*1 entitled if the court were sentence, different re- be a lesser imposed have would considering the sentenc- in latitude greater identical it found whether gardless 3553(a), there is of 18 U.S.C. Indeed, ing factors appropriate.5 enhancements af- that error concluding for no basis top of the at the Ambort sentenced court Dazey, 403 rights.” his substantial fected could the court although range, Guideline 1147, accordingly hold that 1173. We F.3d that within anywhere him have sentenced that his to establish 876, has failed F.3d, Ambort Riccardi, at See range. by the dis- violated rights were substantial *20, (noting that sen- 896430, at 2005 WL mandatory en- erroneous court’s trict range of the Guideline top at tence and subse- offense level of his hancement defen- that the conclusion supported therefore do We selection. quent sentence violat- not rights were substantial dant’s to notice we need not consider whether Lawrence, 405 F.3d ed); v. States United (10th any such error.6 906582, *12 2005 WL court’s Cir.2005) (noting that district above months two of a sentence
imposition CONCLUSION range supported the bottom reasons, AFFIRM foregoing we For the failed the defendant that conclusion and sentence. Ambort’s conviction “likely would sentence that his show if degree case] [the significant a change to court the district returned
were purposes resentencing” for
discretionary plain-error prong fourth meeting the
review). no indica- gave court The district way by it constrained
tion that felt inclined any way Guidelines, or Federally Recog- TRIBE, a SHAWNEE sentence. a different impose Tribe, Tribe, and Shawnee Indian nized failed sum, Ambort has because Plaintiffs-Appellants, rel., ex either that probability a reasonable “show v. sentencing would predicate factual America; W. STATES UNITED were not court if the district be different Acting Regional Ad- Waters, Leighton judge- on the basis to sentence required General ministrator, States United found, preponderance-of-the-evidence Administration; Stephen A. Services would ensuing sentence facts, or that the that the if we conclude plain-error review acknowledged, "the recently As we have prong satisfy fourth holding would in Booker defendant could Supreme Court’s from mak- er- district court court’s prohibited demonstrating the district have that findings applying the fairness, ing the same factual integrity, or seriously affected ror adjustments [de- same enhancements proceedings. judicial public reputation of apply long did not as it fendant’s] sentence 727, 729; Gonzalez-Huerta, also see mandatory fashion.” the Guidelines Lawrence, F.3d United States v. Lawrence, 405 F.3d Cir.2005). (10th at *12 2005 WL Cir.2005); see at *12 WL resolve no reason not we see (noting Dazey, also failed ground defendant on the case use of ex- "is the Booker error constitutional rights were affect- substantial that his to show mandatory in a tra-verdict enhancements clear, ed, as in this makes the record if system”). guidelines case, to meet his defendant has failed that the Gonzalez-Huerta, that, we stated We note an effect. show such burden to prong of address third we need not *2 Perry, Administrator, United States
General Administration; Services Rumsfeld, Secretary,
Donald Depart- Defense;
ment Hastings, I. Blaine
United States General Services Ad-
ministration; Norton, A. Gail Secre-
tary, Department United States
Interior; McCaleb, Neal A. Assistant
Secretary of Interior for Indian Af-
fairs; and the Bureau of Indian Af-
fairs, Defendants-Appellees.
No. 04-3256.
United States Court Appeals,
Tenth Circuit.
3,May *3 (Alok Jenni- Ahuja and Beeler
R. Scott brief), him on Hannah M. fer Park, KS, L.C., Overland Gage, Lathrop & Plaintiffs-Appellants. Zimmerman, Assistant United D. David (Eric Melgren, United F. Attorney States brief), on the him Attorney, with Defendants-Appel- KS, for City, Kansas lees. HOLLOWAY, and EBEL,
Before
LUCERO,
Judges.
Circuit
EBEL,
Judge.
Circuit
Plant
Army Ammunition
Sunflower
“Plant”)
(“Sunflower Property”
located
military installation
9,065-acre
and Kan-
Lawrence
between
Kansas
rural
1990s,
Army deter-
In the
City.
sas
longer
no
needed
mined
the General
requested
(“GSA”) dispose
Administration
Services
law
Federal
property.”
