Park Lake Resources Ltd. Liability Co. v. United States Department of Agriculture

                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PUBLISH
                                                                     AUG 13 2004
                  UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                          Clerk
                               TENTH CIRCUIT



 PARK LAKE RESOURCES LIMITED
 LIABILITY COMPANY; PARK
 COUNTY MINING ASSOCIATION,

             Plaintiffs - Appellants,
       v.                                            No. 02-1429
 UNITED STATES DEPARTMENT
 OF AGRICULTURE; ANN
 VENEMAN, in her official capacity as
 Secretary of Agriculture;
 UNITED STATES FOREST
 SERVICE; DALE BOSWORTH, in his
 official capacity as Chief, U.S. Forest
 Service; RICK CABLE, in his official
 capacity as Regional Forester, Region
 II, United States Forest Service;
 UNITED STATES DEPARTMENT
 OF INTERIOR; GALE NORTON,
 Secretary of Interior; PIET DEWITT,
 in his official capacity as Assistant
 Secretary of the Interior,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                     (D.C. NO. 01-Z-388 MJW )


Christopher T. Massey of Mountain States Legal Foundation (William Perry
Pendley and Tara Burton Rismani, with him on the briefs), Lakewood, Colorado,
for Plaintiffs - Appellants.
Katherine J. Barton, United States Department of Justice, Environment & Natural
Resources Division, Appellate Section, Washington, D.C. (Nina Wang, Assistant
United States Attorney, Denver, Colorado, Thomas L. Sansonetti, Assistant
Attorney General, and Kathryn Kovacs, United States Department of Justice,
Environment & Natural Resources Division, Appellate Section, Washington, D.C.,
with her on the brief), for Defendants - Appellees.


Before KELLY, HOLLOWAY , and HARTZ , Circuit Judges.


HARTZ Circuit Judge.


      Plaintiffs Park Lake Resources (Park Lake) and Park County Mining

Association (a not-for-profit corporation whose purpose is to assist miners and

mining companies) appeal the dismissal by the district court of their suit against

several government agencies and some of their officials. This is not the first time

Plaintiffs have brought suit over what is in essence the same issue. We affirm

because issue-preclusion doctrine bars Plaintiffs from contending that their claims

are ripe for review.

      On August 1, 1996, Plaintiffs filed their first complaint in the District of

Colorado against the Department of Agriculture, the Forest Service, the Secretary

of Agriculture, the Chief of the Forest Service, and the Regional Forester for

Region II (which we will call collectively the “Forest Service”). The complaint

challenged the designation of a parcel of National Forest land as a Research

Natural Area (RNA) under 36 C.F.R. § 251.23, and alleged that the designation


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precluded Park Lake from developing its recorded mining claims in the area. The

district court upheld the designation. Park Lake Res., L.L.C. v. U.S. Dep’t of

Agric., 979 F. Supp. 1310, 1315 (D. Col. 1997) (Park Lake I). On appeal we

vacated the judgment for lack of jurisdiction because the claim was not yet ripe

for review. Park Lake Res., L.L.C. v. U.S. Dep’t of Agric., 197 F.3d 448, 450–51,

453 (10th Cir. 1999) (Park Lake II).

      Two years later Plaintiffs filed the present complaint against the Forest

Service and several new defendants—the Department of the Interior, the Secretary

of the Interior, and the Assistant Secretary of the Interior—whom we shall refer

to collectively as the Department of the Interior (DOI). Plaintiffs’ complaint (as

amended), while continuing to challenge the RNA designation, additionally

alleges that as a direct result of the RNA designation, the DOI issued Public Land

Order No. 7195, which withdraws the RNA from mineral exploration, thereby

barring from the area all exploration for the purpose of staking new claims. This

prohibition on exploration is a different injury from the injury alleged in the

initial litigation. But the legal basis of the claim is unchanged. The only respect

in which the land order is alleged to be unlawful is that it was based on an

unlawful RNA. Moreover, this additional injury was readily knowable when the

complaint was filed in the initial litigation, because the land order had been

issued more than two months earlier, on May 16, 1996. See 61 Fed. Reg. 24,806.


