Hill v. Warsewa

947 F.3d 1305

Roger HILL, Plaintiff - Appellant,

v.Mark Everett WARSEWA; Linda Joseph ; the State of Colorado, Defendants - Appellees,Law Professors; Colorado Water Congress ; Upper Arkansas Water Conservancy District ; Taylor Placer, Ltd; Crystal Creek Homeowners Association, Inc. ; Jackson-Shaw/Taylor River Ranch, LLC.; Wilder Association, Amici Curiae.

No. 19-1025

United States Court of Appeals, Tenth Circuit.

FILED January 23, 2020

Alexander N. Hood (and Mark Squillace, with him on the brief), Denver, Colorado, for Plaintiff - Appellant.

Scott Steinbrecher, Senior Assistant Attorney General (Philip J. Weiser, Attorney General and Daniel E. Steuer, Senior Assistant Attorney General, with him on the brief), Denver, Colorado, for Defendant - Appellee State of Colorado.

Kirk B. Holleyman, Kirk Holleyman, P.C., Denver, Colorado, for Defendants - Appellees Warsewa and Joseph.

Jennifer L. Danis and Edward Lloyd, Morningside Heights Legal Services, Inc., Environmental Law Clinic, Columbia Law School, New York, New York; and Kevin Lynch, Wyatt G. Sassman, and Sarah A. Matsumoto, Environmental Law Clinic, University of Denver Sturm College of Law, Denver, Colorado, for Amici Curiae of Law Professors, in support of Plaintiff - Appellant.

Stephen H. Leonhardt and April D. Hendricks, Burns, Figa & Will, P.C., Greenwood Village, Colorado; Kendall K. Burgemeister of Law of the Rockies, Gunnison, Colorado, for Amici Curiae Colorado Water Congress and Upper Arkansas Water Conservancy District, in support of Defendant - Appellees.

Richard A. Westfall, Hale Westfall, LLP, Denver, Colorado, and Charles B. White, Petros & White, LLC, Denver, Colorado, for Amici Curiae Taylor Placer, LTD, Crystal Creek Homeowners Association, INC., Jackson - Shaw / Taylor River Ranch, LLC, and Wilder Association, in support of Defendants - Appellees.

Before HOLMES, KELLY, and BACHARACH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Roger Hill appeals from the district court’s dismissal of his complaint pursuant to Fed. R. Civ. P. 12(b)(6) for lack of prudential standing. Mr. Hill is a fly fisherman who prefers to fish at a favorite spot in the Arkansas River. Defendants-Appellees Mark Everett Warsewa and Linda Joseph (Landowners) contend that they own the Arkansas riverbed up to its centerline at the spot at which Mr. Hill prefers to fish. Mr. Hill contends that this segment of the river was navigable for title at the time Colorado was admitted to the United States and that title to the riverbed consequently vested in the state at admission under Article IV of the Constitution and the Equal Footing Doctrine. According to Mr. Hill, the state holds this title in trust for the public, subject to an easement for public uses such as fishing. Defendant-Appellee State of Colorado (Colorado or the State) agrees with the Landowner Appellees that this segment of the river was non-navigable for title at statehood and is privately owned. The district court¹ found that Mr. Hill lacked prudential standing because he asserted a generalized grievance and rested his claims on the rights of the state. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse.

Background

Mr. Hill believes that he, as a member of the public, has a right to fish at the disputed segment of the Arkansas River. The dispute over title has led to conflict between Mr. Hill and the Landowners. Mr. Hill alleges that the Landowners have sought to exclude him from the property by chasing him off by force and threats of force, throwing rocks at him, threatening legal action, and shooting a gun at one of his friends. Aplt. Br. at 9.

The Landowners contend that they own the riverbed and are within their rights to exclude Mr. Hill. They claim that the chain of record title for the land² originates with a federal patent and that only private owners are within that chain. The Landowners purchased the Warsewa Parcel by warranty deed in 2006. The subdivision plat for the Warsewa Parcel, which is designated Lot 5 of Block 2 in that document, indicates that its boundaries extend up to the center line of the river. Aplt. App. 41–42.

Below, Mr. Hill alleged facts in support of his navigability claim. Colorado was admitted as a state on August 1, 1876. Mr. Hill alleged that fur trappers used the Arkansas River to transport goods prior to that date. Id. at 31. He also asserted that contemporaneous newspaper reports describe commercial use of the river to float logs and railroad ties downstream. Id. at 32.

