Thiebaut v. Colorado Springs Utilities

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 12, 2011
Elisabeth A. Shumaker
Clerk of Court
BILL THIEBAUT, in his official capacity
as District Attorney for the Tenth Judicial
District, Colorado; OFFICE OF THE
DISTRICT ATTORNEY FOR THE
TENTH JUDICIAL DISTRICT,
COLORADO; PEOPLE OF THE STATE
OF COLORADO,
Plaintiffs - Appellants,
No. 10-1471
SIERRA CLUB, (D.C. No. 1:05-CV-01994-WDM-BNB)
(D. Colo.)
Plaintiff,
v.
COLORADO SPRINGS UTILITIES, an
enterprise of the City of Colorado
Springs; CITY OF COLORADO
SPRINGS, a municipal corporation,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before KELLY, SILER† and MATHESON, Circuit Judges.
* This order and judgment is not binding precedent, except under the doctrines of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.
†
The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge, United
States Court of Appeals for the Sixth Circuit, sitting by designation.
In 2005, Bill Thiebaut—the District Attorney for the Tenth Judicial District of
Colorado—filed a lawsuit pursuant to section 1365(a) of the Clean Water Act (“CWA”)
against the City of Colorado Springs (the “City”). Mr. Thiebaut named three plaintiffs:
(1) himself, in his official capacity as District Attorney, (2) the Office of the District
Attorney for the Tenth Judicial District of Colorado, and (3) the People of the State of
Colorado (collectively “Mr. Thiebaut”).1 Mr. Thiebaut sought injunctive relief and civil
penalties against the City for its alleged discharge of pollutants into a creek in violation
of the CWA.
The district court granted the City’s motion for summary judgment, concluding
Mr. Thiebaut lacked standing to bring his claims. Mr. Thiebaut has appealed that ruling.
We hold that Mr. Thiebaut lacks standing and affirm the district court’s grant of summary
judgment in favor of the City.
I. BACKGROUND
A. Facts
Because this appeal is from a grant of summary judgment in favor of the City, we
recite the following facts in the light most favorable to the nonmoving party, Mr.
Thiebaut. See Fredericks v. Jonsson, 609 F.3d 1096, 1097 (10th Cir. 2010).
1
For convenience and clarity, throughout this opinion we refer to the plaintiffs-
appellants collectively as “Mr. Thiebaut.”
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Fountain Creek is a watershed that flows through Colorado Springs, Colorado and
Pueblo County, Colorado. From 1998 through at least 2007, the City allegedly
discharged raw sewage, non-potable water, and chlorine into Fountain Creek in violation
of the CWA. These discharges have had a significant adverse impact on Fountain Creek
and the recreational opportunities and economy in Pueblo County, Colorado.
Mr. Thiebaut is the District Attorney for the Tenth Judicial District of Colorado,
which encompasses Pueblo County, Colorado. Citizens of Pueblo County approached
Mr. Thiebaut with concerns about the City’s alleged pollution of Fountain Creek.
B. Procedural History
In October 2005, Mr. Thiebaut filed a CWA citizen suit against the City in the
United States District Court for the District of Colorado. He sought an order enjoining
the City from illegally discharging sewage, non-potable water, and chlorine into Fountain
Creek and assessing civil penalties against the City for its past pollution of the creek.
After Mr. Thiebaut initiated his suit, the Sierra Club filed a similar suit against the
City, alleging violations of the CWA. Because the claims filed and relief sought by the
Sierra Club and Mr. Thiebaut were nearly identical, the district court consolidated the
two suits into a single case.
After the cases were consolidated, the City filed a motion for summary judgment,
alleging that Mr. Thiebaut and the Sierra Club lacked standing. The City argued, among
other things, that Mr. Thiebaut lacked Article III and statutory standing because he was
not authorized under Colorado state law to bring a CWA citizen suit in federal court. Mr.
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Thiebaut opposed the motion, arguing he had standing in three ways. First, he contended
he had “direct standing and authority to bring [his] suit under Colorado law.” Thiebaut v.
Colo. Springs Utils., No. 05-CV-01994-WDM-BNB, 2007 U.S. Dist. LEXIS 63963, at
*3 (D. Colo. Aug. 29, 2007). Second, he argued he had “parens patriae standing to bring
[his] suit on behalf of the citizens of Colorado and of his district.” Id. Finally, he
contended he had “associational standing.” Id.
