FILED

United States Court of Appeals

FOR THE TENTH CIRCUIT July 24, 2017

Petitioner - Appellant,

v. No. 17-2004
(D.C. No. 1:16-CV-01073-JAP-KBM)
UNITED STATES FOREST SERVICE, (D. N.M.)
an agency of the United States Department
of Agriculture; THOMAS TIDWELL, in
his official capacity as Chief of the United
States Forest Service; JAMES MELONAS,
in his official capacity as Santa Fe National
Forest Supervisor; CAL JOYNER, in his
official capacity as Regional Forester,
Southwestern Region, United States
Department of Agriculture; SONNY
PERDUE, in his official capacity as
Secretary of the United States Department
of Agriculture,

Respondents - Appellees.*
_________________________________

ORDER AND JUDGMENT**

*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, James Melonas is substituted for Maria T. Garcia and Sonny Perdue is
substituted for Tom Vilsack as respondents in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
_________________________________

This appeal concerns a second action brought by Petitioner-Appellant New

Mexico Off-Highway Alliance (Alliance) against the United States Forest Service

and others regarding the Forest Services Record of Decision for Travel Management

on the Santa Fe National Forest (ROD) and related Final Environmental Impact

Statement (FEIS). In 2016 we resolved the Alliances first petition seeking to

challenge these Forest Service actions by finding that the organization had failed to

establish Article III standing to challenge them and that we and the district court

therefore lacked subject matter jurisdiction over the suit. In this second action, the

Alliance again seeks to challenge the ROD and FEIS, but has now presented

additional facts, which were available to it in its first action, that it contends remedy

the standing deficiencies we previously found. The district court dismissed this

action for lack of subject matter jurisdiction, finding that issue preclusion prevented

the Alliance from relitigating the previously decided standing issue. The Alliance

appeals, arguing that issue preclusion only bars relitigation of jurisdictional issues if

the previously adjudicated jurisdictional defect has not or cannot be cured. The

district court properly found that this is not the law in this circuit. We exercise

appellate jurisdiction under 28 U.S.C. 1291 and affirm.

BACKGROUND

The Alliance filed its first petition challenging the ROD and FEIS in

December 2012 [hereinafter 2012 action]. Aplt. App. at 130; see N.M.

Off-Highway Vehicle All. v. U.S. Forest Serv., No. 1:12-cv-1272 WJ-GBW,

645 F. Appx 795 (10th Cir. 2016). To establish Article III standing before the

district court in the 2012 action, the Alliance submitted a sworn declaration by Mark

R. Werkmeister, one of its board members, in which he asserted the ROD and FEIS

adversely affected him and other Alliance members by constraining their present and

future use of the Santa Fe National Forest. Aplt. App. at 6-8; see N.M. Off-Highway

Vehicle All. v. U.S. Forest Serv., 645 F. Appx 795, 801 (10th Cir. 2016)

(NMOHVA II). The district court found this declaration was too vague to establish

a concrete and particularized injury that was actual or imminent as required, but

nonetheless found the Alliance had demonstrated standing by the slimmest of

margins based on the administrative record and representations made at a hearing.

NMOHVA I, 2014 WL 6663755, at *3-4. The district court then proceeded to

consider the Alliances claims, and denied them on the merits. Id. at *14.

The Alliance appealed the district courts decision. After a thorough

examination of the record, we determined that we and the district court lacked

jurisdiction to decide the merits of the case because the Alliance had not, in fact,

carried its burden to establish Article III standing. NMOHVA II, 645 F. Appx

at 800, 806. We therefore remanded the case to the district court with instructions to

vacate its judgment and dismiss the 2012 action without prejudice for lack of subject

matter jurisdiction. Id. at 807.

After the district court complied with our direction, the Alliance filed this

second action seeking to challenge the ROD and FEIS, this time providing an

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expanded standing declaration by Mr. Werkmeister and a new standing declaration

by another Alliance member. Aplt. App. at 31-47. The Alliance argued to the

district court that these declarations remedied the standing deficiencies identified in

NMOHVA II and thus demonstrated its standing and the courts subject matter

jurisdiction over the suit. The district court dismissed the Alliances second petition

upon finding that the additional information provided in the declarations had been

available to the Alliance in its previous action, and that the doctrine of issue

preclusion prevented the organization from relitigating the standing issue based on

previously available facts. Aplt. App. at 129-34. This appeal followed.

