Utah Ass'n of Counties v. Bush

F I L E D
United States Court of Appeals
Tenth Circuit

July 24, 2006
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

U TA H ASSO CIA TIO N O F
COUNTIES, on behalf of its members,

Plaintiff,

M O U N TAIN STA TES LEG A L
FOUNDATION, on behalf of its
members,

Plaintiff-Appellant,

v.

GEORGE W . BUSH , in his official
capacity as President of the United
States, UN ITED STA TES O F
AM ERICA , JAM ES L.
CONNAUGHTON, in his official No. 04-4132
capacity as Chair of the Council on
Environmental Quality, GA LE
NORTON, in her official capacity as
Secretary of the Interior, and
KATHLEEN CLARKE, Director of
the Bureau of Land M anagement,

Defendants-Appellees,

SOUTH ERN UTA H W ILD ERNESS
ALLIANCE, TH E W ILD ERNESS
SO CIETY , G RA N D CA N Y O N
TR UST, ESC ALA N TE C AN Y ON
OUTFITTERS, ESCALANTE’S
GRAND STAIRCASE B& B INN, and
BO ULD ER M OU NTA IN LO DG E,
 Defendants-Intervenors-
Appellees,

-------------------------

STA TE O F U TA H ,

Amicus Curiae.

Appeal from the United States District Court
for the District of Utah
(D.C. Nos. 2:97-CV-479 and 2:97-CV-863)

Jayme Ritchie (W illiam Perry Pendley and S. Amanda Koehler, with her on the
briefs), M ountain States Legal Foundation, Lakewood, Colorado, for Plaintiff-
Appellant.

Todd S. Kim, United States Department of Justice, W ashington, D.C. (Thomas L.
Sansonetti, Assistant Attorney General, Paul M . W arner, United States Attorney
and Carlie Christensen, Assistant United States Attorney, District of Utah,
M ichael A. Gheleta and Ellen Durkee, Attorneys, United States Department of
Justice, W ashington, D.C., with him on the brief), for Defendants-Appellees.

Stephen H.M . Bloch, Southern Utah W ilderness Alliance, Salt Lake City, Utah
(Heidi J. M cIntosh, Southern Utah W ilderness Alliance, Salt Lake City, Utah,
Richard A. Duncan, Craig S. Coleman and Sarah I. W heelock, Faegre & Benson,
M inneapolis, M innesota, with him on the brief), for Defendants-Intervenors-
Appellees.

J. M ark W ard, Assistant Attorney General and M ark L. Shurtleff, Utah Attorney
General, filed a brief for amicus curiae State of Utah on behalf of appellant.

Before KELLY, SE YM OU R, and EBEL, Circuit Judges.

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EBEL, Circuit Judge.

In this case, M ountain States Legal Foundation (“M SLF”) challenges the

legality of the 1996 creation of the Grand Staircase-Escalante National M onument

in southern Utah. Because we conclude that M SLF lacked standing to bring this

claim, we dismiss the appeal.

I. BACKGROUND

A. The M onument

On September 18, 1996, in the midst of his 1996 re-election campaign,

President Clinton issued a Presidential Proclamation establishing the Grand

Staircase-Escalante National M onument (the “M onument”), a set-aside of

approximately 1.7 million acres of federal land in southern Utah. See

Proclamation No. 6920, 61 Fed. Reg. 50,223 (Sept. 18, 1996). The Proclamation

described the M onument area as a “geologic treasure” and an “outstanding

biological resource” that includes “world class paleontological sites” and is “rich

in human history.” Id. at 50,223–224. Among the items to be protected in the

M onument are “arches and natural bridges”; “remarkable specimens of petrified

wood”; numerous types of “[e]xtremely significant fossils”; ancient Native

American “rock art” and occupation sites; “trails, inscriptions, [and] ghost tow ns”

from M ormon pioneers; “[f]ragile cryptobiotic crusts”; and “[o]ver 200 species of

birds, including bald eagles and peregrine falcons.” Id. at 50,223–225.