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      We exercise appellate jurisdiction under 28 U.S.C. § 1291 and hold that our

dismissal of the earlier action for lack of ripeness requires dismissal of this action

as well. Plaintiffs can overcome the previous dismissal only by showing

satisfaction of the conditions for ripeness set forth in Park Lake II. Having failed

to do so, Plaintiffs cannot proceed with their claim.

I.    BACKGROUND

      A.     Administrative Proceedings

      Acting under the authority of 36 C.F.R. § 251.23, the Forest Service

designated 684 acres in the Arapaho National Forest and the Pike & San Isabel

National Forests as an RNA (the Hoosier Ridge RNA) on December 5, 1995. The

regulation provides:

      [W]hen appropriate, the Chief [of the Forest Service] shall establish
      a series of research natural areas, sufficient in number and size to
      illustrate adequately or typify for research or educational purposes,
      the important forest and range types in each forest region, as well as
      other plant communities that have special or unique characteristics of
      scientific interest and importance.

36 C.F.R. § 251.23.

      Shortly thereafter, Plaintiffs appealed the designation to the Forest Service,

but were denied their appeal on March 28, 1996. Although it was still possible

for Park Lake to engage in work in the RNA by filing a proposed plan of

operations (PPO) with the Forest Service to obtain permission to conduct mining

activities on its recorded claims in the RNA, see 36 C.F.R. §§ 251.50–251.65, it

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did not do so.

      On May 16, 1996, the DOI issued Public Land Order No. 7195, granting the

Forest Service request that it withdraw the Hoosier Ridge RNA from mineral

entry and location. The order was authorized by § 214 of the Federal Land Policy

and Management Act, codified at 43 U.S.C. § 1714 (2000). See Public Land

Order No. 7195, 61 Fed. Reg. 24,806 (May 16, 1996). The stated purpose of the

withdrawal was “to protect the unique alpine ecosystem and associated plant life

within the [RNA],” preserving the RNA for the purpose for which it had been

designated. Id.

      B.     Prior Litigation

      On August 1, 1996, Plaintiffs filed their first complaint against the Forest

Service, challenging the designation of the Hoosier Ridge RNA as arbitrary,

capricious, and contrary to law, in violation of the Administrative Procedure Act

(APA), 5 U.S.C. § 701 et seq. Park Lake I, 979 F. Supp. at 1312. The district

court ruled against Plaintiffs on the merits, holding that the Forest Service

designation of the RNA was “reasonable and in accordance with the law.” Park

Lake I, 979 F. Supp. at 1315. Plaintiffs appealed the district court’s ruling.

      On appeal the government argued for the first time that the claim was not

ripe for review because Plaintiffs “ha[d] failed to show any present injury caused

by the RNA designation.” Park Lake II, 197 F.3d at 450. We agreed, and on


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November 19, 1999, vacated the judgment below and dismissed the suit for lack

of jurisdiction. Id. at 449. We noted that (1) Park Lake had not yet submitted a

PPO to the Forest Service, and (2) consequently, the Forest Service had not

affirmatively denied it permission to exploit its mining claims in the area. Id. at

450–53. The claim could, however, become ripe as a result of future actions. We

said that “Park Lake may seek review of this issue at a later date” after (i) it

submits a mining plan to the Forest Service, (ii) the Forest Service reviews the

plan, and (iii) the Forest Service “requests or requires any restrictions upon its

mining activities.” Id. at 453.

      C.     Present Litigation

      In this new suit Plaintiffs reassert the claim they brought in Park Lake I

against the Forest Service for designating the Hoosier Ridge RNA. Plaintiffs also

challenge Order 7195, in which the DOI honored the Forest Service request to

withdraw the RNA from mineral entry and location. Plaintiffs complain that the

withdrawal is based “solely [on] the unlawful designation of the RNA,” Aplt.