“excess
of it
transfer,
con-
without
the GSA
requires
located
real
sideration, excess
within the
reservation of
federally rec-
land
pursuant
Kansas
to 1825 and 1831
ognized Indian tribe to the Secretary of
treaties with the United States. The Kan-
Interior, to be held in trust for the benefit
Indians,
(5 Wall.)
sas
738-39,
U.S.
and use of
the tribe. 40 U.S.C.
is now in the process being of consummat- hereby ans and convey cede ed. the Unit- Because the Secretary of the States, ed all tract country has this of authority it, [the and is exercising we entire are 1.6 unable to million acre give the lying reservation] Shawnee Tribe the relief they seek in west of Missouri, the instant State which action— was namely, a designated consideration-free by transfer and set apart for the Shaw- pursuant GSA §to Therefore, nees.... we conclude our appeal is moot. This case Article 2. The United hereby States is remanded to the court district with in- cede the Shawnee Indians two hun- structions to dismiss complaint Plaintiffs’ dred land, thousand acres of to be se- and to vacate its judgment and order lected between the line, Missouri State March leaving the issue of the parallel thereto, line and west of status of the open Shawnee’s reservation same, thirty miles distant: which for day. another parallel line shall be drawn from the River, Kansas to the southern boundary- BACKGROUND line of the country herein ceded.... I. History Shawnee and Treaties Article 3. In consideration of the ces- In the Century, mid-Nineteenth made, sion and sale herein the United Shawnee Tribe held 1.6 million acres of agree States to pay to the peo- Shawnee estates separate who held Indians twen- hundred eight the sum pie them, issued patents to have were dollars1.... thousand ty-nine as restrictions guards such Shawnees, May Treaty with for deem advisable should Congress U.S.-Shawnee, 10 Stat. Congress afterwards protection. their is within sub- patented, to be lands directed Treaty, II Article area, described Secretary restrictions ject to such re-cession for open left was these impose; and might Interior did not However, the Shawnee Shawnees. Indians, by these held now lands are Instead, collectively. area this entire take of alien- power without patents, treaty, individual pursuant Secretary ation, except consent select entitled were members tribal about treaty silent This was Interior. individual tracts, primarily 200-acre treaty [as of 1831 guarantees area as this entire from within ownership, by the United protection perpetual Indi- The Kansas II. by Article described Indians]; Shaw- but the Supreme As at 753. ans, 72 U.S. their de- acknowledged expressly nees in 1866: explained Court government on the pendence contemplate Treaty] did [The *5 they had formerly States, as United enjoy whole the should Indians the and protection its done, invoked and each individual tract, quantity the care.2 The acres. hundred to two limited was Shawnee, 862 753; Absentee also see Id. at by the be sold were lands unselected which, by (describing process at appropri- proceeds the and government, agreed States United years, the five after It also the Indians. to the uses ated and hold parcels the unallotted to sell select- of the lands part recognized years be- five an additional proceeds in com- be held could Indians by the ed for the benefit distributing them fore held severalty. If mon, part and if absentee so Shawnees in a assigned to be common, they were within appeared members Shawnee privi- severalty, the if in body; compact were entitled they ten-year period anywhere selecting conceded lege was allotment).3 promised of their value lands. common of the outside in the tract concluded, "A number court district 3. The award- later Commission Claims The Indian 1. Treaty the 1854 pursuant to remedy made million allotments $1.2 over the Shawnee ed entirely either members States Tribe price the United were made "unconscionable” this States Treaty. [Sunflow See United is now within what partially the 1854 under paid or Shawnee, Ct.Cl. half approximately But Property], Absentee er Tribe (1972). allotted was Property] [Sunflower States, v. United Tribe Shawnee members.” here, explaining Supreme Court What (D.Kan.2004). At F.Supp.2d for, is an Treaty provides the 1854 what and disputed whether parties argument, oral the infa- became with what experiment early to two-thirds closer or half policy. See widespread allotment mous and members. to Shawnee allotted Property was Comment, Shoemaker, A. Jessica generally very on unclear itself is the record Allotment, Time: Spring Snow Like howof indication no also There is point. Tenure Fractionation, Land the Indian and owner into came when the (2003); Ken- Problem, L.Rev. Wis. however, Property; ship Sunflower Bobroff, Retelling Indian Allotment: H. neth sold been have could allotments individual Common Myth Rights and Property ap express Secretary of Interior's with the (2001); Ju- L.Rev. Ownership, 54 Vand. Indians, U.S. The See Kansas Allotment, proval. Legacy Royster, V. dith L.J. 1 Ariz. St. The record is unclear toas what exactly respond by 13, 1998, March if the Sun- happened immediately after the 1854 Trea- flower was eligible ty. However, negoti- Shawnee to be transferred to Department ated agreement with the Cherokee Na- Interior in trust for an Indian tribe. After tion Agreement in Oklahoma. Between the BIA request failed to a transfer of the Cherokees, Shawnees and June site, Sunflower began GSA its usual Approved by the President June 1869. property process. disposal Pursuant formal agreement, “Whilethe Sunflower Property disposal Shawnees committed to be “incorporated was still pending, December into and ever part remain a of the Chero- Congress officially identified the Shawnee Nation,” kee agreed and further “that the Tribe as a federally recognized Indian said Shawnees shall abandon their tribal Tribe. 