Amelia Arcamone-Makinano; Craig C. Downer; Tom Gagnon; Tim Savage; Pauline St. Denis v. Deborah Haaland

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
AMELIA ARCAMONE-MAKINANO;
CRAIG C. DOWNER; TOM GAGNON;
TIM SAVAGE; PAULINE ST. DENIS,
Plaintiffs - Appellants,
v.
DEBORAH HAALAND, in her official
capacity as Secretary of United States
Department of Interior; TRACY STONE-
MANNING, in her official capacity as
Director of United States Bureau of Land
Management,
Defendants - Appellees.
No. 22-8006
(D.C. No. 0:21-CV-00196-NDF)
(D. Wyo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Pro se plaintiffs Amelia Arcamone-Makinano, Craig C. Downer, Tom Gagnon,
Tim Savage, and Pauline St. Denis appeal the district court’s dismissal for lack of
jurisdiction. We agree with the district court’s ruling and affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit
April 7, 2022
Christopher M. Wolpert
Clerk of Court
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I. Background
Plaintiffs filed their complaint in October 2021 against the Department of the
Interior (“the DOI”) seeking declaratory and injunctive relief under the
Administrative Procedures Act (“APA”). Specifically, Plaintiffs sought an order
setting aside wild horse and burro gathers 1 by the United States Bureau of Land
Management (“BLM”) from September 20, 2017, to October 26, 2021. See ROA at
54 (district court extrapolates the gathers at issue based on Plaintiffs’ references to
various press releases). Plaintiffs argued the BLM was operating as a “rogue
agency” as the Senate had yet to confirm a director. ROA at 6. Plaintiffs asserted
they were injured by the BLM’s removal of wild horses and burros from Wyoming.
Id. at 10.
The district court dismissed Plaintiffs’ complaint for lack of standing but
included leave to amend. Id. at 26. In its order, the district court requested Plaintiffs
remove all but two names from the case caption, as it appeared from the complaint
only two individuals were “seeking review of the agency action.” Id. at 27. The
court then ruled that of the two proper plaintiffs—Bonifacio Makinano and Amelia
Arcamone-Makinano—neither asserted a cognizable injury under Article III. Id. at
1 “The BLM gathers and removes wild horses and burros from public lands to
protect the health of the animals and health of our nation’s public rangelands.” Wild
Horse & Burro Gathers and Removals, U.S. Dep’t of the Interior, Bureau of Land
Mgmt., https://www.blm.gov/programs/wild-horse-and-burro/herd-
management/gathers-and-removals (last visited April 5, 2022).
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28–29. The district court gave the two remaining Plaintiffs until November 22, 2021,
to file an amended complaint to establish standing. Id. at 29.
Plaintiffs filed an amended complaint on November 16, 2021. But the district
found that jurisdiction was lacking. Id. at 53. In its second order, the district court
determined that none of the Plaintiffs had presented a claim that could be “redressed
by a favorable decision by this Court.” Id. at 55 (quotation omitted). The court
noted that the horse and burro gathers challenged by Plaintiffs had already occurred.
Thus, the district court reasoned that any “action which invalidates past, completed
wild horse gathers/removals will have no effect in the real world.” Id. Plaintiffs’
assertion that a favorable decision would redress their injuries was legally
insufficient to confer standing. Id. at 56. The court also noted that the Plaintiffs
“have not exhausted any administrative remedy for any prior BLM decision” with
one exception. 2 Nevertheless, the district court allowed Plaintiffs another
opportunity to file an amended complaint. Id.
Upon review of Plaintiffs’ third amended complaint, the district court
concluded Article III standing was still lacking. First, only Plaintiff Amelia
Arcamone-Makinano made any attempt to exhaust her administrative remedies.
Second, even if Plaintiffs had exhausted their administrative remedies, their claims
would be moot because Plaintiffs cannot show how “an order invalidating past,
2 Arcamone-Makinano attempted to appeal the BLM’s July 22, 2021, gather
decision, but her appeal was dismissed for failure to demonstrate she had standing to
appeal. ROA at 73–74.
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completed removals will . . . affect the real world.” Id. at 5. The district court
dismissed Plaintiffs’ case for lack of jurisdiction.
Plaintiffs have timely appealed. They now argue that administrative
exhaustion is not required and that mootness does not apply under the capable-of-
repetition-yet-evading-review exception.
II. Discussion
We review a district court’s dismissal for lack of jurisdiction de novo.
Grynberg v. Kinder Morgan Energy Partners, L.P., 805 F.3d 901, 905 (10th Cir.
2015). For a court to exercise jurisdiction, all plaintiffs must have “standing,” that is,
the ability to show a concrete and particularized injury caused by the opposing party
which a court may redress through some remedy. See generally Spokeo, Inc. v.
Robins, 578 U.S. 330 (2016).