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 The proclamation claimed the authority to establish the M onument based on

the A ntiquities Act of 1906 (“Antiquities Act”), which provides:

The President of the United States is authorized, in his discretion, to
declare by public proclamation historic landmarks, historic and
prehistoric structures, and other objects of historic or scientific interest
that are situated upon the lands owned or controlled by the Government
of the United States to be national monuments, and m ay reserve as a
part thereof parcels of land, the limits of which in all cases shall be
confined to the smallest area compatible with the proper care and
management of the objects to be protected.

Antiquities Act of 1906 § 2, 16 U.S.C. § 431 (2000); see Proclamation No. 6920,

61 Fed. Reg. at 50,225 (the President’s declaration that the M onument is set aside

“by the authority vested in me by section 2 of the [Antiquities Act]”).

Establishment of the M onument generated intense criticism, including in

some Congressional circles. Notably, the majority staff of the House Committee

on Resources produced two reports critical of President Clinton’s decision. See

“Behind Closed Doors: The Abuse of Trust and Discretion in the Establishment of

the G rand Staircase-Escalante N ational M onument.” H .R. Rep. No. 105-D

(Comm. Print 1997); “M onumental Abuse: The Clinton Administration’s

Campaign of M isinformation in the Establishment of the Grand

Staircase-Escalante National M onument.” H.R. Rep. No. 105-824 (Comm. Print

1998). 1

1
The view expressed in M onumental Abuse was not unanimous; the
minority Democratic Party members of the Committee on Resources issued a
(continued...)

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 Despite these and other criticisms of the M onument, since 1996 Congress

has passed several pieces of legislation that relate to the M onument. For

example, in the Automobile National Heritage Area Act, Pub. L. No. 105-355,

112 Stat. 3247 (1998), Congress modified the boundaries of the M onument to

exclude certain Utah towns and to take in the “East Clark Bench” area. Id.

§§ 201–02. Congress has also appropriated funds both for acquiring mineral

rights within the M onument, see Consolidated Appropriations Act, 2000, Pub. L.

No. 106-113, app. C, § 601, 113 Stat. 1501 (1999), and for construction and the

development of programs at the M onument. See, e.g., S. Rep. No. 106-99, at

14–15 (1999); S. Rep. No. 105-227, at 10, 13–14 (1998); H.R. Rep. No. 105-609,

at 12 (1998).

B. Procedural Background

In June 1997, about nine months after the M onument was established, the

Utah Association of Counties (“UAC”) and the Utah Schools and Institutional

Trust Lands Administration (“SITLA”) each filed a complaint in Utah federal

district court asserting that the creation of the M onument was illegal. See Utah

Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172, 1176 (D. Utah 2004). The

1
(...continued)
rebuttal response, supporting President Clinton’s action. Dissenting Views: Staff
Report on Grand Staircase-Escalante N M , at 1–3 (Oct. 9, 1998).

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Appellant in this case, M SLF, filed a similar complaint in November 1997. 2 Id.

The complaints named as defendants the President, the United States, and several

federal officials and agencies (collectively, “Defendants”). The plaintiffs

challenged the creation of the M onument on numerous grounds, claiming that:

(1) the Antiquities Act is unconstitutional because it violates the delegation

doctrine; (2) in designating the M onument, President Clinton acted ultra vires and

in violation of the Property and Spending Clauses of the United States

Constitution; (3) President Clinton violated the Antiquities A ct by failing to

designate “objects of historic or scientific interest” and failing to confine the

M onument “to the smallest area compatible with the proper care and management

of the objects to be protected”; (4) President Clinton violated the W ilderness Act

by creating de facto wilderness, a power reserved to Congress; (5) President

C linton violated Executive O rder 10355, which requires that land be withdrawn

by the Secretary of the Interior, not the President; and (6) the Defendants violated

the National Environmental Policy Act, the Federal Land Policy and M anagement

Act, the Federal Advisory Committee Act, and the Anti-Deficiency Act in the

creation of the M onument. See id. at 1176–77. Given the relatedness of the

complaints, the actions by UAC, SITLA, and M SLF w ere soon consolidated;

2
The M SLF describes itself as “a voluntary, non-profit, public interest
corporation . . . [that] is dedicated to individual liberty, the right to own and use
property, limited government, and the free enterprise system.”