The district court rejected all of Mr. Thiebaut’s arguments. It first stated that Mr.
Thiebaut did not have direct standing to assert his CWA claims in his official capacity
because the Colorado Legislature has not authorized him to file a CWA citizen suit in
federal court. Id. at *5-6. It further stated that Mr. Thiebaut did not have parens patriae
standing because the Colorado Legislature has not authorized him to invoke the sovereign
capacity of the State of Colorado and because “the citizens of Colorado are . . . able to act
for themselves in this matter.” Id. at *6-7. Finally, the court concluded Mr. Thiebaut did
not have associational standing because, “[e]ven assuming that the Tenth Judicial District
is an ‘association’ and [that] its citizens are ‘members,’” the interests Mr. Thiebaut’s suit
sought to protect are not “germane to his office’s purpose.” Id. at *7-8. After rejecting
Mr. Thiebaut’s arguments, the district court granted the City’s motion for summary
judgment and dismissed all of Mr. Thiebaut’s claims for lack of standing. Id. at *8.
Mr. Thiebaut filed a motion for reconsideration. He argued that the district court
erred in applying state rather than federal law to determine whether he had standing to
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assert his claims. The district court denied the motion. See Thiebaut v. Colo. Springs
Utils., No. 1:05-CV-01994 (D. Colo. Jan. 24, 2008).
On appeal, Mr. Thiebaut argues that the district court erred in concluding he lacks
standing. He contends he has Article III standing under three alternative theories: (1)
parens patriae standing, (2) associational standing, or (3) a concept he refers to as
“standing for one is standing for all.”2 Aplt. Opening Br., at 27-28. Because the district
court entered a final judgment, we have jurisdiction to hear this appeal pursuant to 28
U.S.C. § 1291.
II. DISCUSSION
The sole issue is whether Mr. Thiebaut has standing to bring his CWA citizen suit
in federal court in his official capacity as district attorney. “We review the question of
whether a plaintiff has constitutional standing de novo.” Am. Atheists, Inc. v. Davenport,
2
At oral argument, Mr. Thiebaut’s counsel stated that Mr. Thiebaut was also
making a “direct” standing argument on appeal. But our review of his briefing indicates
that he has not adequately raised such an argument. As the plaintiff-appellant, Mr.
Thiebaut has the burden of demonstrating he has standing. See Utah Animal Rights
Coalition v. Salt Lake County, 566 F.3d 1236, 1240 (10th Cir. 2009) (“The party
invoking federal jurisdiction—here, the plaintiffs—bears the burden to demonstrate
standing”). Nowhere in his briefing does Mr. Thiebaut argue that he has direct standing
to assert his claims in his official capacity as district attorney. Additionally, nowhere in
his brief does Mr. Thiebaut allege he suffered injury in his official capacity as a result of
the City’s conduct, a requisite element of direct standing. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Because his arguments on the issue are inadequate,
we do not address whether Mr. Thiebaut has “direct” standing to assert his claims. See,
e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”).
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637 F.3d 1095, 1113 (10th Cir. 2010) (quotations omitted).
Mr. Thiebaut filed this action under section 1365(a) of the CWA, which provides
that “any [interested person] may commence a civil action on his own behalf . . . against
any person . . . who is alleged to be in violation of . . . an effluent standard or limitation
under this chapter.” Although the CWA broadly provides that any interested person may
assert a CWA citizen suit, “a [CWA] plaintiff must nevertheless satisfy the standing
requirements of Article III of the U.S. Constitution to bring such an action.” American
Forest & Paper Ass’n v. EPA, 154 F.3d 1155, 1158 (10th Cir. 1998); see also Valley
Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 487 n.24 (1982) (stating that a congressional enactment may not lower the
threshold requirements of standing under Article III).
To satisfy the standing requirement of Article III, a plaintiff must demonstrate:
(1) he has suffered an injury in fact, (2) there is a causal connection between the injury
and the conduct complained of, and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-561 (1992).
