New Mexico Off-Highway Vehicle Alliance v. United States Forest Service

FILED
United States Court of Appeals
Tenth Circuit
April 27, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
THE NEW MEXICO OFF-HIGHWAY
VEHICLE ALLIANCE, a New Mexico
nonprofit corporation,
Petitioner - Appellant,
v. No. 14-2135
(D.C. No. 1:12-CV-01272-WJ-GBW)
UNITED STATES FOREST (D.N.M.)
SERVICE, an agency of the United
States Department of Agriculture;
THOMAS TIDWELL, in his official
capacity as Chief of the United States
Forest Service; MARIA T. GARCIA,
in her official capacity as Santa Fe
National Forest Supervisor; GILBERT
ZEPEDA, in his official capacity as
Southwestern Region Deputy Regional
Forester; UNITED STATES
DEPARTMENT OF AGRICULTURE;
TOM VILSACK, in his official
capacity as Secretary of the United
States Department of Agriculture,
Respondents - Appellees.
________________
CENTER FOR BIOLOGICAL
DIVERSITY, INC.; WILDEARTH
GUARDIANS; SIERRA CLUB,
Respondents - Intervenors.
ORDER AND JUDGMENT *
*
This Order and Judgment is not binding precedent, except under the
(continued...)
Before KELLY, HOLMES, and McHUGH, Circuit Judges.
Until 2012, the Santa Fe National Forest was generally open to motorized
use. However, recognizing the detrimental impact of motor vehicles on national
parks and forests, the United States Forest Service (“Forest Service”) adopted a
nationwide rule requiring that only specific roads and trails on national forest
land be designated for motorized use in accordance with various environmental
and recreational criteria. The Forest Service then began the designation process
for the Santa Fe National Forest, and, pursuant to the National Environmental
Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–47, it published an
Environmental Impact Statement (“EIS”) detailing the environmental effects of
various alternative route systems it was considering. Ultimately, the Forest
Service selected an alternative that significantly reduced the routes available for
motorized use.
The New Mexico Off-Highway Vehicle Alliance (“NMOHVA”) petitioned
for review of the agency’s decision, alleging that the EIS failed to comply with
NEPA in various ways. The district court upheld the agency’s action, finding that
*
(...continued)
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
2
it was not arbitrary or capricious. NMOHVA now appeals. Exercising
jurisdiction under 28 U.S.C. § 1291, we conclude that NMOHVA failed to
establish standing. Consequently, we dismiss this appeal and remand the case to
the district court with instructions to vacate its judgment and dismiss the case
without prejudice for lack of subject-matter jurisdiction.
I
A
The Santa Fe National Forest, located in northern New Mexico,
encompasses over 1.5 million acres of land. Prior to 2012, fifty-three percent of
the forest’s total area remained presumptively open for motorized use. This
meant that people could “drive where they like[d] as long as no sign or closure
order post[ed] [the route] closed.” Aplt.’s App. at 90 (Final Envtl. Impact
Statement, prepared June 2012). Under this “open-use” regime, many visitors
created their own routes on the forest “by driving repeatedly in the same tracks.”
Id. at 162. Additionally, some roads maintained by the Forest Service, but
officially closed to motorized use, were nonetheless being driven on.
In 2005, the Forest Service promulgated a nationwide Travel Management
Rule (“TMR”) to address the growing impact of unmanaged motor vehicle use on
forest land. See Travel Management; Designated Routes and Areas for Motor
Vehicle Use, 70 Fed. Reg. 68,264 (Nov. 9, 2005) (codified at 36 C.F.R. §§
212.50–212.57). The TMR requires the designation of specific routes for
3
motorized use, and prohibits driving on roads and trails not listed on maps
published by the agency. See 36 C.F.R. § 261.13. In choosing which routes
remain open, the Forest Service must consider, inter alia, the “effects on . . .
natural and cultural resources, public safety, provision of recreational
opportunities, access needs, [and] conflicts among uses.” Id. § 212.55(a). More
specifically, the agency is directed to:
consider effects on the following, with the objective of
minimizing:
(1) Damage to soil, watershed, vegetation, and other forest
resources;
(2) Harassment of wildlife and significant disruption of wildlife
habitats;
(3) Conflicts between motor vehicle use and existing or proposed
recreational uses of National Forest System lands or neighboring
Federal lands; and
(4) Conflicts among different classes of motor vehicle uses of
National Forest System lands or neighboring Federal lands. . . .