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however, SITLA eventually reached a settlement with Defendants and was

dismissed as a plaintiff. See id. at 1176; The Utah Schools and Land Exchange

Act of 1998, Pub. L. No. 105-335, 112 Stat. 3139 (1998) (Congress’s ratification

of the settlement). In a prior related appeal, we allowed several environmental

groups and businesses located near the M onument to intervene as defendants in

the consolidated action. See Utah Ass’n of Counties v. Clinton, 255 F.3d 1246,

1256 (10th Cir. 2001).

In July 1998, Defendants filed a motion to dismiss or in the alternative for

summary judgment, alleging, inter alia, that the district court lacked subject-

matter jurisdiction to hear the case. Utah Ass’n of Counties, 316 F. Supp. 2d at

1177. Specifically, Defendants claimed that the case was not ripe, that the court

had no judicial authority to review the President’s action, and that M SLF lacked

standing to challenge the M onument. Id. Both remaining plaintiffs (UAC and

M SLF) opposed Defendants’ motion and filed their ow n motions for sum mary

judgment. Id.

In an April 19, 2004 order, the district court granted summary judgment for

Defendants and denied the plaintiffs’ summary judgment motions. Id. at

1200–01. As for Defendants’ claim that M SLF lacked standing, the court stated:

the United States concedes that UA C has standing, but insists M SLF
does not. . . . Given th[e] relatively light burden [to show standing] at
the present stage of the instant case and recognizing that many of the
claims of UAC and M SLF are identical or similar, and in the interest of
judicial economy the Court will not further address the standing

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 question in this Opinion. W hile not expressly finding that M SL F has
standing to sue, the Court will address all of the parties’ claims,
including those advanced solely by M SLF.

Id. at 1185 n.6. Proceeding to the merits, the district court rejected all of U AC’s

and M SLF’s challenges to the creation of the M onument. Id. at 1190–1200.

M SLF timely filed a notice of appeal; however, UAC — the only other

remaining plaintiff — did not appeal the district court’s decision.

II. D ISC USSIO N

On appeal, M SLF asserts both that it had standing to bring its challenge and

that the district court erred in granting summary judgment to Defendants on the

merits of its claims. 3 W e conclude that M SLF lacked standing to bring its action;

therefore, we need not address its arguments on the merits. 4

3
Although the plaintiffs’ complaints asserted numerous challenges, on
appeal M SLF challenges only the district court’s conclusion that the M onument
designation did not violate the Antiquities A ct or the W ilderness Act.
4
W e note, however, that we have various other concerns w ith M SLF’s
claims. For example, the cause of action on which M SLF relies is not clear from
its briefs. At oral argument, counsel for M SLF asserted for the first time that
M SLF was relying on an implied private right of action under the Antiquities Act.
Given our conclusion on standing, we need not decide whether such a right of
action exists, although we note the strict standard established by the Supreme
Court for implying rights of action. See Gonzaga Univ. v. Doe, 536 U.S. 273,
290 (2002) (stating that Congress must provide for an implied right of action “in
clear and unambiguous terms”); id. at 286 (“[W]here the text and structure of a
statute provide no indication that Congress intends to create new individual
rights, there is no basis for a private suit . . . under an implied right of action.”).

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 A. Necessity of a Standing Analysis

Because the Defendants conceded below that UAC had standing, the district

court declined “in the interest of judicial economy” to address the question of

M SLF’s standing. Id. at 1185 n.6. Nevertheless, M SLF’s standing is a critical

issue in this appeal because only M SLF has appealed the district court decision.

The requirement that a plaintiff have standing “is grounded in Article III of

the U.S. Constitution, which restricts federal court adjudication to actual cases or

controversies.” Utah v. Babbitt, 137 F.3d 1193, 1201 (10th Cir. 1998); see also

San Juan County v. United States, 420 F.3d 1197, 1203 (10th Cir. 2005) (“Article

III of the Constitution limits the power of federal courts to deciding ‘cases’ and

‘controversies.’ Standing to sue . . . is an aspect of the case-or-controversy

requirement.”) (quotations, citations omitted). W e have noted that “[s]tanding to

invoke the power of the federal courts is not a mere technical hoop through which

every plaintiff must pass, but rather is ‘a part of the basic charter promulgated by

the Framers of the Constitution.’” Babbitt, 137 F.3d at 1202 (quoting Valley

Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454

U.S. 464, 476 (1982)). W here, as here, a plaintiff challenges an action of the

President, proper evaluation of standing is particularly important. See id.