DISCUSSION

Where there are no disputed facts, as is the case here, the preclusive effect of a

prior judgment or determination is a pure question of law we review de novo. Lenox

MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1230 (10th Cir. 2017);

Valley View Angus Ranch, Inc. v. Duke Energy Field Servs., Inc., 497 F.3d 1096,

1100 (10th Cir. 2007).

The law relevant to the issues on appeal is well settled in this and other courts.

Under Article III of the Constitution, standing is a prerequisite to federal court

jurisdiction to hear and decide a case. See Warth v. Seldin, 422 U.S. 490, 498 (1975);

Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir. 2011). Standing and

other such threshold jurisdictional issues are subject to the doctrine of issue

preclusion. Park Lake Res. Ltd. Liab. Co. v. U.S. Dept of Agric., 378 F.3d 1132,

1136 (10th Cir. 2004); Natl Assn of Home Builders v. EPA, 786 F.3d 34, 41

4
(D.C. Cir. 2015) (Home Builders II). [I]ssue preclusion bars a party from

relitigating an issue once it has suffered an adverse determination on the issue, even

if the issue arises when the party is pursuing or defending against a different claim.

Park Lake, 378 F.3d at 1136; see Taylor v. Sturgell, 553 U.S. 880, 892 (2008). This

bar is part of the res judicata doctrine and as such protects against the expense and

vexation attending multiple lawsuits, conserves judicial resources, and fosters

reliance on judicial action by minimizing the possibility of inconsistent decisions.

Park Lake, 378 F.3d at 1135 (quoting Montana v. United States, 440 U.S. 147,

153-54 (1979)).

Issue preclusion ordinarily applies when:

(1) the issue previously decided is identical with the one presented in
the action in question, (2) the prior action has been finally adjudicated
on the merits, (3) the party against whom the doctrine is invoked was a
party, or in privity with a party, to the prior adjudication, and (4) the
party against whom the doctrine is raised had a full and fair opportunity
to litigate the issue in the prior action.

Id. at 1136 (quoting Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000)).

The second element, final adjudication on the merits, is not a prerequisite to

preclusion of issues determined in ruling on a jurisdictional question, however. Id.

The Alliance does not dispute that it had a full and fair opportunity to litigate

Article III standing in the 2012 action and that it was a party to that action. It asserts

that issue preclusion nonetheless does not apply here because the standing issue

decided in the 2012 action is not identical to the issue as presented in this action.

Specifically, the Alliance contends that the additional information it provided in its

new and expanded standing declarations has cured the standing deficiencies
5
identified in the 2012 action and that this distinguishes the standing issue presented

here from that decided in its 2012 action.

This argument is grounded in the curable-defect exception to jurisdictional

issue preclusion, in which we and other courts have recognized that in some

circumstances suit may be brought again where a jurisdictional defect has been

cured or loses its controlling force. Park Lake, 378 F.3d at 1137 (quoting Eaton v.

Weaver Mfg. Co., 582 F.2d 1250, 1256 (10th Cir. 1978)). As we stated in our

decision in Park Lake, however, the change in circumstances that cures the

jurisdictional defect must occur subsequent to the prior litigation. Id. (emphasis

added); see Home Builders II, 786 F.3d at 41 (curable-defect exception is sharply

limited because it applies only if a material change following dismissal cured the

original jurisdictional deficiency). This limit on the curable-defect exception

follows from the rule that issue preclusion generally is appropriate if both the first

and second action involve application of the same principles of law to a historic fact

setting that was complete by the time of the first adjudication. 18 Charles Alan

Wright et al., Federal Practice and Procedure 4425 at 696 (3d ed. 2016) (statement

quoted with approval in Jarvis v. Nobel/Sysco Food Servs. Co., 985 F.2d 1419, 1425

(10th Cir. 1993)).

The district court found, and the Alliance does not dispute, that all of the

additional facts included in its new and expanded standing declarations were

available to the Alliance prior to dismissal of the 2012 action. Aplt. App. at 133-34.