Id. § 212.55(b).
B
In accordance with the nationwide TMR, the Forest Service began the
process of developing a travel plan for the Santa Fe National Forest in 2006. As
part of this project, under NEPA, the agency was required to issue an EIS
providing “a detailed statement” of “the environmental impact of the proposed
action” and “alternatives to the proposed action.” 42 U.S.C. § 4332(C); see id.
4(requiring an EIS for “major Federal actions significantly affecting the quality of
the human environment”); see also 36 C.F.R. § 212.52(a) (requiring that
opportunities for public comment on proposed designations be given “consistent
with agency procedures under the National Environmental Policy Act”). The EIS
would compare the potential courses of action being considered by the Forest
Service against “the alternative of no action,” 40 C.F.R. § 1502.14(d), which
would reflect “‘no change’ from [the] current management direction or level of
management intensity,” Forty Most Asked Questions Concerning CEQ’s National
Environmental Policy Act Regulations, 46 Fed. Reg. 18,026, 18,027 (Mar. 23,
1981) (codified at 40 C.F.R. §§ 1500–08); 1 see also 40 C.F.R. § 1502.14 (stating
that the agency “should present the environmental impacts of the proposal and the
alternatives in comparative form, thus sharply defining the issues and providing a
clear basis for choice”).
To comply with its NEPA obligations, the Forest Service published a final
EIS for the Santa Fe National Forest designation process in June 2012. The
agency defined the purpose of the project as (1) compliance with the TMR, and
(2) a reduction in the “detrimental effects to natural and cultural resources from
unmanaged motorized use and the existence of roads and motorized trails.”
1
We consider the Forty Most Asked Questions to be persuasive
authority on “the meaning of NEPA and the implementing regulations.” New
Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 705 n.25 (10th
Cir. 2009).
5
Aplt.’s App. at 83. In constructing the “no-action alternative,” the agency found
that its database of available routes in the forest was inadequate because, under
the open-use regime, it had not kept a detailed record of roads and trails. For
example, while it attempted to conduct an inventory using aerial photographs in
1992, this process proved over-inclusive: “fence lines and other features that
appeared to be roads” were counted as roads, and no follow-up verification was
conducted. Aplee.’s Suppl. App. at 36 (Travel Analysis Process Report, prepared
June 2008). At one point, the Service estimated that “between 10 percent and 20
percent of the roads in [its] database [did] not exist.” Id. at 39. Further, the
“unauthorized” 2 routes that visitors to the forest had created were “not tallied in
the forest’s database,” and the Service did not “have an inventory of all the
unauthorized roads in the forest.” Aplt.’s App. at 162.
Thus, the agency concluded that its existing data did not “capture hundreds
of existing roads and trails,” Intervenors-Aplees.’ Suppl. App. at 48 (Defining the
Existing Condition: Should it be reality-based or INFRA-based?), and included
routes that no longer existed on the ground. To remedy this problem, the Forest
Service decided to pursue a “reality-based,” id., estimate of where motorized use
2
The term “unauthorized” is drawn from the TMR, see, e.g., Aplt.’s
App. at 424, and is used throughout the EIS to describe user-created routes.
Generally speaking, these routes are not illegal; indeed, many have been created
by motorized users in areas where driving off-road is allowed. We use the terms
“unauthorized” and “user-created” interchangeably throughout this order and
judgment.
6
was actually occurring under the status quo regime, based on preexisting data,
field visits, sampling and statistical calculations, and input from motorized
vehicle users. The agency ultimately defined the no-action alternative as “the
forest’s best estimate of where people drive now, which reflects the current
management and present course of action.” Aplt.’s App. at 97. In a table, it
provided both the “total miles” of routes where driving was technically allowed
under the open-use policy and its calculation of the “miles being driven on.” Id.
(capitalization altered). These two figures—7,832 miles and 5,626 miles,
respectively—were also presented in Appendix 2 of the EIS, which compared the
miles of available routes under each of the various alternatives considered.
