New Mexico Off-Highway Vehicle Alliance v. United States Forest Service , 702 F. App'x 708 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 24, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
THE NEW MEXICO OFF-HIGHWAY
VEHICLE ALLIANCE,
Petitioner - Appellant,
v. No. 17-2004
(D.C. No. 1:16-CV-01073-JAP-KBM)
UNITED STATES FOREST SERVICE, (D. N.M.)
an agency of the United States Department
of Agriculture; THOMAS TIDWELL, in
his official capacity as Chief of the United
States Forest Service; JAMES MELONAS,
in his official capacity as Santa Fe National
Forest Supervisor; CAL JOYNER, in his
official capacity as Regional Forester,
Southwestern Region, United States
Department of Agriculture; SONNY
PERDUE, in his official capacity as
Secretary of the United States Department
of Agriculture,
Respondents - Appellees.*
_________________________________
ORDER AND JUDGMENT**
_________________________________
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, James Melonas is substituted for Maria T. Garcia and Sonny Perdue is
substituted for Tom Vilsack as respondents in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
_________________________________
This appeal concerns a second action brought by Petitioner-Appellant New
Mexico Off-Highway Alliance (“Alliance”) against the United States Forest Service
and others regarding the Forest Service’s Record of Decision for Travel Management
on the Santa Fe National Forest (“ROD”) and related Final Environmental Impact
Statement (“FEIS”). In 2016 we resolved the Alliance’s first petition seeking to
challenge these Forest Service actions by finding that the organization had failed to
establish Article III standing to challenge them and that we and the district court
therefore lacked subject matter jurisdiction over the suit. In this second action, the
Alliance again seeks to challenge the ROD and FEIS, but has now presented
additional facts, which were available to it in its first action, that it contends remedy
the standing deficiencies we previously found. The district court dismissed this
action for lack of subject matter jurisdiction, finding that issue preclusion prevented
the Alliance from relitigating the previously decided standing issue. The Alliance
appeals, arguing that issue preclusion only bars relitigation of jurisdictional issues if
the previously adjudicated jurisdictional defect has not or cannot be cured. The
district court properly found that this is not the law in this circuit. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and affirm.
BACKGROUND
The Alliance filed its first petition challenging the ROD and FEIS in
December 2012 [hereinafter “2012 action”]. Aplt. App. at 130; see N.M.
Off-Highway Vehicle All. v. U.S. Forest Serv., No. 1:12-cv-1272 WJ-GBW,
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2014 WL 6663755 (D.N.M. July 25, 2014) (“NMOHVA I”), vacated,
645 F. App’x 795 (10th Cir. 2016). To establish Article III standing before the
district court in the 2012 action, the Alliance submitted a sworn declaration by Mark
R. Werkmeister, one of its board members, in which he asserted the ROD and FEIS
adversely affected him and other Alliance members by constraining their present and
future use of the Santa Fe National Forest. Aplt. App. at 6-8; see N.M. Off-Highway
Vehicle All. v. U.S. Forest Serv., 645 F. App’x 795, 801 (10th Cir. 2016)
(“NMOHVA II”). The district court found this declaration was too vague to establish
a concrete and particularized injury that was actual or imminent as required, but
nonetheless found the Alliance had demonstrated standing “by the slimmest of
margins” based on the administrative record and representations made at a hearing.
NMOHVA I, 2014 WL 6663755, at *3-4. The district court then proceeded to
consider the Alliance’s claims, and denied them on the merits. Id. at *14.
The Alliance appealed the district court’s decision. After a thorough
examination of the record, we determined that we and the district court lacked
jurisdiction to decide the merits of the case because the Alliance had not, in fact,
carried its burden to establish Article III standing. NMOHVA II, 645 F. App’x
at 800, 806. We therefore remanded the case to the district court with instructions to
vacate its judgment and dismiss the 2012 action without prejudice for lack of subject
matter jurisdiction. Id. at 807.
After the district court complied with our direction, the Alliance filed this
second action seeking to challenge the ROD and FEIS, this time providing an
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expanded standing declaration by Mr. Werkmeister and a new standing declaration
by another Alliance member. Aplt. App. at 31-47. The Alliance argued to the
district court that these declarations remedied the standing deficiencies identified in
NMOHVA II and thus demonstrated its standing and the court’s subject matter
jurisdiction over the suit. The district court dismissed the Alliance’s second petition
upon finding that the additional information provided in the declarations had been
available to the Alliance in its previous action, and that the doctrine of issue
preclusion prevented the organization from relitigating the standing issue based on
previously available facts. Aplt. App. at 129-34. This appeal followed.
