The Tenth Circuit published three civil decisions this day.
In Biodiversity Conservation Alliance v. United States Forest Service (No. 12-8071), the appellant challenged the U.S. Forest Service’s decision to modify trail use and allow motorcycle traffic on a 5.8-mile stretch in the Medicine Bow National Forest in Wyoming. The appellant argued that the Forest Service should have found that significant impacts required the preparation of an Environmental Impact Statement under the National Environmental Policy Act. Specifically, the appellant argued that the Forest Service did not adequately consider the impact on wetland areas known as “fens” and failed to acknowledge a substantial controversy as to the effect the decision would have on non-motorized recreation. The Tenth Circuit affirmed the district court, which upheld the Forest Service’s decision, finding that the agency took a hard look at the relevant factors and its decision was supported by evidence in the record. Therefore, the decision was not arbitrary or capricious.
In Thlopthlocco Tribal Town v. Stidham (No. 13-5006), the court considered whether the district court had jurisdiction over an election dispute within a federally-recognized Indian tribe. The Thlopthlocco Tribal Town had originally filed suit in the tribal court of the Muscogee (Creek) Nation, voluntarily submitting to that court’s jurisdiction. The Tribal Town subsequently dismissed its claims, but the defendant had asserted cross-claims that continued before the Muscogee courts. The judges and justices of the Muscogee courts held that they could exercise jurisdiction over the Tribal Town without its consent. The Tribal Town then filed a federal action in the Northern District of Oklahoma against those Muscogee judicial officers. The district court dismissed the case, finding – among other things – that it had no subject matter jurisdiction and that the Muscogee judicial officers were entitled to sovereign immunity.
After reviewing selected history of the Tribal Town and the Muscogee Nation, the Tenth Circuit noted that the two are separate tribes, and held that a tribal court’s exercise of jurisdiction over another tribe presents a federal question. The court further disagreed that the judicial officers had sovereign immunity because the Tribal Town sought only prospective injunctive relief from an unlawful exercise of jurisdiction. Nor was the Muscogee Nation a necessary party to the suit. The district court was directed to consider on remand the feasibility of joining other parties alleged to be necessary. Finally, though, the Tenth Circuit agreed with the district court that the Tribal Town had not yet exhausted its tribal court remedies, invoking the “tribal exhaustion rule.” The court instructed the district court to abate its proceedings until the Tribal Town exhausts its claims in tribal court.
In Utah v. EPA (No. 13-9535), the court denied a petition for panel rehearing of an earlier decision concluding that Utah and PacifiCorp’s petitions for review of an EPA action were untimely and that it therefore lacked jurisdiction over the petitions. Utah submitted a proposed implementation plan to the EPA under the Clean Air Act. The EPA rejected parts of the plan. Utah and other aggrieved parties could obtain judicial review under 42 U.S.C. § 7607(b)(1) by filing a petition within 60 days. Utah and PacifiCorp missed the deadline, and a panel of the Tenth Circuit held that the untimely petitions were a jurisdictional defect.
For the first time in their petition for panel rehearing, Utah and PacifiCorp argued that missing the 60-day deadline was not a jurisdictional defect. The panel disagreed, finding that the statutory text, the context of the statute, and the historical treatment of the provision all supported its conclusion that the 60-day time limit is jurisdictional. Nor did any of the other arguments advanced in the petition for panel rehearing alter the prior holding that the Tenth Circuit lacked jurisdiction over the petitions for review.
Colorado Appeals 