In his complaint and on the caption of his appellate briefs, Mr. Thiebaut lists three
plaintiffs: (1) himself in his official capacity, (2) the Office of the District Attorney for
the Tenth Judicial District, and (3) the People of the State of Colorado. But the
arguments in his opening brief are limited to whether he, in his official capacity, qualifies
for representational standing or whether he, in his official capacity, has standing because
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his co-plaintiff, the Sierra Club, had standing.3 In other words, Mr. Thiebaut is the true
appellant in this case. At no time before the district court or this court has Mr. Thiebaut
claimed that he has sued and has standing in his individual capacity.4 This appeal
therefore reduces to three issues: Does Mr. Thiebaut, in his official capacity as district
attorney, have (1) parens patriae standing, (2) associational standing, or (3) standing
because the Sierra Club had standing? The following discussion addresses each of these
issues and concludes that Mr. Thiebaut lacks standing.
A. Parens Patriae Standing
Mr. Thiebaut first contends that he qualifies for parens patriae standing. We
disagree.
“Parens patriae is a standing doctrine that allows states to vindicate their interests
in federal court.”5 Sierra Club v. Two Elk Generation Partners, 646 F.3d 1258, 1273
3
The only arguments concerning the independent standing or capacity of the
Office of the District Attorney for the Tenth Judicial District of Colorado or the People of
the State of Colorado were raised in Mr. Thiebaut’s reply brief. We have consistently
stated that “arguments raised for the first time in a reply brief are generally deemed
waived.” United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011). We perceive no
grounds for deviating from that practice in this case.
4
At oral argument, counsel for the City conceded that Mr. Thiebaut would have
standing if he had sued as an individual citizen, but he chose not to do so. Oral Argument
at 11:55-12:20, Thiebaut v. Colorado Springs Utilities, ____ Fed. Appx. ____ (No. 10-
1471).
5
The phrase “parens patriae” “may also refer to the common-law concept that the
state has a duty to act as a guardian of children and the mentally disabled.” Sierra Club,
646 F.3d at 1273 n.3 (10th Cir. 2011) (Lucero, J., dissenting).
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(Lucero, J., dissenting); see also Kathleen C. Engel, Do Cities Have Standing?
Redressing the Externalities of Predatory Lending, 38 Conn. L. Rev. 355, 362 (2006)
(“The great bulk of cases recognizing [parens patriae] standing involve states invoking
their right to protect their citizens from harm.”). In Alfred L. Snapp & Son, Inc. v. Puerto
Rico, 458 U.S. 592 (1982), the Supreme Court identified three requirements that a state
must satisfy to qualify for parens patriae standing.6 See id. at 607. First, the state must
“articulate an interest apart from the interests of particular private parties, i.e., the
[plaintiff] must be more than a nominal party.” Id. Second, the state must “express a
quasi-sovereign interest” that it seeks to protect. Id. Finally, the state must “allege injury
to a sufficiently substantial segment of its population.” Id. at 607; see also Satsky v.
Paramount Commc’ns, Inc., 7 F.3d 1464, 1469 (10th Cir. 1993) (discussing parens
patriae standing).
Mr. Thiebaut argues that the district court erred in concluding he lacks authority to
sue as parens patriae. He contends the district court could consider only federal law in
conducting its standing analysis and that it therefore erred in considering Colorado state
law to determine whether he qualifies for parens patriae standing. He argues, in the
alternative, that he qualifies for parens patriae standing because the Colorado Legislature
6
Because we conclude that Mr. Thiebaut does not qualify for parens patriae
standing, we do not address whether or in what circumstances a plaintiff that is not a state
or state attorney general may qualify for parens patriae standing.
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has authorized district attorneys in their official capacities to file CWA citizen suits in
federal courts.
1. The District Court Did Not Err in Considering State Law
The district court concluded that Mr. Thiebaut did not qualify for parens patriae
standing because he failed to identify legal authority to invoke the sovereign capacity of
the state. Mr. Thiebaut argues the district court erred in considering Colorado state law
because “federal law dictates the question of standing.” Aplt. Opening Br., at 11. We
disagree.
To qualify for parens patriae standing, a plaintiff must “express a quasi-sovereign
interest” that it seeks to protect. Alfred L. Snapp & Son, Inc., 458 U.S. at 607. The
Supreme Court has defined quasi-sovereign interests as “a set of interests that [a] State
has in the well-being of its populace,” including the health, safety, welfare, and
economical and physical well-being of its citizens. Id. at 602.