DISCUSSION
Where there are no disputed facts, as is the case here, the preclusive effect of a
prior judgment or determination is a pure question of law we review de novo. Lenox
MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1230 (10th Cir. 2017);
Valley View Angus Ranch, Inc. v. Duke Energy Field Servs., Inc., 497 F.3d 1096,
1100 (10th Cir. 2007).
The law relevant to the issues on appeal is well settled in this and other courts.
Under Article III of the Constitution, standing is a prerequisite to federal court
jurisdiction to hear and decide a case. See Warth v. Seldin, 422 U.S. 490, 498 (1975);
Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir. 2011). Standing and
other such threshold jurisdictional issues are subject to the doctrine of issue
preclusion. Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 378 F.3d 1132,
1136 (10th Cir. 2004); Nat’l Ass’n of Home Builders v. EPA, 786 F.3d 34, 41
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(D.C. Cir. 2015) (“Home Builders II”). “[I]ssue preclusion bars a party from
relitigating an issue once it has suffered an adverse determination on the issue, even
if the issue arises when the party is pursuing or defending against a different claim.”
Park Lake, 378 F.3d at 1136; see Taylor v. Sturgell, 553 U.S. 880, 892 (2008). This
bar is part of the res judicata doctrine and as such “protects against ‘the expense and
vexation attending multiple lawsuits, conserves judicial resources, and fosters
reliance on judicial action by minimizing the possibility of inconsistent decisions.’”
Park Lake, 378 F.3d at 1135 (quoting Montana v. United States, 440 U.S. 147,
153-54 (1979)).
Issue preclusion ordinarily applies when:
(1) the issue previously decided is identical with the one presented in
the action in question, (2) the prior action has been finally adjudicated
on the merits, (3) the party against whom the doctrine is invoked was a
party, or in privity with a party, to the prior adjudication, and (4) the
party against whom the doctrine is raised had a full and fair opportunity
to litigate the issue in the prior action.
Id. at 1136 (quoting Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000)).
The second element, final adjudication on the merits, is not a prerequisite to
preclusion of issues determined in ruling on a jurisdictional question, however. Id.The Alliance does not dispute that it had a full and fair opportunity to litigate
Article III standing in the 2012 action and that it was a party to that action. It asserts
that issue preclusion nonetheless does not apply here because the standing issue
decided in the 2012 action is not identical to the issue as presented in this action.
Specifically, the Alliance contends that the additional information it provided in its
new and expanded standing declarations has “cured” the standing deficiencies
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identified in the 2012 action and that this distinguishes the standing issue presented
here from that decided in its 2012 action.
This argument is grounded in the “curable-defect exception” to jurisdictional
issue preclusion, in which we and other courts have recognized that in some
circumstances “‘suit may be brought again where a jurisdictional defect has been
cured or loses its controlling force.’” Park Lake, 378 F.3d at 1137 (quoting Eaton v.
Weaver Mfg. Co., 582 F.2d 1250, 1256 (10th Cir. 1978)). As we stated in our
decision in Park Lake, however, “the change in circumstances that cures the
jurisdictional defect must occur subsequent to the prior litigation.” Id. (emphasis
added); see Home Builders II, 786 F.3d at 41 (curable-defect exception is “sharply
limited” because it applies “only if a material change following dismissal cured the
original jurisdictional deficiency”). This limit on the curable-defect exception
follows from the rule that issue preclusion “generally is appropriate if both the first
and second action involve application of the same principles of law to a historic fact
setting that was complete by the time of the first adjudication.” 18 Charles Alan
Wright et al., Federal Practice and Procedure § 4425 at 696 (3d ed. 2016) (statement
quoted with approval in Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1425
(10th Cir. 1993)).
The district court found, and the Alliance does not dispute, that all of the
additional facts included in its new and expanded standing declarations were
available to the Alliance prior to dismissal of the 2012 action. Aplt. App. at 133-34.