App. at 16, and that the withdrawal prevents Park Lake from locating new mining

claims in the RNA.

      The district court dismissed on ripeness grounds both (i) the claim against

the Forest Service for designating the RNA, and (ii) the claim against the DOI for

the withdrawal under Order 7195. The claim against the Forest Service was


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unripe, it said, because “[P]laintiffs ha[d] not filed a proposed plan of operations,

or a notice of intent.” Id. at 27. It held that the claim against the DOI was unripe

because “[P]laintiffs ha[d] not presented any evidence that this issue [wa]s ripe

for review.” Id.

II.   DISCUSSION

      Ripeness is a jurisdictional issue. Park Lake II, 197 F.3d at 450. “We

review the district court’s dismissal on ripeness grounds de novo and its findings

of jurisdictional fact for clear error.” Coalition for Sustainable Res., Inc. v.

United States Forest Serv., 259 F.3d 1244, 1249 (10th Cir. 2001). We need not

consider the ripeness of Plaintiffs’ claims anew, however, because principles of

res judicata bar the action until Plaintiffs take steps to cure the deficiencies

pointed out to them in Park Lake II.

      Res judicata is “central to the purpose for which civil courts have been

established,” namely “the conclusive resolution of disputes within their

jurisdictions.” Montana v. United States, 440 U.S. 147, 153 (1979). “[A] party

who has had a full opportunity to present a contention in court ordinarily should

be denied permission to assert it on some subsequent occasion.” Geoffrey C.

Hazard, Res Nova in Res Judicata, 44 S. Cal. L. Rev. 1036, 1043 (1971). This

bar protects against “the expense and vexation attending multiple lawsuits,

conserves judicial resources, and fosters reliance on judicial action by minimizing


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the possibility of inconsistent decisions.” Montana, 440 U.S. at 153-54.

      Res judicata doctrine encompasses two distinct barriers to repeat litigation:

claim preclusion and issue preclusion. See Baker by Thomas v. General Motors

Corp., 522 U.S. 222, 233 n.5 (1998); 18 Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 4402 at 7 (2d ed. 2002).

Claim preclusion bars a party from relitigating a claim or cause of action on

which final judgment has been rendered. See Restatement (Second) of Judgments

§ 24. “Under [claim preclusion], ‘a final judgment on the merits of an action

precludes the parties or their privies from relitigating issues that were or could

have been raised in that action’.” Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520

(10th Cir. 1990) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).

      This appeal concerns the other branch of preclusion doctrine—issue

preclusion. In contrast to claim preclusion, issue 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. See Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000) (“When

an issue of ultimate fact has once been determined by a valid and final judgment,

that issue cannot again be litigated between the same parties in any future

lawsuit.” (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970))). In general,

issue preclusion applies when:


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      (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.

      Plaintiffs’ sole argument on appeal against application of issue preclusion

in this case is that the second condition has not been met—there was no final

adjudication on the merits in the original action against the Forest Service. They

are correct that there has been no final adjudication on the merits; their first

lawsuit ended in our dismissal of the action for lack of jurisdiction, and

jurisdictional dismissals are not “on the merits.” See Nilsen v. City of Moss

Point, 701 F.2d 556, 562 (5th Cir. 1983) (en banc); Fed. R. Civ. P. 41(b).

      They are mistaken, however, in asserting that a jurisdictional dismissal can

have no issue-preclusive effect. There is an important exception to the general

rule that a final adjudication on the merits is a prerequisite to issue preclusion. It

has long been acknowledged that “[t]he principles of res judicata apply to

questions of jurisdiction as well as to other issues.” American Surety Co. v.