25 U.S.C. 1041. In accordance organization” and turn over to the Chero- with an agreement between the Cherokee kee at least portion some of the annuities tribes, the Shawnee Congress restored (including from the Treaty) owed the the Shawnee Tribe’s “current and histori- Shawnee the United States. cal responsibilities, jurisdiction, and sover- eignty as it relates to the Tribe, II. Dispute the Cherokee-Shawnee people, and their Army United States has owned and properties everywhere.” Id. All Shawnee operated the Army Ammunition land within Oklahoma remained with the Plant 1990s, since 1941. In the Nation; Cherokee however, Congress and determined that it no longer needed recognized the President that the Shawnee property, requested that the General Tribe “from and after incorporation *6 (“GSA”) Services Administration dispose its merger with the Cherokee Nation has of it as “excess” property.4 See generally continued to maintain the Shawnee Tribe’s §§ U.S.C. 101-611 (providing for prop- separate culture, language, religion, and erty management, including disposal, role organization, and a GSA). separate membership of roll.” Id. The GSA is required transfer, to without being After federally consideration, recognized, the excess real property to the Shawnee submitted a Department request Interior, to the of Secre- in trust for an tary Interior, tribe, asking Indian that whenever the entire requirements three (1) Sunflower are met: be the property is transferred the within an (2) reservation, Department Indian (“DOI”) the Interior property the ex- is cess, (3) trust for the the Tribe’s pursuant reservation benefit belongs to a federally recognized the GSA’s mandatory Indian tribe. transfer obligations U.S.C. 523. January 7, On under 523. 1998, Tribe claims that the GSA prepared a Notice of entire Sunflower Availability for is within the Excess Real Property. 10, On February boundaries of the remaining Shawnee res- 1998, the GSA a submitted Federal ervation in Kansas and that the Shawnee Screening Notice the Bureau of Indian are therefore entitled §ato 523 transfer. (“BIA”). Affairs The GSA asked the BIA The initial request was 3, made on July 4. property” "Excess contrast, is defined as "property the "term 'surplus property’ means under control of a agency federal that excess that [General Services] head of the agency determines is not re- Administrator required determines quired to agency’s meet the respon- or needs meet the responsibilities or needs of all feder- 102(3) sibilities.” 40 U.S.C. By agencies.” 102(10). al Id. pursuant ... Plant 18, Army Ammunition 2001; January 30, On October § 523. to U.S.C. 2002, submit- the Tribe 2002; April requests. additional ted judicial re- sought Tribe The Shawnee fed- decision in wrote administrative GSA of this view September On deter- claimed haste” The Tribe “post a court. BIA, requesting eral district is- reservation its manda- comply the Shawnee on failed had mination GSA Kansas Gov- § 523. September responsibility On tory sue. transfer Norton, to Gail wrote that argued Graves Bill further ernor Shawnee Interior, the Shaw- opposing Secretary fiduciary its breached had Property and the Sunflower nee’s claim as- in various Shawnee to the duty owed BIA from decision quick asking the Sunflower handling of pects interest had no Tribe Shawnee that the addition, they claimed Property. the De- December land. On de- acts capricious arbitrary and GSA’s Secretary Assistant of Interior’s partment The court process. of due them prived let- opinion an provided Affairs Indian decision, determining as the GSA’s upheld stating: GSA ter res- Shawnee’s matter that the a threshold depart- your inquiry, receipt of Upon by the 1854 terminated had been ervation thorough upon engaged staff mental Tribe, F.Supp.2d Treaty. Shawnee rele- and materials of documents review determination, Then, based issue, including, but to this vant all that concluded court the district maintained records to, property limited 1196— moot. were other claims Tribe’s their support Tribe by the Shawnee appealed. Tribe 97. The within lies site claim United States February On reserva- of their boundaries the exterior govern- in the change law of a us notified statutes treaties tion, and certain disposal Property’s the Sunflower ing Tribe to the Shawnee and/or pertaining of this appeal. some all moots it argues review on this lands. Based their re- expedited moved for then Appellants opinion our ac- news published view, citing recent not lie within does Depot Ammunition transfer anticipated counts boundaries exterior day present *7 on or developer Property to Sunflower reservation. Tribe’s the Shawnee that 31, granted 2005. We May before determination, receiving this After in March argument oral heard motion concerning final decision GSA issued February § 523 transfer possible stating: JUSTICIABILITY request, § 523 transfer Concerning the the mootness raised United States the De- reviewed carefully has the GSA a Rule submitting by case in this issue Mr. Neal from 6, letter cember legisla- recent us notifying 28(j) letter Secretary for Indian McCaleb, Assistant P. R.App. Fed. See developments. tive the Interior Affairs, Department of U.S. cites the Government 28(j). Specifically, DOI de- (“DOI”). upon In reliance § 2841 of enactment Congress’s lie does Sunflower termination Au- Defense Reagan National W. Ronald bound- day exterior present within 2005, an Year for Fiscal Act thorization “Indian Res- Tribe of the Shawnee aries Conveyance, “Land entitled authorization advised ervation,” you are Plant, Kan- Ammunition Army for trans- eligible Tribe Shawnee 2841, 108-375, § Pub.L. No. sas.” any of fer consideration (2004). 1811,
