Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in US Court of Appeals for the Tenth Circuit
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Thomas Alpern claimed the United States Forest Service improperly charges him a fee when he entered Maroon Valley to park and hike. He cited an provision of the Federal Lands Recreation Enhancement Act (REA) he claimed prohibited charging a fee "solely for parking." He argued that this prohibition overrode another REA provision that allowed agencies to charge a fee when certain listed amenities were present, like picnic tables, security patrols, trash bins, and interpretive signs. The Tenth Circuit disagreed, finding section 6802(d)(1)(A) prohibited charging fees “[s]olely for parking . . . along roads or trailsides[,]” something Alpern did not do. The Court found Alpern parked in a developed parking lot featuring all the amenities listed in section 6802(f)(4), not along a road or trailside. So it affirmed the district court’s decision to reject Alpern’s as-applied challenge to the Maroon Valley fee program. View "Alpern v. Ferebee" on Justia Law

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Plaintiff-Appellant Roger Hill appealed a district court's dismissal of his complaint for failure to state a claim (Fed. R. Civ. P. 12(b)(6)) -- specifically for lack of prudential standing. Hill was a fly fisherman who preferred to fish at a favorite spot in the Arkansas River. Defendants-Appellees Mark Everett Warsewa and Linda Joseph (Landowners) contended they owned the Arkansas riverbed up to its centerline at the spot at which Hill preferred to fish. Hill contended 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 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 agreed with the Landowner-Appellees that this segment of the river was non-navigable for title at statehood and was privately owned. The district court found that Hill lacked prudential standing because he asserted a generalized grievance and rested his claims on the rights of the state. The Tenth Circuit reversed. Hill alleged he had a specific, legally protected right to fish resulting from alleged facts and law. "The other parties and amici may ultimately be correct that Colorado law does not actually afford Mr. Hill the right to fish that he asserts, even if he can prove navigability as a factual matter. But in this regard 'far-fetchedness is a question to be determined on the merits.'" The Court assumed Hill’s claim had “legal validity” and concluded that he asserted his own rights, not those of Colorado, for prudential standing purposes. View "Hill v. Warsewa" on Justia Law

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The Rio Grande was one of only a handful of rivers that created critical habitat for plants, animals, and humans. “And it is a fact of life that not enough water exists to meet the competing needs.” Recognizing these multiple uses, Congress has authorized the Bureau of Reclamation and the Army Corps of Engineers to maintain a balance between the personal, commercial, and agricultural needs of the people in New Mexico’s Middle Rio Grande Valley and the competing needs of the plants and animals. WildEarth Guardians claimed the Army Corps of Engineers failed to protect the needs of two endangered species that live along the river: the Southwestern Willow Flycatcher and the Rio Grande Silvery Minnow. The group filed suit under the Endangered Species Act, arguing the Army Corps of Engineers failed to exercise its discretion and consult with the U.S. Fish and Wildlife Service (FWS) about alternative water management policies that would help protect these species. The district court concluded the Army Corps of Engineers was not authorized by the statute to allocate additional water to species’ needs and therefore was not required to consult with FWS. Finding no error in the district court’s reasoning, the Tenth Circuit Court of Appeals affirmed. View "WildEarth Guardians v. U.S. Army Corps of Engineers" on Justia Law

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The United States sought to enjoin the Uintah Valley Shoshone Tribe and several individual members from selling hunting and fishing licenses that authorized members to take wildlife from the Uintah and Ouray Reservation. The Uintah Valley Shoshone Tribe was not a federally recognized Indian tribe, but it nonetheless claimed to have tribal rights, including hunting and fishing rights, related to the Reservation. The district court held the Tribe had no authority to issue licenses. The court, however, declined to issue a permanent injunction prohibiting the issuance of future licenses against both the individual defendants and the Tribe. The Tenth Circuit agreed with the district court that the Uintah Valley Shoshone Tribe lacks authority to issue hunting and fishing licenses, and found the district court did not abuse its discretion in declining to issue a permanent injunction. View "United States v. Uintah Valley Shoshone Tribe" on Justia Law