The Forest Service then engaged in a detailed comparison of five
alternative route systems, each of which highlighted a different regulatory goal.
For example, Alternative 3 emphasized resource protection, Alternative 4
prioritized motorized access, and Alternative 5 focused on reducing conflicts
between motorized and non-motorized users. Alternative 2M, a version of
Alternative 2 that was modified to reflect public comments, represented the
agency’s “preferred alternative.” Id. at 106. The EIS also discussed eighteen
other alternatives that the agency dismissed without detailed consideration
because they did not achieve the purpose of the project.
Based on the analysis contained in the EIS, the Forest Service issued a
Record of Decision (“ROD”) selecting Alternative 2M, which limited the use of
7
motor vehicles to 2,255 miles of roads, 208 miles of trails, and 41 acres for cross-
country travel. However, seventy miles of these roads—mainly “unauthorized
and closed forest system routes”—were not designated on the first motor vehicle
use map issued by the agency because they crossed the habitat of the Jemez
Mountains Salamander (“salamander”), a threatened species. Aplt.’s App. at 358
(Final Envtl. Impact Statement, prepared June 2012). The Forest Service stated
that it planned to conduct site-specific surveys to mitigate the impacts of these
roads on the salamander. If the adverse effects to the species or its habitat
created by a particular route could not be avoided, however, the route would not
be designated.
C
NMOHVA “is a statewide nonprofit alliance of motorized off-highway
vehicle enthusiasts and organizations” whose mission “is promoting, protecting
and preserving responsible off-highway recreation.” Aplt.’s Opening Br. at 4.
NMOHVA participated in the Santa Fe National Forest designation process,
suggesting various routes for inclusion, and submitting comments regarding the
Forest Service’s EIS analysis. After the Forest Service selected Alternative 2M,
NMOHVA pursued an unsuccessful administrative appeal of the agency’s
decision. In its petition, NMOHVA claimed that (1) the agency had failed to
include a true no-action alternative because the estimated-use calculation omitted
approximately two thousand miles of available routes, (2) the range of
8
alternatives analyzed in the EIS was too narrow, (3) the agency’s scientific
analysis was based on flawed or unsupported assumptions, and (4) the failure to
list a bulk of the trails in the salamander’s habitat was arbitrary.
After briefing from the parties and certain intervening environmental
groups (“Intervenors”), 3 and a hearing, the district court denied the petition,
concluding that the agency’s EIS analysis was not arbitrary and capricious. This
appeal followed.
II
On appeal, NMOHVA challenges four aspects of the Forest Service’s EIS:
(1) its construction of an estimated-use no-action alternative; (2) the range of
alternatives it considered; (3) its scientific analysis of the environmental impacts
of the various alternatives; and (4) its decision to withhold designation of routes
crossing the salamander’s habitat. At the outset, however, we must address the
Intervenors’ argument that NMOHVA lacks standing—and therefore that we lack
jurisdiction. See W. Energy All. v. Salazar, 709 F.3d 1040, 1046 (10th Cir. 2013)
(“[J]urisdiction is a threshold question which an appellate court must resolve
before addressing the merits of the matter before it.” (alteration in original)
(quoting Timpanogos Tribe v. Conway, 286 F.3d 1195, 1201 (10th Cir. 2002))).
3
In a previous appeal in this case, we concluded that the Center for
Biological Diversity, WildEarth Guardians, and the Sierra Club had a right to
intervene under Federal Rule of Civil Procedure 24(a)(2). N.M. Off-Highway
Vehicle All. v. U.S. Forest Serv., 540 F. App’x 877, 882 (10th Cir. 2013).
9
Our standing inquiry proves dispositive: we conclude that NMOHVA does not
have standing; accordingly, we dismiss this appeal and remand the case to the
district court with instructions to vacate its judgment and to dismiss NMOHVA’s
action without prejudice for lack of jurisdiction.