Stat. This pro- section A. Mootness overview “Secretary vides that the Army, We review questions mootness consultation Administrator of de novo. Id. We also review questions of Services, may General convey to an entity statutory interpretation de novo. Hill v. by selected Board of SmithKline 1111, Commissioners of Beecham Corp., 393 F.3d (10th Cir.2004). County, Johnson Kansas ... the Sunflow- er Ammunition Plant ... for eco- III Article of the Constitution nomic development and revitalization.” allows federal adjudicate courts to only “actual, ongoing Honig controversies.” v. Doe, 484 U.S. 108 S.Ct. § Whereas 40 U.S.C. on which L.Ed.2d 686 As appellate court, the Shawnee base their claim to the Sun we cannot rule on which, a case although Property, flower governs general transfers when brought live court, the district has of excess real property by GSA to the been by rendered moot later See events. Department of Interior for the use and An appeal id. is moot when we are unable tribes,5 benefit of Indian Government redress a plaintiffs injury by a favor judicial able decision, emphasizes that 2841 of even if military redressability au possible was when the suit was thorization initiated. provides bill different stan Park County USDA, Resource Council v. dictating dards when and how a transfer of (10th 817 F.2d 614-15 Cir.1987), over made, can be ruled on grounds other by Village Los identifies a new official to make the final Ranchos de Albuquerque Marsh, transfer upon decision. Based representa (10th F.2d Cir.1992); see also tions that the Secretary of the Army has Airport Neighbors Alliance v. United chosen to exercise this authority under States, (10th Cir.1996). 428-29 convey 2841 to this property, the Gov appeal case after arose ernment argues moots the Shawnee Tribe claimed entitlement to Shawnee’s claim to a by transfer the GSA a mandatory transfer of the Sunflower 523 in the Property Act. The Property pursuant §to pro which disagrees, Tribe reading § vides: controlling this despite ease the enactment The Administrator of General Services §of 2841.6 questions Because of moot prescribe shall procedures necessary to go to ness our jurisdiction, we address this transfer to Secretary Interior, issue at the outset. Seneca-Cayuga Tribe without compensation, excess prop- real v. Nat’l Gaming Comm., Indian erty located within the reservation of Cir.2003). Ultimately, we any group, band, or tribe of Indians that agree with the Government and conclude recognized as eligible for services *8 § that 2841 moots this appeal. the Bureau of Indian Affairs.... [T]he 523, codified, 5. Section as it part is is proper of the mechanism to a argu- address new Act, larger Property which is intended broad- ment. See United Lindsey, States v. ly "provide to the Federal Government with (10th Cir.2004). n. 1 1335-36 None- an economical and system” pro- theless, efficient for the Government did object to this curing, using, disposing, keeping track of filing, and jurisdictional, because mootness is property. federal § 40 U.S.C. 101. compelled we are to consider these issues fully regardless of procedural this nuance. Procedurally, the Tribe purported City See McClendon v. Albuquerque, 100 of response to file their to argu- (10th this mootness Cir.1996). F.3d 867 The parties appears ment in what to be 28(j) another Rule positions also made their on mootness clear letter; however, a Rule 28(j) letter is argument. not the at oral
1129 whether first decide § we must under real proper- hold excess Secretary shall the Secre- of trust discretion grant § 2841’s section this under ty transferred with the Sec- Army, combined group, the tary of of the and use benefit the discretion, Indians, within whose to exercise that retary’s of election tribe band, or is its property GSA of real relieve the excess operates in fact reservation § 523. under duties mandatory transfer located. does, we must concluding (b)(1). 523(a), After §§ 40 U.S.C. has constitu- Congress whether determine authority on § contrast, new enacting authority tionally exercised its mootness makes Government which a mooting of effect has the § which provides: argument conclude We lawsuit. specific pending con- Army, in of the (a) Secretary The of exercise permissible a § is Gen- of Administrator with the sultation Therefore, pro- we authority. entity to an convey legislative Services, may eral moots § also of Commissioners whether Board ceed decide by the selected (in duty sec- fiduciary this County, Kansas breach of Johnson Shawnee’s “entity” and but raised claims, which were process tion referred due title, right, all con- “Board,” respectively), Ultimately, we below. not decided in and States the United appeal. and interest entire § moots clude including property, real parcel to a