Replies

"They can only order the decisions they are reviewing BACK to the court that made the original findings."

This is incorrect. For instance, in the folling appellate decision the appeals court did provide temporary injunctive relief while they remanded the case back to the trial court to follow their instructions.

FOR PUBLICATION
April 20,2004

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Friends of Yosemite Valley v. Gale Norton

No. 04-15682
D.C. No. CV-00-06191-AWI
Eastern District of California, Fresno

ORDER

Before: GOODWIN, TASHIMA, and WARDLAW, Circuit Judges

We write to clarify our Opinion of October 27, 2003, Friends of Yosemite Valley v. Norton, 348 F.3d 789, 796-99 (9th Cir. 2003). There we held that the entire Merced Wild and Scenic River Comprehensive Management Plan ("CMP") is invalid due to two deficiencies: (1) a failure to adequately address user capacities; and (2) the improper drawing of the Merced River's boundaries at El Portal. While we remanded to "the district court to enter an appropriate order requiring the [National Park Service] to remedy these deficiencies in the CMP in a timely manner," id. at 803, we did not "otherwise uphold the [CMP]." District Court's Memorandum Opinion and Order Following Remand at 28. Rather, our Opinion merely stated that the additional challenges to the CMP brought by Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively, "Friends") lacked merit. Pursuant to our original Opinion, the National Park Service ("NPS") must prepare a new or revised CMP that adequately addresses user capacities and properly draws the river boundaries at El Portal.

Because the district court based its denial of Friends' motion for injunctive relief on a misconstruction of our Opinion, we remand this matter to it for reconsideration of Friends' motion in light of this clarification of our prior holding. Pending the district court's reconsideration of this matter, we grant a temporary stay of proceedings and an injunction prohibiting NPS from implementing any and all projects developed in reliance upon the invalid CMP.

IT IS SO ORDERED.

A lot of misinformation in this case could be settled if folks just referred to the text of the legislation. In this case it reads:

109th CONGRESS

1st Session

S. 686

AN ACT

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.