Western Watersheds Project v. Interior Board of Land Appeals ( 2023 )

Appellate Case: 20-4120 Document: 010110829030 Date Filed: 03/20/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 20, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
WESTERN WATERSHEDS PROJECT,
Plaintiff - Appellant,
v. No. 20-4120
INTERIOR BOARD OF LAND
APPEALS; UNITED STATES
DEPARTMENT OF THE INTERIOR,
Defendants - Appellees,
and
STATE OF UTAH; UTAH SCHOOL
AND INSTITUTIONAL TRUST LANDS
ADMINISTRATION; UTAH
DEPARTMENT OF AGRICULTURE,
Intervenor Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:19-CV-00095-TS)
_________________________________
Laurence J. Lucas of Advocates for the West, Boise, Idaho (John Persell of Western
Watersheds Project, Hailey, Idaho, and Megan Backsen of Reno, Nevada, with him on
the briefs), for Plaintiff-Appellant.
Rebecca Jaffe, Attorney (Jean E. Williams, Acting Assistant Attorney General, with her
on the brief), Environment and Natural Resources Division, U.S. Department of Justice,
Washington, D.C., for Defendants-Appellees.
Appellate Case: 20-4120 Document: 010110829030 Date Filed: 03/20/2023 Page: 2
Mark S. Boshell, Special Assistant Attorney General (Kaitlin T. Davis, Kathy A.F. Davis,
and Anthony L. Rampton, Assistant Attorneys General, with him on the brief), Public
Lands Section, Department of Natural Resources, State of Utah Office of the Attorney
General, Salt Lake City, Utah, for Intervenor Defendants-Appellees.
_________________________________
Before MORITZ, EBEL, and EID, Circuit Judges.
_________________________________
EID, Circuit Judge.
_________________________________
In 2019, Western Watersheds Project sued to challenge the issuance of permits
that expired in 2018. 1 The district court dismissed the case for lack of Article III
standing. We agree with that decision. Western Watersheds Project’s claims were
brought against expired permits that had already been renewed automatically by 43
U.S.C. § 1752(c)(2). Moreover, the timing of a new environmental analysis of the
new permits is within the Secretary’s discretion under 43 U.S.C. § 1752(i). Western
Watersheds Project, therefore, lacks Article III standing because its claims are not
1
We have before us an unopposed motion by the appellees “to take judicial
notice of the ten renewal permits attached as exhibits A through J to the []
declaration” of Michael Gates. Defendants-Appellees’ Motion for Judicial Notice at
4, Western Watersheds Project v. Interior Bd. of Land Appeals, No. 20-4120 (10th
Cir. May 24, 2021). Because these documents are publicly available and relevant to
the parties’ arguments regarding subject matter jurisdiction, we grant the motion and
take judicial notice of the renewal permits. See Winzler v. Toyota Motor Sales
U.S.A., Inc., 681 F.3d 1208, 1213 (10th Cir. 2012) (noting that “[t]he contents of an
administrative agency’s publicly available files . . . traditionally qualify for judicial
notice, even when the truthfulness of the documents on file is another matter,” and
“that we may take judicial notice of materials on appeal” (citing In re Calder, 907
F.2d 953, 955 n.2 (10th Cir. 1990); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th
Cir. 2006))).
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redressable. Accordingly, we need not address the parties’ other arguments and
affirm the district court’s dismissal of this case.
I.
In 2007, the Bureau of Land Management (“BLM”) prepared an environmental
assessment to analyze the impact of new grazing permits on the Duck Creek
Allotment. In May 2008, the BLM proposed new grazing permits for the Duck Creek
Allotment. Western Watersheds Project challenged the BLM’s 2007 environmental
assessment and the proposed permits through an administrative protest. On
September 12, 2008, based on its finding that the permits would yield no significant
environmental impact, the BLM denied Western Watersheds Project’s protest and
approved issuing new permits for a ten-year term. Western Watersheds Project
appealed the BLM’s decision through the Department of the Interior’s internal review
process. On May 16, 2013, an administrative law judge (“ALJ”) reversed the BLM’s
decision. Then, on September 22, 2017, the Interior Board of Land Appeals reversed
the ALJ’s decision, thereby approving the BLM’s decision to deny Western
Watersheds Project’s protest. In 2018, the permits at issue in this lawsuit expired;
and new permits were issued automatically by statute. See 43 U.S.C. § 1752(c)(2).
The plaintiffs brought this action in 2019, challenging only the expired permits.
II.
A.
“The Constitution gives federal courts the power to adjudicate only genuine
‘Cases’ and ‘Controversies.’” California v. Texas, 141 S. Ct. 2104, 2113 (2021)
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(quoting U.S. Const. Art. III, § 2); accord Kerr v. Polis, 20 F.4th 686, 692 (10th Cir.