thereon, consisting of improvements Secretary of the B. Effect and contain- 9,065 acres approximately existing Army’s discretion Army Ammunition ing the authority under § GSA’s conveyance of the purpose Plant. § 523 of the re-use to facilitate of statu canon is a “fundamental It and revitaliza- development economic that, there when tory construction .... tion specific provi conflict between apparent authority provided (c) conveyance one, more general more and a sion (a) addition is in by subsection governs.” specific one by sec- authority provided conveyance n. 5 Groves, Military Construction tion omitted). enacting By Cir.2004) (quotation Year Fiscal Act for Authorization discre 107-314, specific granted Congress Law (division Public B of dis Army to 2712) Secretary of the convey portion tion to the Stat. particu Plant Ammunition pose and Recre- reading Park County Therefore, logical most the Johnson lar. intended Congress District.7 ation is that this scheme over to control §of 2841,118 specificity at 2135. Stat. Prop obligations general § 2841 new with whether Faced Act.8 erty ato transfer claim the Shawnee’s moots Bob area. or recreation park public aas § 2823 of not discussed parties have 7. The forAct Authorization Defense Stump National Howev- filings court. to this 2003 Act 107-314, No. Pub.L. Year Fiscal Au- Defense er, 2003 National *9 Be- Stat. § "may that the GSA provides Act thorization §of relevance asserts 2,000 one cause no of the acres convey” approximately it. consider do County we Johnson Property to the Sunflower a manner in District and Recreation Park dis- § vested However, point that 550(e), 8. which § 40 U.S.C. with consistent Army to decide Secretary of the in the cretion use for real disposal of governs The Shawnee Tribe raises argu- two suggests the § opposite 523 does not —that against ments applicability § of 2841 to preempt other laws. Similarly, the fact this case. § that 523 is “subject not itself any to provision inconsistent of law” does not nec- 1. provision “Limitations” essarily § mean that regard- controls First, the rely Shawnee provi on a less the subsequent passage any oth- sion of Property Act they say er authority. we later, As conclude this § makes regardless controlling of the language most likely means only that subsequent passage §of 2841. Specifical § subject 523 not is any to law inconsistent ly, they rely §on Property Act then existence, rather than addressing codified, as a section entitled “Limita legislation. future tions,” which mandates: Except as provided otherwise in this The Government and the Shawnee refer section, the authority by conferred this to different sections of legislative his- [including § subtitle 523] is in addition tory to support their very different read- any to other authority conferred law ings of this First, statute. the Shawnee and subject is not to any inconsistent Tribe points to an § earlier version of provision of law. which provides that the Property Act 113(a). § 40 U.S.C. This section then pro- “shall be addition paramount and to ceeds to enumerate exceptions several to any authority conferred by any other law.” which the Property Act expressly does not 474(c) (2000) § U.S.C. (emphasis add- apply; however, none of these exceptions ed). The Shawnee argue we should read apply here. 113(b)-(e). See 40 § U.S.C. 113(a) current language §of as consis- Therefore, the Shawnee Tribe reads this tent with “paramount” this meaning. The 113(a) language in § to mean that emphasize that “paramount” was Property Act trumps any other inconsis- § removed from tent 113 in grant 2002 as part authority, § including and § therefore recodification Act, 523 still governs Property this case. recodification was intended
However, no “make[ ] the language § substantive change existing does not compel this reading. Instead, law may be construed as making a phrase “in addition any other authority” substantive change in existing law.”9 Act whether to effectuate a transfer Sun- then might the Shawnee renew § their Property flower important is an one. Pre- However, claims. exceptions mootness exist sumably, Secretary could have elected not only likely recurrences —such as where a to transfer the Property pursuant voluntarily defendant the challenged ceases authority, this general and then the Proper- likely action but is prac- return earlier ty provisions Act again would have applied. tices, or very where the nature of a chal- Here, this is not our case. lenged action “capable makes it of repetition Secretary of the already has chosen to yet evading review.” exceptions These do not exercise this authority, every indi- apply our case where a return of the Sun- cation is that conveyance of the Sunflower flower management GSA's au- Property is imminent. Unless or until the thority highly unlikely. States, The United Secretary forego chose to authority —ef- of the owner Property, has cho- fectively exercising relinquish discretion to dispose sen to unique of this piece of land in a authority altogether continued via- —the particular way, Secretary and the of Army bility specific more suspends is now completing that sale. application §of 523 respect to the Sun- Property. flower addition, historical notes to very In the unlikely event Secretary say that the itself also paramount' that "the word reversed course and surrendered the Sun- omitted as included in subject 'not ”
flower back to the GSA disposal, provision.’ inconsistent 40 U.S.C.
