Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in US Court of Appeals for the Tenth Circuit
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The Pueblos of Jemez, Santa Ana, and Zia resided along the Jemez River at a time when their lands passed from Spanish to Mexican sovereignty, and finally to the United States. In 1983, the United States initiated a water-rights adjudication for the Jemez River Basin, claiming water rights on behalf of the Pueblos. The issue this case presented for the Tenth Circuit's review centered on whether the Pueblos' aboriginal water rights were extinguished by the imposition of Spanish authority "without any affirmative adverse act." No matter the method used, the sovereign’s intent to extinguish must be clear and unambiguous; “an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Moreover, “if there is doubt whether aboriginal title has been validly extinguished by the United States, any ‘doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of’ the Indians.” The Tenth Circuit reversed the district court, finding that while "All conquering sovereigns possess authority over their land and resources ... not until the sovereign exercises this authority through clear and adverse affirmative action may it extinguish aboriginal rights." View "United States v. Abouselman" on Justia Law

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Oklahoma City Ordinance 25,777 prohibited standing, sitting, or remaining for most purposes on certain medians. Plaintiffs were Oklahoma City residents, a minority political party in Oklahoma, and an independent news organization. They used medians to panhandle, engage in protests or other expressive activity, mount political campaigns, cover the news, or have personal conversations. After they were no longer able to engage in such activity due to the ordinance, plaintiffs sued Oklahoma City and its chief of police, William Citty, (together, “the City”) alleging violations of their First and Fourteenth Amendment rights. The district court dismissed plaintiff Trista Wilson’s First Amendment claim; granted summary judgment favoring the City on plaintiffs’ due process vagueness claims; and, following a bench trial, entered judgment against plaintiffs on all other claims. After review, the Tenth Circuit Court of Appeals reversed the court’s entry of judgment in favor of the City on plaintiffs’ First Amendment claims; it reversed the dismissal of Wilson’s First Amendment claim; and affirmed on all other claims. View "McCraw v. City of Oklahoma City" on Justia Law

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The residential community of Cordillera in Eagle County, Colorado, featured a private lodge and spa (the “Lodge”) and a village center (the “Village”). For many years, the Lodge offered its dues-paying members certain amenities, including a golf course and spa. The Village offered “open space: tennis courts and hiking paths, which all residents and their guests could use. In 2013, after years of monetary losses, the owner of both parcels listed them for sale. In 2016, CSMN Investments, LLC (CSMN) emerged to purchase both properties. CSMN's plan for the properties would have closed the properties to other uses. Before closing on the sale, CSMN sought confirmation from Eagle County’s Planning Director that its planned use, operating an inpatient addiction-treatment center, was an allowed use under the “Cordillera Subdivision Eleventh Amended and Restated Planned Unit Development Control Document” (PUD). The Director issued a written interpretation of the PUD, concluding CSMN could operate a clinic including inpatient, non-critical care, for treatment of a variety of conditions. In response to the Director’s interpretation, community members unhappy with the change to the Lodge and Village, formed the Cordillera Property Owners Association (CPOA) and Cordillera Metropolitan District (CMD), to jointly appeal the Director's PUD interpretation to the Board of county Commissioners. The Board affirmed the Director on all but one point, concluding the PUD permitted outpatient-only clinical uses. Still aggrieved, the CMD and CPOA took their case to Colorado state court; the district court affirmed the Board's decision. CPOA appealed to the Colorado Court of Appeals, which likewise affirmed the Board's decision. With the state-court appeals pending, CSMN filed a civil-rights action in Colorado federal district court against CPOA, CMD, and various associated people (the CMD board members, the CMD district manager, and the Legal Committee members). In response, Appellees moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss all claims, arguing that the right to petition immunized their conduct. CSMN countered that Appellees’ claim of immunity was unfounded because the petitioning had sought an unlawful outcome, and that even if the immunity somehow did apply, the petitioning fell within an exception to that immunity, that is, the petitioning was a “sham.” The district court sided with Appellees, dismissing all but one of the claims on the ground that their conduct was protected by Noerr-Pennington immunity. CSMN appealed. But the Tenth Circuit concurred with the finding that Appellees engaged in objectively reasonable litigation, thus immunity applied to their conduct. View "CSMN Investments v. Cordillera Metropolitan" on Justia Law

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The jaguar is a large felid found in the southwestern United States, Mexico, Central America, and South America. Pertinent here, the jaguar was listed as a foreign endangered species in 1972. In 2014, the U.S. Fish and Wildlife Service published a final rule designating 764,207 acres in New Mexico and Arizona as critical jaguar habitat. Plaintiffs filed suit, contending the Service’s designation was arbitrary and capricious. The district court ruled in favor of the Service. After review of the district court record, the Tenth Circuit concluded the agency did not comply with the regulation, and the Tenth Circuit's "resolution of this issue is beyond doubt. Further, the agency had a chance to rectify this error, but failed to do so. When an agency does not comply with its own regulations, it acts arbitrarily and capriciously. " The Court therefore reversed the district court and remanded the case for further proceedings. View "NM Farm & Livestock Bureau v. United States Dept of Interior" on Justia Law

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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