2021) (en banc) (quoting California, 141 S. Ct. at 2113). A fundamental contour of
this power is “the requirement that litigants have standing.” California, 141 S. Ct. at
2113. “The party invoking federal jurisdiction bears the burden of establishing
standing.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal
quotation marks omitted) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411–
12 (2013)). Here, the plaintiff bears this burden. We review de novo whether the
plaintiff has standing. See Collins v. Daniels, 916 F.3d 1302, 1311 (10th Cir. 2019)
(citing S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013)).
Western Watersheds Project must establish that it has standing—or put
differently, that it had the “requisite personal interest . . . at the commencement of the
litigation” such that the district court and this court may exert Article III power over
the case. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 189 (2000) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68
n.22 (1997)). “[T]o establish standing, a plaintiff must show (i) that he suffered an
injury in fact that is concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the injury would likely be
redressed by judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “If ‘the
plaintiff does not claim to have suffered an injury that the defendant caused and the
court can remedy, there is no case or controversy for the federal court to resolve.’”
Id. (emphasis added) (quoting Casillas v. Madison Avenue Assocs., Inc., 926 F.3d
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329, 333 (7th Cir. 2019) (Barrett, J.)). “Plaintiffs have the burden to demonstrate
standing for each form of relief sought.” Collins, 916 F.3d at 1314 (quoting Lippoldt
v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006)). “In sum, under Article III, a federal
court may resolve only ‘a real controversy with real impact on real persons.’”
TransUnion LLC, 141 S. Ct. at 2203 (quoting Amer. Legion v. Amer. Humanist Ass’n,
139 S. Ct. 2067, 2103 (2019)).
B.
“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff
into federal court; that is the very essence of the redressability requirement.” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998). Western Watersheds
Project has not met its burden of establishing standing because its claims are not
redressable. Western Watersheds Project does not have a redressable claim related to
the 2008 permits because those permits had expired by the time they filed suit, new
permits were granted by statute, and the new permits will remain until the Executive
Branch undertakes environmental analysis—the timing of which is discretionary.
First, the challenged 2008 permits were no longer operative when this suit was
filed. Western Watersheds Project challenged only the 2008 permits, not the
currently effective 2018 permits. The courts can offer no remedy for the expired
permits. Those permits are gone, so nothing can be done directly about those
permits. A decision about the 2008 permits will have no real-world effect.
Second, the 2018 permits are not a continuation of the 2008 permits because
the allegedly incorrect decision to issue the 2008 permits did not infect the statutorily
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required issuance of the 2018 permits. 2 The 2018 permits were not a continuation of
the challenged decision related to the 2008 permits because they were required by
statute. See 43 U.S.C. § 1752(c)(2). The relevant statute provides the following:
The terms and conditions in a grazing permit or lease that has expired . . .
shall be continued under a new permit or lease until the date on which the
Secretary concerned completes any environmental analysis and
documentation for the permit or lease required under the National
Environmental Policy Act of 1969 [(“NEPA”)] (42 U.S.C. [§] 4321 et
seq.) and other applicable laws.
43 U.S.C. § 1752(c)(2). Even if the challenged government decisions were legally
invalid—which we do not decide—the 2018 permits were still statutorily required.
As Western Watersheds Project noted, some case law in other circuits has found that
if the effects of the expired permits continue, the alleged injury might still involve an
Article III case or controversy. See Aplt. Br. at 19 (citing Nat’l Parks Conservation
Ass’n v. U.S. Army Corps of Eng’rs, 574 F. Supp. 2d 1314, 1323 (S.D. Fla. 2008);
Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996); Montgomery Env’t Coal. v.
2
Notably, Western Watersheds Project stated explicitly in the district court
that it was not challenging the 2018 permits. See App’x Vol. I at 150 (“[Western
Watersheds Project] has no need to challenge [the new permits] before this court.”
(second alteration in original) (quoting Plaintiff’s Reply Brief on Petition for Judicial
Review at 6, Western Watersheds Project v. Interior Bd. of Land Appeals, No. 1:19-
cv-00095-TS-JCB (D. Utah Aug. 3, 2020), ECF No. 70)). Thus, Western Watersheds
Project waived the argument that it was actually challenging the 2018 permits
because they were the same as the 2008 permits. But Western Watersheds Project
did argue that the 2008 permits’ effects continued through the same terms still being
in effect. See Plaintiff’s Reply Brief on Petition for Judicial Review at 3–7, Western
Watersheds Project v. Interior Bd. of Land Appeals, No. 1:19-cv-00095-TS-JCB (D.