1131 Cir.1992). (10th The 443, 447-48 107-217, F.2d No. 2002, 21, Pub.L. August of Secre- give the is to § (codified of intent as clear 1062, 1303 5(b)(1), Stat. § dispose of authority to 101). There- the tary § of 40 U.S.C. preceding note alternative an interpret Property should the Sunflower say we fore, the Shawnee property the this 113(a) that remove meaning manner, thus to as and § current the give is § We must § 523. Act, specifically of and the reach from Property GSA’s the that and therefore this intent effect. “paramount” re- attach § 523 mandatory duties the Government’s Therefore, think we of passage subsequent the of gardless correct, but also only is not interpretation § 2841.10 empha- Government The more sensible. interpretation Shawnee’s However, the Purpose 5(b)(3) Legislative § the sizes a being as § read us have would part as passed statement and Construction preexistent the have would They nullity. Property the recodification of the authority to exclusive give Act says: Act, which Prop of the Sunflower dispose the GSA enacted laws certain restates This Act enact subsequent the irrespective erty enacted Any law 2002. April before obligation have § We 2841. ment inconsistent is that March after prevent so as to together statutes construe purport- law any Act, including this with Bridger Coal Co./Pac. See a result. such that provision a repeal or to amend ing Dir., Workers’ Minerals, v. Inc. Office Act, supersedes repealed is Programs, Compensation inconsistency. extent toAct the Cir.1991) (“We construe will not (codified as 5(b)(3), at Stat. § or words way that renders ain a statute 101). Al- U.S.C. preceding note redundant, super or meaningless, phrases this as try discount the Shawnee though Canfield, v. F.D.I.C. fluous.”); accord pursuant arranging a lease when Act heavily the decision on rely The Shawnee at 779-80. Id. Dalton, authority. its new Drydock, Inc. San Francisco There, 1997). the Ninth (9th Cir. necessarily find this However, not we do "para meaning of interpreted the Circuit Cir- Ninth The Shawnee. the helpful to case the con 113 in prior versions mount” Navy statute and the merely construed cuit San Specifically, leasing deal. Navy text of Navy statute together. Property Act statutory Drydock addressed Francisco regarding how procedures silent was De Department of permitting amendment executed, the court be should leases military installa a at property to lease fense existing procedures Properly Act's held rea being or closed process in the tion in San court apply. should challenged plaintiffs at 779. Id. ligned. Prop- construe Drydock did not Francisco pursuant to drydock leasing of a Navy's authority to Navy’s preclude erty Act to not did that authority by procedures this new issue, though the even at property lease bidding re open Property Act’s satisfy the presum- would standing alone Property Act interpreted Circuit Ninth Id. The quirements. GSA. authority in Id. ably vested that have empha broadly and "paramount” word are issues procedural types of at 778. These leasing the new purpose of sized Moreover, also con- we us. now before State to "facilitate was authority —which together. Section § 523 strue efforts”—was adjustment economic local Army to Secretary of the allows emphasis Property Act's with the inconsistent way one Property in dispose bidding proce open ensuring a fair manner, disposed of in that and, plant if the Therefore, the court dure. be property to there, "excess" simply no procedures bid Property Act held mooting thereby disposed of under and, nothing ac because "paramount” were disposed be should such claim provisions, Navy from exempted the tually § 523. pursuant comply required Navy was *11 1132