Presenting these previously available facts in new sworn declarations does not
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constitute a “change in circumstances” that will avoid the preclusive effect of a
jurisdictional determination in an earlier action. Perry v. Sheahan, 222 F.3d 309, 318
(7th Cir. 2000); see Home Builders II, 786 F.3d at 43. As a result, the standing issue
before us is substantively the same as that raised and decided in the 2012 action and
cannot be relitigated. See Park Lake, 378 F.3d at 1137-38; Perry, 222 F.3d at 318.
We are not persuaded by the Alliance’s argument that the limit Park Lake
placed on the right to cure a jurisdictional defect applies only when the previous
action was dismissed for lack of ripeness. While it is true that ripeness was the
jurisdictional defect at issue in Park Lake, our discussion of the curable-defect
exception in Park Lake speaks to jurisdictional defects generally and is supported by
citations to authority that applied the limited exception to prior jurisdictional
determinations that did not involve ripeness. See Park Lake, 378 F.3d at 1137-38
(citing with approval Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 & n.4
(D.C. Cir. 1983) (Scalia, J.) (curable-defect exception does not allow reliance on
preexisting facts to avoid preclusive effect of determination that diversity jurisdiction
was lacking) and Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396,
1401 (7th Cir. 1987) (same with respect to prior determination that subject matter
jurisdiction was lacking under the Foreign Sovereign Immunities Act)). Contrary to
the Alliance’s assertion, this limited reading of the curable-defect exception was
material to our holding in Park Lake. See, e.g., id. at 1137 (rejecting new ripeness
theory because it was “not based on any facts postdating the prior litigation”). Other
authorities have also affirmed the preclusive effect of prior lack-of-standing
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determinations when the plaintiff only offers facts that were available before
dismissal of the first action. See, e.g., Home Builders II, 786 F.3d at 41-43; Perry,
222 F.3d at 318; In re V&M Mgmt., Inc., 321 F.3d 6, 9 (1st Cir. 2003). Finally, we
note that this rule, that prior standing and other jurisdictional determinations cannot
be overcome absent presentation of material post-litigation facts, is consistent with
the principles underlying issue preclusion, because it avoids the expense, vexation
and inefficiency of “‘allow[ing] a plaintiff to begin the same suit over and over again
in the same court, each time alleging additional facts that the plaintiff was aware of
from the beginning of the suit, until it finally satisfies the jurisdictional
requirements.’” Park Lake, 378 F.3d at 1138 (quoting Magnus Elecs., 830 F.2d
at 1401).
The Alliance also argues the district court erred in finding that our standing
determination in NMOHVA II barred it from demonstrating standing in the present
action because we directed there that dismissal of the 2012 action be “without
prejudice.” 645 F. App’x at 807. This direction, however, refers to the plaintiff’s
ability to assert its substantive causes of action in a court of competent jurisdiction
and does not limit the preclusive effect of prior jurisdictional determinations. See
Dozier, 702 F.2d at 1194 (usual meaning of “without prejudice” is without prejudice
as to the substantive cause of action but with prejudice on issues litigated in prior
action) (quoting In re Kauffman Mut. Fund Actions, 479 F.2d 257, 267 (1st Cir.
1973)). Dismissals for lack of jurisdiction “should be without prejudice because the
court, having determined that it lacks jurisdiction over the action, is incapable of
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reaching a disposition on the merits of the underlying claims.” Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (emphasis in original). Dismissal
on standing or other jurisdictional grounds, even though without prejudice as to the
merits of the plaintiff’s claims, will have a preclusive effect on these same
jurisdictional issues if they arise in a future action. Id. at 1218-19. There is no
inconsistency, therefore, in our direction in NMOHVA II that the Alliance’s
2012 action be dismissed without prejudice and the district court’s and our
determination here that this prior dismissal for lack of standing precludes the
Alliance from relitigating standing in the present action.
We have considered the Alliance’s other arguments challenging dismissal of
this action and find them to be meritless. Most of the case law cited in support of
these arguments pre-dates our refinement of the curable-defect exception in Park
Lake or is distinguishable because it concerns claim preclusion rather than issue
preclusion. See Park Lake, 378 F.3d at 1135-36 (distinguishing between claim and
issue preclusion).
CONCLUSION
For the reasons stated above, the district court’s dismissal of this action is
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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