(“Because Plaintiffs have invoked Article III jurisdiction to challenge the conduct

of the executive branch of government, the necessity of a case or controversy is

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of particular import.”). W e therefore must address whether M SLF had standing to

bring its claims against Defendants.

B. M SLF’s Standing

As w e recently noted, “[s]tanding is determined as of the time the action is

brought.” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005)

(citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TO C), Inc., 528 U.S.

167, 180 (2000) (“[W]e have an obligation to assure ourselves that [plaintiff] had

Article III standing at the outset of the litigation.”); Focus on the Family v.

Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) (“Article

III standing must be determined as of the time at which the plaintiff’s complaint

is filed.”); Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. 1991)

(“As w ith all questions of subject matter jurisdiction except mootness, standing is

determined as of the date of the filing of the complaint.”)). Therefore, we must

evaluate M SLF’s standing as of the time it filed its complaint.

1. Associational standing

M SLF is relying on the doctrine of associational standing in this case and is

not asserting separate independent injury to itself. Thus, because M SLF is an

association bringing suit on behalf of its members, it could only have standing 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

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individual members in the lawsuit.” Hunt v. W ash. State Apple Adver. Comm’n,

432 U.S. 333, 342–43 (1977). A lthough this quotation refers to “members,”

plural, if even one member of the association would have had standing to sue in

his or her own right, that is sufficient. See W arth v. Seldin, 422 U.S. 490, 511

(1975) (“The association must allege that its members, or any one of them, are

suffering immediate or threatened injury as a result of the challenged action.”)

(emphasis added).

2. Individual standing

In evaluating whether the first prong of associational standing has been

met, we ask whether any member of M SLF would have had standing individually

to bring these claims. The requirements for an individual to have standing in

federal court are threefold.

First, the plaintiff must have suffered an “injury in fact” – an invasion
of a legally protected interest that is both (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical. Second,
there must be a causal connection between that injury and the
challenged action of the defendant – the injury m ust be “fairly
traceable” to the defendant, and not the result of the independent action
of some third party. Finally, it must be likely, not merely speculative,
that a favorable judgment w ill redress the plaintiff’s injury.

Nova H ealth Sys., 416 F.3d at 1154 (internal citations omitted). W e therefore

must evaluate w hether any individual M SLF members, at the time M SLF filed its

complaint, see id., had suffered a redressible injury caused by Defendants.

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 3. Burden of proof

The party asserting jurisdiction — here, M SLF — has the burden of

establishing the elements of standing. Id. (“As the party seeking to invoke federal

jurisdiction, the plaintiff . . . has the burden of establishing each of the[] three

elements of Article III standing.”). Because standing was challenged in a motion

that was alternatively designated as a motion for summary judgment, M SLF “must

‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of

the summary judgment motion will be taken to be true.” Lujan v. Defenders of

W ildlife, 504 U.S. 555, 561 (1992) (internal citation omitted); see also Nova

Health Sys., 416 F.3d at 1154 (“At the summary judgment stage, the plaintiff

must set forth by affidavit or other evidence specific facts that, if taken as true,

establish each of the[] elements [of standing].”); Cf. United States v. Hays, 515

U.S. 737, 743 (1995) (“W e have . . . made clear that it is the burden of the party

who seeks the exercise of jurisdiction in his favor clearly to allege facts

demonstrating that he is a proper party to invoke judicial resolution of the

dispute. A nd when a case has proceeded to final judgment after a trial, as this

case has, those facts (if controverted) must be supported adequately by the

evidence adduced at trial to avoid dismissal on standing grounds.”) (quotations,

citations omitted). M oreover, M SLF concedes on appeal that standing in this case

should now be evaluated under summary judgment standards because it

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acknowledged it is required to “demonstrate specific facts necessary to support

the claim of injury.”