A
The Intervenors allege that “NMOHVA has not proven that it has standing
to pursue this litigation.” Intervenors’ Br. at 13. The district court found that
NMOHVA’s standing affidavit was too vague to establish a concrete injury, but
nevertheless concluded that NMOHVA had demonstrated standing “by the
slimmest of margins” based on the administrative record and representations made
at a hearing. Aplt.’s App. at 33 (Mem. Op. & Order Den. Pet. for Review of
Agency Action, filed July 25, 2014). Our review of the district court’s standing
determination is de novo. See S. Utah Wilderness All. v. Palma, 707 F.3d 1143,
1152 (10th Cir. 2013). “If the district court lacked jurisdiction, ‘we have
jurisdiction on appeal, not of the merits but merely for the purpose of correcting
the error of the lower court in entertaining the suit.’” Estate of Harshman v.
Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1163 (10th Cir. 2004)
(citations omitted). After carefully examining the extensive record, we are
constrained to conclude that the district erred in finding standing. Importantly, as
explicated below, NMOHVA had the burden to establish standing, and we
conclude that it failed to do so.
10
1
The jurisdiction of the federal courts is limited by Article III of the
Constitution to actual “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1.
“The doctrine of standing is one of several doctrines that reflect this fundamental
limitation.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); accord
Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 (10th Cir. 2008); see Ctr.
for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1156–57 (D.C. Cir. 2005)
(“We ascertain whether or not the matter before us is a ‘case’ or ‘controversy’ by
looking to whether, inter alia, the litigants have ‘standing.’” (citation omitted));
see also Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014) (“The standing doctrine
delineates the boundary between justiciable cases and controversies and those
disputes that are not appropriately resolved through judicial process.”). Under the
standing doctrine, we may only hear a case where a party can demonstrate that “it
has suffered a concrete and particularized injury that is either actual or imminent,
that the injury is fairly traceable to the defendant, and that it is likely that a
favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497,
517 (2007); accord Greenbaum v. Bailey, 781 F.3d 1240, 1243 (10th Cir. 2015).
Moreover, “[s]ince federal courts are courts of limited jurisdiction, we
presume no jurisdiction exists absent an adequate showing by the party invoking
federal jurisdiction.” Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013)
(quoting United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d
111156, 1160 (10th Cir. 1999)); see Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994) (“It is to be presumed that a cause lies outside [federal
courts’] limited jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” (citation omitted)). Here, since NMOHVA
sought federal court review of the Forest Service’s action, it was incumbent on it
to demonstrate the elements of standing: (1) injury in fact, (2) causation, and (3)
redressability. As an organization, NMOHVA has standing to sue on behalf of its
members “when its members would otherwise have standing to sue in their own
right, the interests at stake are germane to the organization’s purpose, and neither
the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 181 (2000).
2
To establish standing before the district court, NMOHVA submitted the
affidavit of Mark R. Werkmeister, a member of its board of directors. In this
brief affidavit, Mr. Werkmeister only stated that he “recreated on the Santa Fe
National Forest using [his] off-highway vehicle and . . . plan[ned] to return to the
National Forest . . . in the future.” Intervenors-Aplees.’ Suppl. App. at 7
(Standing Decl., filed Mar. 4, 2014). The district court correctly found that the
cursory averments in this affidavit were insufficient to establish a concrete and
particularized injury that was either actual or imminent.
12
Mr. Werkmeister’s affidavit is clearly deficient in two ways. First, “to
establish standing plaintiffs must show that they ‘use the area affected by the
challenged activity and not an area roughly in the vicinity of’” the activity.
Summers, 555 U.S. at 499 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 566
(1992)). Yet Mr. Werkmeister does not state that he has used, or intends to use,
any particular route affected by the designation process. See id. (concluding that
averments that an organization’s members “use[d] and enjoy[ed]” a forest without
identifying any “specific site[]” were insufficient). Given the immense size of the
forest (over 1.5 million acres), and the thousands of miles of routes available
under both the open-use regime and the selected Alternative 2M, it is possible
that Mr. Werkmeister’s “wanderings will bring him to a [route] . . . affected by
. . . the regulations,” id. at 495—but it is patent that NMOHVA has not
demonstrated that this outcome is imminent. While Mr. Werkmeister did not need
to allege that he has “traversed each bit of land that will be affected by” the
designation process, he did at least have to show that he has “visited a particular
site” affected by the Forest Service’s actions. S. Utah Wilderness All., 707 F.3d
at 1155, 1156 (emphasis added); cf. id. at 1156 (concluding that the affiant had
adequately demonstrated injury where he “specified areas which he has visited,
averred that these specific areas will be affected . . . , and stated his interests will
be harmed by such activity”).
