WILDEARTH GUARDIANS, Plaintiff-Appellant, v. Scott BIDEGAIN, Chairman of the New Mexico State Game Commission, sued in his official capacity, Defendant-Appellee, and James Lane, Director of the New Mexico Department of Game and Fish, sued in his official capacity, Defendant, and New Mexico Trappers’ Association; New Mexico Council of Outfitters & Guides, Inc.; New Mexico Farm & Livestock Bureau; Coalition of Arizona/New Mexico Counties for Stable Economic Growth; United Sportsmen for Fish and Wildlife, Inc.; New Mexico Cattle Growers’ Association; New Mexico Federal Lands Council, Defendants-Intervenors-Appellees. Arizona Game and Fish Commission, State of Alaska; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Mississippi; State of Montana; State of Oklahoma; State of Texas; State of Utah; Safari Club International, Amici Curiae.
No. 13-2001.
United States Court of Appeals, Tenth Circuit.
Feb. 19, 2014.
Clarification Granted March 7, 2014.
733 F.3d 815
Elizabeth Catherine Johnson, Ira Thane Kasdan, Laurence Jay Lasoff, Kelley Drye & Warren, Washington, DC, Sean Olivas, Gary J. Van Luchene, Keleher & McLeod, Albuquerque, NM, for Defendant-Appel-lee.
Karen Budd-Falen, Kathryn Brack Morrow, Budd-Falen Law Offices, LLC, Cheyenne, WY, for Defendants-Intervenors-Appellees.
James Odenkirk, Office of the Attorney General for the State of Arizona, Phoenix, AZ, Douglas Scott Burdin, Anna Seidman, Safari Club International, Washington, DC, for Amici Curiae.
Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
AMENDED ORDER AND JUDGMENT *
PER CURIAM.
WildEarth Guardians sued the Director of the New Mexico Department of Game and Fish and the Chairman of the New Mexico Game Commission, asserting statutory and regulatory violations. See
The district court dismissed with prejudice WildEarth‘s claims against the Director and the Chairman and granted summary judgment to the Defendants. WildEarth appealed the district court‘s order respecting only the Chairman.
The Chairman asks us to affirm on the merits, but alternatively urges us to uphold the dismissal based on Eleventh Amendment immunity. Seeking to avoid Eleventh Amendment immunity, WildEarth invokes Ex parte Young, 209 U.S. 123 (1908), arguing that the Chairman had a duty to adopt regulations protecting against carelessness among trappers. WildEarth conceded during oral argument that as a single member of the state game commission, the Chairman had no authority to promulgate such regulations. This concession implicates issues involving not only Eleventh Amendment immunity, but also Article III standing. See Cressman v. Thompson, 719 F.3d 1139, 1146 n. 8 (10th Cir.2013) (discussing how a state official‘s responsibilities create a “common thread” between the analysis of Eleventh Amendment immunity and Article III standing).
When faced with jurisdictional issues involving Eleventh Amendment immunity and Article III standing, the Court can decide which to address first. See Sinochem Int‘l Co. v. Malay. Int‘l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.‘” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999))). We choose to focus first on Article III standing.
Redressability is the third requirement of constitutional standing, an “essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
At oral argument, the Plaintiff conceded that the Chairman alone could not redress its alleged injury. The Plaintiff‘s concession is tantamount to a concession that it failed to establish Article III standing. See Bronson v. Swensen, 500 F.3d 1099, 1111 (10th Cir.2007) (“The redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute.“).
In light of this concession, the Court dismisses the appeal and remands with instructions to the district court to vacate its judgment and dismiss the action as to the Chairman without prejudice to refiling. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.2006) (“[D]ismissals for lack of jurisdiction should be without prejudice.“).