Utah Ass'n of Counties v. Bush

Page 1094

455 F.3d 1094

UTAH ASSOCIATION OF COUNTIES, on behalf of its members, Plaintiff Mountain States Legal Foundation, on behalf of its members, Plaintiff-Appellant, v. George W. BUSH, in his official capacity as President of the United States, United States of America, James L. Connaughton, in his official capacity as Chair of the Council on Environmental Quality, Gale Norton, in her official capacity as Secretary of the Interior, and Kathleen Clarke, Director of the Bureau of Land Management, Defendants-Appellees Southern Utah Wilderness Alliance, The Wilderness Society, Grand Canyon Trust, Escalante Canyon Outfitters, Escalante's Grand Staircase B & B Inn, and Boulder Mountain Lodge, Defendants-Intervenors-Appellees State of Utah, Amicus Curiae.

No. 04-4132.

United States Court of Appeals, Tenth Circuit.

July 24, 2006.

Jayme Ritchie (William Perry Pendley and S. Amanda Koehler, with her on the briefs), Mountain States Legal Foundation, Lakewood, CO, for Plaintiff-Appellant.

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

Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT (Heidi J. McIntosh, Southern Utah Wilderness

Alliance, Salt Lake City, UT, Richard A. Duncan, Craig S. Coleman and Sarah I. Wheelock, Faegre & Benson, Minneapolis, MN, with him on the brief), for Defendants-Intervenors-Appellees.

J. Mark Ward, Assistant Attorney General and Mark L. Shurtleff, Utah Attorney General, filed a brief for amicus curiae State of Utah on behalf of appellant.

Before KELLY, SEYMOUR, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

In this case, Mountain States Legal Foundation ("MSLF") challenges the legality of the 1996 creation of the Grand Staircase-Escalante National Monument in southern Utah. Because we conclude that MSLF lacked standing to bring this claim, we dismiss the appeal.

I. BACKGROUND

A. The Monument

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 Monument (the "Monument"), 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 Monument 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 Monument 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 towns" from Mormon pioneers; "[f]ragile cryptobiotic crusts"; and "[o]ver 200 species of birds, including bald eagles and peregrine falcons." Id. at 50,223-225.

The proclamation claimed the authority to establish the Monument based on the Antiquities 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 may 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 Monument is set aside "by the authority vested in me by section 2 of the [Antiquities Act]").

Establishment of the Monument 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 Grand Staircase-Escalante National Monument." H.R.Rep. No. 105-D (Comm. Print 1997); "Monumental Abuse: The Clinton Administration's Campaign of Misinformation in the Establishment of the Grand Staircase-Escalante National Monument." H.R.Rep. No. 105-824 (Comm. Print 1998).¹

Despite these and other criticisms of the Monument, since 1996 Congress has passed several pieces of legislation that relate to the Monument. For example, in the Automobile National Heritage Area Act, Pub.L. No. 105-355, 112 Stat. 3247 (1998), Congress modified the boundaries of the Monument 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 Monument, 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 Monument. 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 Monument 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 Monument was illegal. See Utah Ass'n of Counties v. Bush, 316 F.Supp.2d 1172, 1176 (D.Utah 2004). The Appellant in this case, MSLF, 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 Monument on numerous grounds, claiming that: (1) the Antiquities Act is unconstitutional because it violates the delegation doctrine; (2) in designating the Monument, 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 Act by failing to designate "objects of historic or scientific interest" and failing to confine the Monument "to the smallest area compatible with the proper care and management of the objects to be protected"; (4) President Clinton violated the Wilderness Act by creating de facto wilderness, a power reserved to Congress; (5) President Clinton violated Executive Order 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 Management Act, the Federal Advisory Committee Act, and the Anti-Deficiency Act in the creation of the Monument. See id. at 1176-77. Given the relatedness of the complaints, the actions by UAC, SITLA, and MSLF were soon consolidated; 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 Monument 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 MSLF lacked standing to challenge the Monument. Id. Both remaining plaintiffs (UAC and MSLF) opposed Defendants' motion and filed their own motions for summary 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 MSLF lacked standing, the court stated:

the United States concedes that UAC has standing, but insists MSLF 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 MSLF are identical or similar, and in the interest of judicial economy the Court will not further address the standing question in this Opinion. While not expressly finding that MSLF has standing to sue, the Court will address all of the parties' claims, including those advanced solely by MSLF.

Id. at 1185 n. 6. Proceeding to the merits, the district court rejected all of UAC's and MSLF's challenges to the creation of the Monument. Id. at 1190-1200.

MSLF timely filed a notice of appeal; however, UAC — the only other remaining plaintiff — did not appeal the district court's decision.

II. DISCUSSION

On appeal, MSLF 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 We conclude that MSLF lacked standing to bring its action; therefore, we need not address its arguments on the merits.⁴

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 MSLF's standing. Id. at 1185 n. 6. Nevertheless, MSLF's standing is a critical issue in this appeal...