We have previously indicated that in deciding whether a plaintiff qualifies for
parens patriae standing, it is appropriate to look to state law to determine whether the
plaintiff has been authorized to represent a state’s sovereign interests. In Housing
Authority of the Kaw Tribe of Indians v. Ponca City, 952 F.2d 1183 (10th Cir. 1991), we
analyzed whether an Oklahoma housing authority had standing to sue as parens patriae.
See id. at 1192-93. After reviewing the housing authority’s arguments, we noted it had
presented “no authorization by the State of Oklahoma to represent the state’s sovereign
interests.” Id. at 1193. As a result of this lack of authority, we held that the housing
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authority could not sue as parens patriae. See id.
Although it is often unnecessary to consider state law to determine whether a
plaintiff has standing to assert a federal claim, Kaw Tribe demonstrates that it is
appropriate for a federal court to do so in deciding whether a plaintiff qualifies for parens
patriae standing. Based on this precedent, we reject Mr. Thiebaut’s argument that the
district court erred in considering Colorado state law in its parens patriae standing
analysis.
2. Colorado Has Not Authorized Mr. Thiebaut to Bring His Claims
As with other theories of standing, plaintiffs bear the burden of establishing that
they qualify for parens patriae standing. See, e.g., D.L. v. Unified Sch. Dist. No. 497,
596 F.3d 768, 775 (10th Cir. 2010) (“Plaintiffs bear the burden of proof on jurisdictional
issues such as standing.”). To satisfy this burden, plaintiffs must demonstrate that they
have authority to represent a state’s sovereign or quasi-sovereign interests. See Kaw
Tribe, 952 F.2d at 1193.
Mr. Thiebaut has not satisfied this burden. He notes that the Colorado Legislature
specifically allows district attorneys to bring a public nuisance suit in state court to abate
“[a]ny unlawful pollution or contamination of any surface or subsurface waters in the
state.” Aplt. Opening Br., at 22 (quoting Colo. Rev. Stat. § 16-13-305(e)). But this
limited grant of authority does not provide Mr. Thiebaut with authority to represent
Colorado’s sovereign or quasi-sovereign interests in a CWA citizen suit in federal court.
Moreover, our review of the relevant statutory scheme has not revealed any general grant
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of authority to Colorado district attorneys to protect the state’s sovereign or quasi-
sovereign interests. Because the State of Colorado has not authorized Mr. Thiebaut to
represent its sovereign interests in this matter, we hold that he does not qualify for parens
patriae standing.
B. Associational Standing
In his second attempt to qualify for representational standing, Mr. Thiebaut argues
he has associational standing to sue on behalf of the citizens of the Tenth Judicial District
of Colorado and on behalf of all of the People of the State of Colorado. We reject this
argument.
An association has standing to sue on behalf of its members only if: “(a) its
members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
The district court concluded that Mr. Thiebaut did not have associational standing.
Specifically, the court stated “[e]ven assuming that the Tenth Judicial District is an
‘association’ . . . [Mr.] Thiebaut’s argument still fails. . . . [I]f [his] office does not have
authority under Colorado law to bring a civil CWA action in federal court, then it cannot
be said that such an action is germane to his office’s purpose.” Thiebaut v. Colo. Springs
Utils., 2007 U.S. Dist. LEXIS 63963, at *7-8 (D. Colo. Aug. 29, 2007). We agree with
the district court’s analysis.
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As discussed above, it is often unnecessary for federal courts to consider state law
to determine whether a plaintiff has standing to assert a federal claim. But because Mr.
Thiebaut has brought his claims in his official capacity as district attorney, we must look
to Colorado law to determine the purpose of his office.
The Colorado Constitution provides that district attorneys “shall . . . perform such
duties as provided by law.” Colo. Const. art. VI, § 13. The Colorado Supreme Court has
stated that pursuant to this constitutional provision, the Colorado Legislature has
authority to determine the duties and responsibilities of a district attorney. See People ex
rel. Losavio v. Gentry, 606 P.2d 57, 61-62 (Colo. 1980); see also Colo. Rev. Stat.