Baldwin, 287 U.S. 156, 166 (1932). In particular, dismissals for lack of

jurisdiction “‘preclude relitigation of the issues determined in ruling on the

jurisdiction question.’” Matosantos Commercial Corp. v. Applebee’s Int’l Inc.,

245 F.3d 1203, 1209 (10th Cir. 2001) (quoting 18 Charles Alan Wright et al.,

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Federal Practice and Procedure § 4436 (1981)); see also 18 Wright, Miller &

Cooper § 4418 at 468 (“The same question of jurisdiction . . . cannot be reopened

in a second action . . . .”); Restatement (Second) of Judgments § 12 cmt. c. at 119

(“When the question of the tribunal’s jurisdiction is raised in the original action,

in a modern procedural regime there is no reason why the determination of the

issue should not thereafter be conclusive under the usual rules of issue

preclusion.”).

      Accordingly, even though our decision in Park Lake II did not result in an

adjudication on the merits, it has issue-preclusive consequences with respect to

the issue decided. We held in that case that Plaintiffs’ APA challenge to the

Hoosier Ridge RNA designation was not ripe because Park Lake had not yet

submitted to the Forest Service for approval a PPO for exploiting its existing

claims. See Park Lake II, 197 F.3d. at 450–54. Plaintiffs cannot now present an

argument that conflicts with our decision on that issue.

      To be sure, a decision that a matter is not ripe for review does not

necessarily hold for all time. Things ripen. Under the curable-defect doctrine,

“suit may be brought again where a jurisdictional defect has been cured or loses

its controlling force.” Eaton v. Weaver Mfg. Co., 582 F.2d 1250, 1256 (10th Cir.

1978); see also Wright, Miller & Cooper § 4437 at 180 (“In ordinary

circumstances a second action on the same claim is not precluded by dismissal of


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a first action for prematurity or failure to satisfy a precondition to suit. No more

need be done than await maturity, satisfy the precondition, or switch to a different

substantive theory that does not depend on the same precondition.”). But the

change in circumstances that cures the jurisdictional defect must occur subsequent

to the prior litigation. See Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 & n.4

(D.C. Cir. 1983) (“[P]roper application of res judicata should require some

demonstration that the plaintiff is relying upon a new fact or occurrence, and not

merely relying upon those that existed at the time of the first dismissal.”); Magnus

Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396, 1401 (7th Cir. 1987) (“We

do not think that these additional factual allegations should preclude the operation

of res judicata when these facts were available to [the plaintiff] at the time it filed

its complaint in [the prior litigation].”). Here, nothing has ripened since Park

Lake I. (We need not consider the circumstances in which the original judgment

could be set aside—thereby losing its preclusive effect—because old facts are

“newly discovered.” See Fed. R. Civ. P. 60(b)(2).)

      Plaintiffs do not allege that Park Lake has complied with the requirement

set forth in Park Lake II by submitting a PPO to the Forest Service. Plaintiffs do,

however, point to an alternative ground for ripeness—one not raised before. In

the first litigation Plaintiffs contended that the Forest Service designation of 695

acres of the Hoosier Ridge as an RNA “was arbitrary, capricious, and not in


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accordance with the law,” and sought “a permanent injunction enjoining the

Forest Service from denying Park Lake motorized access to its [existing] mining

claims or otherwise restricting Park Lake’s mining activities within the Hoosier

Ridge.” Park Lake II, 197 F.3d at 450. Now, in addition to bringing the identical

APA challenge to the Forest Service designation of the RNA, Plaintiffs also

challenge the DOI decision to honor the Forest Service request to withdraw the

RNA from mineral entry and location. This withdrawal, they allege, has

prevented Park Lake from locating new mining claims in the RNA. Aplt. App. at

16 ¶ 33.

