New Mexico Off-Highway Vehicle Alliance v. United States Forest Service, 702 F. App'x 708

New Mexico Off-Highway Alliance (Alliance) sued to challenge the Forest Service’s Record of Decision (ROD) and Final Environmental Impact Statement (FEIS) for travel management on the Santa Fe National Forest.
In the 2012 action, the Alliance relied on a sworn declaration from a board member (Werkmeister) to show Article III standing; the district court found standing by a narrow margin but dismissed the claims on the merits. The Tenth Circuit reversed for lack of Article III standing and instructed the district court to dismiss without prejudice.
The Alliance filed a second action presenting expanded sworn declarations (including a second member) asserting facts it says cure the prior standing defects.
The district court dismissed the second action for lack of subject-matter jurisdiction, holding issue preclusion bars relitigation of the previously decided standing question because the new facts were available before the first dismissal.
The Alliance appealed, arguing the curable-defect exception permits relitigation when previously available deficiencies are now “cured.” The Tenth Circuit affirmed dismissal, holding the curable-defect exception only applies where the curing facts arose after the prior litigation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prior dismissal for lack of Article III standing precludes relitigation of standing	New declarations cure prior standing deficiencies so standing can be decided now	Issue preclusion bars relitigation because the additional facts were available during the first suit	Precluded: relitigation barred because the new facts preexisted the prior litigation and do not fall within curable-defect exception
Scope of the curable-defect exception to jurisdictional issue preclusion	Curable-defect allows re-filing whenever plaintiff adduces facts that cure prior defect	Curable-defect limited to circumstances where material change occurred after the prior litigation	Limited: exception applies only when the change occurred after prior adjudication
Effect of dismissal "without prejudice" on preclusive effect of prior jurisdictional ruling	"Without prejudice" permits reassertion of standing in a new suit	"Without prejudice" pertains to merits; jurisdictional rulings remain preclusive on the same issues	"Without prejudice" does not negate preclusion of jurisdictional issues previously decided
Whether plaintiff had full and fair opportunity to litigate standing earlier	Alliance implicitly concedes it did not lack opportunity but argues facts now cure defect	Defendants: Alliance had full opportunity and thus is precluded from relitigating standing	Plaintiff conceded it had full opportunity; therefore preclusion applies

Warth v. Seldin, 422 U.S. 490 (1975) (standing is an Article III jurisdictional prerequisite)
Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 378 F.3d 1132 (10th Cir. 2004) (limits curable-defect exception: change must postdate prior litigation)
National Ass’n of Home Builders v. EPA, 786 F.3d 34 (D.C. Cir. 2015) (curable-defect exception is sharply limited)
Taylor v. Sturgell, 553 U.S. 880 (2008) (issue preclusion bars relitigation of previously decided issues)
Brereton v. Bountiful City Corp., 434 F.3d 1213 (10th Cir. 2006) (dismissal for lack of jurisdiction is typically "without prejudice" as to the merits but can have preclusive effect on jurisdictional issues)
Perry v. Sheahan, 222 F.3d 309 (7th Cir. 2000) (previously available facts cannot avoid preclusion of prior jurisdictional determinations)
Dozier v. Ford Motor Co., 702 F.2d 1189 (D.C. Cir. 1983) (preexisting facts cannot be used to escape preclusion of a prior jurisdictional ruling)