13
Second, the affidavit only states a vague plan to visit the forest “in the
future.” Intervenors-Aplees.’ Suppl. App. at 7. But such “‘some day’
intentions—without any description of concrete plans, or indeed even any
specification of when the some day will be—do not support a finding of . . .
‘actual or imminent’ injury.” Defs. of Wildlife, 504 U.S. at 564; accord Colo.
Outfitters Ass’n v. Hickenlooper, --- F.3d ----, Nos. 14–1290, 14–1292, 2016 WL
1105363, at *9 (10th Cir. Mar. 22, 2016); see, e.g., Summers, 555 U.S. at 496(concluding that an affidavit fails to establish an imminent injury where “[i]t does
not assert[] . . . any firm intention to visit [an affected] location[]”); Tandy v. City
of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004) (stating that “a concrete, present
plan to use” the affected facilities was sufficient to state an injury in fact); cf.
WildEarth Guardians v. EPA, 759 F.3d 1196, 1206 (10th Cir. 2014) (concluding
that an affiant’s plans were sufficiently concrete where he “intend[ed]” to return
to the affected river “in June and July of this summer” (citation omitted)). Thus,
the district court correctly concluded that Mr. Werkmeister’s affidavit was
insufficient to establish standing.
To be sure, in an attempt to rectify the failings of its original standing
affidavit, NMOHVA submitted a supplemental standing affidavit with its opening
appellate brief. This affidavit, however, was not presented to the district court;
consequently, we will not consider it. United States v. Kennedy, 225 F.3d 1187,
1191 (10th Cir. 2000) (“This court will not consider material outside the record
14
before the district court.”). Standing must be present “at the outset of the
litigation” in the district court, Friends of the Earth, 528 U.S. at 180; see Mink v.
Suthers, 482 F.3d 1244, 1253–54 (10th Cir. 2007) (“But standing is determined at
the time the action is brought, and we generally look to when the complaint was
first filed, not to subsequent events.” (citation omitted)). And, if plaintiffs have
not been successful in demonstrating standing “at the time [the district court
enters] judgment,” they cannot “remedy the defect retroactively.” Summers, 555
U.S. at 495 n.* (declining to consider post-judgment standing affidavits submitted
to the district court); see Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240
(D.C. Cir. 2015) (“In determining whether the companies have standing, the court
may not consider on appeal supplemental declarations filed after entry of the
judgment appealed.”).
3
The district court ultimately found that NMOHVA had standing based on
“representations made during [a] hearing” regarding its submission of specific
routes for designation. Aplt.’s App. at 32. The court also determined that
“NMOHVA . . . presented in the administrative record a pattern of use sufficient
to meet the imminence requirement for standing.” Id. at 33. But precisely what
representations the district court found persuasive, and which parts of the
administrative record it believed established a “pattern of use,” id. at 33, is not
immediately apparent to us: the district court’s order does not provide any
15
specifics, and, importantly, NMOHVA has neither provided us a transcript of the
hearing before the district court, nor directed us to any document in the record
establishing a concrete and particularized injury.
a
As we have already indicated, since NMOHVA seeks to invoke our
jurisdiction, it “bears the burden of proof” on the issue of standing. Loving v.
Boren, 133 F.3d 771, 772 (10th Cir. 1998). By providing us a lengthy
administrative record without any indication of where we might look to identify a
concrete injury to NMOHVA, it has not carried its burden; NMOHVA has, in
effect, asked us to shoulder its responsibility. Yet it is emphatically “not this
court’s duty to scour without guidance a voluminous record for evidence
supporting [a litigant’s] theory.” United States v. Lewis, 594 F.3d 1270, 1275
(10th Cir. 2010); see Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1232 (10th
Cir. 2003) (“We need not sift through the record to find [evidence to support a
party’s argument] . . . .” (alteration in original) (quoting Sil-Flo, Inc. v. SFHC,
Inc., 917 F.2d 1507, 1513 (10th Cir. 1990))); see also Gross v. Town of Cicero,
619 F.3d 697, 702 (7th Cir. 2010) (“Judges are not like pigs, hunting for truffles
buried in [the record].” (alteration in original) (quoting United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (per curiam))). Simply put, “reading a record
should not be like a game of Where’s Waldo? And it is within our power as a
16
court to refuse to consider an argument in these circumstances.” Aquila, Inc. v.