      We might well have decided in the first instance that the DOI withdrawal of

the Hoosier Ridge RNA from exploration would be a matter ripe for review. Yet

Plaintiffs’ claim against the DOI rises or falls on the propriety of the Forest

Service RNA designation. Plaintiffs assert no independent reason why the DOI

action violated the APA as arbitrary, capricious, or contrary to law. They allege

only that the Forest Service RNA designation violated the APA and that the DOI

order of withdrawal occurred “solely because of the unlawful designation of the

RNA.” Id. ¶ 32. In essence, Plaintiffs are raising the same claim—that the RNA

designation was contrary to law—and are simply attempting to put forth a new

theory why that claim is ripe. That new theory is not based on any facts

postdating the prior litigation; the DOI order predated the filing of Plaintiffs’ first


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complaint against the Forest Service. In our view, the ripeness issue before us is

therefore “in substance the same” as that raised in Park Lake II, and cannot be

relitigated. Montana, 440 U.S. at 155. As the Seventh Circuit has noted, “it does

not make sense to allow 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.” Magnus Elecs., 830 F.2d at 1401; see also Redwood v. Council of

the Dist. of Columbia, 679 F.2d 931, 933 (D.C. Cir. 1982) (“[Petitioner] may not

be permitted to bring essentially the same action two years later citing a less

obvious basis for federal jurisdiction.”); Oglala Sioux Tribe v. Homestake Mining

Co., 722 F.2d 1407, 1411–12 (8th Cir. 1983) (“None of the new theories [of

relief] presented correct the lack of jurisdiction problem . . . [because they] are

simply additional arguments why this Court should have reached a different result

[in its jurisdictional ruling].”).

       Adding the DOI as a defendant does not assist Plaintiffs. Although we

require that “the party against whom [issue preclusion] is invoked [be] a party, or

in privity with a party, to the prior adjudication,” Dodge, 203 F.3d at 1198

(emphasis added), issue preclusion can be invoked by any third party. See Sil-

Flo, 917 F.2d at 1521 (allowing new defendant to assert issue preclusion against

plaintiff that brought two claims on essentially the same issue); Restatement


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(Second) of Judgments § 29 at 291 (“A party precluded from relitigating an issue

with an opposing party . . . is also precluded from doing so with another

person . . . .”). To decide otherwise would be to “[p]ermit[] repeated litigation of

the same issue as long as the supply of unrelated defendants holds out,” a practice

that would “reflect[] either the aura of the gaming table or a lack of discipline and

of disinterestedness on the part of the lower courts.” Blonder-Tongue Labs. v.

Univ. of Ill. Found., 402 U.S. 313, 329 (1971) (internal quotation marks omitted).

      Of course, when, as is often the case, the identity of the defendant is central

to the jurisdictional dismissal—as when there is no personal jurisdiction over the

party, the party’s citizenship is not diverse, or the party is protected by sovereign

immunity—issue preclusion does not bar suit against a third party. The

jurisdictional issue in the second case—e.g., whether the court has personal

jurisdiction over the new defendant—is simply not the same as that decided

before.

      Here, however, the sole ground for the claim against the DOI is that the

RNA designation was unlawful, and the jurisdictional issue—whether Plaintiffs’

challenge to the RNA designation is ripe—is therefore the same issue decided in

Park Lake II. We see no unfairness in denying Plaintiffs a second chance to

argue ripeness on the same available facts. We note that other circuits have

applied issue preclusion with respect to jurisdictional dismissals in prior litigation


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not involving the defendants asserting the doctrine during the second round of

litigation. See, e.g., Harley v. Minnesota Mining and Mfg. Co., 284 F.3d 901, 909

(8th Cir. 2002) (dismissing suit against corporate pension committee on res

judicata grounds after prior suit against corporation itself was dismissed for lack

of standing); Redwood, 679 F.2d at 932–33 (dismissing on res

judicata/jurisdictional grounds a suit against correctional officials, mayor and city

council, when the mayor and city council were added in the second suit). Indeed,

given that Plaintiffs present no theory that the DOI withdrawal violated the APA

except that it was “caused” by the unlawful Forest Service designation of the

RNA, one could say that the Forest Service and the DOI stand in privity on the

issue raised by Plaintiffs’ complaint.

III.   CONCLUSION

       We AFFIRM the ruling of the district court.




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