4. Analysis

a. Affidavit of Don W ood

M SLF claims that it has established the “specific facts” necessary to show

individual standing through an M SLF member — specifically, Don W ood. It

points to the affidavit of M r. W ood, which states that he is a member of M SLF

and that his business, Southwest Stone, mined alabaster from mines on what is

now M onument land for nearly 20 years. Approximately sixty to seventy percent

of Southwest Stone’s alabaster sales came from three such mines. In 1998, the

Bureau of Land M anagement voided Southwest Stone’s three mining claims for

failure to comply with annual filing requirements. Because the M onument had

been established in the area two years earlier, Southwest Stone was unable to

refile its mining claims, the loss of which put Southwest Stone out of business in

1999. M r. W ood maintains in his affidavit that “[b]ut for the creation of the

M onument,” he and his business partner “would simply have refiled the claims

and preserved our business.” M SLF argues that this inability to refile the mining

claims by M r. W ood is the injury-in-fact and that “M r. W ood owes the loss of his

entire business and livelihood to the designation of the M onument.” 5

5
W e note that the voiding of M r. W ood’s m ining claims, although clearly
(continued...)

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 b. Timing problem

There is a glaring problem with M SLF’s reliance on this alleged injury to

M r. W ood, even taking all of the facts alleged in his affidavit as true, Nova

Health Sys., 416 F.3d at 1154. M SLF’s Complaint in this action was filed on

November 5, 1997, and its Amended Complaint w as filed on December 15, 1997.

M r. W ood’s mining claims, however, were not voided until 1998. Thus, M r.

W ood’s alleged injury — the inability to refile his three voided mining claims —

could not have occurred until after the “time th[is] action [wa]s brought.” Nova

Health Sys., 416 F.3d at 1154. Because standing is determined as of the time of

the filing of the complaint, M r. W ood’s alleged injury cannot serve as a basis for

M SLF’s standing in this case. 6

5
(...continued)
injurious to his business, could not be used to establish standing because it was
not caused by Defendants’ actions in designating the M onument, but by M r.
W ood’s failure to comply with filing requirements. Cf. United States v. Locke,
471 U.S. 84, 107 (1985) (“The[] property loss was one appellees could have
avoided with minimal burden; it was their failure to file on time--not the action of
Congress--that caused the property right to be extinguished.”).
6
Dismissal based on a statute of limitation can occur w here the complaint is
filed too long after the injury occurs. H ere, we are presented with the opposite
situation: M SLF filed its complaint before the asserted injury on which it attempts
to rely occurred. Although this basis for dismissal is arguably a peculiar one,
especially if M r. W ood’s loss was an otherwise sufficient injury-in-fact (an issue
we do not address), the peculiarity is due solely to M SLF’s post hoc reliance on
an injury that had not even occurred when M SLF filed its complaint. M r. W ood’s
loss simply could not have been part of the “legal harm” alleged in M SLF’s
complaint because it had not yet happened.
W e note that in its reply brief, M SLF argues that “M r. W ood was ‘injured’
(continued...)

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 c. Conclusion

Because M SLF relies solely on M r. W ood’s declaration for the “specific

facts” necessary to support its standing allegations, 7 our conclusion that M r.

W ood’s affidavit does not demonstrate an injury-in-fact “as of the time the action

[wa]s brought” means that M SLF has not met its burden of establishing

constitutional standing to bring this action. 8

III. C ON CLU SIO N

For the foregoing reasons, we DISM ISS this appeal on the ground that

M SLF has not met its burden of establishing the elements of standing.

6
(...continued)
because he was deprived of his statutory right to enter upon and locate additional
mining claims within the lands withdrawn by designation of the M onument.”
Because the inability to locate new mines happened at the time the M onument
was created, this alleged injury would not seem to suffer from the same timing
problem as M r. W ood’s inability to refile his voided claims. However, we
decline to address this issue since it w as raised for the first time in a reply brief.
Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). In any event, this claim is
not supported by the evidence.
7
Although M SLF states that the experience of M r. W ood is “but one
poignant example of the injuries suffered by M SLF members in the M onument
area and throughout Utah and the Southwest as a result of the M onument
designation,” it gives no other specifics of those injuries and we have found none
in the record.
8
Because we conclude that M SLF has not established an injury, we need not
address the second and third prongs of individual standing (causation and
redressibility). And, because M SLF has not shown “specific facts” establishing
that any of its members would have standing to bring this action, we need not
address the second and third prongs of associational standing.

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