C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. 2008) (citation omitted). 4
There are good institutional and practical reasons for our reluctance to
wade through reams of record documents without any guidance from the parties.
First, under our adversarial system of justice, we “rely on lawyers to identify the
pertinent facts and law.” In re Cont’l Cas. Co., 29 F.3d 292, 295 (7th Cir. 1994);
see Niemi v. Lasshofer, 728 F.3d 1252, 1259 (10th Cir. 2013) (“In our adversarial
system we don’t usually go looking for trouble but rely instead on the parties to
identify the issues we must decide.”). We do not act as advocates for parties, and
we will not typically search out the facts necessary to support a litigant’s
position. See Ford v. West, 222 F.3d 767, 777 (10th Cir. 2000) (“[W]e ‘are wary
of becoming advocates who comb the record . . . and make a party’s case for it.’”
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998)));
accord Eateries, 346 F.3d at 1232.
Moreover, we have limited resources, and can ill afford to go on a treasure
hunt in the record without doing a disservice to other litigants. See DiCarlo v.
Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000) (admonishing counsel for
“wasting th[e] Court’s limited resources” by submitting briefs without “even
rudimentary citations to the record”); see also In re McDonald, 489 U.S. 180, 184
4
In fact, the Federal Rules of Appellate Procedure and this court’s
local rules require litigants to direct us to relevant parts of the record in their
appellate briefs. See Fed. R. App. P. 28(a)(8)(A); 10th Cir. R. 28.2(C).
17
(1989) (per curiam) (“Every paper filed with the Clerk of this Court[] . . . requires
some portion of the institution’s limited resources.”). We are thus dismayed by
NMOHVA’s complete failure to provide us with any record citations to support
its standing. 5
b
At this juncture in the litigation, a conclusion that NMOHVA lacks
standing would certainly be regrettable. The able district court judge and the
parties have expended considerable resources addressing the merits of this
dispute. Therefore, notwithstanding NMOHVA’s dereliction, we have scoured
the extensive administrative record in this case, attempting to discern whether
NMOHVA has suffered a sufficiently concrete and particularized injury to
establish its standing. Despite devoting considerable time to this endeavor, we
have come up short. We must conclude that NMOHVA’s standing has not been
5
We also echo the district court’s frustration that the Forest Service
was “not prepared and thus took no position on whether NMOHVA has standing
[to] bring this suit. While the [government] may have unlimited resources to
expend litigating a case . . . when there is potentially no subject matter
jurisdiction, the Court does not have such resources.” Aplt.’s App. at 33. Indeed,
given that the district court chastised the parties for their failure to adequately
address standing, and that the Intervenors raised standing in their appellate brief,
we are troubled that neither the Forest Service nor NMOHVA was better prepared
to address standing on appeal. At oral argument, counsel for the Forest Service
appeared to confuse the two affidavits submitted by NMOHVA—the one prior to
the district court’s judgment and the supplemental one that NMOHVA attached to
its appellate brief—while counsel for NMOHVA directed us to its reply brief,
which only references the supplemental affidavit that we have already rejected as
not properly part of the record we can consider.
18
demonstrated. If there is in fact a standing needle buried in the haystack of this
record, the blame for our failure to find it rests squarely at the feet of NMOHVA.
Federal courts scrupulously guard the boundaries of their jurisdiction; they
are duty-bound not to permit a standing determination to rest on speculation or
conjecture. See, e.g., Summers, 555 U.S. at 499 (stating that, in determining
standing, “speculation does not suffice”); Wyoming v. U.S. Dep’t of Interior, 674
F.3d 1220, 1233–34 (10th Cir. 2012) (“The petitioners have failed to meet their
burden of showing an injury in fact. Record facts consisting of conclusory
statements and speculative economic data are insufficient to lead us to any other
conclusion. Accordingly, we hold Petitioners lack standing to bring this civil
action.”); Tandy, 380 F.3d at 1283–84 (“A claimed injury that is contingent upon
speculation or conjecture is beyond the bounds of a federal court’s jurisdiction.”);
see also Nova Health Sys. v. Gandy, 416 F.3d 1149, 1157 (10th Cir. 2005) (“The
plaintiff’s burden of demonstrating causation is not satisfied when ‘[s]peculative
inferences are necessary to connect [its] injury to the challenged actions.’”
(alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S.
26, 45–46 (1976))).
In our laborious search, we did discover a piece of evidence that, at first
blush, offered some hope of providing a solid foundation for NMOHVA’s
standing, but ultimately we have concluded that it cannot bear the jurisdictional
weight. Specifically, we focused on a brief passage in the EIS in which the
19
Forest Service explained why it chose not to analyze an alternative request
submitted by the “Blackfeather Trail Preservation Alliance [“Blackfeather”], a
subgroup of” NMOHVA. Aplt.’s App. at 132. NMOHVA could have standing
based on Blackfeather—a NMOHVA member that is itself an organization—if
Blackfeather’s members were injured as a result of the designation process. See
N.Y. State Club Ass’n, Inc. v. City of N.Y., 487 U.S. 1, 9–10 (1988) (stating, in a
case involving a consortium of various clubs, that the consortium would have
standing if the “member associations would have standing to bring . . . suit on
behalf of their own individual members”).
Blackfeather requested in this EIS passage “a large network of single-track
trails and tr[ai]ls riding areas, mainly in the Jemez Mountains.” Aplt.’s App. at
132. The Forest Service’s somewhat laconic response suggested that, although it
included some of Blackfeather’s requested trails in what ultimately became the
preferred alternative (i.e., 2A), it also designated many of them for alternatives
that were not selected, “especially in alternative 4.” Id. at 133. This suggests the
possibility that Blackfeather was injured by the designation process because the
Forest Service apparently did not include some of its requested trails in the
preferred alternative.
However, even if we could be confident—which is a hard state of mind to
achieve without any argument or other guidance from NMOHVA—that our
interpretation of this brief passage is correct, see, e.g., FW/PBS, Inc. v. City of
20
Dall., 493 U.S. 215, 231 (1990) (“[S]tanding . . . ‘must affirmatively appear in the
record.’” (emphasis added) (citation omitted)), the passage is problematic and
ultimately insufficient as proof of standing. It does not indicate with any
specificity which of Blackfeather’s requested trails may have been omitted from
the preferred alternative. And, even if this information could somehow be
gleaned from the record, there is a more fundamental problem, which is
dispositive: the passage offers no indication of whether Blackfeather’s members
regularly use, and have concrete plans to return to, the requested trails.
This evidentiary deficiency as to the use and planned use of the affected
area, viewed alone, renders the EIS passage insufficient to establish NMOHVA’s
standing through Blackfeather, just as this type of defect doomed NMOHVA’s
attempt to establish standing in the district court through the averments of Mr.