First, the district court dismissed all Plaintiffs, except Arcamone-Makinano,
for failure to exhaust administrative remedies. ROA at 5 (citing Farrell-Cooper
Mining Co. v. Dep’t of Interior, 864 F.3d 1105, 1115 (10th Cir. 2017)). Plaintiffs
argue that administrative exhaustion is not required because BLM’s decision to
remove wild horses and burros is a final decision, ripe for review. Aplt. Br. at 10–11.
Plaintiffs misunderstand the exhaustion requirement the district court sought to
enforce. To clearly delineate the requirement here, we begin with the statute
Plaintiffs cite as the basis for their action—Title 16, Chapter 30 of the United States
Code. Under 16 U.S.C. § 1333, the Secretary of the Interior is specifically given
jurisdiction over “[a]ll wild free-roaming horses and burros.” See also 16 U.S.C.
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§ 1332(a) (specifying that the use of “Secretary” in chapter 30 means the “Secretary
of the Interior”). Because the Secretary of the Interior has jurisdiction to act in this
arena, appeals under chapter 30 are subject to the requirements found in 43 C.F.R.
§ 4.21. Under § 4.21(c), plaintiffs were required to exhaust their administrative
remedies. Any plaintiff who has failed to timely seek “a petition for a stay of
decision” has not exhausted applicable administrative remedies. Finally, we turn to 5
U.S.C. § 704, which provides judicial review of agency actions. Under § 704,
judicial review only applies when “there is no other adequate remedy.” By failing to
timely file for a stay of agency action, Plaintiffs have bypassed other adequate
remedies. Thus, judicial review is not available, and the claims of all Plaintiffs other
than Arcamone-Makinano are subject to dismissal for failure to exhaust
administrative remedies.
Second, the district court dismissed Arcamone-Makinano’s claims because she
advanced no legal theory which would support the return of horses previously
removed, nor did she provide any basis for a court order that would “affect the real
world.” ROA at 5. Arcamone-Makinano also failed to demonstrate how the agency
action challenged here would have any impact on future agency action. Id.
Arcamone-Makinano argues in response that this controversy is “live” so long
as there is even one wild horse or burro that “is mis-managed by the BLM, yet
survives and exists on the range; and/or in BLM captivity.” Aplt. Br. at 13. She
provides three examples of “relief sought as live controversies.” Id. But the relief a
plaintiff seeks does not establish a plaintiff’s standing. Instead, a plaintiff must
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demonstrate she has (1) suffered an “injury in fact,” (2) that is “fairly traceable” to
the defendant’s conduct, and (3) redressable by “a favorable judicial decision.”
Spokeo, Inc., 578 U.S. at 338; see also ROA at 26–27 (district court describing
standing requirements).
Under the first standing requirement, Arcamone-Makinano claims the presence
of wild horses and burros enriches the lives of the American people, and injury
occurs “since the very subject of [] interest [wild horses and burros] will no longer
exist.” Aplt. Br. at 15 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 566
(1992)). She also claims “a procedural injury of fact” by the BLM because her
claims never reached officials who were legally empowered to consider them. Id. at
16. Under the third standing requirement, she argues the district court could redress
her injury by setting aside the agency’s removal decision. Id. Finally, Arcamone-
Makinano argues that the district court improperly dismissed her case as moot
because her claim is “‘capable of repetition but evading review’ since the duration of
the challenged action is too short to be fully litigated.” Id. at 14 (citing Murphy v.
Hunt, 455 U.S. 478, 482 (1982)).
Arcamone-Makinano’s appellate arguments fail to establish standing. The
only agency action that Plaintiff has identified is the July 22, 2021, gather decision.
See ROA at 4 (district court explaining that this was the only gather for which
Arcamone-Makinano exhausted administrative remedies). This specific gather has
been completed and is not capable of repetition. Should Arcamone-Makinano seek to
contest future BLM gathers, she must follow the applicable procedures to challenge
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them. Second, none of the injuries identified by Arcamone-Makinano are legally
cognizable. The injury she cites under Lujan—the disappearance of wild horses and
burros on BLM lands—was specifically found in that case to be insufficient. Lujan,
504 U.S. at 567 (“It goes beyond the limit, however, into pure speculation and
fantasy, to say that anyone who observes . . . an endangered species, anywhere in the
world, is appreciably harmed by a single project affecting some portion of that
species with which [s]he has no more specific connection.”). Further, Arcamone-
Makinano cites no legal authority that supports her contention that BLM procedures
were inadequate. Finally, she fails to show how any decision by the district court or
this court would redress her injury. As the district court noted, the invalidation of
“past, completed removals will not affect the real world.” Arcamone-Makinano does
not show how a court ruling regarding the challenged July 22, 2021, gather will have
any real world effect on future agency decisions, or on the return of the horses or
burros removed during that gather.
We AFFIRM the dismissal for lack of jurisdiction.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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