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Intervenor-Appellant the United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) purchased an undeveloped 76-acre parcel of land near Tahlequah, Oklahoma, with the intention of developing it into a tribal and cultural center (Subject Tract, or Subject Parcel). The Subject Parcel sat entirely within the boundaries of the former reservation of Appellees the Cherokee Nation of Oklahoma (Nation). In 2004, the UKB submitted an application to the Department of the Interior’s Bureau of Indian Affairs (BIA), requesting the BIA take the Subject Parcel into trust, thereby formally establishing a UKB tribal land base. The Nation opposed the application. After seven years of review, the BIA approved the UKB’s application. The Nation sued Department of the Interior and BIA officials, with the UKB intervening as defendants, challenging the BIA’s decision on several fronts. The district court found in favor of the Nation, determining that the BIA’s decision to take the Subject Parcel into trust was “arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.” Among other holdings, the district court concluded that: (1) the BIA had to obtain Nation consent before taking the Subject Parcel into trust; (2) the BIA’s analysis of two of its regulations as applied to the UKB application was arbitrary and capricious; and (3) the BIA must consider whether the UKB meets the Indian Reorganization Act (IRA)’s definition of “Indian” in light of the Supreme Court case Carcieri v. Salazar, 555 U.S. 379 (2009). On appeal, the Tenth Circuit determined the Secretary of the Interior had authority to take the Subject Parcel into trust under section 3 of the Oklahoma Indian Welfare Act of 1936 (OIWA). The BIA was therefore not required to consider whether the UKB met the IRA’s definition of “Indian.” Nor was the BIA required to obtain the Nation’s consent before taking the land into trust. The Court also held the BIA’s application of its regulations was not arbitrary and capricious. View "Cherokee Nation v. Zinke" on Justia Law

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In 2008, Kane County, Utah sued the United States under the Quiet Title Act, which was “the exclusive means by which adverse claimants c[an] challenge the United States’ title to real property.” Kane County alleged that it held title to fifteen rights-of-way under Section 8 of the Mining Act of 1866, more commonly known as “Revised Statute (R.S.) 2477.” In this case’s third trip before the Tenth Circuit Court of Appeals, the issue this time was Southern Utah Wilderness Alliance’s (SUWA) challenge to the district court’s denial of its second motion to intervene. SUWA filed this second motion after the Tenth Circuit reversed the district court’s determinations on the width of rights-of-way on three roadways. Responding to the issues raised, the Tenth Circuit concluded: SUWA had standing to intervene as a party defendant; SUWA’s second motion to intervene was reviewable de novo and not for an abuse of discretion; and SUWA met all requirements to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. The Court therefore reversed the district court’s denial of SUWA’s second motion to intervene. View "Kane County, Utah v. United States" on Justia Law

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Plaintiff Stephen Hamer resided in Trinidad, Colorado, confined to a motorized wheelchair, and a qualified individual with a disability under Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act of 1973 (“RA”). He did not own a car or otherwise use public transportation. Instead, he primarily used the City’s public sidewalks to move about town. Plaintiff contended many of the City’s sidewalks and the curb cuts allowing access onto those sidewalks did not comply with Title II of the ADA and section 504 of the RA. Plaintiff filed an ADA complaint with the United States Department of Justice (“DOJ”) informing the government about the state of the City’s sidewalks, and continued to lodge informal ADA and RA complaints at City Council meetings over several months. Apparently in response to Plaintiff’s multiple complaints and the results of a DOJ audit, City officials actively began repairing and amassing funding to further repair non-compliant sidewalks and curb cuts. Even so, Plaintiff nonetheless filed suit against the City for violations of Title II of the ADA and section 504 of the RA, seeking a declaratory judgment that the City’s sidewalks and curb cuts violated the ADA and RA, injunctive relief requiring City officials to remedy the City’s non-compliant sidewalks and curb cuts, monetary damages, attorneys’ fees, and costs. The district court granted summary judgment to the City on statute-of-limitations grounds, finding the applicable “statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” The Tenth Circuit held a public entity violates Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act each day that it fails to remedy a noncompliant service, program, or activity. As a result, the applicable statute of limitations did not operate in its usual capacity as a firm bar to an untimely lawsuit. “Instead, it constrains a plaintiff’s right to relief to injuries sustained during the limitations period counting backwards from the day he or she files the lawsuit and injuries sustained while the lawsuit is pending.” Because the district court applied a different and incorrect standard, the Tenth Circuit reversed and remanded for further proceedings. View "Hamer v. City of Trinidad" on Justia Law