just note, a reviser’s this statement was supersede or the former Act unless such legislatively part enacted as of the public intention is manifestly clear from the con- law is a good indication Congres- text of the legislation.”). The Shawnee intent, sional though even it is Tribe correctly points § out that 2841’s operative part of the statute itself.11 1See more recent Sunflower-specific grant of Statutory Sutherland § Construction 5A:5 discretion Secretary to the (6th ed.); Public Lands Council v. cf. was added to the military 2005 authoriza- Babbitt, 167 (10th F.3d 1299 n. 5 tion bill without or discussion reference to Cir.1999) (rehearing). its impact § on either Property We find this time very restriction per- Act more generally. Construing § suasive. 113 in light of this Nonetheless, § 2841 is very specific, ap- legislative produces statement the only plying only to the Property. reading that makes leaving § 113 sense— Therefore, it is exceedingly difficult to to stand for the relatively unremarkable imagine Congress did not intend proposition that the Property Act trumps § 2841 to control any over other statutory any pre-existing laws not ex- specifically property provisions might otherwise by § cluded it when was re-enacted in have Moreover, affected § case. 2002, but that Congress is, course, is not repealed amended; or even it simply free change Act’s coverage application has no to the Prop- in the future by act enacted after erty long so as the property subject March Thus, § 2841 of the 2005 disposal in this alternative by fashion National Defense Act, Authorization which Secretary of Army. passed was October of suspends the Property applicability Act’s in this case Congressional C. authority to moot as gives discretion dispose of this this lawsuit particular property to the Secretary of the Army. Having § held that 2841 con trols this case in light of the Secretary of
2. Presumption
against
implied
Army’s
election to exercise his discre
amendment
tion to dispose of the Sunflower
pur
Plant
§
suant to
This leads
we
must
Shawnee’s
decide whether
ar-
second
gument,
Congress
which
had
power
implied
to moot
amendments
and implied
Shawnee’s
repeals
pending
disfavored,
are
claim enacting §
therefore we should
read
after
the lower
court’s
impliedly amending
decision in
reach of
this case.12 “It
is well settled
with regard to the
that the
Sunflower Property.
enactment of legislation can moot
See City
Tulsa
an appeal
Midland
R.
even
Valley
though
may
there
have
Co.,
(10th
Cir.1948) been a viable issue in the district court.”
(“Since repeals by implication are not fa- New Mexico State Highway Dep’t v. Gold
law,
vored in the
we should not impute
schmidt,
Cir.1980);
Legislature
an intent to repeal, modify see also 5 Am.Jur.2d Appellate Review
fact,
5(b)(3)
is from the same
parties
12. do not
specifi-
raise this issue
general legislative
however,
statement
cally;
that the Shaw-
it was
briefly
addressed
rely
nee
colloquy
elsewhere for the fact
argument.
that the
court at oral
See
generally
recodification of
United States v.
Act
Sioux
was
Nation
Indi-
ans,
intended
to be
448 U.S.
without substantive
100 S.Ct.
change.
L.Ed.2d 844
*12
Finally,
importantly
and most
spe
legislation
includes
This
657.
origi
purposes, Congress
cannot dictate
the source of
our
cifically eliminates
pertaining
findings
specific
in
changes the law
or command
results
dispute
nal
e.g., Khodara
lawsuit.
v.
particular
pending
to a
cases. See United States
186,
Beckman,
Wall.)
Envtl.,
Klein,
(13
146-47,
237 F.3d
128,
v.
20
Inc.
80 U.S.
(3rd Cir.2001);
(1871).
v. United
Klein,
Walker
Supreme
193-94
L.Ed.
519
Dev.,
Housing and Urban
Dept.
a
give
refused to
effect to
statute
Court
of
(5th Cir.1990);
819,
Stop
F.2d
828-29
912
“prescribe
said to
rules of deci
that was
1419, 1432,
Dole,
v.
870
H-3 Ass’n
Department
of the
sion
Judicial
(9th Cir.1989);
n. 24
Friends
1435
it.”
pending
of
before
government
cases
Earth,
Weinberger,
F.Supp.
v.
562
Inc.
Klein,
at 146. In
the Court considered
(D.D.C.1983).
265, 270-71
appropriations
in an
for the
proviso
a
bill
at
Congress
which
Court of Claims
Congress clearly can make
tempted
prevent
court from consid
those
apply
in the law and
changes
ering
granted presidential par
previously
pending
appeal.
still
changes to cases
required
loyalty
of
proof
dons as
Farm, Inc., 514
v.
U.S.
Spendthrift
Plaut
property rights in the
restore individuals’
1447,
7,
211,
131 L.Ed.2d
233 n.