Presenting these previously available facts in new sworn declarations does not

6
constitute a change in circumstances that will avoid the preclusive effect of a

jurisdictional determination in an earlier action. Perry v. Sheahan, 222 F.3d 309, 318

(7th Cir. 2000); see Home Builders II, 786 F.3d at 43. As a result, the standing issue

before us is substantively the same as that raised and decided in the 2012 action and

cannot be relitigated. See Park Lake, 378 F.3d at 1137-38; Perry, 222 F.3d at 318.

We are not persuaded by the Alliances argument that the limit Park Lake

placed on the right to cure a jurisdictional defect applies only when the previous

action was dismissed for lack of ripeness. While it is true that ripeness was the

jurisdictional defect at issue in Park Lake, our discussion of the curable-defect

exception in Park Lake speaks to jurisdictional defects generally and is supported by

citations to authority that applied the limited exception to prior jurisdictional

determinations that did not involve ripeness. See Park Lake, 378 F.3d at 1137-38

(citing with approval Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 & n.4

(D.C. Cir. 1983) (Scalia, J.) (curable-defect exception does not allow reliance on

preexisting facts to avoid preclusive effect of determination that diversity jurisdiction

was lacking) and Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396,

1401 (7th Cir. 1987) (same with respect to prior determination that subject matter

jurisdiction was lacking under the Foreign Sovereign Immunities Act)). Contrary to

the Alliances assertion, this limited reading of the curable-defect exception was

material to our holding in Park Lake. See, e.g., id. at 1137 (rejecting new ripeness

theory because it was not based on any facts postdating the prior litigation). Other

authorities have also affirmed the preclusive effect of prior lack-of-standing

7
determinations when the plaintiff only offers facts that were available before

dismissal of the first action. See, e.g., Home Builders II, 786 F.3d at 41-43; Perry,

222 F.3d at 318; In re V&M Mgmt., Inc., 321 F.3d 6, 9 (1st Cir. 2003). Finally, we

note that this rule, that prior standing and other jurisdictional determinations cannot

be overcome absent presentation of material post-litigation facts, is consistent with

the principles underlying issue preclusion, because it avoids the expense, vexation

and inefficiency of allow[ing] a plaintiff to begin the same suit over and over again

in the same court, each time alleging additional facts that the plaintiff was aware of

from the beginning of the suit, until it finally satisfies the jurisdictional

requirements. Park Lake, 378 F.3d at 1138 (quoting Magnus Elecs., 830 F.2d

at 1401).

The Alliance also argues the district court erred in finding that our standing

determination in NMOHVA II barred it from demonstrating standing in the present

action because we directed there that dismissal of the 2012 action be without

prejudice. 645 F. Appx at 807. This direction, however, refers to the plaintiffs

ability to assert its substantive causes of action in a court of competent jurisdiction

and does not limit the preclusive effect of prior jurisdictional determinations. See

Dozier, 702 F.2d at 1194 (usual meaning of without prejudice is without prejudice

as to the substantive cause of action but with prejudice on issues litigated in prior

action) (quoting In re Kauffman Mut. Fund Actions, 479 F.2d 257, 267 (1st Cir.

1973)). Dismissals for lack of jurisdiction should be without prejudice because the

court, having determined that it lacks jurisdiction over the action, is incapable of

8
reaching a disposition on the merits of the underlying claims. Brereton v. Bountiful

City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (emphasis in original). Dismissal

on standing or other jurisdictional grounds, even though without prejudice as to the

merits of the plaintiffs claims, will have a preclusive effect on these same

jurisdictional issues if they arise in a future action. Id. at 1218-19. There is no

inconsistency, therefore, in our direction in NMOHVA II that the Alliances

2012 action be dismissed without prejudice and the district courts and our

determination here that this prior dismissal for lack of standing precludes the

Alliance from relitigating standing in the present action.

We have considered the Alliances other arguments challenging dismissal of

this action and find them to be meritless. Most of the case law cited in support of

these arguments pre-dates our refinement of the curable-defect exception in Park

Lake or is distinguishable because it concerns claim preclusion rather than issue

preclusion. See Park Lake, 378 F.3d at 1135-36 (distinguishing between claim and

issue preclusion).

CONCLUSION

For the reasons stated above, the district courts dismissal of this action is

AFFIRMED.

Entered for the Court

Monroe G. McKay
Circuit Judge