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In 1988, defendant United States Forest Service designated a 2,380 acre portion of the Manti-La Sal National Forest’s highest elevations, namely the summits and ridges of Mt. Peale, Mt. Mellenthin, and Mt. Tukuhnikivatz, as the Mt. Peale Research Natural Area (RNA). In June 2013, the Utah Wildlife Board approved UDWR’s “Utah Mountain Goat Statewide Management Plan.” Among other things, UDWR’s plan anticipated the release of a target population of 200 mountain goats into the La Sal Mountains adjacent to the Manti-La Sal National Forest for the express purposes of hunting and viewing. The FS, concerned the goats might adversely affect the habitat of the higher alpine regions of the national forest, asked the Utah’s Division of Wildlife Resources (UWDR) to delay implementation of its plan while the FS in coordination with UDWR studied the plan’s expected impact on the national forest and the RNA. UDWR rejected the FS’s request for an outright delay, and indicated it would begin implementing its plan by transplanting a small number of goats into the mountains, but would work cooperatively with the FS to assess impacts and develop a strategy to prevent overutilization of the habitat. In September 2013, UDWR released twenty mountain goats on State lands adjacent to the Manti-La Sal National Forest. A year later, UDWR released an additional fifteen mountain goats on the same State lands. The goats moved into the La Sal Mountains’ higher elevations, wallowing and foraging within the national forest and more particularly within the Mt. Peale RNA. Plaintiff Grand Canyon Trust demanded the FS: (1) prohibit UDWR from introducing additional mountain goats onto State lands adjacent to the national forest; (2) regulate UDWR’s occupancy and use of the national forest by requiring it to obtain special use authorization before releasing additional mountain goats on State lands; and (3) immediately remove the mountain goats already in the national forest. Determining UDWR did not release the goats on federal lands, the FS elected to "wait and see" before initiating any action against UDWR, and to "gather and evaluate data sufficient to determine whether action was warranted." GCT thereafter filed for declaratory and injunctive relief. The Tenth Circuit upheld the district court's dismissal of GCT's complaint, concurring with the trial court that GCT "cleverly amalgamated federal law in an attempt to find some pathway to judicial review." The Tenth Circuit concluded GCT failed to state a claim upon which relief could be granted, and affirmed dismissal of the complaint. View "Utah Native Plant Society v. U.S. Forest Service" on Justia Law

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Plaintiffs Maralex Resources, Inc. (Maralex), Alexis O’Hare and Mary C. O’Hare (the O’Hares) filed this action against the Secretary of the Department of the Interior (Secretary), the Department of the Interior, and the United States seeking review of a decision of the Interior Board of Land Appeals (IBLA) the upheld four Notices of Incidents of Noncompliance that were issued by the Bureau of Land Management’s (BLM’s) Tres Rios Field Office to Maralex for failing to allow a BLM representative to access certain oil and gas lease sites operated by Maralex on land owned by the O’Hares. The district court affirmed the IBLA’s decision. The Tenth Circuit determined the BLM, in issuing the Notices of Incidents of Noncompliance, lacked authority to require plaintiffs to provide BLM with a key to a lease site on privately-owned land or to allow the BLM to install its own locks on the gates to such lease site. Consequently, the Court reversed and remanded to the district court with instructions to enter judgment in favor of plaintiffs on this “key or lock” issue. View "Maralex Resources v. Barnhardt" on Justia Law

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Plaintiff Enable Oklahoma Intrastate Transmission, LLC (“Enable”), appealed the district court’s dismissal of its case for lack of subject matter jurisdiction and for failure to join an indispensable party. Enable also challenged the amount of attorney fees the court awarded to the landowner defendants. Because the Tenth Circuit’s decision in Public Service Company of New Mexico v. Barboan, 857 F.3d 1101 (10th Cir. 2017), was dispositive of the subject matter jurisdiction issue, the Court affirmed the district court’s order dismissing the action. View "Enable Oklahoma Intrastate v. 25 Foot Wide Easement" on Justia Law