Werkmeister’s affidavit. See, e.g., Summers, 555 U.S. at 496 (concluding that an
affidavit fails to establish an imminent injury where “[i]t does not assert[] . . . any
firm intention to visit [an affected] location[]”); Colo. Outfitters Ass’n, 2016 WL
1105363, at *7 (in holding that plaintiffs had not established standing,
commenting that “we see no evidence indicating they had even a general intent to
engage in conduct that might violate [the state statute at issue], let alone any
specific plans to do so”); Tandy, 380 F.3d at 1284 (stating that “a concrete,
present plan to use” the affected facilities was sufficient to state an injury in
fact); see also Friends of the Earth, 528 U.S. at 183 (“We have held that
21
environmental plaintiffs adequately allege injury in fact when they aver that they
use the affected area and are persons ‘for whom the . . . recreational values of the
area will be lessened’ by the challenged activity.” (quoting Sierra Club v. Morton,
405 U.S. 727, 735 (1972))). In other words, this evidence does not demonstrate
that Blackfeather’s members have “a ‘direct stake in the outcome’” of the present
dispute, S. Utah Wilderness All., 707 F.3d at 1155 (quoting Comm. to Save the
Rio Hondo v. Lucero, 102 F.3d 445, 451 (10th Cir. 1996)). And, therefore,
NMOHVA cannot establish standing through Blackfeather. Thus, in our view,
what is perhaps the most promising piece of evidence that we unearthed in the
record for establishing NMOHVA’s requisite injury is insufficient; it will not take
NMOHVA across the jurisdictional finish line. 6
6
The EIS passage containing Blackfeather’s site request was one of a
few documents meriting further study—all of them proved insufficient to
establish standing. Our review underscores why courts are loath to play
detective, hunting down clues in the nooks and crannies of the administrative
record. At best, those documents worthy of further study were plagued by similar
problems as the Blackfeather EIS passage. For example, in a document titled
“Report on Site Specific Suggestions,” which summarizes comments received by
the Forest Service regarding the designation of various trails, Mr. Werkmeister
unsuccessfully requested that the “routes in the Cuba District like the Smokey
Bear Hill loops” be designated for motorized use. Aplee.’s Suppl. App. at 246
(Report on Site Specific Suggestions). He noted that NMOHVA members are
“frequent visitors to the area in [their] vehicles and hope to continue this
important tradition for many years to come.” Id. The Forest Service excluded
this area from the alternatives, noting that Mr. Werkmeister’s “suggestion is
vague, [and that] also concerns with wildlife issues exist in this area.” Id. While
Mr. Werkmeister’s comment does endeavor to identify (albeit vaguely) particular
routes used by NMOHVA members that were excluded from motorized use, it
suffers from similar deficiencies as the passage containing the Blackfeather site
(continued...)
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c
In sum, we are constrained to conclude that NMOHVA lacked standing and,
consequently, the district court did not have subject-matter jurisdiction to rule on
the merits of this case. Our precedent charts the path forward. We are
constrained to dismiss this appeal and remand the case to the district court with
instructions to vacate its judgment and dismiss NMOHVA’s lawsuit without
prejudice. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1102 (10th Cir. 2007)
(“[W]e hold that plaintiffs lack standing to bring claims against Swensen based
upon the purported unconstitutionality of Utah’s criminal prohibition of
polygamy. We therefore VACATE the district court’s judgment in favor of
Swensen on the merits of these criminal-prohibition claims and REMAND the
case for entry of an order dismissing these claims for lack of subject matter
jurisdiction.”); Estate of Harshman, 379 F.3d at 1168 (“The only function left to
us is to announce the fact that the district court lacked jurisdiction to grant
6
(...continued)
request. Specifically, it expresses only a vague desire that members “hope” to
return “for many years to come.” Id. Absent concrete plans to return to the
affected trails, this comment is inadequate to meet the injury-in-fact requirement.
See Summers, 555 U.S. at 496 (concluding allegations of injury insufficient where
the affiant only expressed a “vague desire to return” to the affected area); Defs. of
Wildlife, 504 U.S. at 564 n.2 (noting that an intent to return “at some indefinite
future time” is insufficient for purposes of standing); see also Colo. Outfitters
Ass’n, 2016 WL 1105363, at *9 (“Such ‘some day’ speculations are insufficient to
establish an injury-in-fact for purposes of Article III standing.” (quoting Defs. of
Wildlife, 504 U.S. at 564)).
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summary judgment for Jackson Hole. Accordingly, we VACATE the district
court’s grant of summary judgment for Jackson Hole, and DISMISS this
appeal.”); Utah v. Babbitt, 137 F.3d 1193, 1197 (10th Cir. 1998) (“Because we
conclude that Plaintiffs lack standing to challenge the inventory, we vacate the
preliminary injunction and remand with instructions to dismiss the seven causes
of action directly related to the inventory . . . .”); see also United States v. Ramos,
695 F.3d 1035, 1051 (10th Cir. 2012) (“holding that we do not have subject-
matter jurisdiction over Mr. Ramos’s constitutional challenges” and, regarding
that portion of the appeal, entering an order to “DISMISS the appeal in part”).
III
For the foregoing reasons, we DISMISS this appeal and REMAND the
case to the district court with instructions to VACATE its judgment and
DISMISS NMOHVA’s action without prejudice for lack of subject-matter
jurisdiction.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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