115 S.Ct.
aftermath
the Civil War. See United
(1995). Thus,
plaintiff,
a
as
when
328
Indians,
States v. Sioux Nation
relief,
here,
only
appel
prospective
seeks
402-08,
2716,
371,
100 S.Ct.
U.S.
it
the law as
late courts must consider
(1980)
(setting
L.Ed.2d 844
out facts
appeal.13
at
of the
Kiku
exists
the time
Klein).
required
also
proviso
n. 5
Hurley,
v.
242 F.3d
mura
case,
any
Constructors,
pending
court to dismiss
(10th Cir.2001); Adarand
case,
a
had
pardon
future
where
been used
Slater,
v.
Inc.
.2000).
a
loyalty
to establish
or where
claimant
Cir
pardon.
Id. at
had received a
principle
sepa
2716. The Court
in Klein found
S.Ct.
place some limits on
does
powers
ration
con
proviso’s “great
unacceptable
Congress
to dictate
work
ability
deny
pardons
...
trolling purpose
generally
Article III courts. See
which
by the President the effect
granted
Plant,
219-25, 115
S.Ct. 1447.
U.S. at
to have” in
adjudged
this court had
them
judg
a
Congress cannot set aside
final
Klein,
80 U.S. at
pending cases.14
by
III court
retroactive
ment
an Article
broadly,
Although
might
read
Klein
be
240, 115
Id. at
S.Ct.
legislation.
significantly
has
limited
subse-
it
been
Similarly,
separation
powers pre
See, e.g.,
decisions.
quent Supreme Court
vesting in the Execu
Congress
vents
from
Plaut,
at
115 S.Ct.
514 U.S.
authority
review the
tive Branch the
(“Whatever
Klein,
precise scope
Hayburn’s
III courts.
decisions of Article
(2 Dall.)
Case,
however,
clear
later decisions have made
2 U.S.
pend-
a
logical
"prescribed
decision in case
especially
in this case where
a rule of
13. This is
courts,
ing
acting
proprietary
and did so
a manner
United States is
in its
before the
and,
required
a
capacity
until
Sun-
the courts
decide controver-
land owner
Nation,
of,
actually disposed
sy
it is
Sioux
in the Government's favor.”
flower
Klein,
(citing
it
to do with the
what wishes
at
process
actions of De-
arbitrary
capricious
legislation.
to other constitutional
suant
fendants.
case
moot when
“[A]
becomes
becomes
addition,
originally
impossible
grant any
raised
court to
effec-
the Tribe
relating,
part,
least in
claim
“equity”
prevailing party.”
tual relief
to a
whatever
misrepresentations
by the
made
alleged
Mine
Am.
District
Workers of
Century
in Nineteenth
trea-
United States
Utah,
Cir.2000).
however,
agreed
the Tribe
ty negotiations;
simply
give
Because we
could
voluntarily
claim
before the
to dismiss this
they
Shawnee Tribe the relief
seek—even
its decision.
Id. at
district court issued
non
523 claims and even
1196 n.
though the status of the reservation itself
remaining
of these
claims are
Some
*14
important legal question—this
remains an
from a
523 transfer
facially distinct
County,
entire suit is moot. See Park
allegations
obligation—particularly
F.2d at 615.
federally
record-keeping
rec-
improper
tribes,
the contaminated state of
ognized
E. Vacatur
unspeci-
Property, and the
allegedly
fied “sham transactions”
Generally,
beyond
causes
“[w]hen
of the land.
dispossessed the Shawnee
appellant’s
control make
case moot
Tribe
all
the relief
pending appeal,
appellate
a federal
court
quest
to its
transfer
seeks is tied
judgment
should
generally
vacate
be
Property pursuant
of the Sunflower
low and
with a direction to dis
remand
§ 523.
City Albuquerque,
miss.”
McClendon
injunc-
only
Specifically, the Tribe seeks
(10th Cir.1996);
see also
declaratory relief.
Id. at 1196.
tive and
Munsingwear,
States v.
340 U.S.
“the
asks
court
particular,
In
Tribe
(1950)
39, 71 S.Ct.
CONCLUSION
We appeal DISMISS this as moot and
REMAND to the district court with in-
structions to vacate its earlier order and
dismiss Plaintiffs complaint.
LUCERO, Judge. Circuit
Because concerns majority’s over the
separation powers I analysis, solely con-
cur in the result.
UNITED STATES America,
Plaintiff-Appellee,
Jeffery PORTER, also known as Jeff
Borter, also known as Fitzgerald Jeff
Porter, also Damien, known as Defen-
dant-Appellant.
No. 04-4009.
United States Court Appeals,
Tenth Circuit.
3,May