Mr. Hill first filed an action in the district court. See Hill v. Warsewa, 18-cv-00277-PAB-KLM (D. Colo.). The Landowners defaulted in that action, while Colorado moved to intervene and asked the district court to dismiss on Eleventh Amendment grounds. See Motion to Intervene, id. (May 7, 2018) (ECF No. 17). Before that motion was resolved, Mr. Hill moved for, and was granted, voluntary dismissal of the action. See Notice of Voluntary Dismissal, id. (May 29, 2018) (ECF No. 23).

Mr. Hill then filed substantially the same action in Colorado state court. Aplt. App. 6. Colorado was named as an "interested party" and later appeared in the action. The landowners appeared and removed the action to the district court on the basis of federal question jurisdiction. See id. at 18. Mr. Hill added Colorado as a named Defendant in the federal action. See id. at 26.

Both the Landowner Appellees and Colorado moved the district court to dismiss, alleging defects in constitutional and prudential standing and failure to state a claim. See id. at 45, 62. Mr. Hill responded with various motions of his own, moving to remand for lack of subject matter jurisdiction, asking the court to stay consideration of opposing motions until resolution of his motion to remand, and moving to certify the question of the nature of Colorado’s title to the Colorado Supreme Court. See id. 77, 83.

The district court declined to stay consideration and resolved the remaining motions. See id. at 177. First, the court held that Mr. Hill lacked prudential standing to bring his claims because he asserted the rights of a third party — Colorado — and alleged only a generalized grievance. Id. at 184–86. The court rejected Mr. Hill’s motion to remand because it was dismissing on the "threshold issue" of prudential standing, rather than the jurisdictional issues of constitutional standing or sovereign immunity. Id. at 186–87. It then denied Mr. Hill’s motion to certify a question to the Colorado Supreme Court as moot. Id. at 187. On appeal, Mr. Hill argues that the district court erred by finding that he lacked prudential standing to bring his claims. Because we agree and conclude that this error requires a remand, we do not reach Mr. Hill’s other contentions.

Discussion

We review a district court’s dismissal under Fed. R. Civ. Pro. 12(b)(6) de novo. Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017). We review dismissals for lack of prudential standing de novo. Wilderness Soc’y v. Kane County, 632 F.3d 1162, 1168 (10th Cir. 2011) (en banc). We accept as true all well-pleaded factual allegations in the complaint. Safe Streets All., 859 F.3d at 878. For standing purposes, "we must assume the Plaintiffs’ claim has legal validity." Wilderness Soc’y, 632 F.3d at 1168 (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006) (en banc)).

This case presents questions about (1) the order in which constitutional standing and other threshold jurisdictional issues should be approached by federal courts, and (2) the content and application of the constitutional and prudential standing doctrines. We address each in turn.

A. Threshold Issues

Mr. Hill initially argues that the district court erred by analyzing prudential standing before sovereign immunity and constitutional standing. According to Mr. Hill, the Supreme Court has "limited courts’ ability to skip jurisdictional issues when, as here, the case has been removed." Aplt. Br. at 41. Mr. Hill concedes that courts "can dismiss on other preliminary issues before considering subject matter jurisdiction" in some circumstances. Id. at 40. He contends, however, that the district court was required to find that constitutional standing and other subject matter jurisdiction issues were "more difficult" to resolve before it used this order. Id. at 41–42.

We do not believe that the cases establish such a rigid sequence. The very cases Mr. Hill cites hold that "there is no unyielding jurisdictional hierarchy." Gadlin v. Sybron Int’l Corp., 222 F.3d 797, 799 (2000) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ). The Supreme Court has observed that "[i]t is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits." Ruhrgas AG, 526 U.S. at 585, 119 S.Ct. 1563. As the district court noted, both this court and the Supreme Court have relied on Ruhrgas to proceed directly to prudential standing without addressing other jurisdictional issues. See Wilderness Soc’y, 632 F.3d at 1168 ("Because [The Wilderness Society] lacks prudential standing, we proceed directly to that issue without deciding whether [The Wilderness Society] has constitutional standing or whether the case is moot."); see also Tenet v. Doe, 544 U.S. 1, 6 n.4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) ("[t]he prudential standing doctrine[ ] represents the sort of ‘threshold question’ we have recognized may be resolved before addressing jurisdiction"). Mr. Hill’s argument to the contrary relies on the idea that Lexmark International Inc. v. Static Control Components, Inc. limited prudential standing to such a degree that it is no longer appropriate to treat it as a threshold inquiry. 572 U.S. 118, 125–26, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) ; see also infra Part B. A member of this court has already suggested that prior decisions related to the third party standing strand of prudential standing "remain[ ] sound" ...