Utah Aug. 3, 2020), ECF No. 70. Thus, although Western Watersheds Project
waived a direct challenge to the 2018 permits, we must still address its indirect
challenge through its argument that the 2008 permits’ effects continued through the
2018 permits.
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Costle, 646 F.2d 568, 578–79 (D.C. Cir. 1980); Mine Reclamation Corp. v. Fed.
Energy Regul. Comm’n, 30 F.3d 1519, 1522–23 (D.C. Cir. 1994)). But that out-of-
circuit case law neither binds us nor persuades us. The cited case law was written
before the 2014 amendments to the Federal Land Policy and Management Act, which
required the automatic renewal of the permits under different permits and granted the
Secretary discretion on the timing of new environmental analyses. See Carl Levin
and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year
2015, Pub. L. No. 113-291, § 3023, 128 Stat. 3292, 3762–64 (2014). Moreover, the
portions of that case law relevant to this issue purport to discuss mootness rather than
standing—which is at issue in this case. A plaintiff must have standing “at the
commencement of the litigation,” and it must not become moot during the litigation.
Friends of the Earth, Inc., 528 U.S. at 189 (quoting Arizonans for Official English,
520 U.S. at 68 n.22); accord Ajaj v. Fed. Bureau of Prisons, 25 F.4th 805, 811 (10th
Cir. 2022) (quoting Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 879
(10th Cir. 2019)). The changes arguably impacting our Article III power over this
matter took place before the suit was filed. Thus, standing—not mootness—is the
proper legal framework for this case. 3 As a result, the cited out-of-circuit case law
does not persuade us that the effects of the 2008 decision continued when Western
Watersheds Project filed suit. The statute counsels otherwise. Whatever took place
3
The government’s argument in the alternative that this case is moot misses
the mark because standing is the proper framework.
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with the agency decisions and proceedings surrounding the old permits, the new
permits were statutorily required and were issued before this lawsuit was filed.
Third, even if we thought that the 2008 decision’s effects continued, this court
could not cause a real-world effect through a favorable decision related to those 2008
permits. This court cannot override the Secretary’s statutorily given discretion to
determine when a new NEPA analysis occurs. See 43 U.S.C. § 1752(i) (“The
Secretary concerned, in the sole discretion of the Secretary concerned, shall
determine the priority and timing for completing each required environmental
analysis with respect to a grazing allotment, permit, or lease . . . .”). That is, this
court cannot remedy the alleged harm by requiring a new NEPA analysis. And this
court cannot provide guidance for a future, indeterminate analysis because that would
merely be an advisory opinion about something that is within the Secretary’s
discretion—something for which there is currently no concrete injury-in-fact. But
“[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into
federal court; that is the very essence of the redressability requirement.” Steel Co.,
523 U.S. at 107. Because of the Secretary’s statutorily defined discretion in this
matter, we cannot issue a favorable decision regarding the 2008 permits with any
real-world effect—which would make such a decision advisory and beyond our
power.
Because the 2008 permits no longer existed at the start of this litigation and no
evidence suggests that there is any ongoing impact that we could address through a
favorable decision, no relief could be granted with respect to those permits that could
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redress the harm that has allegedly been caused by the agency. Cf. Dr. John’s, Inc. v.
City of Roy, 465 F.3d 1150, 1156 (10th Cir. 2006) (finding that a plaintiff had
established redressability where “the injury would be redressed by a declaration that
the ordinance is unconstitutional and an injunction against its enforcement”).
Therefore, Western Watersheds Project lacks standing.
III.
Because Western Watersheds Project lacks Article III standing, its appeal of
the district court’s denial of its motion to recuse is moot; and we do not address it.
See Tonkovich v. Kan. Bd. of Regents, 254 F.3d 941, 946 (10th Cir. 2001) (“Plaintiff
asserts that the district judge abused his discretion by refusing to recuse himself . . . .
However, our conclusion that Plaintiff’s federal and state claims no longer belong in
federal court renders the recusal issue, with its request for prospective relief, moot.”);
Stein v. New Mexico, 684 F. App’x 720, 720 n.1 (10th Cir. 2017) (“Also, Mr. Stein
appeals the court’s denial of his motion to recuse[] and asks this court to reassign the
case on remand. . . . However, our conclusion that the court lacks subject matter
jurisdiction also renders the recusal issue moot.”). 4 We similarly need not reach
either party’s other arguments or the merits. We AFFIRM the district court’s
dismissal of this case for lack of Article III standing.
4
Unpublished decisions are not binding precedent but may be cited for their
persuasive value. See 10th Cir. R. 32.1; Fed. R. App. P. 32.1.
9