§ 20-1-107(1) (“The general assembly finds that the office of the district attorney was
created by the state constitution and that the state constitution gives to the general
assembly the exclusive authority to prescribe the duties of the office of the district
attorney.”). The Colorado Legislature has fulfilled this obligation by outlining the
various duties and responsibilities of district attorneys in several sections of the Colorado
Revised Statutes. See, e.g., Colo. Rev. Stat. §§ 20-1-102, -106. Nowhere in those
statutory provisions has the Colorado Legislature granted district attorneys authority to
protect the health, safety, and welfare of the people of Colorado by seeking to remedy
violations of the CWA in federal court.
Because the Colorado Legislature has defined the purpose and duties of Mr.
Thiebaut’s office and because it has not granted his office authority to protect the health,
safety, and welfare of the people of Colorado by filing a CWA citizen suit in federal
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court, the interests Mr. Thiebaut seeks to protect in the instant suit are not germane to his
office’s purpose.7 We therefore hold that Mr. Thiebaut lacks associational standing to
bring his claims.
C. “Standing for One is Standing for All”
In addition to arguing that he qualifies for parens patriae and associational
standing, Mr. Thiebaut contends he has standing under a concept he refers to as “standing
for one is standing for all.” Mr. Thiebaut notes that in Massachusetts v. EPA, 549 U.S.
497 (2007), the Supreme Court stated that “[o]nly one of the petitioners needs to have
standing to permit [it] to consider [a] petition for review.” Id. at 518; see also Watt v.
Energy Action Educational Foundation, 454 U.S. 151, 160 (1981) (“Because we find
[that one plaintiff] has standing, we do not consider the standing of the other plaintiffs.”).
Relying on this statement, he argues that the district court should have permitted him to
remain as a plaintiff in this case after it determined that the Sierra Club had standing. In
other words, Mr. Thiebaut argues that once a court has found that one plaintiff in a case
has standing, it must permit all co-plaintiffs to remain in the case even if it determines
they do not have standing. We disagree.
The principle on which Mr. Thiebaut relies encourages judicial efficiency by
7
Because we hold that the interests Mr. Thiebaut seeks to protect are not germane
to his office’s purpose, we need not decide whether the district attorney’s office is a
membership association that might qualify for associational standing or whether the
claims asserted by Mr. Thiebaut would require the participation of individual “members”
of his office.
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permitting a court to proceed to the merits of a case involving multiple plaintiffs seeking
identical relief when it is clear that at least one plaintiff has standing. See Utah Ass’n of
Cntys. v. Bush, 455 F.3d 1094, 1098 (10th Cir. 2006) (noting that “the district court
declined ‘in the interest of judicial economy’ to address” whether one plaintiff had
standing where the defendant conceded that another plaintiff had standing).
But contrary to Mr. Thiebaut’s arguments, nothing in the cases addressing this
principle suggests that a court must permit a plaintiff that lacks standing to remain in a
case whenever it determines that a co-plaintiff has standing. Instead, courts retain
discretion to analyze the standing of all plaintiffs in a case and to dismiss those plaintiffs
that lack standing. See id.; see also Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451-53
(10th Cir. 1994) (analyzing individual plaintiffs’ standing separately and dismissing some
plaintiffs for lack of standing even though other plaintiffs had standing); We Are
America/Somos Am. v. Maricopa Cnty. Bd. of Supervisors, No. 06-2816-PHX-RCB, 2011
U.S. Dist. LEXIS 92714, at *17 (D. Ariz. Aug. 18, 2011) (“Th[e] general rule [that only
one plaintiff needs standing to make an issue justiciable] does not strictly prohibit a
district court, in a multiple plaintiff case such as this, from considering the standing of the
other plaintiffs even if it finds that one plaintiff has standing.”). Based on this discretion,
we reject Mr. Thiebaut’s “standing for one is standing for all” theory as it applies to this
case and affirm the district court’s decision to dismiss his claims for lack of standing.
III. CONCLUSION
We hold that Mr. Thiebaut does not qualify for parens patriae or associational
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standing. Additionally, we reject Mr. Thiebaut’s “standing for one is standing for all”
theory as applied to this case and hold that the district court did not err in dismissing Mr.
Thiebaut’s claims even though it determined that the Sierra Club had standing. Because
Mr. Thiebaut lacks standing, we affirm the district court’s grant of summary judgment in
favor of the City and dismiss this appeal.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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