive or otherwise, and the district court order does not affirmatively demand the inclusion of specific terms in subsequent consent decree proposals.

Counsel for Plaintiff
Fred G. Nelson, Ass't Attorney General
Attorney General's Office
236 State Capitol, Salt Lake City UT 84114
(801) 538-1015

Counsel for Defendant
David W. Tundermann
Parsons, Behle & Latimer
One Utah Ctr., 201 S. Main St., Ste. 1800, P.O. Box 11898, Salt Lake City UT 84147
(801) 532-1234